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 And all such Marriages were pronounced Valid It is true this Act of Parliament so far as concerns Precontracts was repealed 2 Ed. 6. 23.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
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
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
the Twenty fifth of the same King the same thing is to be understood but when it is added or otherwise by Holy Scripture it is imply'd by this that there are other barrs to Matrimony besides the Levitical Degrees Yet notwithstanding when in the Act 32 H. 8. c. 38. God's Law is only mentioned without the insertion of that other Clause or otherwise by Holy Scripture we must either say that the Parliament at that time had not so great a deference and regard to Holy Scripture as when the former Act was made or else that under the comprehensive terms of God's Law not only the Levitical Degrees but all Scripture in general is included and this is certainly most reasonable to believe the Design and Intention of all these Acts of Parliament being only to reduce the Matrimonial Prohibitions and the causes of Divorce to the Standard of God's Revealed Will and to evacuate annul and disappoint the Encroachments and Usurpations of the Canon Law so that in this I agree perfectly with Vaughan against Coke but this do's not properly concern our Case for it is the Levitical Degrees and they only to which we are to appeal I wish my Lord Vaughan as he disagrees with Coke in this particular in which we are not concerned so in another in which we are he had not disagreed with himself For notwithstanding in what hath been cited out of him above he do's so plainly intimate that we are not to strain the obligation of these Laws beyond the Letter of them yet p. 216. he says No degrees being mentioned in the Statute to be prohibited by God's Law but those which are express'd it cannot thence be concluded that the Statute intended no other than those to be prohibited by God's Law for take the words at most advantage for the purpose viz. Since many inconveniences have fallen by Marrying within the Degrees prohibited by God's Law that is to say the Son to Marry the Mother the Brother the Sister c. in the same manner is it if a Statute should say Since many inconveniencies have happened P. 217. by doing things prohibited by the Kings Laws that is to say by depopulation of Farms by substracting of Tithes c. It would not be concluded that the things so enumerated were all the things prohibited by the Kings Laws For besides that this seems to be a flat Contradiction to what he had said before That all Marriages particularly declared by P. 216. the Acts to be against God's Law cannot be dispensed with but that all others may or in Words to that effect the Case is not the same in these two several Examples For when we speak of Levitical Degrees prohibited by God's Law and then enumerate all the several Particulars as they are set down in Leviticus than which there are no more Particulars of Prohibited Degrees any where to be found in Scripture in this Case God's Law and the particular Branches of it thereafter express'd being taken all together are coextended to one another But when we say Whereas many Inconveniencies have happened by doing things prohibited by the King's Laws that is to say c. instancing in three or four Particulars only it is manifest that the King's Laws are abundantly of greater latitude than the Particulars that follow But yet the words That is to say in both Cases refer only to the Particulars thereafter expressed and if there be any other things prohibited by the King's Laws which are not expressed and enumerated in these Particulars the abstaining from such forbidden Practices as those is not bound upon us by vertue of this Law but by the particular Sanctions of other respective Laws wherein those Offences or Enormities are forbidden For it would be a strange thing for a Man to be hanged for stealing an Horse by virtue of a Law which punishes the Non-payment of Tythes How can those words That is to say be referred to those Particulars which are no where said or expressed or the words before-rehearsed or above-expressed to those which are no where rehearsed or expressed I do not say that a Parity or Superiority of reason is not to be admitted but I say the words of a Statute which is the Statute-Law will extend no further than themselves and in what instances this Parity or Potiority of Reason lies belongs to a Court of Conscience or of Equity to determine but then these Instances are not referr'd to by the Words that is to say or by the Words afore-rehearsed or above expressed which belong only to the naked Letter of the Law but they are pointed at by the Instances themselves as those Instances by Parity or Superiority of Reason do point at other Instances that are not mentioned as for example When it is forbidden to Marry the Half-Sister this evidently darts a Prohibition upon the Whole-Sister likewise because the Whole-Sister is really the Half-Sister and something more and when it is forbidden for a Man to Marry his Grandchild this points still more strongly upon his Daughter for if the Grandchild be forbidden for the sake of the Daughter as there is no question that is the reason the Daughter is much more forbidden for her own and her Father's sake and for the sake of the Grandchild who is for her sake expresly forbidden at a further remove But if where there is neither an express Prohibition nor so much as a Parity of Reason we will suppose a Law notwithstanding to oblige which is exactly our Case we may as well extend the Prohibition in infinitum so that there need have been but one Prohibition of Marriage and that would effectually have barred all other Instances that can be supposed for where a Prohibition stops not with Parity of Reason what other Limit or Boundary can we set Neither let any Man take shelter in Archbishop Parker's Matrimonial Table which being first publish'd in 1563. was afterwards in the Year 1603. among many other Canons of a Convocation held that Year being 1 Jacobi 1. ratified confirmed and allowed under the Broad Seal of England in which Matrimonial Table among other Prohibitions the Marriage of an Vncle with his Niece is forbidden For this Table was made with an unquestionable reguard to the Levitical Prohibitions and it was upon supposition of a Parity of reason betwixt the Marriage of an Vncle with his Niece and that of an Aunt with her Nephew that the former of these was prohibited in that Table notwithstanding it be not expresly mention'd in the Law of Moses it self but now since I have shewn plainly that there is no such Parity of Reason as is pretended the Table cannot prohibit such Marriages any longer unless the Act of Parliament must give place to the Table For by the Act of 32 H. 8. c. 38. it is expresly ordained that No Reservation or Prohibition God's Law except shall trouble or impeach any Marriage without the Levitical Degrees and what those Degrees are appears by 28 H.