which is a Niece in Affinity was by the High Commissioners divorced upon this Reason because Degrees more remote * were forbidden That is â—â—isin Gerâ—â—â—s tho' they confessed themselves at the same time that it was not prohibited within the Levitical Degrees and for that Reason upon the Suit of the Plaintiff a Prohibition ib. p. 24 and Consultation was granted but the Issue of it cannot be found upon Record After this in the time of King James the First for the former Case was in the Reign of Queen Elizabeth there was such ib. another Case of one Richard Pearson wherein a Prohibition was granted out of the Common-Pleas Court for Marrying his Wives Sisters Daughter and it was resolved by the said Court upon consideration of the Statute 32 H. 8. c. 38. That the Marriage was not to be impeach'd because declared by the said Act to be good in as much as it was not prohibited by the Levitical Degrees Which Determination of the Judges of that Court at that time must of necessity proceed upon one of these two Suppositions either that our Law had no regard to Parity of Reason in these Cases or that there was indeed no Parity betwixt the Marriage of an Aunt and Nephew and that of a Man's marrying his Wives Sisters Daughter which is his Niece by Affinity But now since Consanguinities and Affinities by the Levitical as well as Civil Law are the same and equally forbidden to the same Degrees it follows That if in the Judgment of our Law the Marriage of the Wives Sisters Daughter shall stand good so shall that likewise which is Consummated with her who is Daughter by the Half-Brother on the Father's Side And indeed the Half Blood by the more uncertain and imperfect Side makes it still come nigher to Man and Pearson's Case and makes it rather an Affine than Consanguineous Relation Furthermore in the Case of Harrison and Burwell it self Harrison had Married his Great Aunt the Widow of Abbot his Grandfather's Brother and my L. Vaughan declares this Marriage to be valid p. 207. And this Case by the (a) Hill 21 Car. 2. King's Command being referred to the Opinion of all the Judges of England (b) Trin. 22. Car. 2. the Chief-Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Now there is nothing more clear than that the Aunt is expresly forbidden to the Nephew in Marriage and for this Reason which the Law assigns She is thine Aunt thy Senior thy Superior and in Construction of Law Parentis loco All which do hold as well tho' not so immediately and indeed the two first much more strongly in the Great Aunt than in the Aunt at the first remove As the Jews in their prohibitory Tables do forbid by Analogy of Reason as they conceive not only the Wives Mother which is expresly forbidden Levit. 18. 17. but also her Grandmother V. Selden Ux. Hebrâ— L. â— c. â— de juâ— Nat. Gent. L. 5â— c. 10. the one being look'd upon Parentis loco as much as the other though not so immediate as the other is but the Law of England proceeding only by the Letter without any regard or at least very little to Parity of Reason for the Marriage of the Daughter and the Whole Sister are not inferr'd to be unlawful by a Parity but by a manifest Superiority of Reason would not disanul the Marriage of the Great Aunt though the immediate were so expresly forbidden And to shew yet further That our Law in Matrimonial Cases do's not proceed by Parity of Reason at least where that Parity is so obscure and so many ways defective as it is in our Case there are two passages of the same Judge Vaughan in his Report of the aforesaid Case of Harrison and Burwell which are very well worthy our notice and observation the first is where speaking of the Act 32 H. 8. c. 38. he saith p. 211. Those words God's Law except must refer to such other Marriages as by Gods Law might be impeach'd and not to any for consanguinity or affinity for had not those words been the generality of expression no Marriage shall be impeach'd without the Levitical degrees had excluded the impeaching Marriages for plurality of Wives or Husbands at a time for Impotency and for Adultery as Sir Edward Coke observes at the end of his Comment upon this Statute in his second Book of Institutes Adultery and Polygamy are both of them forbidden by the Levitical Law but when we speak of the Levitical Degrees of Affinity and Consanguinity they cannot properly be referred to them and the sense of these two Reverend and Learned Gentlemen is this that though Adultery Polygamy and Impotency are warrantable Causes of Divorce according to Gods Law yet if the Act of Parliament had not mentioned Gods Law but only insisted upon the Levitical degrees there could no Divorce have ensued by the Law of England which keeps it self most strictly to the Letter in any of these Cases The other Passage which I aim at is this where speaking of the Acts of Parliament 25 28 H. 8. concerning the Succession wherein the Matrimonial Prohibitions are limited and declared from the Levitical Law he saith thus p. 216. The Marriages particularly declared by the Acts to be against God's Law cannot be dispens'd with but other Marriages not by the Acts declared in particular to be against God's Law are left statu quo prius as to Dispensations with them that is so far as concerns the Levitical Degrees they may be and are actually dispensed with not by the Pope whose Power of Dispensation was now abolish'd and abrogated for ever nor by any Priestly Absolution which accounts only for what is past but cannot make any thing lawful de futuro which either the Law of God or Man makes null and void but by the Law it self which by not prohibiting such Marriages hath made them Lawful It is true indeed there are other Bars to Matrimony besides the Levitical Degrees which are included in the Act 32 H. 8. c. 38. under the general Term of God's Law as hath been already observed But yet my L. C. J. Coke was of another Cok. Lit. F. 235. a. mind he understanding God's Law and the Levitical Degrees to be only Terms declarative of one another And in this Interpretation he seems to be favoured by the Words of the Act of Parliament 28 H. 8. c. 16. whereby it is Enacted That all Marriages solemnized within this Realm which be not prohibited by God's Law limited and declared in the Act made this present Parliament for establishing the King's Succession or otherwise by Holy Scripture shall be lawful and effectual by Authority of this present Parliament Where there is no Question but by God's Law and the Levitical Degrees limited and declared by that Act of Parliament as also by another before it in
8. c. 16. wherein those Degrees are said to be limited and declared in the Act made for establishing the Kings Succession which is 28 H. 8. c. 7. wherein the Degrees expresly mentioned and set down in Leviticus are exprest and none other and if we add any other but what are included in the Degrees mentioned either by Parity or Potiority of Reason there can be no end of Prohibitions while the World stands but they may be heap'd and piled in infinitum upon one another without any other Authority to make them good then what either prejudice or fancy shall create I demand therefore if the Marriage Table had quite altered the Degrees mentioned in Leviticus and substituted others in their stead whether it would have obliged or no notwithstanding the Act of Parliament expresly saith that No Reservation or Prohibition God's Law except shall trouble or impeach any Marriage without the Levitical Degrees which Degrees by another Act are limited and declared as aforesaid I believe no Man will be found so hardy as to take upon him the Patronage of this Doctrine and since the reason is the same in all there can be no Prohibition in any one Case and consequently not in ours neither where the Law of Moses allows a Dispensation P. 58. And all such Marriages were pronounced Valid It is true this Act of Parliament so far as concerns Precontracts was repealed 2 Ed. 6. 23. and that Repeal confirmed 1 Eliz. 1. but it was for the greater inconveniences which were found by experience by nulling of real Contracts then by pretending of Contracts where there were really none which was the reason of the Act in Henry the Eighth's time and is a plain instance in both Cases for the Repeal was not founded upon Right but Convenience that Laws in many Instances do not so much regard Quid fieri jus fasque sit as Quid expediat vel intersit Reip. ut fiat vel non fiat P. 72. Being only the half Sister by the Father's side the Daughter of the Half-Brother by the Father's side which is a double Paternal Consanguinity so that our Case is more favourable than that of St. Ambrose which made him notwithstanding hesitate a little in spite of all his Rigour and Severity in these matters I suppose no Man will say that the Half-blood and the Whole are the same and Abraham's Case with respect to Sarah his Wife is an unanswerable instance for the Fathers side that it is more favourable and more allowable in Marriage than the Mothers Ib. Cannot without Ignorance or Wickedness and in either Case without palpable injustice be vacated or dissolved This ought not and I hope it will not be interpreted as any disrespect to any Court of Justice for I honour the Seats of Justice with all my Heart and will do as much as any Man to the utmost of my Power to assert their just Authority and Reputation for as much therefore as I am given to understand that there is a Sentence passed in this Cause to the prejudice of the parties in in whose behalf I have pleaded I do hereby declare that these Papers were written a good while before the passing of that Sentence and that they were actually Printed before it was possibly for me to know any thing of it besides that a wrong Sentence may sometimes be pronounced not only by an Upright Judge but a Wise and Learned one too 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 AN ADDITION Of some other CONSIDERATIONS Not hitherto suggested FIrst As to the Half-Blood the Talmudical Doctors were of opinion that though it were forbidden for a Man to Marry his Brother's Wife in any Selden Uâ— Hebr. L. â— c. 2. Case but only where the Brother died without Issue yet this was to be understood only of the Brother by the same Father but that it did not hold in the Frater Vterinus Which Opinion of theirs was founded upon this Reason That the Inheritance which was the Reason of such Marriages in default of Issue did not descend from the Mother but the Father so that the Law of the Leviratus was not concerned in the Case of a Frater Vterinus who was reputed of another and a distinct Family from his Half-Brother by another Father though the Mother on both Sides were the same I confess I am very clear and positive against the Rabbins in this For whatever becomes of the Inheritance it is certain that in case of Issue the Brother by the Father's Side was forbidden upon account of nearness of Kin but that nearness for the Reason already mentioned more than once is certainly greater in construction of Law on the Mother's Side than on the Father's But I bring this Determination of the Rabbins whether true or false to shew that they did not think the Half-Blood so sacred and so indispensably prohibited as the Whole and that the Half-Blood on one Side may possibly in some Instances be more severely prohibited than the other And if this Doctrine will hold in any Case it will certainly in ours the Father's Side being certainly as to Legal Construction the weaker Consanguinity of the two Secondly Though my Lord Vaughan â—ill and â—â—od 's â—se p. â—2 in Hill and Good 's Case be very inconsistent with himself if we compare him with himself in Harrison and Burwell's where he speaks very favourably of the Marriage of a Man with his Wives Sisters Daughter for in this latter Case of Hill and Good citing all the same Precedents he had done before he concludes 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 Yet afterwards he makes us a sufficient Amends if a flat positive and deliberate Contradiction can do it For within a very few Pages afterwards he puts the same Case and resolves it as follows A Man before ib. p. 326. the third of November 26 H. 8. by Dispensation from Rome had married his Wives Sisters Daughter which Marriage was prohibited by the Canons of the Church and no Divorce had been attempted in the Case until after 1 Eliz. and the Reviver of the Statute of 28 H. 8. c. 16. which made void all Dispensations from Rome It is plain that this Marriage being not prohibited by God's Law limited and declared in the Act of 28 H. 8. c. 7. was by the express Words of the revived Act of 28 H. 8. c. 16. a Marriage to continue good without Separation notwithstanding all Dispensations from Rome were null'd because it was no Marriage excepted out of the Grace intended to be given by that Act to the King's Subjects Married by Dispensation before November the third 26 H. 8. and not then separated And now from this Determination of my Lord Vaughan's the Inference is plain That our Case must stand a fortiori For Consanguinities and Affinities in these Cases are the same and prohibited to the
indifferent and consequently lawful For when restraints are lay'd upon lawful things there is no inference from the prohibition of one thing to the prohibition of another by Parity of Reason whether pretended or real but the Prohibition stops within it self and extends no further than the Letter as if part of a Common Field should be enclos'd and this Enclosure establish'd and warranted by Law there lies here no Inference by Parity of Reason for the Enclosure of the rest but what is not actually and legally enclos'd is common and must remain open as it did before Besides that Moses by Gods appointment should so severely forbid the Marriage of an Aunt with her Nephew a sort of Marriage of which he himself and his Brother Aaron were descended bringing by that means a sort of Aspersion and something that is at least very like a Reproach upon himself and his Family upon his Brother Aaron and the Family of Priests that were for ever after descended from his Loyns and yet take no notice in the least of the Marriage of an Vncle with his Niece in which he was not concern'd but might have forbidden it without any manner of reflection upon himself or his Relations if God had intended to prohibit them both alike is a thing to me so incredible that nothing can be more and I presume it will appear so to every indifferent Person that shall reflect upon it Fifthly There is also the Case of Achsah and Othniel in the Books of Joshua and Judges in which if we understand the Text so as that Othniel who was the Son of Kenaz shall be the Half Brother of Caleb by the Mothers side for Caleb was not the Son of Kenaz but Jephunneth then here is another Instance after the Law of the Vncle Marrying his Niece the Daughter of his Half Brother by the Mothers side the Words of the Text are these Jos 15. 17. Othniel the Son of Kenaz the Brother of Caleb took it Kirjath-sepher and he gave him Achsah his Daughter to Wife And again Judg. 1. 13. Othniel the Son of Kenaz See also g. 3. 9. Calebs younger Brother took it Kirjath-sepher which words in both places may either be so Interpreted that Othniel had this double Relation he was the Son of Kenaz and he was likewise Calebs younger Brother by the Mother's side and then Achsah the Daughter of Caleb will be Othniel's Niece and his Niece by a nearer Consanguinity than that in the Case before us or else that Othniel was the Son of Kenaz which Kenaz was younger Brother to Caleb and so Othniel and Achsah will be Cousin Germans Both of these Interpretations if there were nothing else but these Words to be considered are very natural and easie but when I consider that after the Death of Caleb and Joshua the Children of Israel were made Captive by Cushan-rishathaim for the space of Eight Years Judg. 3. 8. that God raised up this Othniel to be their Saviour and Deliverer out of the Hands of this Oppressor v. 9 10. and that the Land had rest afterwards under the Government of this Othniel for the space of forty Years no Man will ever think that Caleb and Othniel in that Age of the World could probably be the Sons of the same Mother when it is so plainly demonstrable that there was at least Forty nine or Fifty Years differance between their Ages for to this Fourty eight we must add one or two more because before this period began they were both Cotemporary and Caleb if he were Brother to Othniel was then the elder by a Year or two at the least But this is not all c. 2. 8. we have an account that Joshua dy'd and v. 10. That all that Generation of which Caleb was one were gathered to their Fathers and then before this Revolution of Cushan-rishathaim we have an account of several other Oppressions which the Jews for their many Sins and Provocations laboured under so that the distance between the Age of Caleb and Othniel is still considerably greater than what hath been represented It remains therefore that Achsah and Othniel were Cousin Germans that is Brothers Children who in their Circumstance might lawfully Marry for it appears that Achsah was an Heiress otherwise her Father could not have given her the Southland as he did and added afterwards to it the Vpper and the Nether Springs all which by the Mosaick Platform of Inheritance would otherwise have devolved upon the Male Issue If you ask how any Woman can be called an Heiress while her Father is yet living I answer That in strictness she could not yet be called by that name there being no Inheritance necessarily devolved upon her but her Father was now so old that he was past the hope or expectation of any more Children For at the first entrance of the Children of Israel into the Wilderness he was one of the Heads of the Tribes Numb 13. 6. and one of those who together with Joshua and others v. 17. were sent by Moses to spy out the Land of Canaan after this they remained in the Wilderness Fourty Years and Joshua who seems to have been much of the same Age with Caleb soon after his entrance upon the Land of Canaan dy'd being at his Death of the Age of an Hundred and ten Years Josh 24. 29. Judg. 2. 8. And if we allow ten or twenty Years by which Joshua without any reason that appears shall be supposed to be older than Caleb the Age of Caleb at the Marriage of his Daughter Achsah will be an Hundred or Ninety at the least wherefore being so old and unfit in Person to be at the Head of a Vigorous Assault he propounds the taking of Kirjath-sepher to some other with a reward He that smiteth Kirjath-sepher and taketh it saith he to him will I give Achsah my Daughter to Wife not that any one Man could take a City or Town by himself or that every Man was fit to Command a Party or that the Inheritance which was to go along with Achsah could be legally diverted from Othniel who was the next Heir Male of that Family only by these general words he propounds the Conduct of the Expedition to Othniel with Promise upon Success that he should immediately be Married to his Daughter which the Old Man during his Life time was not obliged to permit and have part of the Inheritance in hand before hand And this is the true State of this Case which though in it self it be nothing to our purpose yet there is an use that may be made of it and that is this That it would be very strange if God had intended equally to prohit the Marriage of an Vncle with his Niece as of an Aunt with her Nephew not only that he should no where expresly prohibit the former of these as he hath done the latter but that the Holy Spirit in this particular Case of Achsah and Othniel should speak of the Marriage of Cousin Germans
after such a manner that many and those very Learned Men too have been induc'd to believe it was the Marriage of the Vncle with his Niece for of this Opinion were most of those whom I have already cited as Asserters of the meerly positive Obligation of the Mosaick Law Sixthly and lastly Though I am far from disputing the Kings Power in dispensing with a Statute in Cases of necessity of which he is the Judge yet in ordinary Cases he is never supposed to intend it and it is certain that when among other Articles presented to him by the Convocation he gave his Royal Assent to the Matrimonial Table in which the Uncle is prohibited to Marry his Niece the Convocation themselves were of Opinion that this Degree was some way or other prohibited by the Law of Moses and the King agreed to this Prohibition among others upon that supposition but now since it appears so plainly that this sort of Marriage was never actually forbidden by the Law of Moses nor so much as intended to be forbidden either nothing but Gods Law can impeach any Marriage and by consequence this cannot be impeach'd or else an Act of Parliament may be Repealed by an Act of Convocation which yet hath no Power to make any Laws or Ordinances whatsoever but what the Parliament it self hath given it and the Parliament can never be supposed to put a Power destructive of their very Constitution into the Hands of the Clergy met together in a Convocation nay they have expresly provided with the Kings Royal Assent who without necessity which cannot here be pretended will never break his Word with his People and then the breach of it is the truest Justice that no Convocation shall exercise any such Power FINIS AN Additional Advertisement Concerning the HALF-BLOOD DEut. 13. 6. It is provided in case of Idolatry If thy Brother the Son of thy Mother or thy Son or thy Daughter or the Wife of thy Bosom or thy Friend which is as thine own Soul entice thee secretly saying Let us go and serve other Gods c. v. 8. Thou shalt not consent unto him nor hearken unto him neither shall thine Eye pity him neither shalt thou spare neither shalt thou conceal him v. 9. But thou shalt surely kill him thine Hand shall be first upon him to put him to death and afterwards the Hand of all the People The meaning of this Law is that Idolatry should certainly be punished with Death let the Relation be never so nigh or the Endearment and Friendship never so great as appears by those Words Or the Wife of thy Bosom or thy Friend which is as thine own Soul and when it is said Thy Brother the Son of thy Mother without mention of the Brother by the Father it is imply'd that the one is nearer of kin than the other in the Interpretation of the Levitical Law this best answering the intention of this Law of Moses which did oblige them not to conceal even their nearest Relations and in this Prohibition the Brother being the Son or supposed Son of the Father is included a fortiori Books written by the same Author and Printed for Walter Kettilby at the Bishops-Head in St. Pauls Church-yard 1. ANimadversions upon the Doctrine of Transubstantiation in a Sermon Preached before the Lord Mayor October 19th 1679. 2. A Discourse of the Divine Omnipresence and its Consequences in a Sermon Preached before the Honourable Society of Lincolns-Inn the first Sunday of Michaelmas Term 1683. 3. A Sermon Preached before Sir P. W. 1681. with Additions To which are annexed three Digressional Exercitations I. Concerning the true time of our Saviours Passover II. Concerning the Prohibition of the Hebrew Canon to the Ancient Jews III. Concerning the Jewish Tetragrammaton and the Pythagorick Tetractys Quarto 4. Two Discourses Introductory to a Disquisition demonstrating the unlawfulness of the Marriage of Cousin Germans from Law Reason Scripture and Antiquity Octavo 5. A Letter of Resolution to a Friend concerning the Marriage of Cousin Germans Octavo 6. A Resolution of Three Matrimonial Cases viz. I. Whether it be lawful for a Man to Marry his disceas'd Wives Sisters Daughter II. Whether the Half-Blood makes Kindred III. Whether such a Marriage being made it ought to be dissolv'd or no. 7. Boaz and Ruth A Disquisition upon Deut. 25. 5. concerning the the Brothers Propagating the Memory of his Elder-Brother deceas'd in which the Antiquity Reason and Circumstances of the Law are Explain'd the Mistakes and Impositions of the Jewish Rabbins in this and other matters detected and a fair way opened for a clearer understanding of the most obscure and dark places in the Law of Moses together with a discovery of several things as well in the Eastern as Roman Antiquities never yet explained or understood by any 8. An Argument in defence of the Marriage of an Uncle with the Daughter of his Half Brother by the Fathers side Octavo