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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
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-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. à 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