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A63897 An abstract of the argument in Mr. Turner's papers concerning the marriage of an uncle with the daughter of his half-brother by the father's side Turner, John, b. 1649 or 50. 1686 (1686) Wing T3298A; ESTC R16211 16,140 41

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a Member of the Body Politick or Ecclesiastick whatsoever only for Examples sake he is not permitted to enter into Holy Orders which though it shew sufficiently that the Compilers of these Canons were against all Marriages in this Degree and therefore the Clergy were prohibited for an Example to others yet it is plain that at the same time they did not look upon it as a Marriage prohibited or detested by the Law of God and such as Christianity which hath a more tender regard to the propagation of Friendship and Good-will than the Law of Moses had lays an absolute and indispensable obligation upon us to avoid And this being as it is such a plain testimony of the Opinion of the Ancient Church concerning Marriages of this Nature carries great Weight and Authority along with it for the deciding this particular Case in favour of the parties that are concerned in it Eighthly Though this Marriage should be granted to be antecedently prohibited and unlawful yet it doth not presently follow that being actually Solemniz'd and Consummated by fruition it shall be made null and void Mr. T. in his First Paper hath given several From. p. 2. ●o 18. Pag. 42 43 44 ib. in addend pag. ● instances of unlawful Acts which yet notwithstanding were valid ex post facto but what he saith as to the Case of Polygamy comes still more home to our purpose which though it was forbidden by the Law of Moses yet a Divorce was not to ensue upon it neither was the Christian Law less tender of a Divorce in the Case of Polygamy with respect to such Parties as had engaged in it before they became Disciples and Converts to Christianity than the Jewish was though after our having once embrac'd that holy Profession it is now not only unlawful ex Antecedenti but a Divorce ought to ensue at least besides what other Punishments the Civil Laws shall think reasonable to inflict after such Polygamy is actually engaged in not only because of the general design of Christianity which aims much more earnestly at all the highest instances of Charity and Good-will than the Jewish Dispensation did And therefore the state of Polygamy which is a natural occasion of strife can never be a lawful Christian State but also because this Union of the Husband to one Wife as one and the same Flesh is declar'd to be a Symbol of the inseparable Union of Christ and his Church and of the intire and incommunicable Love of the one to the other And on the other hand Polygamy by the Rule of Contraries is a Symbol of Polytheism or of the Worship of many and false Gods which is the most directly opposite to Christianity that any thing can possibly be conceiv'd to be Wherefore if the Law of Moses and if the Christian Dispensation it self were so extremely tender of a Divorce in this Case notwithstanding it was a plain disobedience to an express Divine Prohibition how much more tender ought it to be in ours where there is not only no Punishment assign'd which we acknowledge to be true of Polygamy it self but also no express Prohibition to be found and where the Breach of Charity the Honour of Christianity and the incommunicable respect and service due to the True and Only God are the two first of them not so much and the latter not at all concern'd Ninthly It is very strange that there should be so express and careful a Prohibition of the Marriage of the Aunt with the Nephew as there is Levit. 18. Vers 12 13 14. by which the Nephew is forbidden to Marry with his Fathers or Mothers Sister or Vncles Wife which is all the possibility of Auntship that can be supposed And that all these Cases should be so expresly and so severely punish'd as they are Levit. 20. vers 19 20. and yet no mention in the least made of the Vncles Marriage with the Niece whither of half or whole Blood or whether by Consanguity or Affinity in any wise whatsoever so great sollicitude on the one hand seems utterly inconsistent with so great carelessness and silence on the other if the Law of Moses had intended to prohibit both these sorts of Marriages alike Tenthly What Opinion our best Lawyers have had of Marriages of this kind may be seen by these following Precedents and Reports to be met with in their Books Richard Pearson in the time of King Vaughan ' s Reports pag. 248. James the First Married his Wives Sisters Daughter for which a Process was commenc'd against him in the Spiritual Court and upon the Suit of the said Richard Pearson a Prohibition was granted out of the Common-Pleas And it was resolved by that Court upon consideration of the Statute 32 Hen. 8. Cap. 38. that the Marriage was not to be impeach'd because declar'd by the said Act to be good in as much as it was not prohibited by the Levitical Degrees and since Consanguinities and Affinities as well by the Levitical as the Civil Law are the same and prohibited to the same Degrees it follows that this Marriage must be valid also if this determination of those Reverend Judges be good it being a Consanguinity at the same remove with the allow'd and ratify'd Affinity of this Instance Much the same with this was the Case of Harrison versus Burwell Harrison had Married his great Aunt the Widdow of Abbot his Grandfathers Brother and my Lord Vaughan declares this Marriage to be valid pag. 207. And not only so but this Case by the Kings Command being referred to the Opinion of all the Judges of England the Chief Justice deliver'd their Opinions and accordingly Judgment was given that a Prohibition ought to go to the Spiritual Court for the Plantiff 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 of Moses assigns S●e i● thine Aunt thy Senior thy Superior and in Construction of Law Parentis loco which holds as well though not so immediately and indeed the two first much more strongly in the great Aunt than in the Aunt at the first remove but yet in the Judgment of these Learned Gentlemen the Law of England proceeding only by the Letter without any regard or at least very little to Parity of Reason would not disannul the Marriage of the great Aunt though the immediate were so expresly forbidden Besides this my Lord Vaughan gives it in general terms as his Opinion pag. 216. The Marriages particularly declared by the Acts to be against Gods Law cannot be dispensed with but other Marriages not by the Acts declar'd in particular to be against Gods Law are left in 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 as many as are not particularly and actually forbidden not by the Pope whose Power of Dispensation was now abolish'd and abrogated