as in persons unmarried The next thing observable from this Canon is That the Makers were of opinion that the marriage with the Consobrina or brother or sisters daughter was equally unlawful as marriage with two sisters and the punishment by the Canon is equal Whence it follows That the Makers of the Canon Apostles or others did in those two Cases follow the exposition of the Karaits and not of the Talmudists The Karaits holding both marriages unlawful but the Talmudists holding neither unlawful by Moses's Law But by what Law Divine the primitive and succeeding Christian Churches conceived themselves obliged as generally they did and do in the matter of marriage to observe the Levitical prohibitions strictly and indispensably is a question of great difficulty But surely they took their measures of those Prohibitions from the Doctrine of the Karaits more than from the Scribes and Pharisees though the last were of more Authority in the Hebrews Commonwealth as appears by that of Matthew cap. 23. v. 2 3. The Scribes and Pharisees sit in Moses his Seat all therefore they bid you observe that observe and do Nor was it without reason done for such of those degrees which are not particularly specified in the Eighteenth of Leviticus for in those the Scribes and Karaits agree but are deduc'd by Argument to be prohibited Seld. Uxor Ebraica l. 1. c. 3 4. Uxor Ebraica l. 1. c. 1 2. The Karaits conclude in their Prohibitions of Marriage from the Scripture it self but the Scribes in theirs from the Tradition and Sanctions of the Elders which Traditions the Christians often heeded not as introduced frequently against Gods Law as appears in the Tradition of Corban against Gods Precept of honouring the Father and Mother Mark 7.11 Mat. 15.3 4 5 6. most signally Nor is it strange that the Opinions of private men prevail above the publick in process of time So happened it in Luther Calvin and others in the beginning of the Reformation whose Opinions in time grew more authentique both in Doctrine and Discipline here and in many other States than the Doctrine of the Church of Rome which was the publique before in both kinds Many like Examples might be given ancient and modern which I purposely omit By a Canon of another very ancient Provincial Council called Concilium Eliberinum under Pope Silvester Three hundred and fourteen years after Christ and before the Council of Nice by the Sixteenth Canon of that Council Si quis post obitum Uxoris suae sororem ejus duxerit per quinquennium à communione abstineat Grot. l. 2. c. 5. p. 256. Sect. 14. By this so ancient Council marrying the wives sister was accompted unlawful but for the same reasons as before they could punish it no otherwise than by wayes in the power of the Church which was to hinder the Offender from Communion for five years And in this Council they followed the exposition of the Karaits also concerning marriages and not of the Talmudists nor is it rational to conceive that Canons then forbidding any sort of marriage proceeded from an Arbitrary power assumed by those who made them as Law makers to which they could no way pretend but because it was unlawful by the Principles and Persuasion of all Christian Believers Vide for these Rules Selden's Uxor Ebraica l. 1. cap. 4 5. By the first Rule is interdicted to a man his near of Kin By the Matrimonial Table of England interdicted The fathers wife The fathers wife or Step-mother f. 11 The mother The mother f. 10 The brothers wife The brothers wife f. 18 The sister The sister f. 16 The sons wife The sons wife f. 15 The daughter The daughter f. 13 By the second Rule is interdicted to a man the near of kin to his near of kin The Grand-fathers wife by the father The Grand fathers wife by the father f. 2 The Grand-fathers wife by the Mother The Grand-fathers wife by the mother f. 2 The Grand-mother by the Father The Grand-mother by the father f. 1 The Grand-mother by the mother The Grand-mother by the mother f. 1 The fathers brothers wife The fathers brothers wife f. 6 The fathers sister The fathers sister f. 4 The mothers brothers wife The mothers brothers wife f. 7 The mothers sister The mothers sister f. 5 The brothers sons wife The brothers sons wife f. 27 The brothers daughter The brothers daughter f. 25 The sisters sons wife The sisters sons wife f. 28 The sisters daughter The sisters daughter f. 26 The sons sons wife The sons sons wife f. 21 The sons daughter The sons daughter f. 19 The daughters sons wife The daughters sons wife f. 22 The daughters daughter The daughters daughter f. 20 By the third Rule is interdicted to the husband his wives near of kin From a woman and her fathers wife Omitted From a woman and her mother From a woman and her mother f. 12 From a woman and her Brothers wife Omitted From a woman and her sister A woman and her sister f. 17 From a woman and her sons wife Omitted From a woman and her daughter A woman and her daughter f. 14 By the fourth Rule is interdicted to a man the near of Kin to his wives near of Kin. A woman and her grand-mother by the mother A woman and her grand-mother by the mother f. 3 A woman and her grand-mother by the father A woman and her grand-mother by the father f. 3 A woman and her fathers brothers wife O. A woman and her fathers brothers wife f. 6 A woman and her mothers brothers wife O. A woman and her mothers brothers wife A woman and her brothers sons wife Omitted A woman and her brothers daughter A woman and her brothers daughter f. 29 A woman and her sisters daughter A woman and her sisters daughter f. 30 A woman and her sisters sons wife Omitted A woman and her sons sons wife Omitted A woman and her sons daughter A woman and her sons daughter f. 23 A woman and her daughters sons wife Omitted A woman and her daughters daughter A woman and her daughters daughter f. 24 A woman and her fathers sister A woman and her fathers sister A woman and her mothers sister A woman and her mothers sister A woman and her grand-fathers wife by the father Omitted A woman and her grand-fathers wife by the mother Omitted These last four Degrees are not mentioned under the fourth Rule by Mr. Selden but referred to by the words reliquis quae supersunt ex iis quae in regula secunda propinquorum sunt propinquae but the two first of these last four are forbid in our Matrimonial Table not the two last as several others of the same kind for the husband is not forbid by the Table the wives of his wives Grand-fathers nor her Fathers nor Brothers wife nor sons wife nor her fathers brothers nor mothers brothers wife nor her brothers sons wife nor sisters sons wife nor her sons sons wife
marriages instanc'd in which were lawful before the Law of Moses and which have not a moral inconsistency with them and so a natural iniquity and which therefore are prohibited among all civilized Nations whether ancient or modern as well as among the Jews for the most part Selden de Jure Gentium In some places some particular examples may be to the contrary for special reasons of Revelation or Prophecy believ'd as the Mother to marry the Son Accordingly it is affirmed by the Statutes of 28 H. 8. c. 7. 25 H. 8. c. 22. That the marriages enumerated in both those Acts to be prohibited by Gods Law were notwithstanding allow'd by colour of Dispensations by mans power The words of the Statute of 28. are after the recital of the prohibited marriages All which marriages albeit they be plainly prohibited and detested by the Laws of God yet nevertheless at some times they have proceeded under colours of Dispensations by mans power which is but usurped and of right ought not to be granted admitted nor allow'd The same words are in the Statute of 25. but instead of All which marriages the words are Which marriages c. The second Question What are the Levitical Degrees I omit because the marriage in question is in no sort in the Degrees Observation And by the way it is very observable That as we take the Degrees of Marriage prohibited by Gods Law to be the Levitical Degrees expressed or necessarily implyed in the Eighteenth of Leviticus upon parity of reason or by Argument à fortiori So there are some in Leviticus which by the Act of 28 H. 8. cap. 7. and otherwise in our enumeration of the Levitical Degrees we admit as absolutely prohibited which in the Levitical Law and in the meaning of the Eighteenth of Leviticus were not absolutely but circumstantially prohibited that is 1. The marriage of a man with his Brothers wife which by 28 H. 8. cap. 7. is absolutely prohibited and commonly receiv'd to be absolutely prohibited by the Levitical Degrees But was not so by the Levitical Law nor by the meaning of the Eighteenth Chapter of Leviticus but when the dead brother left Issue by his wife But if he did not the surviving Brother was by the Law to marry his wife and raise Issue to his Brother This Law was so known that by all the Evangelists a Woman who had Seven Brothers successively our Saviour was asked Whose Wife she should be at the Resurrection 2. The second of this kind is A man is prohibited by 28 H. 8. and by the receiv'd Interpretation of the Levitical Degrees absolutely to marry his Wives sister but within the meaning of Leviticus and the constant practise of the Common-wealth of the Jews a man was prohibited not to marry his Wives Sister only during her life after he might So the Text is Thou shalt not take a Wife with her Sister during her life to vex her by uncovering her shame upon her This perhaps is a knot not easily untied how the Levitical Degrees are Gods Law in this Kingdome but not as they were in the Common-wealth of Israel where first given Third Question The third Question and chiefly concerning the Case in question is Whether Harrison's marriage with his great Vncles that is his Grand-fathers Brothers wife be a marriage by good and sound deduction of Consequence within the Levitical Degrees not particularly expressed For I think it evident it is not among those that are express'd neither in the Greek nor Latin Translations nor in the British names of Kindred where my Fathers Cosen German hath the appellation of my Uncle nor holpen by the gloss of being prohibited in the Twentieth of Leviticus though not in the Eighteenth 1. The word Uncle is an equivocal expression and in several places signifies several Relations as in the British the Father or Grand-fathers Cosen German is accounted an Uncle to the Son 2. The Fathers Brother hath in Latin a specifique term of Relation to the Son or Daughter viz. Patruus But the Stat. of 28 H. 8. c. 7. recites this prohibition to be To marry his Uncles Wife So hath the Mothers brother Avunculus but in the Greek it hath not and is express'd only by the word Kinsman 3. In Junius and Tremellius's Translation done with regard to the Septuagint and the Original the Twentieth of Leviticus verse the twentieth is rendred Quisquis cubaverit cum Amita sua nuditatem patrui sui retexit where expresly instead of and uncovered his Uncles shame it is uncover'd his Uncle his Fathers Brothers shame which makes it the same with the Eighteenth of Leviticus verse the fourteenth I shall therefore first agree That marriage with the Grand-mother Great-grand-mother and with the great-grand-Great-grand-father and so upwards without limit is though not expressed equally prohibited in Leviticus as marriage with the Father Mother or Grand-father to the Son or Daughter So as in the right Ascending Line of Generation there can be no lawful marriage 1. The Father and Mother are the immediate natural Causes of the being of their Children and the Grand-father and Grand-mother are natural mediate causes of their being and so upwards in the right ascending Line interminately for a man could no more be what he is without his Grand-father and Grand-mother and so upwards than without his Father or Mother Therefore they are really Parents and necessary mediate causes of bringing the Children to have being and consequently what is due of reverence or acknowledgment for his being from the Child to Father or Mother is likewise due to those other Relations in the Ascending right Line But the Uncle quatenus Vncle c. doth no more contribute to the natural being of the Nephew or Neece than as if he had not at all been The marriage of the Son or Daughter with Grand-mother or Grand-father and so with any Ancestor Male or Female in the right Ascending Line is after Laws determining the knowledge and reverence due to Parents unnatural and repugnant in it self For there is unnaturalness in Civil things when constituted sometimes Though there be no Master or Servant originally in nature but only parity yet after Laws have constituted those Relations A. cannot at the same time be both Master and Servant to B. there is a repugnancy in the nature of those two Offices to be consistent in the same persons at once A Father or Mother cannot be Servant to their Son or Daughter for under the relation of Father or Mother the Son is to obey them but in that of Servant they to obey him which is repugnant and against the nature of those Relations Vnder the Law it was not forbidden a man to Curse his Servant but Death to Curse his Father or Mother A man might correct and chastise his Servant qua such but penal alike to chastise his Father or Mother in this sense The marriage of the Son with his Mother or the Daughter with her Father are
could not be granted but to one because its nature was confin'd to one A man cannot have an Assise of Common in his own Soyl nor an Admensuratio pasturae and a Common being a thing that lies in grant he cannot grant it to himself and no other can grant it in his Soyl to him So as I conclude one or more may have Solam separalem Communiam from other Commoners but not from the Lord who is no Commoner I cannot discern the use of this kind of Prescription for the Tenants for if it be to hinder the Lord from approving the Common I think they are mistaken The Statute of Merton gives the Owner of the Soyl power to approve Common Grounds appendant Cok. 2. Instit f. 86.475 West 2. c. 46. or appurtenant by Prescription as this is if sufficient Pasture be left for the Commoners without considering whether the Commoners had the Common solely to themselves excluding the Lord or otherwise For as to Approvement which the Statute provided for the Lord was equally bound pasturing with his Tenants or not pasturing with them Therefore the Statute consider'd not that but that the Lord should approve his own ground so the Commoners had sufficient whatever the nature of the Common were To prescribe to have in such a part of the Lord's Lands Communiam for their Cattel excludes not the Lord. To prescribe to have their Pasturam Communem for their Cattel is the same thing and excludes not the Lord. To prescribe to have solam separalem Communiam is naught by Admittance Why then to prescribe to have solam separalem Pasturam Communiam which is agreed to be the same with Communiam is naught also Now to express another way that they have solam separalem Pasturam Common to them or wherein they Common changeth not the matter in the meaning but order of the words The Statute of Merton is cap. 4. 1. The Lords could not make their profit de Vastis Boscis Pasturis Communibus when the Tenants had sufficientem pasturam quantum pertinet ad tenementa sua 2. Si coram Justiciariis recognitum sit quod tantum pasturae habeant quantum sufficit c. 3. Et quod habeant liberum ingressum egressum de tenementis suis usque ad pasturam suam tunc recedant quiet 4. And that then the Lords faciant commodum suum de terris vastis pasturis 5. Et si per Assisam recognitum fuerit quod non habent sufficientem pasturam 6. Tunc recuperent Seisinam suam per visum Juratorum ita quod per Sacramentum eorum habeant sufficientem pasturam 7. Quod si Recognitum sit quod habeant sufficientem pasturam c. Communibus pasturis is once named Pastura sua for Communia sua seven times and the word Communia not named in this Act but where it mentions 8. The Writ of Novel disseisin de Communia pasturae suae which makes eight times 1. The granting solam separalem Pasturam of or in Black-acre may signifie an exclusion only of having Pasture in White-acre or any other place than Black-acre 2. The granting solam separalem pasturam of or in Black-acre may signifie the exclusion of any other person to have Pasture in Black-acre but the Grantee in which sense the word Solam signifies as much as totam pasturam 3. If the Grant be of all the Pasture the Grantor reserves nothing to himself of that which he grants but all passes into the Grantee but if the Grantor restrains the Grant after general words of granting all the Pasture the Restriction is for the benefit of the Grantor Therefore when the Grant is of Solam separalem pasturam of or in Black-acre all the Pasture is supposed to pass without restriction to the Grantee but if words follow in the Grant pro duabus vaccis tantum or pro averiis levantibus cubantibus super certum tenementum that is a restriction for the benefit of the Grantor for a man cannot in the same Grant restrain for his own benefit the largeness of his Grant and yet have no benefit of his restriction The Court was divided The Chief Justice and Justice Tyrrell for the Plaintiff Justice Archer and Justice Wylde for the Defendant Hill 20 21 Car. II. C. B. Rot. 1552. Adjud'gd 23 Car. II. C. B. Gardner vers Sheldon In Ejectione Firmae for Lands in Sussex Vpon not Guilty pleaded IT is found by the Special Verdict that long before the supposed Trespass and Ejectment One William Rose was seis'd of the Land in question in his Demesne as of Fee and so seis'd made his last Will and Testament November the Second 13 Jac. prout sequitur and sets forth the Will wherein among other things As touching the Lease which I have in my Farm called Easter-gate and all my Interest therein I do give and assign the said Lease and all my Interest therein unto my Friends John Clerk George Littlebury and Edward Rose to the intent that with the Rents and Profits thereof they may help to pay my Debts if my other Goods and Chattels shall not suffice And after my Debts paid my will is that the Rents and Profits of the said Land shall wholly go for and towards the raising of Portions for my two Daughters Mary and Katherine for each of them Six hundred pounds and for my Daughter Mary Two hundred pounds more which was given her by my Father her Grand-fathers Will. And those Sums being raised my will is the Rents and Profits of the said Land shall be wholly to the use and benefit of my Son George c. Item I give to my daughter Mary my greatest Silver Bowl Item I give to my daughter Katherine one plain Silver Bowl c. My will and meaning is That if it happen that my Son George Mary and Katherine my daughters to die without Issue of their Bodies lawfully begotten then all my Free-lands which I am now seis'd of shall come remain and be to my said Nephew William Rose and his Heirs for ever They find that the said William Rose the Testator before the Trespass viz. the First of June 14 Jac. died at Easter-gate in the said County of Sussex seis'd as aforesaid That at the time of his death he had Issue of his body lawfully begotten George Rose his only Son and Mary and Katherine his two Daughters That George the Son entred into the Premisses the First of July 14 Jac. and was seis'd prout Lex postulat Then after and before the time of the Trespass viz. June the Eight and twentieth 14 Car. 2. George died so seis'd of the Premisses at Easter-gate aforesaid That at the time of his death he had Issue of his body two Daughters Judith now wife of Daniel Sheldon one of the Defendants and Margaret now wife of Sir Joseph Sheldon the other Defendant That after the death of George their Father the said Judith and Margaret
Seventeenth verse so is his wives sister in the next following Verse Neither shalt thou take a wife to her sister to vex her during her life They add also as prohibited the husband by this Rule His wives fathers wife Her brothers wife Her sons wife From the same Verse they deduce a fourth Rule For these Rules vid. Seldens ux Ebraica c. 4 5. That the Husband is prohibited the near of kin to his wives near of kin as before in the prohibitions of consanguinity for he is literally prohibited the daughter of his wives son and her daughters daughter and by necessary inference also his wives grand-mother by father and mother who are the near of kin to his wives daughter and her mother who are his wives near of kin which they thus strongly prove A man is forbidden to take a woman and her sons daughter or her daughters daughter Therefore if a man marry his wives grand-mother he hath taken a woman and her sons daughter or her daughters daughter which is expresly forbid And in these are express instances given of prohibiting the near of kin to his wives near of kin and are also termed his wives near kinswomen as well as those which strictly are so By the same reason all others near of kin to his wives father brother or sister are prohibited the husband as well as those near of kin to her mother her daughter or son and are equally in terminis within the words his wives near kinswomen of which sort they number Sixteen the same with those prohibited in the second Rule for Consanguinity And it is observable That the Parochial Matrimonial Table in use in England agrees in its prohibitions of marriages which are Thirty in number for Consanguinity and Affinity with the Levitical Prohibitions according to the Doctrine of the Karait Rabbins in the four former Rules But the Karaits prohibit Eleven Degrees of Affinity much of the same nature more than the Table doth in their two last Rules that is The wives fathers wife Her brothers wife Her sons wife Her Grand-fathers wife by the father Her Grand-fathers wife by the mother Her fathers brothers wife Her mothers brothers wife Her brothers sons wife Her sisters sons wife Her sons sons wife Her daughters sons wife And they have Seven other Prohibitions by a fifth Rule whereof our Table receives none And this harmony between our Matrimonial Table and the Karaits exposition of the Levitical Degrees is more perhaps than hath been observed to justifie the persons prohibited by the Table for as many as they are to be the same levitically prohibited To this may be added That by our Vulgar Translation and also by the Septuagint as I conceive the words Neither shalt thou take a wife to her sister to vex her Lev. 18.18 to uncover her nakedness besides the other during her life may be understood to prohibit the husband his wives sister absolutely as well as to prohibit her during his wives life For the words during her life may relate either to the words Thou shalt not take a wife to her sister viz. during her life and in that sense the meaning will be That a man is not prohibited to marry his wives sister absolutely Seld. de Jure naturali Gentium l. 5. c. 10. f. 591. but only until his wives death and is consonant to the exposition of that place in Leviticus by the Scribes and Talmudical Rabbies Or the words may be read thus Thou shalt not take a wife to her sister to vex her during her life or as long as she lives that is to cause jealousie and vexation to thy wife during the whole time of her life which sense and reading squares with the Doctrine of the Karaits upon Leviticus and I think may well be defended by the Septuagint Translation The next thing I shall insist on is The Authority of the Canons of the Apostles so stiled Whether they were re vera the Apostles or not doubtless they are of great both Antiquity and Authority Of those Canons the Eighteenth hath these words as they are published in the Canon Law Can. Apost 18 Qui duas sorores duxit aut consobrinam clericus esse non potest 1. This Canon cannot be understood of having two Sisters for wives at the same time for the Christians never admitted two wives or more at one time and therefore interdicting of two sisters qua sisters at a time was to no purpose 2. The other part of the Canon which is aut consobrinam that is his brother or sisters daughter taken to wife shews the Canon respected only the nearness of Relation That clear'd I reason thus either marrying the wives sister after the wives death was lawful when the Canon was made or unlawful for it relates to an offence done qui duxit not to a new made offence If lawful why then was any punishment namely exclusion from the Clergy inflicted for a lawful Act If it were unlawful in the Apostles time how is it become now lawful It is true as the Learned Grotius observes on this Subject Grot. de Jure Belli l. 2. c. 5. Sect. 14. A marriage may be unlawful in many respects and yet the marriage stand good and the vinculum matrimonii not dissolv'd but punishable some other ways if made unlawful by Humane Authority But this Precept of the Apostles cannot be said of Humane Authority only nor a new Institution as is already noted nor was there any Divorce for Incest among the Iews as is noted after but was always among the Christians in Christian States 2. In that time the Apostles and Primitive Christian Church had no Jurisdiction or Power of Legal Divorce Separation and Bastarding the Issue how incestuous soever the marriage were for those were Acts of Jurisdiction and Coercion and could not be done but by the power of Laws to which the parties were locally subject But the Apostles and Church power was only to forbid them communion with the rest of their brethren Christians and to deny the Offenders such things as were in their power namely to be of the Clergy as was done by this Canon This appears by St. Paul 1 Cor. 5. 1 Cor. 5 1. It is reported there is fornication among you and such fornication as is not so much as named among the Gentiles That one should have his Fathers wife which was an Incest of the highest degree although denoted by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet St. Paul could do no more but direct the Corinthians from Communion with that man and to put away from among them that wicked person He could neither null his marriage nor illegitimate his Issue if he had any nor put the Offender to death according to the Mosaical Law for these are effects of the Civil Power and among the Hebrews no Divorce was for Incest but the marriage was void and the Incest punisht Seld. Ux. Ebraica l. 1. c. 12. f. 87. 89.
nor her daughters sons wife By the fifth Rule is interdicted that two near of Kin marry two other near of Kin. A man and his father from a woman and her daughter O. A man and his father from a woman and her sons wife O. A man and his father from a woman and her brothers wife O. A man and his father from a woman and her sister O. A man and his brother from a woman and her brothers wife O. A man and his brother from a woman and her daughter O. A man and his brother from a woman and her sons wife O. None of those comprised in this fifth Rule are prohibited by the Matrimonial Table but all the persons interdicted by the Doctrine of the Karaits or Scripture Rabbies are also interdicted by the Matrimonial Table of England excepting eleven persons before mentioned not interdicted to the wives husband by the Table who are interdicted by the Karaits enumeration but in this paper are marked with Ciphers as to the Matrimonial Table in the first four Rules of the Karaits Doctrine So as all the persons prohibited in those first four Rules of the Karaits being in number Four and forty are also prohibited by the Matrimonial Table which together with Eleven persons ciphered in the Table as excepted make up the like number of Four and forty from which if you deduct Eleven as excepted there will remain Three and thirty wherein the Table and the Karaits agree And whereas the enumeration of the prohibited marriages to a man are in the Table but Thirty and by consequence so many to the woman for where the man is prohibited to marry the woman the woman must reciprocally be prohibited to marry the man the reason is because in the number of degrees in the Table the Grand-fathers wife the Grand-mother and the wives Grand-mother make but three degrees But in the enumeration of the Karaits the Grand-fathers wife by the father the Grand-fathers wife by the mother the Grand-mother by the father and the Grand-mother by the mother the wives Grand-mother by the father and the wives Grand-mother by the mother are severally enumerated and so make Six persons Three more than are enumerated in the Table and so the Numbers agree The second Assertion And as to the second Assertion That admitting this marriage is not within the Levitical Prohibitions yet the Temporal Courts cannot prohibit the impeaching or drawing it into question by the Spiritual Court There is a great difference between marriage within the Levitical prohibitions and marriage within the Levitical degrees which commonly are taken to be the same For marriage within the Levitical prohibitions was always unlawful to the Hebrews by Gods Law that is the Mosaick Law But marriage within the Levitical degrees was not always unlawful for marriage between persons of the same nearness in Affinity or Consanguinity which only makes the degree was in some case and circumstance unlawful in others lawful So a marriage unlawful and a marriage lawful as the Circumstance varied in the same degree that is the same nearness of Relation The Levitical degrees qua such are set forth by no Act of Parliament but marriages which fall within some of those degrees are said to be marriages within the degrees prohibited by Gods Law by 28. H. 8. c. 7. 28 H. 8. c. 16. Nor is it said in any Act of Parliament That all marriages within the Levitical degrees are prohibited by Gods Law Sir Edward Coke in the first Edition but not in the rest Cok. Litt. f. 235. a. Edit 1. of his Littleton hath I confess these words By the Statute of 32 H. 8. it is declared That all persons be lawful that is may lawfully marry that are not prohibited by Gods Law to marry that is to say that be not prohibited by the Levitical degrees By which he makes all Gods Law by which any marriage is prohibited to be the Levitical degrees which is not so nor doth he constare sibi for in his Comment upon the Statute of 32 H. 8. he saith expresly That marriage made with a person pre-contracted or with a person naturally impotent could not have been impeached in order to a Divorce by reason of the Statute of 32 H. 8. but because such marriages are against Gods Law Yet they are not marriages within the Levitical degrees This marriage in question therefore though by way of Admission not within the Levitical prohibitions if it be within the Levitical degrees at all and whether unlawful or lawful within them and by what Law soever so unlawful or lawful cannot be prohibited to be impeached by the Spiritual Courts by the Statute of 32 H. 8. For that Act prohibits the impeaching of marriages only which are absolutely without the Levitical degrees leaving all other to the Spiritual Jurisdiction as before the Act of 32. Now The Levitical degrees are to be reckon'd by the persons whose carnal knowledge is forbidden a man in respect of Consanguinity or Affinity by the Law of Moses As the carnal knowledge of the mother the fathers wife the sons wife c. in respect of Consanguinity of the wives daughter her daughters daughter her mother c. in respect of Affinity And it is plain the wives sister is prohibited in some respect of Affinity by the words Neither shalt thou take a wife to her sister to vex her Therefore her marriage with her sisters husband is a marriage within the Levitical degrees And agreed on all sides to be unlawful within the degrees if during the wives life but doubted if unlawful after her death Next it is certain the wives husband was restrained from taking his wives sister as he might take another woman that is either during his wives life or after Therefore his marriage with her was within the Levitical degrees But it must be clearly without those degrees if the impeachment of it may be prohibited by the Act of 32 H. 8. This marriage permitted lawful by the Canon Law where used Decret Greg. l. 4. Tit. de Divortiis c. 9. If a man marry his brothers wife none will deny that marriage to be within the Levitical degrees yet in some case that marriage was lawful by the Mosaick Law that is if the deceased brother died issuless But that will not hinder the impeachment of such a marriage by the Statute of 32 H. 8. So if a man marry his fathers brothers wife it is a marriage within the Levitical degrees Yet if the fathers brother were by the half blood only of the mothers side the Rabbies and Scribes held such marriage not unlawful by the Levitical Law but by the Sanctions of the Elders Seld. Uxor Ebraica l. 1 c. 2. f. 8. Many such cases may be found to prove a marriage may be lawful though it be a marriage within the Levitical degrees But none of those can therefore be prohibited to be impeached for they are not marriages without the Levitical degrees as the Statute
requires Accordingly Sir Edward Coke commenting upon the Statute of 32 H. 8. in his second Institutes Cok. Inst 2 f. 683. sets forth a Scheme of the Levitical degrees as necessary to the exposition of that Statute and therein enumerates the marriage of the wives husband with her sister to be both within the Levitical degrees and prohibited by the Eighteenth Chapter of Leviticus One Man was sued before the High Commissioners Mans Case Moore 's Rep. f. 907. a. 33 Eliz. for marrying his wives sisters daughter and a Prohibition was granted as Moore Reports the Case because the marriage was not prohibited by the Levitical Law which was no Reason Crook reports the same Case Crook 33 El. f. 228. Mans Case and that a prohibition was granted but that a consultation was after granted and that a sentence of Divorce was given In reporting this Case of Mans Justice Crook's words are A Consultation was granted because the Prohibition is not to be if the marriage be not within the Levitical degrees Which is a great mistake for if the marriage be within the Levitical degrees no prohibition ought to issue for it ought not to be but when the marriage is without the Levitical degrees Then he adds But here the prohibition was general and therefore not good which is not intelligible whatever he intended by it For by the Libel it must necessarily appear to the Court That the marriage in question was either without the Levitical degrees or within them If it were without the degrees the Court did most unjustly to grant the Consultation for it ought not to have been granted If the marriage were within the Levitical degrees it had been unjust not to grant a Consultation But a Consultation was granted therefore the Court conceived the marriage of the husband with his wives sisters daughter to be a marriage within the Levitical degrees and not without them though it be not specified in the Eighteenth of Leviticus to be prohibited Cok. Litt. Edit 1. f. 235. a. Peirsons Case not Parsons Sir Edward Coke in the first Edition of his Littleton saith That one Peirson was sued in the Ecclesiastical Court for marrying his first wives sisters daughter against the Canons of the Church and that the Court of Common Pleas upon consideration taken of the Statute of 32 H. 8. granted a prohibition because the marriage was not prohibited by the Levitical degrees And these two Cases have been principally insisted on to prove no marriage is within the Levitical degrees if the degree be not particularly mentioned in the Eighteenth of Leviticus But upon occasion of Harrison's Case lately adjudg'd in this Court I made search for the Records of those two Cases but no Record could be found of Man's Case but by Crook a Consultation was granted in it Trin. 2 Jac. Rot. 1032. By the Record of Pierson's Case which was in Trinity 2 Jac. it appears that in Hillary Term following a Consultation was granted which Sir Edward Coke mentions not in his Littleton And in the Second Edition of his Littleton and all the subsequent Editions that Case is omitted Hob. f. 181. a. Howard vers Bartlet Rennington's Case I find likewise in the Lord Hobarts Reports That one Rennington was questioned by the High Commissioners for marrying his wives Neece and was sentenced to Penance and bound to abstain from her Company but they were not divorced à vinculo Matrimonii though there was cause saith the Book and therefore the wife had her Dower nor was there any prohibition in the Case So as by all these Cases the marriage of the husband with his wives sisters daughter is a marriage prohibited within the Levitical degrees for nearness of kindred to the wife Then of necessity the wives sisters marriage who is nearer to the wife with the wives husband must be prohibited à fortiori So I conceive these three Cases full against the Plaintiff It is not strange That at first Prohibitions were granted upon the Statute of 32. in Cases which were not specifically mentioned in the Eighteenth of Leviticus but after discussions of the Levitical degrees upon Consultations pray'd It was manifestly found That divers marriages must be prohibited within the Levitical degrees not nominally expressed in the Eighteenth of Leviticus As the marriage of the father with his own daughter Of the Grandson with his Grand-mother or Grand-fathers wife Of the Son with his Mothers brothers wife Of the Uncle with his brothers or sisters daughter Cok. Inst 2. f. 683 684. which since appears by Sir Edward Coke to be a prohibited marriage and others upon like reason And was resolved in Arch-bishop Laud's time in the Case of Sir Giles Alington who was deeply fined and a Sentence of Divorce given for marrying his brother or sisters daughter which I heard at Lambeth House And no prohibition was granted though moved for as was very probable and commonly reported but we find no Record of Prohibitions denied for there is no Entry made of Motions not granted but of Prohibitions granted there is which makes the granting of a Prohibition of no great Authority unless upon Action brought a Consultation be denied upon Demurrer So of the husband with his wives sisters daughter The third Assertion As to the third Assertion That admitting this marriage be without the Levitical degrees yet it is prohibited by Gods Law and therefore to be impeached notwithstanding the Statute of 32 H. 8. whose words are No marriage Gods Law excepted shall be impeached without the Levitical degrees When an Act of Parliament declares a marriage to be against Gods Law it must be admitted in all Courts and Proceedings of this Kingdom to be so By an Act 25 H. 8. c. 22. intituled An Act declaring the Establishment of the Succession of the Kings most Royal Majesty in the Imperial Crown of this Realm Among sundry marriages declared by that Act to be marriages within the degrees of marriage prohibited by Gods Law the marriage of a man with his wives sister is expresly declared to be prohibited by Gods Law and that a Divorce should be of such marriage if any such were But this Act is expresly repeal'd by an Act in 28 H. 8. c. 7. intituled An Act for the Establishment of the Imperial Crown of this Realm By that Act of 28 H. 8. it is declared in these words And furthermore since many Inconveniences have fallen as well in this Realm as others by reason of the marrying within the degrees of marriage prohibited by Gods Law That is to say The Son to marry the Mother or the Step-mother carnally known by his Father The Brother the Sisters The Father his Sons daughter or his Daughters daughter Or the Son to marry the Daughter of his Father procreat and born by his Step-mother Or the Son to marry his Aunt being his Fathers or Mothers sister Or to marry his Uncles wife carnally known by his Uncle Or the Father to marry his Sons
wherein some marriages were not lawful and others unlawful but the Iudgment of both was meerly Ecclesiastick insomuch That if a man were question'd in the Spiritual Court for a lawful marriage the Temporal Law would afford him no Remedy by Prohibition or otherwise because they neither had any Iurisdiction of that Subject matter nor were presumed to have any knowledge in those Laws by which such matters were to be determined which were the Laws of God contained in the Scriptures and the Canon Law either by Councils or the Popes Decretals admitted in the Kingdom 3. Although the Canon Law had been formerly relaxed and the lawfulness of marriage enlarged by Councils and Decretals as they might be and were so as sundry marriages became lawful which were before Canonically prohibited Thus it happen'd in the Council of Lateran Concil Lateran sub Innocent 3. 1215. Seld. de Jure Natur. f. 608. under Pope Innocent the Third In quo Sancitum prohibitionem Copulae Conjugalis quartum Consanguinitatis Affinitatis gradum non excedere quoniam in ulterioribus gradibus jam non potest absque gravi dispendio hujusmodi prohibitio generaliter observari for before many Degrees beyond the fourth were forbid yet could the Common Law take no notice of this enlargement of lawful marriages nor did not Because the lawfulness still depended upon the Law Divine and the Canon Law as then it stood by that alteration whereof the Secular Judges had no Conuzance or Skill to Iudge nor is there any Prohibition in the Register or elsewhere to be found concerning the questioning of any marriage in the Spiritual Court in all the time preceding the Acts of Parliament nor long after some of them But if at the time of this Council it had been enacted by Parliament That all marriages should be lawful after the fourth Degree from Cosen Germans inclusively then if such marriages had been questioned in the Spiritual Courts a Prohibition had lain because a marriage was questioned which an Act of Parliament had expresly made lawful and whereof the Secular Judges were the most Conuzant But if then by an Act of Parliament all marriages had been made lawful not prohibited by Gods Law or not prohibited in the Old or New Testament though by that Act all marriages prohibited by Canon Law and not by Scripture had been made lawful yet the Temporal Courts had thereby no manner of Iurisdiction in Cases of Marriage because the lawfulness of them were still to be measured by a Law out of their Conuzance that is by the Divine Law And such an Act of Parliament was directory only to the proceeding of the Spiritual Iudges in Cases of Matrimony and no way advancing the Iurisdiction of the Temporal Courts nor enabling them to prohibit the questioning of any marriage The Law and Reason of it being thus stated before the Acts of Parliament of 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. We will see what alteration was induc'd by these respective Statutes in order And first the Act of 25 H. 8. hath these words Since many inconveniences have fallen as well within this Realm as in others by reason of marrying within the Degrees prohibited by Gods Law That is to say The Son to marry the Mother The Son to marry the Step-mother The Brother to marry the Sister The Father to marry his Sons daughter The Father to marry his Daughters daughter The Son to marry his Fathers daughter procreated and born by his Step-mother The Son to marry his Aunt his Fathers Sister or Mothers Sister The Son to marry his Uncles Wife The Father to marry his Sons Wife The Brother to marry his Brothers Wife A man to marry his Wives daughter His Wives Sons daughter His Wives Daughters daughter His Wives Sister Which Degrees 1. are the Degrees expresly mentioned in the Eighteenth Chapter of Leviticus and were for matter and language by this Act first made of Lay Conizance It declares those Marriages to be plainly prohibited by Gods Law that notwithstanding they have sometimes proceeded by colour of Dispensation by mans power which ought not to be For no man can dispense with Gods Law as the Clergy in the Convocation and most of the famous Universities of Christendome have affirmed c. Then it enacts a Separation by definitive Sentence in the Spiritual Courts of the Kingdom without Prohibition from or Appeal to Rome of such marriages The next Act of Parliament concerning marriages prohibited 28 H. 8. c. 7. is 28 H. 8. c. 7. By which Act the former Act of 25. is repeal'd not for the matter of the marriages there prohibited as is said in that Act and therefore In the same words The marriages within those Degrees are recited again and declared to be prohibited by Gods Law But with these differences that in the Prohibition 1. Of the Sons marrying the Step-mother is added Carnally known by his Father 2. In the Prohibition of marrying his Uncles Wife is added Carnally known by his Uncle 3. In the Prohibition of the Father to marry his Sons Wife is added Carnally known by his Son 4. In that of the Brother to marry his Brothers Wife is added Carnally known by his Brother 5. In those of marrying a mans Wives daughter So Sir Edw. Coke referrs the Levitical Degrees to this Act. Second Inst f. 683. or her Sons daughter or her Daughters daughter is added having the Carnal knowledge of his Wife By this Act these Degrees were the second time made of Lay Conizance Another alteration in this Act from the former is That if any man carnally know any woman all persons in any Degree of Consanguinity or Affinity of the parties so offending shall be adjudg'd to be within the said Prohibitions in like manner as if the parties so carnally knowing one another had been married For example If a man carnally know a woman not marrying her he is prohibited to marry her Daughter or Daughters daughter è converso In all other Clauses this Act and the former of 25. are verbatim the same and this Act is in force Observations upon those two Acts 25 28 H. 8. 1. That by neither of these Acts no marriage prohibited before either by Gods Law or the Canon Law differenc'd from it is made lawful 2. That the marriages particularly declared by the Acts to be against Gods Law cannot be dispens'd with but other marriages not by the Acts declared in particular to be against Gods Law are left statu quo prius as to dispensations with them 3. That neither of these Acts gave any Jurisdiction to the Temporal Courts concerning marriages more than they had before but were Acts directory only to the Ecclesiastick proceeding in matters of marriage 4. Neither of these Acts say or declare That the Degrees rehears'd in the said Acts
particular being a part of that Law the Temporal Iudges had no Conuzance after this Act more than before and that this Act excepting in the matter of Marriages to the fourth Degree and onwards which it declares not to be against Gods Law was only directory to the Ecclesiastick Courts as the former Statutes were and gave the Temporal Courts no Iurisdiction to prohibit questioning any Marriage but those of Cosen Germans and onwards But the Judges of the Temporal Courts have long since and often after the Act of 32 H. 8. granted Prohibitions for questioning marriages out of the Levitical Degrees and thereby determined the lawfulness of such Prohibitions So as many Parliaments having past since Prohibitions granted in that kind without complaint of it as is likely but certainly without redress for it It is not safe in a Case of publique Law as this is between the Spiritual and Temporal Jurisdiction to change the receiv'd Law nor do I think it is expected That being taken then as setled That the Spiritual Courts may be prohibited to question marriages out of the Levitical Degrees The first question will be Whether any marriages be against Gods Law but those within the Levitical Degrees for if none else be the Temporal Courts having Conuzance of marriages within those Degrees have consequently Conuzance of all marriages against Gods Law Then must the words of the Statute No marriage shall be impeach'd Gods Law excepted without the Levitical Degrees be understood thus No marriage shall be impeach'd Gods Law excepted viz. his Law of the Levitical Degrees Cok. Litt. f. 235. a. The Authority which makes for this Exposition is Coke in his Littleton where these words are For by the Statute of 32 H. 8. cap. 38. it is declared That all persons be lawful that is may lawfully marry that be not prohibited by Gods Law to marry that is to say that be not prohibited by the Levitical Degrees By which evidently he makes all the Law of God which prohibits marriages to be only the Levitical Degrees But I conceive clearly There are other Laws of God prohibiting marriages to be made and if made warranting their Dissolution and so intended to be by this Statute of 32 H. 8. besides the Law of God in the Levitical Degrees 1. For persons pre-contracted to another are prohibited by Gods Law to marry against such pre-contract 2. Persons of natural Impotency for Generation are prohibited to marry For marriage being to avoid Fornication 1 Cor. 7. v. 2. if it be useless for that purpose as natural Impotency is it is as null So is the Case of Sabell and another Case of one Bury Dyer 2 El. 178 divorc'd at the Suit of their Wives for Impotency 3. Plurality of Wives or Husbands is prohibited by Gods Law the first being not prohibited by the Levitical Degrees And Sir Edward Coke Cok. Mag. Ch. f. 687. a. in the end of his Comment upon this Statute notwithstanding the passage before in his Littleton saith expresly That marriages made with a person pre-contracted or with an Impotent person could not have been question'd in order to a Divorce by reason of this Statute but because such marriages are against Gods Law yet are they all without the Levitical Degrees This is the reason of the words Gods Law except for these marriages may be impeach'd though out of the Levitical Degrees this answers the words or otherwise by Holy Scripture in 28 H. 8. c. 16. also In what sense any Marriages and Copulations of Man with Woman may be said to be Natural and in what not In the first place to speak strictly what is unnatural it is evident that nothing which actually is can be said to be unnatural for Nature is but the production of effects from causes sufficient to produce them and whatever is had a sufficient cause to make it be else it had never been and whatsoever is effected by a cause sufficient to effect it is as natural as any other thing effected by its sufficient cause And in this sense nothing is unnatural but that which cannot be and consequently nothing that is is unnatural and so no Copulation of any man with any woman nor an effect of that Copulation by Generation can be said unnatural for if it were it could not be and if it be it had a sufficient cause There are other Males and Females differing in their Species which never have Appetite of Generation to each other and consequently can never have the effect of that Appetite the kinds whereof are innumerable Between these the acts of Generation are so unnatural that they are impossible and no restraint is necessary to such by Laws or by other Industry Marriages forbidden in Leviticus lawful before Those marriages and carnal knowledge which are amongst the most Incestuous enumerated in Leviticus the Eighteenth were so far from being unnatural in primordiis rerum that they were not only natural but necessary and commanded in that Command of Increase and Multiply that is the Carnal knowledge between Brothers and Sisters For the World could not have been peopled but by Adams Sons going in to their Sisters being Brothers and Sisters by the same Father and Mother or by a more incestuous coupling than that and if such Carnal knowledge had been absolutely unnatural in any sense it had never been either lawful or necessary For whatsoever is simply and strictly unnatural at any time was always unnatural and unchangeable Marriages lawful after restoring the World in Noah After the peopling of the World first from Adam then from Noah and to the time of Moses giving the Levitical Law Many other marriages prohibited in the Levitical Degrees were not only lawful but prosecuted with the most signal benedictions and promises of God Gen. 20. v. 12. As the marriage of Abraham with Sarah who was his Sister that is the daughter of his father but not the daughter of his mother So is his answer to Abimelech and so is the Tradition of her Genealogy But by the Eighteenth of Leviticus the marriage of the Sister by the Father is prohibited to the Son viz. Lev. 18. v. 9. Thou shalt not discover the shame of thy Sister the Daughter of thy Father or the Daughter of thy Mother whether she be born at home or born without c. The next instance is of Amram the Father of Moses and Aaron who married Jochobed his Fathers Sister namely the Sister of Roath And Amram took Jochebed his Fathers sister to his Wife Exod. 6. v. 20. and she bare him Aaron and Moses Which marriage is prohibited in the 18. of Leviticus viz. Thou shalt not uncover the shame of thy Fathers Sister Lev. 18. v. 12. for she is thy Fathers Kinswoman Jacob had two Wives at the same time Leah and Rachel Gen. c. 29. c. being Sisters which is a known Story But by the Eighteenth of Leviticus Thou shalt not take a Wife with her
of the Land Or How could they be Abominations if not prohibited To the 24. and 27. Verses of the Eighteenth Chapter of Leviticus the Answer is That those words referr to those universal laws of the Leges Noachidarum wherein Egypt and Canaan were defiled As Incest with the Mother Soror uterina the Fathers wife and to those horrid offences of lying with man or beast prohibited to all mankind from the beginning And if the Levitical Incest were prohibited to the people of Egypt or Canaan by some extraordinary publication which is not probable it follows not therefore they were prohibited to all mankind the words before referring but to those Nations or to one of them Concerning universal Obligation to the Levitical Prohibitions in Cases of Matrimony and Incest Though it be generally receiv'd by the Christian Churches from the primitive times of Christianity That all Christians are obliged to observe those Prohibitions as such which Human Authority cannot dispense with yet by what Law that Obligation was introduc'd upon the Gentiles converted to Christianity is not known with any satisfactory clearness For 1. It is evident they are not bound by them as they were Laws promulged by Moses to the Hebrews both because a Law deliver'd to a particular man or men or to a particular Nation or Nations is not universal to mankind nor binding them under any reason of a Law for every Precept or Prohibition is but to him or them to whom it is given 2. There being many several States who had their Civil Power and Jurisdiction separate from that of the Jews the promulging of a Law by Moses to the Jews could be no promulgation of it to different Nations under other Civil Powers and though the Jews believed Moses a Messenger of God's and so were bound to what he delivered as by that office other Nations who believed not so of him were not bound by his Testimony had he testified to other Nations the same things to be the will of God to them as he did to the Jews which he never did nor could Nor are other Nations bound to the Decalogue quatenus published by Moses for the same reason but are bound only to what is moral of it 3. Without a sufficient promulgation of a Law it obligeth no more than a Law conceiv'd only in the mind of the Law-giver 4. If Moses his Laws in cases of Incest extended to mankind quatenus reveal'd to the Jews mankind were equally bound to all other the Mosaick Laws whereof no alteration had been made upon the coming of the Messias which is contrary to the perswasion and practise of all the Gentile Nations converted to Christianity at the beginning of it and ever since 5. It is likewise contrary to the determination of the Holy Ghost and the Apostles at the great and first Council of Antioch mentioned in the Fifteenth of the Acts where the Gentiles were directed to observe but four Particulars of the Mosaick Law as necessary for them but upon what reason more necessary than the rest observed by the Christian Iews is not clear 6. It is true That by some of our Statutes many of the Levitical Prohibitions are affirmed to be Gods Law obligative to us yet the Particulars are not therein named the Levitical Prohibitions or to be according to the Mosaick Law and many Levitical Prohibitions are omitted in the enumeration of the marriages against Gods Law made by those Statutes And though such declaration of them to be by Divine Law be concluding as to any gain-saying of ours yet as to others not subject to the same Authority with us such declaration may not only be of no authority but may be accounted sensless and absurd I shall therefore endeavour to shew in what notion some of those Prohibitions may be obligative as universal positive Law and some obliging as moral Laws and so universal and of Divine Obligation the residue obliging not quatenus delivered to the Jews but as the same Laws delivered to them are made universal by a new Obligation 1. And first All those Prohibitions mentioned in the Eighteenth of Leviticus were positive Laws of God to them quatenus they relate to and terminate in degrees of Kindred therein specified and the breach of them punishable by the punishments ordained to that end in the Mosaick Law And in these respects none of them are binding to any other people than the Hebrews 2. Divers of those Prohibitions are likewise of moral prohibition and in that sense binding all men as in the descending and ascending Line of Generation As the Father is prohibited to marry his Daughter his Sons daughter and his Daughters daughter and further the Levitical Prohibition for nearness of Kin and for the respects before extends not But the Father is likewise morally and universally therefore prohibited not only those persons but all others descended from them interminately that is as far as may be known So in the Ascending Line the Son is prohibited his Mother and Grand-mother and no further by the Mosaick Law but morally not only them but all other his great Grand-mothers interminately as far as may be known and so as well as the Son are all Males descended lineally from him The reason of this Moral Obligation is well given by the Learned Grotius in these words Grot. de Jure belli l. 2. c. 5. Sect. 12. pars 2. Ab hac generalitate eximo matrimonia parentum cujuscunque gradûs cum liberis quae quo minus illicita sint ratio ni fallor satis apparet nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludat c. And again Grot. de Jure belli l. 2. c. 5. Sect. 13. pars 3. Ut de parentibus liberis nihil jam dicam quippe quos ut existimo etiam sine expressa lege ratio naturalis jungi satis vetat By the same reason by the Moral Law the Father or Mother cannot be Servants to their Sons or Daughters for as Father or Mothers honour is due to them from those they serve but as Servant honour is due from them to those they serve that is their Children who are their Masters and Superiors As Parents their Children whom they serve ought to obey and reverence them As Servants they are to obey their Children who are their Masters and Superiors and to reverence them So as this office and relation is inconsistent and repugnant between Parents and Children and unnatural therefore morally unlawful 3. There are other of the Levitical Prohibitions that by the constant tradition of the Jews were delivered to mankind in the beginning and which they term praecepta Noachidarum to which they conceiv'd all the sons of Adam obliged and these Precepts seem warranted by several
be of an universal Prohibition of Carnal knowledge in all the Degrees there specified though such Prohibitions might be to the particular Nations mentioned in Leviticus and Deuteronomy to be therein defiled but that is most improbable too 2. The defiling there mentioned may be intended of Sodomy Buggery Incest with the Mother the Fathers wife the Soror uterina Adultery agreed by the Jews to be universally prohibited which they term Leges Noachidarum and which are the Offences last mentioned in the Eighteenth of Leviticus before vers 24. before cited 3. The marriages of many persons eminently in Gods favour before the Mosaical Law as Abrahams marrying Sarah his Sister by the Father Jacob's marrying two Sisters Amram's Moses his Father marrying Jochebed his Fathers Sister Marrying the Brothers wife as in the Story of Onan before the Mosaical Prohibitions Nachor's Abrahams Brother marrying Milcah his Brother Harams daughter and the strong Opinion that Judah himself married Thamar his Daughter in law as well as he had Coition with her c. permits not to believe many Copulations mentioned in Moses his Prohibitions to have been before universally prohibited 4. If among the Nations cast out before the Jews as defiled in these things Humane Laws had been made among them as in every Nation of the Gentiles was usual to prohibit some marriages for nearness of Cognation and those Nations had not observed but transgressed their own Laws as is usual in all places to offend against their known Laws God might therefore punish them as daily he doth and did always the Gentiles for not keeping their own Laws vid. Paul to the Romans per totam Epistolam 5. Though men cannot justly make people suffer but for transgressing Laws which they might have kept yet the Numen who is just when he exerciseth absolute Dominion over his Creatures may inflict sufferings upon a Nation for doing things he likes not and therefore call such things abominable as there is an Ill which begets the making of Laws to obviate and prevent it as well as an Ill in transgressing Laws when they are made And he which doth contrary to natural prudence and his own perswasion of what is best may incur the displeasure of the Numen as well as for transgressing a Rule or Law which he might have kept And though this way of punishing is not proper to men it is as proper as the other to the Deity to whom mans thoughts purposes ends and means are open That the abstaining from Incestuous marriages according to Moses his Law was a part of the Mosaical Law precepted to be observed by the Gentiles at that Council I think can be little doubted and not the abstaining from what is accounted simple Fornication which even by Moses his Law was often satisfied by marriage of the woman and often by mony But it seems difficult How that Precept or the observance of it could either cause or preserve Communion between the Jews and the Gentiles as those others did concerning abstinence from Meats prohibited to the Jews and not to the Gentiles For first Alliance and Affinity between the Jews and the Gentiles before and by the Law of Moses was absolutely forbid though the Gentiles as many of them did for many prohibited marriages had abstained by their own peculiar Laws from all those marriages prohibited the Jews Therefore their Communion by Alliance or Affinity had received no advancement by abstaining from Mosaical Incests in that respect But besides the general Interdict of Alliance with the Gentiles the Iews were interdicted in a special manner any alliance or conversation with the Nations whose Land they were to enjoy and inherit and who were cast out before them as being defiled in all those Copulations of Kindred prohibited the Jews Lev. 18. v. 24 c. as appears from Verse the Four and twentieth to the end of the Eighteenth Chapter of Leviticus and which Iniquity was visited by making the Land vomit out the Inhabitants 2. Verse the Thirtieth the Jews are charged not to commit any one of those abominable Customes committed before them and if they did they were punished by death as appears Leviticus the Twentieth This was enough to cause a particular detestation and abhorrency in the Jews of such who accustomed themselves to such marriages or any of them above others of the Gentiles 3. The Nations cast out of their Land for committing those things Deut. 7. v. 1. appear to be Seven The Hittite the Girgashite the Amorite the Canaanite the Perizzite the Hivite and the Jebusite whose names they were commanded to destroy from under Heaven Verse the Four and twentieth of that Chapter accordingly it appears they did so Deuteronomy the Second and Third Chapters The Amorite and those under Og King of Bashan were Man Woman and Child destroyed Chapter the Seventh Verse second and third no Covenant was to be made with nor marriage between them Of the Cities of these people which the Lord thy God giveth thee for an inheritance Deut. 20. Thou shalt save alive nothing that breatheth but thou shalt utterly destroy them which shews their destruction was not for transgressing a Law given them by God as their Law maker for they were destroy'd which had not offended against the Law as well as they which had But it was an Act of Gods absolute dominion over his Creatures as the Potter may do what he listeth with his Clay which must not say why hast thou made me thus Whereas they had differing commands concerning Cities far from them As 1. To offer them peace 2. If they accepted it to make them Tributaries 3. If they refused it to kill the Males with the Sword but to spare the women and children Deut. 20. from verse 10. to vers the Fifteenth It is hence not improbable the Jews had great aversness to the Communion of such whose mixtures in marriage were alike to these Nations though they were not of these Nations for the vengeance ordained against them appears not to be for other causes than for those incestuous Copulations which were not common to all other the Nations of the Gentiles as well as to them that is Idolatry And for this reason The Apostles might direct the Gentiles to abstain from marriages that would render them odious to the Jews and which the Christians ever after continued as most conformant to Gods will in the fitness of marriage But this is not reason enough to make all these marriages to be prohibited to the Gentiles absolutely by Divine Institution as unholy in themselves without relation to the communion with the Jews so as to make it absolutely unlawful to change them by any Humane Law upon any occasion But it is never prudent to change a Law which cannot be better'd in the subject matter of the Law Accordingly if we examine well perhaps dispensations will be found given by the Christian Churches for marriages within most of those Mosaical Degrees and particularly in those
unnatural For as a Husband to her the Son is both to command and correct the Mother as his wife but as a Son to be commanded and endure her Correction as Mother So between the Father and Daughter there is a Reverence from the Daughter to the Father inconsistent with the parity between man and wife and Laws give often a power over the daughter which they forbid over the wife And the reverence and obedience from the Grand-child to the Grand-mother in what degree soever is the same as to the Mother and the same consequences follow For if the Mother or Father have power absolute or in tantum over the Son or Daughter to create reverence to them the same hath the Grand-mother or Grand-father and so forwards For if B. the Father have absolute or qualified power over A. the Son and C. the Grand-father hath the same over B. the Father then hath C. the Grand-father the same over A. the Son not immediately but mediately by the Father To this purpose the Case put in Platt's Case in the Com. is most opposite A woman Guardian of the Fleet marries her Prisoner in Execution he is immediately out of Execution for the Husband cannot be Prisoner to his Wife it being repugnant that she as Jaylor should have the Custody of him and he as Husband the Custody of her To this purpose also it is remarkable what that great Scholar and Lawyer Hugo Grotius hath Eximo ab hac generalitate matrimonium parentum cujuscunque gradus cum liberis quae quo minus licita sint ratio ni fallor satis apparet Grot. de Jure belli l. 2. c. 5 Paragr 12. Nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludat But as to other Relations the same Author in the same place De Conjugiis eorum qui sanguine aut affinitate junguntur satis gravis est quaestio non raro magnis motibus agitata nam causas certas ac naturales cur talia conjugia ita ut legibus aut moribus vetantur illicita sint assignare qui voluerit experiendo discet quam id sit difficile imo praestari non possit I add only That as the mutual duties of Parents and Children consist not with their marrying one another so the Procreations between them will have a necessary and monstrous inconsistence of Relation For the Son or Daughter born of the Mother and begot by the Son as born of the mother will be a Brother or Sister to the Father but as begot by him will be a Son or Daughter So the Issue procreate upon the Grand-mother as born of the Grand-mother will be Uncles or Aunts to the Father as begot by the Son they will be Sons or Daughters to him and this in the first degrees of Kindred Besides by the Laws of England Children inherit their Ancestors without limit in the right ascending Line and are not inherited by them But in the Collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle In the Civil Law the Agnati viz. the Father or Grand-fathers Brother are loco parentum and the Canons borrow it thence but that is because they were Legitimi Tutores or Guardians by Law to their Nephews with us the Lord of whom the Land is held is Guardian or the next of Kin to whom the Land cannot descend and by the same reason they should be loco parentum In a Synod or Convocation holden in London in the year 1603. of the Province of Canterbury by the Kings Writ and with Licence under the Great Seal to consent and agree of such Canons and Constitutions Ecclesiastick as they should think fit Several Canons were concluded and after ratified under the Great Seal as they ought to be among which the Ninety ninth Canon is this No person shall marry within the Degrees prohibited by Gods Law and expressed in a Table set forth by Authority Canons 1 Jac. 1603. Can. 99. in the year of our Lord 1563. and all marriages so made and contracted shall be adjudg'd incestuous and unlawful And the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish This Table was first publisht in Arch-bishop Parker's time in 1563. I know not by what Authority then and after made a Canon of this Convocation with the Kings Licence under the Great Seal and so confirm'd and since continually set up in Parishes By which expresly the Degrees by Gods Law prohibited are said to be expressed in that Table and is the same as No person shall marry within the Degrees prohibited by Gods Law and which are expressed in the Table Any other Exposition of the Canon will be forc'd and violent and the Table set up for the Peoples direction from Incest but a snare and a deceit to them And this marriage is not prohibited in that Table There is an Objection That by the Canon and Civil Law this Degree of Marriage in question is prohibited It is true but by the Statute of 32 H. 8. c. 38. All Prohibitions by the Canon or Civil Law quatenus Canon or Civil Law are wholly excluded and unless the marriage be prohibited by the Divine Law it is made lawful But suppose the Canon or Civil Law were to be taken as a measure in the subject of marriage of what were lawful With the Canon Law of what time would you begin for it varies as the Laws Civil of any Nation do in successive Ages Before the Council of Lateran it was another Law than since for marriages before were forbid to the Seventh Degree from Cosen Germans inclusively since to the Fourth Every Council varied somewhat in the Canon Law and every Pope from the former and often from himself as every new Act of Parliament varies the Law of England more or less and that which always changeth can be no measure of Rectitude unless confin'd to what was the Law in a certain time and then no reason will make that a better measure than what was the Law in a certain other time As the Law of England is not a righter Law of England in one Kings Reign than in another yet much differing Nerva forbad it Heraclius permitted it Grot. Annot. 167. So doth the Civil Law before the marriage of Claudius the Emperour with Agrippina his Brothers daughter the marriage of the Uncle with his Neece was not allowed among the Romans But by a Law of the People and Senate upon that Occasion such marriages were permitted Many others of the like kind Nor did the Canon Law and perhaps truly take more persons to be prohibited within the Levitical Degrees than are there expressed What else is the meaning of that place
during the wives life which was not to be intended 15 El. Moore f. 123. n. 265. Another Case I shall make use of is a Case Paschae 15 El. A man seis'd of a Messuage and of divers Lands occupied with it time out of mind leased part of it to a stranger for years and after made his last Will in these words I will and bequeath to my wife my Messuage with all the Lands thereto belonging in the occupation of the Lessee and after the decease of my Wife I will that it with all the rest of my Lands shall remain to my younger Son The Question in that Case was Whether the wife should have the Land not leased by implication for her life because it was clear the younger Son was to have no part until the death of the wife And the Lord Anderson at first grounding himself upon that Case in Brook as it seems of 29 H. 8. twice by Brook remembred in his Title Devise n. 28. and after n. 52. was of opinion That the wife should have the Land not leased by implication But Mead was of a contrary opinion for that it was expresly devis'd That the wife should have the Land leas'd and therefore no more should be intended to be given her but the Heir should have the Land not in lease during the wives life To which Anderson mutata opinione agreed Hence perhaps many have collected That a person shall not take Land by Implication of a Will if he takes some other Land expresly by the same Will but that is no warrantable difference For vary this Case but a little as the former case was varied That the Land in lease was devis'd to the wife for life and after the death of the wife all the Devisors land was devis'd to the youngest Son as this Case was and that after the death of the wife and the youngest son the Devisors Heir should have the Land both leas'd and not leas'd it had been clear that the Heir exactly according to the Case of 13 H. 7. should have been excluded from all the Land leas'd and not leas'd until after the death of the wife and the younger son And therefore in such case the wife by necessary implication should have had the Land not leas'd as she had the Land leas'd by express devise and that notwithstanding she had the leas'd Land by express devise for else none could have the Land not leas'd during the wives life Horton vers Horton 2 Jac. Cr. f. 74. 75. Wadham made a Lease for years upon condition the Lessee should not alien to any besides his Children The Lessee deviseth the term to Humphrey his son after the death of his wife and made one Marshall and another his Executors and died The Lessor entred as for breach of the Condition supposing this a devise to the wife of the term by implication The opinion of the Judges was It was no devise by implication but the Executors should have the term until the wives death but it was said If it had been devis'd to his Executors after the death of his wife there the wife must have it by implication or none could have had it But Popham denied that Case because if the devise had been to the Executors after the wives death the Executors should when the wife died have had the term as Legatees but until her death they should have it as Executors generally which by all opinions fully confirms the difference taken That a devise shall not be good by implication when the implication is not necessary and in this Case all agreed the Case in 13 H. 7. to be good Law because the implication there was necessary Edward Clatch being seis'd of two Messuages in Soccage tenure Dyer 15 16 El. 4. 330. b. and having Issue a Son and two Daughters by three several Venters His Son being dead in his life time and leaving two Daughters who were Heirs at Law to the Father devis'd one of the Messuages to Alice his Daughter and her Heirs for ever and the other to Thomazine his Daughter and her Heirs for ever with limitation That if Alice died without Issue living Thomazine Thomazine should then have Alice's part to her and her Heirs and if Thomazine died before the Age of Sixteen years Alice should have her part in Fee also And if both his said Daughters died without Issue of their bodies then the Daughters of his Son should have the Messuages The youngest daughter of the Testator died without Issue having past her Age of sixteen years It was resolv'd That the words in the Will If his two Daughters died without Issue of their Bodies did not create by implication cross remainders in tayl to the Devisors Daughters whereby the eldest should take the part of the youngest but her part should go to the Heirs at Law according to the Limitation of the Will and those words were but a designation of the time when the Heirs at Law should have the Messuages Note That one of the Daughters dying without Issue the Heirs at Law by the Will had her part without staying until the other Daughter died without Issue 1. From these Cases I first conclude That only possible implication by a Will shall not give the Land from the right Heir but a necessary implication which excludes the right Heir shall give it 2. That the difference taken is not sound That one shall not take by implication of a Will any Land where the same person hath other Land or Goods expresly devis'd by the same Will for if the implication be necessary the having of Land or any other thing by express devise will not hinder another taking also by implication as appears in the three Cases by me made use of viz. 13 H. 7. 3 E. 6. 15 Eliz. cited out of Moore 3. Whether any thing be given expresly by Will or not a possible Implication only shall not disinherit the Heir where it may as well be intended that nothing was devis'd by implication as that it was But if any man think that to be material in this Case the Daughters had respective Portions expresty devis'd them viz. Six hundred pounds to each of them and therefore shall not have the Land also by implication only possible to disinherit the right Heir Quest 2 For the second point These words My Will is if it happen my Son George Mary and Katharine my Daughters to dye without Issue of their Bodies lawfully begotten then all my Free-lands shall remain and be to my said Nephew William Rose and his Heirs for ever are so far from importing a devise of the Land to the Son and Daughters for their lives with respective Inheritances in tayl by any necessary implication that both Grammatically and to common intendment they import only a designation and appointment of the time when the Land shall come to the Nephew namely when George Mary and Katherine happen to dye Issuless and not before And where
Conizance in matrimonial matters to the Temporal Courts but had been only directory to the Courts which had the Conizance and if any Iudgment had been given amiss in them it was to be rectified by appeal according to those Statutes or by Commissions of Delegacy But I then said That since 32 H. 8. many Prohibitions have been granted to the Spiritual Courts concerning marriages without the Levitical Degrees in several Ages And that therefore in a Case concerning the Extent of the Spiritual and Temporal Jurisdiction and after so many Parliaments wherein no complaint hath been made or certainly no redress given it cannot be expected we should against so many judicial Presidents take upon us to alter the Law so long practiz'd specially after Harisons Case in which all the Iudges were advised with Therefore taking it for granted That the Temporal Courts can prohibit the impeaching of marriages without the Levitical Degrees by the Statute of 32 H. 8. for before no Prohibition was ever granted in that kind The Question is Whether the marriage of the Husband with his Wives Sister after the Wives death be such a marriage as by the Act of 32. the Temporal Courts may prohibit the impeaching or drawing it into question in the Spiritual Courts in order to a Divorce or separation of the parties And I conceive they cannot for these Reasons 1. I affirm this marriage to be expresly prohibited within the Eighteenth of Leviticus and then it must be within the Levitical Degrees 2. If it were not so prohibited yet it is not a marriage without the Levitical Degrees but within them and therefore no Prohibition will lye for impeaching it for marriages not to be impeached must be without the Degrees and for that some marriages within the Degrees may be lawful 3. That if this marriage be without the Levitical Degrees yet it is a marriage prohibited by Gods Law and therefore to be impeached notwithstanding the Statute of 32. whose words are No marriage Gods Law excepted shall be impeached without the Levitical Degrees As to the first 1. When a Law is given to any people it is necessary that it be conceiv'd and publish'd in words which may be understood for without that the Law cannot be obey'd and a Law that cannot be obey'd is no Law 2. The meaning of words in any Law are to be known either from their use and signification according to common acceptation before the Law made or from some Law or Institution declaring their signification 3. The Interdicts of marriage and carnal knowledge in the Levitical Law were directed formally to the men not to the women who are interdicted but by consequent for marriage and carnal knowledge being a reciprocal Act and impossible to be done by one party it follows that the woman being interdicted to the man the man must also consequently be interdicted to the woman for a man cannot marry a woman and she not marry him 4. The Reasons why the Interdict is ever formally to the man are 1. Because in the prohibited Act of uncovering the nakedness the man properly is the primary Agent and the woman but patient and consenting for a woman can no more uncover the mans nakedness naturally than she can ravish him 2. The man after marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him but the womans consent to have her nakedness uncovered is forbid and makes her consenting an equal offence with the mans for by the Twentieth of Leviticus the man and woman offending in that kind were to dye which had not been but that both were Transgressors 5. The first and most express Law prohibiting the carnal knowledge of certain persons in the Eighteenth Chapter of Leviticus Vers 6. is None of you shall approach to any that is near of kin to him to uncover their nakedness 6. Near of kin are words of relation and have no positive certainty nor are intelligible but relatively to remoter kin for all the posterity of Adam being of kin in some degree A person of kin to a man within two Degrees is nearer of kin than one within four Degrees and one within four Degrees nearer than one within eight Degrees and so interminately Whence it follows That the Law before cited Not to approach to any near of kin to uncover their nakedness had been useless without knowing the persons accepted and accounted to be the near of kin Those persons were known to the Jews to whom the Law was given by the Law it self declaring them precisely Lev. 21.1 2. The words are There shall none be defiled for the dead among his people but for his kin that is near unto him that is for his mother and for his father and for his son and for his daughter and for his brother and for his sister And without this declaring Law it is evident that these persons are a mans next of kin in the ascending and descending and in the collateral line And they which are next of kin to him must be a mans near kin necessarily although others more remote may be also denominated a mans near kin by custome of speech Vpon this foundation all the Prohibitions concerning incestuous marriages are grounded by the Eighteenth Chapter of Leviticus The first and most general Levitical prohibition in that kind is in the same words as this Law prohibiting being defiled for the dead but for a mans kin that is near unto him None of you shall approach to any that is near of kin to him to uncover their nakedness And after Instances are given of the persons comprehended under those words Near of kin as is done in the other Law concerning the dead As in the father the brother the son whose nakedness appears to consist and terminate in their Wives For a man cannot otherwise uncover the nakedness of a man but in his wife which is the mans nakedness as appears in the Text and those are three of the persons comprehended under the words near of kin The nakedness of thy father shalt thou not uncover Lev. 18. v. 7. v. 8. which is explained as before in the next verse The nakedness of thy Fathers wise shalt thou not uncover It is thy Fathers nakedness Thou shalt not uncover the nakedness of thy daughter in law v. 15. she is thy sons wife The nakedness of thy brother wife shalt thou not uncover v. 16. it is thy brothers nakedness Which is the same as to say Thy father thy brother thy son are thy near of kin therefore thou shalt not uncover their nakedness by uncovering the nakedness of their wives Then as to the nakedness of the females terminating in their own persons The nakedness of thy mother shall thou not uncover v. 7. v. 9. she is thy mother The nakedness of thy sister the daughter of thy father or the daughter of thy mother thou shall not uncover which is to
say Thy mother and sister are thy near of kin therefore shalt thou not uncover their nakedness So express Instances are made in five of the six sorts of persons declared to be near of kin But as Instance is made in the daughter though she be as immediately as the son near of kin to the father and eminently comprehended under that Law of not approaching to a mans near of kin and by all both reason and exposition within it which made Sir Edward Coke Cok. Inst 2. f. 683. by mistake in his Table of Prohibited Marriages in his Comment upon the Statute of 32 H. 8. to set down the daughter as nominally prohibited by the Eighteenth of Leviticus and then in the Margent to say those Degrees are truly set down in the Statutes of 25 28 H. 8. whereas the daughter is mentioned in neither of them nor in the Eighteenth of Leviticus The use I make of this is to shew That the extent of the prohibiting Law is not to be measured from the persons instanced in Leviticus for should it be so estimated the Law would be narrower than it self the Instances comprehending only five prohibited persons But the Clause of not approaching to a mans near of kin comprehending six and so the Law would be inconsistent with it self The second General Law Besides those six Degrees of persons before mentioned who are past question a mans next of kin and consequently his near of kin and declared by the Levitical Law so to be there are other degrees of kin prohibited which are also undoubtedly a mans next of kin after the former six kinds and are denoted also in Leviticus as a mans near kin and who are instanc'd in as and indeed are the next and so the near of kin to a mans near of kin as before and prohibited for that reason beyond which kindred no prohibition is found in Leviticus Whence a seond general Law is deduced from Leviticus the Eighteenth That no man shall discover their nakedness who are the near of kin to his near of kin or of them who are propinqui propinquis suis which they draw from these words Lev. 18. v. 12. Thou shalt not uncover the nakedness of thy fathers sister she is thy fathers near kinswoman v. 13. v. 14. v. 10. Nor of thy mothers sister for she is thy mothers near kinswoman Nor of thy fathers brother which must be for the same reason he being his fathers near kinsman Nor of thy sons daughter or of thy daughters daughter for the like reason they being near of kin to his son and daughter as his son and daughter are to him All which are instanced in in Leviticus as prohibited for that reason and many others are of the same relation not instanced in as a mans mothers brother his fathers father his mothers father his fathers mother his mothers mother his brothers daughter his sisters daughter and others who are equally near of kin to his near of kin as his immediate near of kin are to himself and were never doubted to be prohibited within the Levitical Degrees by any Whence also it appears That the Instances given in this second Rule drawn out of Leviticus are not the Law it self nor comprehend the extent of it but are examples only of another or second degree of kindred comprehended under the general Law of not approaching to those near of kin and which are particularly specified by the Karait Rabbies That all persons near of kin strictly to any the six persons first interdicted are likewise interdicted by that Law None shall approach to any near of kin to him to uncover their nakedness within the meaning of the words near of kin is further proved by these Reasons 1. When the Law hath denominated the Relations to be accompted near of kin as is done in this case none comprised under that denomination can be more or less near of kin than others so denominated As when the Law denominates a man an Attorney Serjeant or the like no Attorney is more or less an Attorney and no Serjeant more or less a Serjeant than any other Attorney or Serjeant And so is it in all orders of men of the same denomination Therefore it appearing by the Law to be the reason of interdicting a person because near of kin to a mans father or mother and none of those six Relations being more or less near of kin than the other the nearness of kin to any of them is as much reason of interdicting as the nearness of kin to the father or mother or any other of them instanced in Another reason is because the Law forbidding the approach to any near of kin forbids in that expression the near of kin to any of the six persons strictly denominated near of kin as well as those six persons themselves For in Leviticus a man is interdicted his wives daughter and his wives sons daughter and her daughters daughter because they are his wives near kinswomen whereas her daughter only is the near kinswoman to the wife in the strictest sense and the other but near of kin to her near of kin that is to her daughter yet all of them are said to be the wives near kinswomen So Thou shalt not uncover the nakedness of thy mothers or fathers sister Lev. 20.19 for he uncovereth his near kin before they were said to be the near kin to the mother and father and here to be the sons near kin The third General Law The third prohibiting Rule drawn out of Leviticus is A man is prohibited to take a wife and any other near of kin to her which is grounded upon these words Lev. 18.17 Thou shalt not uncover the nakedness of a woman and her daughter neither shalt thou take her sons daughter or her daughters daughter to uncover their nakedness for they are her near kinswomen None of the wives near kinswomen are here clearly instanced in but her daughter not her mother not her sister who are equally her near kinswomen and comprised in this prohibition and in the reason of it as well as the daughter For the reason of prohibiting these persons instanced in being 1. Because they are the wives near kinswoman it is evident that the wives mother and the wives sister are by the same reason prohibited for they are her near kinswomen in the strictest sense of nearness His wives daughter is literally forbidden the husband and so is but not so obviously his wives mother For example If he marry the mother the words forbid him her daughter and if he marry the daughter he is prohibited the mother else he would marry a woman and her daughter which the words forbid and accordingly by the Karaits Doctrine grounded upon clear exposition as I conceive of the Levitical prohibitions the husband is forbidden as near of kin to his wife Her mother Her daughter Her sister And as the mother and daughter of his wife are expresly forbidden him in that
the Remainder because it is a Collateral warranty but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder as hath been clear'd but leaves it as at Common Law but it doth restrain his warranty from barring him in the Reversion as shall appear There is one Case in Littleton remarkable for many Reasons where the warranty of Tenant in tayl is lineal and not collateral to the person in Remainder and therefore binds not if the Case be Law as may be justly doubted as Littleton is commonly understood Litt. Sect. 719. Land is given to a man and the heirs males of his body the Remainder to the heirs females of his body and the Donee in tayl makes a Feoffment in Fee with warranty and hath Issue a Son and a Daughter and dieth this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder unless the Brother dieth without Issue male because she claimeth as Heir female of the body of her Father engendred But if her Brother release to the Discontinuee with warranty and after dye without Issue this is a collateral warranty to the daughter because she cannot conveigh the right which she hath to the Remainder by any means of descent by her brother 1. Here the warranty of the Father Donee in tayl is but lineal to the Daughter in Remainder in tayl But she claims saith the Book her Remainder as heir female of the body of the Donee in tayl which differs the Case from other persons in Remainder of an Estate tayl But of this more hereafter 2. And by the way in this Case Sir Edward Coke though he hath commented upon it hath committed an over-sight of some moment by using a Copy that wanted a critical emendation For where it is said That the warranty of the Father is but lineal to the Daughter to demand the Land by a Formedon in the Remainder unless the Brother dye without Issue-male because she claims as Heir female of the body of her Father By which reading and context the sense must be That if the Son dye without Issue male of his body then the warranty of the Father is not lineal to the Daughter cujus contrarium est verum for she can claim her Remainder as heir female of the body of her Father and thereby make the Fathers warranty lineal to her but only because her Brother died without Issue male That which deceived Sir Edward Coke to admit this Case as he hath printed it was a deprav'd French Copy thus Si non frere devyast sans Issue male which truly read should be Si son frere devyast and the Translation should be Not unless the Brother dye without Issue male but If her Brother dye without Issue male Another reason is that his French Copy was deprav'd Because the French of it is Si non frere devyast sans Issue male which is no Language for that rendred in English is Vnless Brother dye For it cannot be rendred as he hath done it unless the Brother dye without the French had been Si non le frere devyast and not Si non frere devyast Sir Edward Coke's first Edition of his Littleton and all the following Editions are alike false in this Section I have an Edition of Littleton in 1604. so deprav'd which was long before Sir Edward Coke publisht his but I have a right Edition in 1581. which it seems Sir Edward Coke saw not where the Reading is right Si son frere devyast sans Issue male Therefore you may mend all your Littletons if you please and in perusing the Case you will find the grossness of the false Copies more clearly than you can by this my Discourse of it And after all I much doubt whether this Case as Littleton is commonly understood that is That this lineal warranty doth not bind the Daughter without Assets descending be Law my Reason is for that no Issue in tayl is defended from the warranty of the Donee or Tenant in tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law And no Estate in Remainder of an Estate tayl that is of a Fee Conditional could be at Common Law All Issues in tayl within that Statute are to claim by the Writ there purposely formed for them which is a Formedon in the Descender not in Remainder 3. A third thing to be cleared is That the Statute de Donis did not intend to preserve the Estate tayl for the Issue or the Reversion for the Donor absolutely against all warranties that might barr them but only against the Alienation with or without warranty of the Donee and Tenant in tayl only for if it had intended otherwise it had restrain'd all Collateral warranties of any other Ancestor from binding the Issue in tayl which it neither did nor intended though well it might such warranters having no title 4. The Statute de Donis did not intend to restrain the Alienation of any Estates but Estates of Inheritance upon Condition expressed or implyed such as were Fee-simples Conditional at Common Law And therefore if Tenant for life aliened with warranty which descended upon the Reversioner such Alienation or Warranty were not restrained by this Statute but left at Common Law 1. Because the Estate aliened was not of Inheritance upon Condition within that Statute 2. He in the Reversion had his remedy by entring for the forfeiture upon the Alienation if he pleas'd which the Donors of Fee-simples Conditional could not do These things cleared I think it will be most manifest by the Statute de Donis and all ancient Authority That the warranty of Tenant in tayl though it be a Collateral warranty will not barr the Donor or his Heir of the Reversion After the Inconvenience before recited That the Donees disinherited their Issue against the form of the Gift then follows Et praeterea cum deficienti exitu de hujusmodi Feoffatis Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam licet exitus si quis fuerit obiisset per factum tamen Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees and to the Donor when they fail'd by the Donees power of Alienation are only recited in the Statute without a word of restraint or remedy The follows the remedy and restraint in these words only and no other Propter quod Dominus Rex perpendens quod necessarium utile est in praedictis casibus which
entred and were seis'd before the Trespass suppos'd prout Lex postulat That Mary one of the daughters of the said William Rose July the First 1 Car. 2. died and that Katherine her Sister surviv'd her and is still living That the said Katherine October the First 20 Car. 2. at East-Grimsted entred into the said Tenements and was seis'd prout Lex postulat and the same day and year demis'd the same to the said Thomas Gardner the Plaintiff from the Feast of St. Michael the Arch-angel then last past for the term of Five years then next following By virtue whereof the said Thomas Gardner entred and was possessed until the said Joseph and Daniel Sheldon the same First day of October 20 Car. 2. entred upon him and Ejected him If upon the whole matter the Justices shall think the said Joseph and Daniel Sheldon culpable they find them culpable and assess Damages to Six pence and Costs to Twenty shillings But if the Justices shall conceive them not culpable they find them not culpable upon the words My will is if it happen my Son George Mary and Katherine my Daughters do dye without Issue of their Bodies lawfully begotten then all my Free Lands which I am now seised of shall come remain and be to my said Nephew William Rose and his Heirs for ever The first Question is Whether by this Will any Estate be Q. 1 devis'd to the Son and Heir of the Testator or to his Sisters If any Estate be devis'd what Estate is so devis'd to them Q. 2 or any of them The third Question is What Estate is by this Will devis'd Q. 3 to the Nephew and if any be how it shall take effect whether as a Remainder or as an Executory devise 1. As to the first it is clear That no Estate is devis'd to the Son or Daughters or any of them by express and explicit devise but if any be it is devis'd by implication only and collection of the Testators intent 2. If any Estate be given by this Will by Implication to the Son or Daughters or any of them it must be either a Joynt Estate to them for their lives with several inheritances in tayl or several Estates tayl to them in Succession that is to one first and the Heirs of his or her body and then to another and so successively 3. Such an Intail in Succession cannot possibly be because it appears not by the Will who should first take and have such Estate and who next c. and therefore such an Intail were meerly void for the incertainty of the person first taking as was rightly observ'd and assented to at the Bar. It remains then That the Estate devis'd by this Will if any be to the Son and his two Sisters must be a joynt Estate for their lives with several Inheritances to them in tayl by implication only And I am of Opinion That no such Estate is devis'd by this Will to the Son and two Daughters and I shall first observe That the Law doth not in Conveyances of Estates admit Estates to pass by implication regularly as being a way of passing Estates not agreeable to the plainness requir'd by Law in transferring Estates from one to another And for that the Case is A man according to the Custome of the Mannor Seagood and Hones Case 10 C. 1. Cr. f 336. surrendred to the use of Francis Reeve and of John Son of the said Francis and of the longest liver of them and for want of Issue of John lawfully begotten the Remainder to the youngest Son of Mary Seagood John had only an Estate for life and no Estate tayl by implication it being by conveyance Though as the Book is it might perhaps be an Estate tayl by Will which shews Estates by implication are not at all favour'd in Law though in mens last Wills they are allow'd with due restrictions In a Will Estates are often given by implication But I shall take this difference concerning Estates that pass by implication though it be by Will An Estate given by implication of a Will if it be to the disinheriting of the Heir at Law is not good if such implication be only constructive and possible but not a necessary implication I mean by a possible implication when it may be intended that the Testator did purpose and had an intention to devise his Land to A. but it may also be as reasonably intended that he had no such purpose or intention to devise it to A. But I call that a devise by necessary implication to A. when A. must have the thing devis'd or none else can have it And therefore if the implication be only possible and not necessary the Testators intent ought not to be construed to disinherit the Heir in thwarting the Dispose which the Law makes of the Land leaving it to descend where the intention of the Testator is not apparently and not ambiguously to the contrary Spirt Bences C. 8 Car. 1. Cro. 368. To this purpose the Case is 8 Car. 1. where Thomas Cann devis'd to Henry his youngest Son Item I give to the said Henry my Pastures in the South-fields and also I will that all Bargains Grants and Covenants which I have from Nicholas Welb my Son Henry shall enjoy and his Heirs for ever and for lack of Heirs of his Body to remain to my Son Francis for ever It grew a Question Whether this were an Intayl to Henry of the South-fields or only of the Bargains and Grants which the Testator had from Welb which was a very measuring Case and in determining this Case All the Four Judges agreed That the words of a Will which shall disinherit the Heir at Common Law must have a clear and apparent intent and not be ambiguous or any way doubtful So are the very words of the Book and therefore they resolv'd in that Case That only the Bargains and Grants had from Welb were intayl'd to the youngest Son and that he had only an Estate for life in the Pastures in the South-fields 1. I shall therefore now clear the difference I have taken That the Heir shall never be disinherited by a devise in a Will by implication and not explicit where the implication is only a possible implication and not a necessary implication 2. In the second place I shall shew That the words of this Will do not import a devise to the son and the two daughters for their lives joyntly with respective Inheritances in tayl to the Heirs of their several bodies by any necessary implication but only by an implication that is possible by construction 3. In the third place I shall shew That being so as to the Case in question it is not material whether the devise by way of Remainder to the Nephew be void or not 4. In the fourth place ex abundante and to make the Will of the Testator not ineffectual in that part of the Will I shall shew That the Nephew hath
wife carnally known by his Son Or the Brother to marry his Brothers wife carnally known by his Brother Or any man married and carnally knowing his wife to marry his Wives daughter or his Wives sons daughter Or his Wives daughters daughter Or his Wives sister Then it declares Those marriages to be indispensable because against Gods Law and that there should be a separation of such marriages if any were and the Children procreat in them to be illegitimate But this Clause also of this Act of 28 H. 8. as some conceive is repeal'd by 1 2 Phil. Mar. c. 8. in these words And also all that part of the Act made in the said 28 H. 8. intituled An Act for the Establishment of the Succession of the Imperial Crown of the Realm that concerneth a Prohibition to marry within the degrees expressed in the said Act shall henceforth be repeal'd made frustrate void and of none effect By the Act of 1 2 Phil. Mar. two other Laws are likewise repeal'd which concern the question before us viz. An Act in 28 H. 8. c. 16. intituled An Act for the release of such as have obtained pretended Licences and Dispensations from the See of Rome And the Act of 32 H. 8. c. 38. which hath been often mentioned But these two last Acts are revived by the Act of 1 Eliz. c. 1. and in force but neither the Act of 25 H. 8. nor 28 H. 8. c. 7. are reviv'd in express terms And not only so but the Act of 1 El. c. 1. hath this Negative Clause That all other Laws and Statutes and the Branches and Clauses of any Act or Statute repeal'd by the said Act of Repeal made in the time of the said late King Philip and Queen Mary and not in this present Act specially mentioned and reviv'd shall stand remain and be repeal'd and void in such like manner and form as they were before the making of this Act. Whence it follows That this marriage is not now proved to be against Gods Law by either of these repeal'd Statutes of 25 H. 8. or 28 H. 8. c. 7. unless it be made out that one of them at least remains at this day in force And as for that The Act of 28 H. 8. c. 16. which makes void all Dispensations from the See of Rome and expresly revived by 1 Eliz. and all Branches Words and Sentences thereof hath these words As a Grace of the Kings to divers of his Subjects who had married by Dispensation notwithstanding that Act made all Dispensations from Rome void All marriages had from the Third of November 26 H. 8. for which no Divorce or Separation is had and which marriages be not prohibited by Gods Laws limited and declared in the Act made this present Parliament for Establishing the Kings Succession or otherwise by Holy Scriptures shall be good By which words I conceive the Clause of 28 H. 8. c. 7. repeal'd in Queen Maries time is again reviv'd Obj. It may be objected The Clause of 28 H. 8. c. 7. concerning marriages prohibited by Gods Law continues still repeal'd because it is not specially mentioned to be reviv'd by the Act of 1 Eliz. And therefore no Act is in force declaring the husbands marriage with his wives sister to be prohibited by Gods Law Answ An Act repeal'd is of no effect more than if it had been never made By the Act of 28 H. 8. c. 7. All marriages prohibited by Gods Law limited and declared by the Clause of that Act were unlawful notwithstanding any Dispensation had before the Repeal of that Clause By the Reviver in 1 Eliz. of 28 H. 8. c. 16. and of every Clause in it All marriages prohibited by Gods Law limited and declared by 28 H. 8. c. 7. were again unlawful as before the Repeal notwithstanding any Dispensation Therefore the Statute of 28 H. 8. c. 7. was revived by the Reviver of the Statute of 28 H. 8. c. 16. in 1 Eliz. and made as effectual as before it was repeal'd and so it continues If it had been enacted by Parliament after the Repeal of the Clause in 28 H. 8. c. 7. That all marriages prohibited by Gods Law limited and declared by 28 H. 8. c. 7. should be unlawful notwithstanding any Dispensation that enacting had revived the Clause in 28 H. 8. c. 7. Therefore the same thing being enacted by revival of 28 H. 8. c. 16. must have the same effect of reviving that Clause in 28 H. 8. c. 7. I will put it for more clearness by way of a Case A man before the Third of November 26 H. 8. by Dispensation from Rome had married his wives sisters daughter which marriage was prohibited by the Canons of the Church and no Divorce had been attempted in the Case until after 1 Eliz. and the Reviver of the Statute of 28 H. 8. c. 16. which made void all Dispensations from Rome It is plain That this marriage being not prohibited by Gods Law limited and declared in the Act of 28 H. 8. c. 7 was by the express words of the reviv'd Act of 28 H. 8. c. 16. a marriage to continue good without separation notwithstanding all Dispensations from Rome were null'd because it was no marriage excepted out of the Grace intended and given by that Act to the Kings Subjects married by Dispensation before November the Third 26 H. 8. and not then separated But if a marriage before the Third of November 26 H. 8. had been by Dispensation between the brother and sister or as this Case is between the husband and his wives sister and no Separation attempted until after 1 Eliz. and the Reviver of the Act of 28 H. 8. c. 16. These marriages were not to continue good and without Separation by 28 H. 8. c. 16. because they were marriages particularly excepted out of the Grace granted by that Act as being prohibited by Gods Law limited and declared in the Act of 28 H. 8. c. 7. which proves 28 H. 8. c. 7. to be in force by the Reviver of 28 H. 8. c. 16. and consequently the marriage in question to be clearly against Gods Law which is the thing to be proved In the Statute of 28 H. 8. c. 7. there are two Clauses concerning marriages The first declaring certain marriages there recited to be within the degrees prohibited by Gods Law which Clause concerns the present question and is before cited The second Clause in these words Be it therefore enacted That no person or persons Subjects or Resiants of this Realm or in any your Dominions of what estate degree or degrees soever they be shall from henceforth marry within the degrees afore rehearsed what pretence soever shall be made to the contrary thereof Then it proceeds That if there were any Divorce or Separation made of any such marriages by the Arch-bishops or Ministers of the Church of England such Separation should remain good and not be revokable by any Authority and the Children procreated