is neither forbidden in express words neither can it be inferr'd to be unlawful by parity of Reason and since the Measures of the Levitical Law are in this Case of Matrimony the declar'd Measures of ours it follows unavoidably that what is left indifferent in the Law of Moses preserves the same Liberty and Indifference in ours In the sixteenth place it is still further to be consider'd That Cohabitation it self if it have been of long continuance is in Law a powerful Remedy against other Defects for so we have it upon the Authority of Servius Tribus modis apud veteres nuptiae fiebant usu Farre Coemptione usu si verbi gratia Mulier anno uno cum viro licet sine legibus fuisset c. So that if the Parties married together and standing in this Relation have cohabited for any considerable time this is one great Argument and hath been all along so taken in the Civil Law against a Divorce notwithstanding there be a Fault admitted in their first coming together Seventeenthly This Case being only the Niece by the Half Blood on the Fathers Side which is the more weak and imperfect this is still a farther Circumstance very much conducing to favour and defends it as appears by the Case of Abraham who married his Half Sister by the Fathers Side For had she been his Whole Sister she could not have been his Wife And this is that which he urges in his own Defence to Abimelech the King of Gerar She is the Daughter of my Father but not the Daughter of my Mother and she became my Wife And 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. ver 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 ver 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 which Law is That Idolatry should certainly be punish'd 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 the Law of Moses which did oblige them not to conceal even their nearest Relations And in this Prohibition the Brother being the Son or suppos'd Son of the Father is included à fortiori Lastly The whole stress of our Adversaries Cause is grounded upon Archbishop Parker's Matrimonial Table and tho' we are far from presuming to dispute the King's Power in dispensing with a Statute in Cases of Necessity of which He is the Judge yet in all Ordinary Cases He is never suppos'd to intend it And it is certain that when among other Articles presented to Him by the Convocation he gave the Royal Assent to the Matrimonial Table in which the Vncle 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 God's Law can impeach any Marriage and by consequence this cannot be impeach'd or else an Act of Parliament may be repeal'd 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 suppos'd 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 King 's 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 ABSTRACT OF THE ARGUMENT IN Mr. TVRNER's PAPERS Concerning the MARRIAGE OF AN UNCLE With the DAUGHTER OF HIS HALF-BROTHER BY THE Father's-side LONDON Printed in the Year 1686. AN ABSTRACT OF THE ARGUMENT IN Mr. TVRNER's PAPERS Concerning The Marriage of an Uncle with the Daughter of his Half-Brother by the Fathers side FIRST The aforesaid Marriage is not expresly forbidden in any Act of Parliament wherein the Degrees prohibited are set down Secondly It is not expressly mention'd in the Levitical Law which the Law of England follows as its Pattern Thirdly The Law of England especicially in its Penal Sanctions hath no regard to Parity of Reason and the Case is usually the same in Priviledges or Exemptions This appears by several Proofs alledged to this purpose pag. 25 26 27. of the First Discourse And this is likewise prov'd more largely by three other Considerations mention'd afterwards pag. 68 69 70. The First is of a Priviledge allow'd by Act of Parliament to a Knights eldest Son which shall not extend to the eldest Son of a Baronet The Second is a Matrimonial Custom concerning the Marriage of two Brothers to two Sisters or of Brother and Sister to Sister and Brother or of the Son-in-law to the Mother-in-laws Daughter or Father-in-laws Daughter which are not so much as pretended to be disallow'd by our Law notwithstanding they are all of them so great and manifest violations of the great and fundamental Reason if all these Prohibitions which was to spread Friendships and propagate Good-will and Charity amongst Men by not restraining the Matrimonial Affinities within too narrow a a compass The Third is taken from the express words of the Statute 25 H. 8. c. 22. wherein the particular prohibited Degrees which are there enumerated and set down are usher'd in with a that is to say and afterwards there is reference made to the said Degrees by the words Afore rehearsed and above expressed by which it is manifest that this Act sticks closely to its own Letter without admitting Parities or probable Interpretations it being absurd to suppose the words that is to say to refer to those particulars of which no mention afterwards is made or that the words afore rehearsed or above expressed can refer to such pretended Instances of Prohibition as are no where rehearsed or expressed for certainly it is one thing to rehearse or to express and another to intimate to infer to argue by Parities Consequences or Deductions how natural easie and genuine soever they be And this is still farther made out against the exception of my Lord Chief Justice Vaughan pag. 13 14 15 16. of the Addenda Mutanda Fourthly Learned Men are divided in their Opinions concerning the Nature of these Laws whether they be Natural or meerly positive Among the latter sort are Paulus Burgensis Cajetanus C. Ã Lapide Sanchez and the Authors by him cited Tirinus Lorinus Menochius and Magalianus And among the Reform'd three great Authorities Drusius Episcopius and our Learned Bishop Taylor and they that with these Gentlemen are of this Opinion that the obligation of these Laws is positive and no more they have no pretence for a dissolution of this Marriage because in Laws meerly positive there is no such thing as Parity to be admitted such Laws being all of them a manifest restraint upon the Natural Liberties of Mankind and therefore ought not to be strain'd by Parities and Interpretations whether true or false beyond the Letter of them Fifthly Though we should allow the prohibitions of Leviticus to proceed all of them upon the Measures of Nature yet though the Laws are Natural the Sanction of them is positive and no more for God might have assigned other punishments if he had pleas'd as Servitude hard Labor Ignominy Fine Confiscation Imprisonment the loss of any Limb or Member or any other Punishment short of life it self without any manner of disparagement to his Justice or any violation of the Laws of Nature wherefore in so great variety of possible infliction what punishment can we assign as an Act of Obedience to the Levitical Law when that Law it self hath not assign'd any Adultery by the Law of Moses was punished with Death in both parties but by ours it is not so which is a plain Argument whatever may be said of unlawful Marriages or unlawful Lusts in which we are govern'd by the Levitical Measures yet as to the punishments consequent upon them we have Measures of our own and therefore where no Punishment is expresly determined by our Law or at least expresly left to the Discretion of the Judge or Court or of any other Person or Persons to whom the Cognizance of the Matter shall appertain in this Case no Punishment can lawfully be inflicted How then can we with Justice proceed to a Divorce in case of such a Marriage as to which the Levitical Law is silent as well as ours So likewise in the Case of Buggery or Bestiality it was Death without Mercy by the Law of Moses and so it is by ours made Felony without benefit of Clergy but this was not till the 25 H. 8. and if by that or some other Statute provision had not been made we must either say that that Act of Parliament was altogether fruitless or else that it would not have been Capital to this Moment Wherefore there being no Punishment expresly assigned or expresly left to the Judgment and Discretion of any Ecclesiastical or other Judge by our Law though it had been expresly prohibited and more than that expresly punishable by the Law of Moses for a Man to Marry his Niece yet notwithstanding it could not have been so by ours Sixthly If Cousin Germans in the common practice and usage of our Laws are not prohibited to Marry with each other notwithstanding the Dispensation granted to the Daughters of Zelophehad which Dispensation shews it undeniably to have been prohibited in all ordinary Cases and as it was it concerned only the particular Oeconomy of the Jewish State and the preservation of the Mosaick Platform of Inheritances among that People I say if they are notwithstanding allow'd to Intermarry meerly for this Reason because they are not expresly mention'd in that Act of Parliament wherein the prohibited Degrees are specified and set down how shall not then the same priviledge be extended for the same and for a greater Reason to the Vncle and the Niece who are not only not expresly mentioned as Persons prohibited and disallowed by our Law but are not so much as mentioned in the Law of Moses it self where Cousin Germans are undeniably forbidden Seventhly In the Eighteenth of those Canons which are called Apostolical and are without question of great Antiquity and Authority in the Church A Man that Marries his Brothers Daughter is not by virtue of the said Canon divorc'd from his said Marriage or excluded from the Communion of the Church or debarr'd any other Priviledge or Immunity of a Christian Man or of
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 nul and void but by the Law it self which by not prohibiting such Marriages hath made them lawful which is exactly our Case and therefore it must be lawful if my Lord Vaughan's Judgment be of any value It is true indeed in Hill and Good 's Case he seems to vary one while from this determination but within a very little while he returns to his former mind and confirms this Opinion by a fiction of a Case of a Man that had Married his Wives Sisters Daughter before the third of November 26 Hen. 8. by dispensation from Rome and notwithstanding that all dispensations from Rome were afterwards made void yet he declares this Marriage being not prohibited by Gods Law limited and declared in the Act of 28. Hen. 8. Cap. 7. to be by the express words of the reviv'd Act 28 H. 8. Cap. 16. a Marriage to continue good without separation as having a validity of its own to stand upon extrinsick to any thing of Dispensation from Rome Lastly When in the Act of 32 Hen. 8. Cap. 38. it is enacted that No Prohibition Gods Law excepted shall trouble or impeach any Marriage without the Levitical Degrees My Lord Cook declares it as his Judgment that if it had not been for those words Gods Law except this Act had excluded the Impeaching Marriages for plurality of Wives and Husbands at a time for Impotency and for Adultery because if the Levitical Degrees by our Law had been made the sole and only measure of Prohibition and if no Marriage could have been vacated but for offending against these our Law which keeps it self strictly to the Letter in these Cases would have taken no Cognizance of any such impediment or obstruction as did not properly belong to one of these which cannot be pretended in any of these three Cases Eleventhly The Law of Moses in the Twentieth of Leviticus hath assign'd no Punishment but that of present Death in case of any incestuous or prohibited Conjunction as will appear to any Man that shall look over that Chapter The Law knew no other Punishment for illegitimate Marriages but Death and therefore the Marriage which was not Capital was no offence at all against it but was as Legitimate to all intents and purposes as any other Marriage in the World could be and not only by the Law of Moses but by the Theodosian Rescript concerning Cousin Germans the next Degree to that which was Capital was no Crime at all For it do's not appear that he forbad Second Cousins to Marry If then this Marriage of the Uncle to his Niece be so far from being expresly punish'd by the Law of Moses that it is not any where so much as mention'd among the Levitical Restraints and Prohibitions if it be the hardest Case in Nature to put a Man and Woman to Death for a Consequence a real or pretended Parity of Reason which either he or she or both of them might very well not foresee or understand and if at last there be no Consequence no Parity in the Case as will be undeniably manifested by and by then it follows plainly that the Marriage of the Vncle to the Niece is so far at least Legitimate that it was not at all punishable by the Levitical Law and that it cannot be dissolv'd by vertue of any Act of Parliament now extant among us or by any other Power that will proceed either in Punishment or Prohibition upon the Levitical Measures Twelfthly As there was no legal violent separation among the Jews but by Death unless when an Husband for Reasons of his own had written a Bill of Divorce against his Wife so the reason why Death was inflicted seems to have been to prevent any Issue from such Incestuous Conjunctions or in the Language of the Law it self that they might die Childless the Woman for endeavouring to bear and the Man to beget at once a Spurious and Incestuous Off-spring For a Bastard as it is every where a Name full of reproach so among the Jews he that was descended of an unlawful Bed was look'd upon as an accursed abominable thing and branded with peculiar and particular marks of Ignominy and Detestation and the Descendents from him as far as to the Tenth Generation were not to enter into the Congregation of the Lord Deut. 23. 2. And this though it should happen as it did for the most part to be the effect of no more than Simple Fornication And how much more detestable must such a Bastard needs be who was the Off-spring of Incest and Whoredom for such sort of Marriages were esteemed no better in a most execrable Conjunction and Combination together But now it is certainly a very hard Case to make any Man a Bastard by Parity of Reason because his Father and Mother happened to do some thing which it was impossible for him to hinder which is like another thing which is forbidden much less is there any Bastardy in such a Case where the Parity of Reason do's not hold and whereever the Off-spring is not Spurious the Marriage is Legitimate For a Legitimate Son or Daughter cannot possibly be descended but of Legitimate Parents And the better to remove all obstacles as to this matter out of the way it is to be observ'd that as to the Phrase of Dying Childless the Interpretation just now given is confirm'd by the Authority of the Learned Jesuite Stephanus Menochius who in his Comment upon that place hath these remarkable words to the very same Sense with mine Hi incestuosi non sinentur in hoc scelere permanere donec liberos babere possint sed occidantur and this when all is done is the true meaning of the Text though the Jews who are horribly unskilful in the remote Antiquities of their own Nation have devised other fanciful Glosses which will not abide the test of a Judicious Enquiry And that we may not wonder at this severity of punishing all Incestuous Conjunctions with Death Paulutius Forojuliensis refers it as he very well might besides the Reason given to the Arbitrary disposal of Almighty God who may annex what Sanction he pleases to his Laws or which is all one to some Impulsive Cause or Motive which he hath not thought fit to reveal so that with respect to us it is Arbitrary let it be what it will in it self where speaking of Congress with a Menstruous Woman being punish'd with Death he says Multa alia quae non sunt peccata Mortalia puniebantur poenâ mortis ex aliquâ causa legislatorem movente ut esus Sanguinis Thirteenthly It is certain that Amram took to Wife Jochebed his Fathers Sister and this could not be long before the Giving of the Law for of that Match Moses and Aaron and Miriam were descended The thing is mention'd in more places than