than many of his Predecessors have done particularly that most Learned and Reverend Judge the Lord Hobart whose single Opinions in many Cases publish'd being built upon excellent Reason carry great weight with them at this day whether the Author may be so fortunate Time must determine But I hope such as shall think fit to oppose such of his Opinions wherein he is singular will first Reverse the Reasons of them for if they be not vanquish'd the Conclusions thence deduc'd must prevail So Reader I commit him to you heartily wishing you the benefit design'd by this Publication WE all knowing the great Learning Wisdom and Integrity of the Author Do for the Common Benefit allow the publishing of these Reports and Arguments in the same Letter as now they are Printed Finch C. Ri. Raynsford Fra. North. Tho. Twisden W. Montagu W. Wylde Tim. Littleton Hugh Wyndham Rob. Atkyns Edward Thurland V. Bertie Tho. Jones Will. Scroggs REPORTS OF S ir John Vaughan LORD CHIEF JUSTICE Of the COURT of COMMON-PLEAS Hil. xvii xviii Caroli 2. Reg. C.B. Ro. 1032. John Tufton Knight and Baronet Plaint vers Rich. Temple Knight of the Bath and Bar. Chamberlain Hammersley Cl. John Bish of Lich. and Cov. Defen In a Quare Impedit for hindring him to present a fit Person to the Vicaridge of the Church of Burton-Basset in the County of Warwick being void and belonging to his Gift THE Plaintiff sets forth That whereas Thomas Temple Kt. and Bar. was seised of two third Parts of the Mannor of Burton Basset to which one third Part of the Advowson of the Vicaridge aforesaid that is to present a fit Person to the same Vicaridge the first time when the same then after should happen next to be void And after the same first Presentation then every third turn of the same Vicaridge being void for ever appertains and did appertain in his Demesne as of Fee And one Edward Wootton Kt. Lord Wootton was seised of one other third part of the Mannor aforesaid and of one third part of the Rectory Impropriate of Burton Basset To which third parts one other third part of the Advowson of the Vicaridge aforesaid that is to present a fit Person to the same Vicaridge the second turn when the same Vicaridge then after should happen next to be void And after the same second Presentation then every third turn of the same Vicaridge being void for ever doth appertain and then did appertain in his Demesn as of Fee That the said Thomas Temple was likewise seised of another third part of the Advowson of the Vicaridge aforesaid that is to present a fit Person to the same the third turn when the same Vicaridge then after should happen next to be void And after such third Presentation then every third turn of the same Vicaridge being void for ever Ut de uno grosso per se ut de feodo jure That the said Thomas Temple being seised of the two third parts of the said Mannor To which c. the said Vicaridge became void by the resignation of Thomas Freeman then last Incumbent That thereupon the said Thomas Temple presented in his turn to the said Vicaridge one John Reignalds his Clerk who was admitted instituted and inducted thereto in the time of the late King James That the said Edw. Wootton being seised of the said other third part of the said Mannor and third part of the Rectory aforesaid to which c. dyed thereof so seised at Burton Basset aforesaid That after his death the said third Parts to which c. descended to one Thomas Lord Wootton his Son and Heir whereby the said Thomas Lord Wootton became thereof seised in his Demesne as of Fee That being so seised he levyed a Fine of the said third Parts to which c. in the Common-Pleas 4. Car. 1. in octab S. Martini to Nicholas Pay Esq and Reignald Pay Gent. Com-Plainants the said Lord Wootton Mary his Wife and one Henry Wootton Knight deforc That the said Fine was to the use of the said Lord Wootton and Mary his Wife during their natural lives and the longer liver of them Then to the use of the first Son of the body of the Lord Wootton and the Heirs Males of the body of such first Son begotten and so to the sixth Son successively and the Heirs Males of their bodies and so to every other the Sons of the said Lord Wootton successively Then for default of such issue to the use of Margaret Wootton third daughter of the said Lord Wootton and Mary his Wife and of such Husband with whom the said Margaret should happen to marry for term of such husbands natural life If the said Margaret should so appoint the same per aliquod scriptum sub manu sigillis suis And of the Heirs Males of her body begotten for part of her marriage portion then to the use of the Heirs of her body begotten And for default of such to the use of the right Heirs of the said Thomas Lord Wootton for ever That by the said Fine and Statute of Uses the said Lord Wootton and Mary his wife were seised of the said two third parts to which c. for their Lives with the Remainders over as aforesaid That being so seised the said Vicaridge became void by the death of the said John Reignalds And the said Lord Wootton presented to the same in his turn one John Cragg who was accordingly instituted and inducted tempore Car. 1. That the said Tho. Temple being seised of the other third part of the said Advowson in gross levyed a Fine among other things of the said third part of the said Advowson to Edward Peeter and Thomas Peeter Esquires Com-plainants and the said Thomas Temple and Hester his wife being deforceants That this Fine was so levyed to the use of one William Peeter Esq and his Heirs That the said William Peeter being seised by vertue of the said Fine and Statute of Uses the said Vicaridge became void by the Resignation of the said John Cragg and the said William Peeter presented in his turn thereto one Robert Kenrick his Clerk who was accordingly admitted instituted and inducted tempore Car. 1. That the said Tho. Temple being seised of the said two third parts of the said Mannor to which c. dyed so seised at Burton Basset aforesaid That after his death the said two third Parts to which c. descended to one Peter Temple his Son and Heir who was thereof seised and dyed so seised That after his death the same descended to the said Richard Temple his Son and Heir who was and yet is seised of the said two third Parts That being so seised the said Vicaridge became void by the death of the said Robert Kenrick which vacancy was the third vacancy of the said Vicaridge after the said first Presentation of the said Thomas Temple That the said Richard 12. Decembris anno 1654. presented to the said Vicaridge in his turn
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had
is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
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
Sister during her life Lev. 18. v. 18. to vex her in uncovering her shame upon her Before the Prohibitions in the Eighteenth of Leviticus and then and after a man not only might but ought in some cases to marry his Brothers wife that was if his brother died childless as appears in the History of Tamar and Judah before the Levitical Law Then Judah said to Onan Go into thy Brothers wife Gen. 38. v. 8 9 and do the Office of a Kinsman unto her and raise up Seed unto thy Brother Onan would not after a strange manner wherefore the Lord slew him Lev. 18. v. 16. But in the Eighteenth of Leviticus it is said Deut. 25. v. 5. Thou shalt not discover the shame of thy Brothers wife for it is thy Brothers shame The sequel of that History is well known and these Instances fully prove That those several marriages before instanced and which are prohibited in the Eighteenth of Leviticus were lawful before and practised by the most remarkable men for holiness of life Nachor the brother of Abraham married Milcah his brother Harans daughter so the Vncle married the Neece Gen. c. 11. v. 29 30. To this may be added That children from nature know not their parents or kindred from other people and therefore their Acts whatever they be whether of marriage or otherwise are regarding nature only as indifferent towards their Parents and Kindred as towards any other men or women The Parents may possibly know their Children and more especially the Mother by a knowledge that is natural but it is impossible the Children should naturally know their Parents Therefore they cannot naturally know that they do transgress towards their Parents But the knowledge of our Parents is subsequent to nature and not coequal with her and ariseth from Civil Laws Education and common Reputation not from Nature we take those for our Parents whom the Laws denote to be so The Theban Story of Oedipus and Jocasta his Mother is an obvious Example in this kind where both ignorantly married each other and had Issue between them Of the marriage with the Mother Seld. de Jure naturali gentium juxta disciplinam Ebraeorum l. 5. c. 11. the Sister the Step-mother anciently permitted in Persia Greece Egypt and other places of the East Vide. Besides what is unnatural to man qua man must be so to all men and at all times But what is unnatural to this or that individual man is unnatural only to him and only for the time it is so and not to other men How things become unnatural by Custome A second way by which mens Acts are said to be unnatural and are so in some measure is When Laws Divine or Humane do supervene upon mans original nature with great penalty for transgressing them Mens education à teneris Annis to observe those Laws the infamy attending their violation and the religious customary observance of them implant a horrour and aversness to break them so that by long custome they are not observ'd only to avoid the punishment and as things which were otherwise indifferent but are observed from an aversness and loathing begot by Custome to transgress them That though men were secure from the punishment if they broke them yet Nature denies all appetite and inclination to violate them This kind of secondary Nature is eminently seen in mens aversness from some things for Food which Custome had made detestable As eating the Flesh of Men Bears Horses Dogs Cats and many other things which nauseate men and are offfensive upon no other account than that Custome hath made them so not primitive Nature and which upon tryals of Famine have been found both eatable and nourishing and by contrary Custome among some other Nations or People are as desirable as other Food as is exampled in the Anthropophagi the Canibals or Men-eaters In this secondary way the Copulation with the Mother Sister and the like do become odious and reluctant to Nature and generally are so where Humanity is well planted which in the original state of nature and without those induc'd Laws Education and Custome of Manners had been as indifferent as with other women To this purpose there is a passage and a true one in Simplicius speaking when the Grecians began to desert their Incestuous marriages Jam cum lex consuetudo Seld. de Jure naturali c. 11. f 605. sororis fratriae consuetudine interdicat Appetitiones non secus ac ab ipsius naturae Imperio suppressae ita prorsus sunt immobiles nisi forte aliquos furoris Intemperies dirae scelerum ultrices agitarent So Lucan of Incest with the Mother Luc. l. 8. Cui fas implere parentem Quid reor esse nefas To this secondary Nature 1 Cor. c. 11. v. 13 14 15. hath that of St. Paul to the Corinthians reference where he saith Doth not Nature it self teach you That if a man have long hair it is a shame unto him Where no other Nature can be understood but Manners and Custome And for this are the Egyptians upbraided in the Prophets Isaiah and Jeremy for their Bestiality in Copulation with their nearest Relations as is most frequent in Story That their Flesh was like the Flesh of Horses and their Issue as the Issue of Asses They not observing any order of Coitus other than was found in Horses and Asses which is the true meaning of that place In this way it is true that such Incestuous marriages are unnatural and so never made by those in whom Custome hath begot a horror and aversion to them but on the other side to them which have it not there is no unnaturalness in them for Nature originally hath not implanted that aversness in them nor Custome prevailed to beget it as it hath in the others Of transgressing natural Laws and in what sense that is to be understood A third way of mens acting unnaturally is when they violate Laws coeval with their original being though the Laws be but positive Divine or positive Human Laws and not of nature primarily nor in any other sense intelligible to be Natural Laws But that they bind men as soon as men can be bound and no Law can possibly precede them A second reason of their being natural Laws properly is because mans nature must necessarily assent to receive them as soon as it is capable of assenting and hath no power to dissent from them for a man hath no power to dissent from or not to assent to his own preservation or not to dissent from his own destruction But not to assent to the will that is to the Laws of an Infinite Power to hurt and benefit is to assent to his own destruction and infinite hurt and to dissent from his own preservation and infinite benefit for infinite power can hurt or benefit as it pleaseth Therefore to assent to the Laws of the Deity is natural to man The Jews with great
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
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-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
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
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
matter of the Law 239 14. A man hath no Right to any thing for which the Law gives no remedy 253 15. The effect of Law can do more than an act of Law 280 16. How things become natural by custome 224 17. What natural Laws are 226 227 18. Of transgressing Natural Laws and in what sense that is to be understood 226 227 228 19. It is not safe in case of a publick Law as between the Spiritual and Temporal Jurisdiction to change the Received Law 220 20. The Law of the Land cannot be altered by the Pope 20 21 132 21. Many Laws made in the time of the Saxon Kings are now received as Common Law 358 Lease Lessor Lessee See Title Statute 23. 1. A Demise having no certain commencement is void 85 2. In what cases the Lessee shall bring an Action against his Lessor for breach of Covenant upon a Covenant of Quiet Enjoyment without the lawful disturbance of himself c it being a full exposition of that Covenant when it is either by Law or Express and general or particular from 118 to 128 3. A Demise of Tythe with Land is good within the 13 El. but a Demise of Tythe barely is not good 203 204 4. A man leases Lands for certain years habendum post dimissionem inde factum to J. N. and J. N. hath no Lease in esse the Lease shall commence immediately from the Sealing 73 74 80 81 83 84 5. A power is granted to Demise Lands usually letten Lands which have been twice letten are within this Proviso 38 6. Which at any time before have been usually letten that which was not in lease at the time of the Proviso nor twenty years before is not within the Proviso 34 35 by the Demise of the Farm of H. the Mannor of H. will pass 71 7. Proviso that the Plaintiff may lease for One and twenty years reserving the ancient Rents so long as the Lessees shall pay the Rents these are words of limitation and the Non-payment of the Rent determines the term without a Demand 32 License See Title King Dispensation  Limitation 1. A Limitation determines a Lease without demand of the Rent 32 2. What words shall be taken to be a Limitation and no Condition 32 Livery and Seisin 1. Where a Rectory is granted Una cum Decimis de D the Tythe which alone cannot pass without Deed doth pass by the Livery of the Rectory and without Livery the Tythe will not pass because it was intended to pass with the Rectory by Livery 197 198 London 1. The Customes of London are confirmed by Act of Parliament 93 2. How Declarations are in London according to their Custome ibid. Marriages See Title Statute 16. 1. Incest was formerly of Spiritual Conizance 212 2. The Judges of the Temporal Courts have by several Acts of Parliament full conizance of Marriages within or without the Levitical Degrees 207 209 210 3. They have full conizance of what Marriages are Incestuous and what not according to the Law of the Kingdom and may prohibit the Spiritual Courts from questioning of them 207 209 210 305 4. The Interdicts of Marriage and carnal Knowledge in the Levitical Law were directed to the men not to the women who are interdicted by a consequent For the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 5. A man married his Grand-fathers Brothers wife by the Mothers side and held lawful 206 207 6. A man married his first Wives sisters daughter and held unlawful and after a Prohibition a Consultation granted 247 321 322 7. For a man to marry his wives sister is a Marriage expresly prohibited within the Eighteenth of Leviticus 305 8. What Marriages are lawful and what not 210 218 219 305 306 307 308 309 9. How the words No Marriages shall be impeached Gods Law except shall be understood 211 10. What Marriages are prohibited within the Levitical Degrees 214 215 306 307 308 11. What Marriages are by Gods Law otherwise prohibited 220 221 12. Marriages contrary thereunto ought not to be dispensed with 214 216 13. Marriages with Cosen Germans lawful 218 219 14. All Marriages are lawful which are not prohibited within the Levitical Degrees or otherwise by Gods Law 219 240 242 305 15. In what sense any Marriages and Copulations of man with woman may be said to be natural and in what not 221 16. Marriages forbidden in Leviticus lawful before 222 17. Marriages lawful after restoring the world in Noah ibid. 18. Concerning Universal Obligation to the Levitical Prohibitions in cases of Matrimony and Incest 230 19. What Marriages were usual in old times 237 20. How simple Fornication was satisfied in the time of Moses ibid. 21. Who shall be said to be the near of kin which are prohibited Marriage 307 308 309 310 311 22. What Marriages are by the Matrimonial Table of England interdicted 315 316 317 318 23. Marriages within the Levitical Prohibitions were always unlawful but Marriages within the Levitical Degrees were not always unlawful 319 320 321 24. How the Levitical Degrees are to be reckoned 320 25. All Marriages prohibited by the Table are declared to be within the Degrees prohibited by Gods Law 328 26. In what the Parochial Matrimonial Table used in England agrees with the Karait Rabbins 311 312 27. The primitive Christian Church could punish Incestuous Marriages no otherwise than by forbidding them the Communion 313 28. By what Law the primitive Christian Churches conceived themselves obliged in the matter of Marriage to observe the Levitical prohibitions strictly and indispensibly 314 29. Amongst the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried 313 Master and Servant 1. Although there is no Master or Servant originally in Nature but only parity yet after Laws have constituted those Relations 242 2. A Father cannot be Servant to his Son 243 Metropolitan See Arch-bishop Ordinary  Misrecital See Lease 1. Where a Lease is misrecited in the date and the habendum is to be from the date which is misrecited there the Lease shall commence from the Sealing 73 Monopoly 1. If Exportation or Importation of a Commodity or Exercise of a Trade is prohibited generally by Act of Parliament and no cause thereof expressed a license may be granted to one or more persons with a Non obstante for by such general Restraint the Law intended to limit the over-numerous Importers and Traders and such general Licenses shall not be accounted Monopolies 345 2. To avoid a Monopoly the Kings Dispensation upon all prohibitory Laws must generally be limited by Law 346 Naturalization See Title Alien  Non obstante 1. IT is a license to do a thing which at the Common Law might be done without it but now being restrained by some Act of Parliament cannot be done without it 345 356 2. Where a