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A45158 Cases of conscience practically resolved containing a decision of the principall cases of conscience of daily concernment and continual use amongst men : very necessary for their information and direction in these evil times / by Jos. Hall. Hall, Joseph, 1574-1656. 1654 (1654) Wing H371; ESTC R30721 128,918 464

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Grammer and to the sence and scope of the Canon which plainly intends to aver that all those degrees prohibited in that table are also forbidden by the laws of God A truth so certain that if either self-love or love of gaine did not betray the eye it is a wonder how it should abide a contradiction It is observable that neither statute nor canon speak of an expresse prohibition in Gods law And the Canon purposely distinguisheth the termes prohibited by Gods law and expressed in the Table as justly supposing there may be as strong a prohibition in a sense implyed as verbally expressed Else if our Lawes as is pretended should give allowance which God forbid to any marriages not expresly in terminis forbidden wee should have strange and uncouth mixtures God by Moses expresly forbad the uncovering the nakedness of Father and Mother hee expressed not the nakednesse of Son and Daughter he expresly names the nakednesse of the Fathers wife he expresseth not the nakednesse of the Mothers husband He expresly names the nakednesse of thy Sister he expresseth not the nakedness of thy Brother he expresseth the nakednesse of thy Sons Daughter he expresseth not the nakednesse of thy Daughters Son He expresseth the nakednesse of thy Fathers wives Daughter he expresseth not the Mothers Husbands Sonne he expresseth the Fathers Sister not the Mothers Brother He expresses the Daughter in law not the Son in law So as by this Rule if it should be carried only by meer verball expressions a woman might marry her Son in law the Nephew might marry his great aunt the neece her grea-uncle the Daughter might marry her Mothers husbands Sonne the Grand-mother might marry her Daughters son the Daughter might marry with her Mothers Husband Were these things to be allowed the world would be all Sodome These things therefore are of necessity included in the law by a clere Analogy no lesse then if they had beene expressed But have there been as hee saith precedents of this march I am sory to heare it surely the more the worse and the more need to redresse it the addition of this if neglected would help to strengthen an ill claim Cozens-german he saith have beene allowed to marry What is that to the present case The difference is as much as betwixt a Nephew and an Uncle The Uncle hath too much of the Parents both right and blood to challenge an equall claim with a Cozen. In the shutting up it pitties me to see your worthy Friend driven to this plea and like a drowning man to snatch at so small a twig Being done he saith it ought not to be undone Alas the Canon is peremptory It is incestuous and unlawfull what plea is there for continuance Speak not therfore of either connivence or dispensation This match is only capable of a late but much wished repentance on the Offenders part and a just diremption on the part of the Judges CASE II. Whether it be lawfull for a Man to marry his wives Brothers widow AMongst all the heads of Case Divinity there is no one that yeeldeth more scruples then this of Marriage whether wee regard the qualification of the Persons or the emergency of actions and events It is the lawfulness of this match that you inquire after not the expedience and I must shape my answer accordingly It hath been the wisdom and care of our godly and prudent Predecessors to ordaine a Table of all the prohibited degrees to be publiquely hang'd up in all the severall Churches of this Nation to which all commers might have recourse for satisfaction This Catalogue you have perused and find no exception of the case specified I know no reason therfore why you may not conclude it not unlawfull The question of the Expedience would require another debate doubt less in all cases of this nature it must needs be yeelded that it were more meet and safe since the world yeilds so large a latitude of choice to look further off a wise and good man will not willingly trespasse against the rules of just expedience and will be as carefull to consider what is fit to be done as what is lawfull but that comes not at this time within your inquiry Whiles therfore I give my opinion for the lawfulness of this Marriage with the Relict of the wives brother I doe no whit clash as you suggest with the judgement of Beza and Master Perkins who professe their dislike of such copulations I shal as readily cry them down for unmeet and inconvenient as those that with too much boldnesse come over neere to the Verge of a sinfull conjunction but for the not unlawfulnesse of this match I did upon the first hearing give my affirmative answer and the more I consider of it I am the more confirmed in that resolution That universal rule mentioned by you as laid down by those two worthy Authors must indure a limitation Cujus non licet inire nuptias ejus nec conjugis licet that there is the same degree and force of relation of a third person in the case of Marriage to the husband and to the wife so as proximity of blood in the one should not be a greater bar then the same proximity of alliance in the other Otherwise many more copulations will fall under censure then common practise will condescend unto and that ground of uxor pars quadam viri The wife is as a part of the husband as it holds not in naturall relation at all so not in all conjugall as might be too easily instanced in divers particulars And if there were not som difference in these relations those second persons which are interessed in the Husband or Wife might not come neer to the next in affinity to them For example my Brother may not marry my Sister therefore by this rule he might not marry my Wives Sister and so it should bee unlawfull for two Brothers to marry two Sisters then which nothing is more ordinary or lesse obnoxious to disallowance That generall rule therefore must be restrained necessarily to the first ranke of affinity if we descend lower it holds not For further explanation our Civilians and Canonists are wont to make two kinds or degrees of Affinity the one primary the other secondary In the first is the affinity between the husband and the Cozens of blood to his wife or è cōverse which indeed is justly held no lesse for a barr of marriage then his own naturall consanguinity for that is an affinity contracted upon interest of blood by virtue of that entire union between Man and Wife wherby they both become one flesh The Secondary affinity is that wherein there is another person added moreover to that first kinde now mentioned the affinity arising only from the interest of an affinity formerly contracted not from consanguinity and this is not so binding as either to hinder a marriage to be contracted or being contracted to dissolve it In this rank are the brothers wife and sisters