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A63915 A resolution of three matrimonial cases by John Turner. Turner, John, b. 1649 or 50. 1684 (1684) Wing T3315; ESTC R24646 10,682 31

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great deal of reason that a Divorce be made or a worse punishment inflicted as is manifest from the Case of the incestuous Corinthian who had Marryed his Fathers Wife Secondly In all ordinary Cases our Saviour's rule holds good and shews withall how extreamly tender the Gospel is of divorces Matth. 5. 32. Whosoever putteth away his Wife saving only for the cause of Fornication causeth her to commit Adultery and whosoever shall marry her that is divorced committeth Adultery From whence it follows that if it be a doubtful Case whether the Marriage now under consideration be ex post Facto lawful or no though it be granted to be unlawful ex Antecedenti that the doubt ought to be resolved in favour of the Marriage and in confirmation of it Thirdly If the Parties concerned in the above written Queries have not yet consummated their Marriage by the copula carnalis I am humbly of opinion that they ought to separate for the prevention of scandal to themselves and of example to others Fourthly That it being but a single instance in which many Families are not concerned this may seem to incline to a divorce because the publick can receive no prejudice by the separation though by the evil precedent and example it may But yet Fifthly If there be any such thing to be admitted as a casus favorabilis I am of opinion this is it because it is placed in confinio liciti it being at the farthest distance in which it is practically possible for a Man to Marry from himself in his own descending collateral Affinity though the Civil Laws to make the matter more sure have forbidden such Marriages in infinitum Sixthly That if the Marriage be consummated as aforesaid it is still more favourable in the behalf of the Parties especially if any Issue have been brought forth or conceived and in both these Cases especially the latter the scandal and inconvenience is greater if they part then if they continue together Seventhly If any Issue should follow upon this Marriage it is certain that the Act of Parliament hath not in express words declared such Issue to be Spurious or Illegitimate and it seems somewhat strange for two persons to separate upon account of an unlawful Marriage who having consummated the said Marriage by mutual enjoyment either have at present or may have hereafter lawful Issue descended from them Eightly Albeit Affinity and Consanguinity be in the Interpretation of the Law the same and the half and whole Sister equally Prohibited yet in truth and reality the affinis is not so near of Kin as the consanguineus nor the half Sister as the whole Ninthly That there hath been and ought to be favour shewn in Matrimonial Cases notwithstanding that the letter of the Law hath been sometimes violated and affronted by them I will instance in the business of Poligamy which was forbidden by the Law of Moses in these words Lev. 18. 18. Neither shalt thou take a Wife to her Sister to vex her to uncover her nakedness besides the other in her life time for this cannot be understood of a Sister properly so called for it was certainly Prohibited by the Levitical Law for a Man to Marry two Sisters either both together or one after the other for by the same reason that it was unlawful for a Man to Marry his Brothers Wife after the decease of his Brother unless when he dyed Childless to redeem the Inheritance by the very same reason it must be unlawful for the Sister to Marry the Sisters Husband after her decease because the Relation is exactly the same in both Cases But the meaning was that though the Jews were allowed to keep Concubines as Abraham did and from thence the Concubinage among the Romans was derived yet it was unlawful to Marry more Wives that should be aequo jure with one another that should have an equal power in the Family and should all of them be the Mothers of Heritable Issue because this would be the occasion of strife and contention betwixt them and render the Family troublesome and uneasie but yet we know that notwithstanding this such Marriages were practised under the Law and yet no Divorce ensued David was one example of it and Elkanah the Father of Samuel another the one a Man after Gods own Heart to whose charge nothing is laid but the matter of Vriah and the other a just Man and of a clear reputation And God foreseeing in his wisdom how difficult it would be to wean the Jews of this liberty of taking more Wives then in strictness of Law it was permitted them to do did therefore make an express provision as to the Inheritance in the Case of Polygamy Deut. 21. v. 15 16 17. by which it was enacted that the double portion was always to fall to the share of the Eldest Son upon which soever of the Wives he was begotten and when the Gospel enjoyns that a Bishop and a Deacon should be the Husband of one Wife it is not to be understood as the Canon Law interprets it of Bigamy that is of Marrying a second Wife after the death of the first for here there is no Question but the rule holds good it is better to Marry then to burn as well after the Death of the first Wife as before it but the thing was that whereas several Converts to Christianity were at the same time Marryed to more Wives then one though it was not thought convenient to divorce any that had been actually Married before their conversion yet it was designed to introduce Monogamy or the Marriage of one Wife only at one time for the future and therefore for examples sake none were admitted to Offices in the Church who had at the same time been Husbands to more Wives then one and I do really believe this Case of being Married to the deceased Wife's half-Sisters Daughter to be after enjoyment a more favourable Case and less liable to Divorce then that of Polygamy naturally seems to be by reason of the great strifes and jealousies that usually attend it So that upon the whole matter my opinion is that the parties concerned in the Cases that have been mentioned upon supposition that the Marriage have received its final Consummation in the Bed ought by no means to be separated and divorced from one another and that such separation cannot be admitted without great scandal and reproach to them both and without dishonor and despite to the Christian Religion which is so very favourable and tender ex post facto in matters of this nature and I desire them both to reflect very seriously upon our Saviours general Rule that except it be in very extraodinary Cases such as that of the Incestuous Corinthian or of Herods Marrying his Brother Philips Wife nothing but Fornication can justifie a Divorce or secure the Parties separating from each other from the crime or danger of Adultery Jan. 31. 1683 4. John Turner ERRATA PAge 5. Line 25. for Blood read Kin. p. 11. l. 26. for natural r. mutual POST-SCRIPT FOR the Second Query the resolution of it seems to lie so plain that I do almost wonder to find it proposed for in the Case of an whole Sister that is a Sister by Father and Mothers side it is certain that both Parents do equally contribute to the Consanguinity and therefore in the half-Sister there must be an half Consanguinity that is an half Kindred a Kindred as real as the whole though not so perfect and by the same reason that the Consanguinity of the Wife to the half-Sister is less perfect the Affinity of the Husband to the said half-Sister and the Niece descending from her is proportionally imperfect also upon which accounts it is as I have said ex post facto a favourable Case especially if both or either of the Parties were ignorant when they Married of its antecedent unlawfulness and both by reason of the distance of the Relation and the defect of it the Marriage after fruition ought not to be dissolved J. T. FINIS Books Written by the same Author and Printed for Walter Kettilby ANimadversions upon the Doctrine of Transubstantiation A Sermon Preached before the Right Honourable the Lord Mayor and Court of Aldermen Octob. 19. 1679. Two Discourses Introductory to a disquisition demonstrating the Unlawfulness of the Marriage of Cousin Germans from Law Reason Scripture and Antiquity A Letter of Resolution to a Friend concerning the Marriage of Cousin Germans A Sermon Preached before Sir Patience Ward upon the last Sunday of his Mayoralty with Additions An exercitation concerning the true time of our Saviour's Passover or Last Supper with his Disciples being part of a Digression in the Additions to the Sermon before Sir P. W. A Discourse of the Divine Omnipresence and its consequences A Sermon before the Honourable Society of Lincolns-Inn upon the First Sunday of last Michaelmass Term. All Printed for Walter Kettilby at the Bishops'-Head in S. Paul's Church-Yard The Middle-way betwixt Necessity and Freedom in Two Parts Printed for Samuel Simpson Bookseller in Cambridg and to be Sold by Booksellers in London ADVERTISEMENT THere are now just coming out Two exercitations being the remainder of the Digressions in the Additions to the Sermon before Sir P. W. The First attempting to demonstrate that the Jews till after the return from the Captivity of Babylon were never publickly and promiscuously allowed the reading of the Law of Moses or other Canonical Books of the Old Testament The Second concerning the true Reading and Pronunciation of the Tetragrammaton or four Lettered name of God in Hebrew as also concerning the Pythagorick Tetractys and other Philological matters that have a connexion with it