A RESOLUTION OF THREE Matrimonial CASES VIZ. I. Whether it be Lawful for a Man to Marry his deceased Wife 's Sister's Daughter II. Whether the half-blood make Kindred III. Whether such a Marriage being made it ought to be dissolv'd or no By John Turner late Fellow of Christ's Colledge in Cambridge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Be ready always to give an answer to every Man that asketh you a reason LONDON Printed by H. Hills Jun. for Walter Kettilby at the Bishop's Head in St. Paul's Church Yard 1684. THE Preface THE Three Queries here resolved were sent to me upon the Thirtieth of Jan. last I know not well from whom they came and it seems he that sent them did not think it worth his while to call for an answer However because the resolution proceeds upon such Principles as may be applyed to any other Case of this nature so that every Man may easily discern hereafter for himself what is lawful or unlawful in these Cases therefore I thought it convenient to make it publick Farewell A RESOLUTION OF THREE Matrimonial CASES Quest I. Whether it be a lawful Marriage for a Man to Marry his deceased Wife 's Sister's Daughter or no Quest II. Whether being but of the half blood do not make Kindred Quest III. If such a Marriage be made already whether it be better that they part or not FOR the First of these Queries it appears by the Third which is concerning Divorce in Case of an unlawful Marriage that it is to be understood of a Marriage ex Antecedenti lawful or unlawful that is to say whether it be lawful for a Man to endeavour a Marriage or to enter into a Matrimonial Contract in order to it with one who stands related to him in the degree mentioned in the said Query And to this I Answer That it is not lawful and I conceive its unlawfulness to be demonstrable from that prohibition in the Eighteenth of Leviticus v. 14. Thou shalt not uncover the nakedness of thy Father's Brother thou shalt not approach to his Wife she is thine Aunt which is again repeated c. 20. v. 20. If a Man shall lye with his Vncles Wife he hath uncovered his Vncles nakedness they shall bear their sin they shall die Childless For if it be unlawful for a Man to Marry his Aunt the Wife of his Father's Brother then it is likewise unlawful for a Woman to Marry her Uncle the Husband of her Mothers Sister because these two Relations are as to nearness of Kin exactly the same so that all the Question is whether in Matrimonial Cases we are to stick to the letter of the Levitical Law or whether parity of reason be of necessity to be admitted And I do humbly conceive the latter of these to be true and I offer these following reasons for my opinion First The fundamental reason of all these Prohibitory Laws is nearness of Kin. Levit. 18. 6. None of you shall approach to any that is near of Kin to him to uncover their nakedness from whence it follows that if in two Cases given the nearness of Kin be in both exactly the same the reason of the Law and by consequence its Obligation is in both Cases equally concerned Secondly I appeal to the constant and universally received opinion of the Jewish Rabbins and to the practice of that Nation which is founded upon it for in the Matrimonial Tables of the Jews which are much more particular then that of Moses the additional Prohibitions that are to be met with in them are altogether grounded upon parity of reason as may be seen in Mr. Selden in his Vxor Hebraica and in his De jure naturali gentium juxta disciplinam Hebraeorum where he hath given an account of all those Prohibitions out of Maimonides and the Jewish Talmud Thirdly It is to be considered that these Prohibitions were not of a purely Mosaick that is a Typical Umbratick and alterable Nature but that they were built upon the reason of things and the unchangeable Interest of Mankind for the propagation of Interests and Dependencies and for the spreading and continuance of Friendship among Men which reason being altogether equal and the same equally violated on the one hand or gratified on the other in the Marriage of an Aunt to the Nephew or of an Uncle to the Niece it is manifest that the Law-giver proceeding upon this reason and there can be no other tolerable reason of these Prohibitions assigned did intend equally to prohibit both if he have prohibited either of them otherwise we must suppose one of these two things Either that Moses that is in effect God himself did not sufficiently understand and comprehend the full Extent and Latitude of that reason upon which the Prohibitions were founded or else that the reason of those laws may be violated from time to time and from age to age in a thousand myriads of instances with the consent of the Law-giver himself by which means it would come to pass if it were lawful for an Uncle to marry the Niece though the Marriage of an Aunt with her Nephew were forbidden that whatever the advantage was which was intended by the prohibition of the latter to be procured to the World that advantage by the licence of the former would be but half obtained and on the other side whatever the disadvantage or detriment was which was designed to be avoided or prevented that disadvantage would be but half redressed now both of these things being equally absurd and impious to suppose it follows likewise upon this Third consideration as well as the two former that in the Mosaick Prohibitions a parity of reason and a Parallelism or Sympathy of Cases is of necessity to be admitted Fourthly If there had been liberty still allowed after it was prohibited for an Aunt and her Nephew to intermarry together yet notwithstanding for an Uncle and his Niece to do it and so in other parallel instances that might be given this would have been a very great and a very plausible pretence for disobedience it would have been an occasion of frequent murmuring and repining in the Parties that were prohibited to Marry when others as to nearness of blood exactly in the same circumstances with themselves were to the scandal of all Law and Justice and without the least color of Equity indulged so that there being not only in both instances the very self same reason but it being likewise necessary to the due effect of the Prohibition exprest that it should be extended to the Prohibition imply'd by parity of reason it follows that it was actually extended so far and to say otherwise is to accuse the Divine Justice and Wisdom together It would be to accuse the Divine Wisdom as if God wanted foresight and did not pry sufficiently into the natural issue and result of things by making a Law to a stubborn and refractory people which even the most obedient might very justly complain of and by
Adrian and encouraged after that by the example of L. Antoninus Caesar who Married his Niece Lucilla the Daughter of his Brother M. Aurelius Antoninus the Philosopher yet it always remained incestuous and prohibited by the Laws of the Empire for a man to Marry his Sister's Daughter though he were allowed to Marry the Daughter of his Brother the reason of which was that though in Laws well constituted for a bar to concupiscence and for the spreading of Friendships a parity of Cases ought to be allowed yet the violation of a law in one Case ought not by any means to be drawn into Precedent or Example to the violation of it in another so that it being naturally or politically unlawful or inconvenient for a Man to Marry the Daughter of his Brother it was still more reasonable to confine the Interpretation of the S. C. Claudianum by which it was provided de futuro that such Marriages should be deemed lawful to the letter of the law itself so as the priviledge should not be extended to the Niece descending from the Sister Now it is to be noted that both by the Jewish and the Roman Law Affinities and Consanguinities were equally forbidden and to the same degrees as for the Roman Law it is so plain so frequently inculcated and so universally acknowledged by all the Ancient Civilians that it is to no purpose to go about to prove it and that it was so in the Jewish I prove by these following Texts Lev. 18. v. 8. The nakedness of thy Fathers Wife shalt thou not uncover it is thy Fathers nakedness that is it is same thing in the Interpretation of Law as if a Man had uncovered the nakedness of his own Mother his Father and his Mother in Law being united as it were into the same person in the same manner as his own Mother and his Father were Again v. 15. Thou shalt not uncover the nakedness of thy Daughter in Law she is thy Sons Wife that is she is to be reputed as standing in the same nearness of relation to you with your Son himself and by consequence it is in the eye of the Law the same thing as if you had uncovered the nakedness of your own Daughter for a Son and a Daughter are the same as to nearness of blood or distance from their common Parent So also v. 16. Thou shalt not uncover the nakedness of thy Brothers Wife it is thy Brothers nakedness that is it is the same thing as if you had been guilty of uncleanness with your own Sister for a Brother and a Sister are in relation the same Lastly v. 14. which I mention last because I intend to make the most particular application of it Thou shalt not uncover the nakedness of thy Fathers Brother thou shalt not approach to his Wife she is thine Aunt that is by having been joyned in Marriage to your Fathers Brother it is the same thing as if she had been your Fathers own Sister so that the reason why a Man might not approach to his Aunt in Affinity or by Marriage was because the Aunt in consanguinity or by blood was forbidden and because of the legal analogy and resemblance of the one to the other but now by the same reason that an Aunt by consanguinity may not Marry her Nephew an Uncle in the same nature may not Marry his Niece because the distance in both Cases is exactly the same and if Affinities and Consanguinities go hand in hand as well by the Mosaick as the Roman Law and if they are forbidden to the same degrees and by reason of their resemblance and analogy to the alliances by blood by reason of Man and Wife 's being the same Flesh and legally united into the same person then is a Man forbidden by the Levitical Law to Marry his Niece by Affinity which is the Case proposed The Second Query is Whether being but of the half-blood do not make kindred To which my Answer is affirmative that it does because though the legal Nearness of a Sister-in-Law and a Sister by both Parents be the same so far as the Matrimonial Prohibition is concerned yet the natural Nearness is greater in an half Sister then in a Sister by Affinity and therefore it seems reasonable if the one be forbidden that is to say the Sister by Affinity the Sister German or Vterine by Father or Mothers side is much more and to this it is to be added that all along before the giving of the Law the half Sister descended of the same Mother was always accounted as sacred and as indispensably prohibited in Marriage as the whole Sister her self that is she was in the interpretation of Law looked upon as an whole Sister as Abraham said concerning Sarah his Wife in his Apology to Abimelech the King of Gerar She is the Daughter of my Father but not the Daughter of my Mother implying thereby as I conceive that if she had been his Sister by the Mothers side it had not been Lawful for him according to the opinion and usage of those times to take her to Wife but without any elaborate canvassing the business this query is sufficiently answered by comparing these two places together Levit 18. 6. it is said None of you shall approach to any that is near of Kin to him to uncover their nakedness and v. 9. The nakedness of thy Sister the Daughter of thy Father or the Daughter of thy Mother whether she be born at home or born abroad even their nakedness thou shalt not uncover From whence it is manifest from comparing the latter place with the former that the half-Sister is near of Kin and consequently that the half-blood makes Kindred therefore a Mans Wife's half-Sister is to be looked upon as his Wife's Sister and because Affinities and Consanguinities in the Practice and Interpretation of Law are the same therefore his Wife's Sister is to be looked upon as his Sister and her Daughter is the same thing as his Niece the Daughter of his own Sister to whom he is in the language of the Civil Law parentis loco and therefore ought not to Marry her and if a Mans Grand-child be forbidden him in Marriage by the Levitical Law it self upon this reason which must be acknowledged to be implyed in the Prohibition because he cannot Marry his Daughter then it seems reasonable in this Case also that if a Man cannot Marry the Mother his Wife's half-Sister he cannot Marry the Daughter neither who is immediately descended from her and it is certain in the Civil Law that in the collateral as well as the direct line the ascendentes and descendentes are prohibited in infinitum It remains now only that I consider the Third Query which is this Whether the Marriage proposed being made it be better for them to part or no To which I Answer First That in some Cases it is necessary according to the Christian Doctrine which is very tender of Divorces and with a
consequence had a plausible pretence to disobey and it would be at the same time to tax him with want of Justice which is every whit as essential and congenerous to his nature for what can be more unjust then to make it death for a Man to lie with the Mother of his Wife and yet to leave it perfectly at liberty for a Man to lie with his own Daughter And yet this is no where forbidden unless it be by parity of reason except it be Levit. 18. 17. Thou shalt not uncover the nakedness of a Woman and her Daughter but that is manifestly to be understood of such a Daughter as was born to that Woman by another Husband and therefore she is called her Daughter by which it is implyed and supposed that she was not his and the same prohibition is exprest in other words Lev. 20. 12. If a Man lie with his Daughter in Law that is his Wife's Daughter both of them shall surely be put to death or except it be pretended to be forbidden Lev. 20. 14. If a Man take a Wife and her Mother it is wickedness they shall be burnt with fire both he and they For in this Case if a Man commit Incest with his own Daughter or if he should Marry her so as to make her his Wife he must of necessity have lain both with Mother and Daughter But this place is also to be understood of the Mother of that Wife by some other Husband therefore Moses calls the Daughter his Wife that is his lawful Wife and the fault was not in lying with the Daughter but the Mother after he had been joyned in Marriage to the Daughter And this Prohibition is as it were the reverse and counterpart of that other which hath been mention'd out of Levit. 18. 7. and c. 20. 12. For in the two former places it is forbidden for a Man to Marry the Mother and lie with the Daughter and in the latter it is forbidden for a Man to Marry the Daughter and commit Incest with the Mother And by these two places compared together it is still further evident that the Law of Moses is in these cases to be explained and interpreted by parity of reason for this was the reason of prohibiting first the enjoyment of the Mother and the Daughter in the descending line and then of the Daughter and Mother in the ascending because the Relation is exactly the same in both Cases and by consequence it is in both Cases equally unlawful which is to argue by parity of reason which if it be admitted as a measure of procedure in one Case the equity and justice of proceeding after the same manner is the same in all But on the contrary if we are no where to extend the intention and obligation of the law of Moses beyond the letter of it then it will be Levitically lawful for a Man to Marry his own Daughter because this is no where expresly forbidden but consequentially it is for if it be unlawful for a Man to lie with his Daughter in Law that is his Wives Daughter it is much more unlawful for him to do it with his own If it be forbidden as it is Lev. 18. 10. for a Man to uncover the nakedness of his Sons Daughter or his Daughter's Daughter that is of his Grand-child it is supposed much more that it is by that very Prohibition intentionally forbidden for him to uncover the nakedness of his own So likewise it is forbidden for a Man to Marry his half-Sister either by Fathers or Mothers side Lev. 18. 9. The nakedness of thy Sister the Daughter of thy Father or Daughter of thy Mother whether she be born at home or born abroad even their nakedness thou shalt not uncover But yet it is no where in express terms forbidden for a Man to Marry his own Sister born of the same Father and Mother which yet notwithstanding hath been looked upon by Jews and Christians as well the one as the other and both of them universally without any one exception to be Levitically prohibited and unlawful because the same reason whatsoever it is which forbids the Marriage of the half-Sister is much more strong and powerful against an incestuous conjunction with the whole so that it appears plainly not only that it is necessary in it self that the argument à pari or à potiori should be admitted in these Cases but that in some of them it is universally done and there is the same reason why it should be so in all Which may render my Fifth and Last consideration in a manner useless which is that God being so highly displeased with the Amorites and other Nations as utterly to extirpate them from off the face of the Earth and give their Land for an Inheritance to Israel his People and being so displeased at the Abominations themselves for which these Nations were extirpated and rooted out that the sanction of several of the Levitical Prohibitions was certain and unavoidable death in the most publick manner in the face and open view of the whole Congregation this ought to teach us not only to admit a parity or potiority of reason when they lie so naturally and so fairly in our way that we cannot without blushing pretend to shun or avoid them but rather then restrain our obligation to the Divine Law within too narrow bounds to exceed on the other hand by a pious mistake instead of falling short out of a spirit of presumption which is an offence to God when it hath not modestly dutifully and impartially considered things though it should happen to determine rightly as to the matter or the instances of obedience And this is my first answer to the Question proposed concerning the Marriage of an Uncle with his Niece which is drawn from the parity or similitude of the Case to the Marriage of an Aunt with her Nephew But Secondly It is I presume agreed on all hands that it is unlawful for a Nephew to intermarry with his Fathers or Mothers own Sister the Amita or Matertera the Consanguineous Aunt by the Fathers or Mothers side and it is I think as universally determined that it is unlawful for an Uncle to Intermarry with his Niece the Daughter of his own Brother or Sister and this was certainly the Old Roman Law till Claudius procured it to be abrogated by the Senate to excuse and justifie an incestuous Passion for his beloved Agrippina but yet this was looked upon by all to be so foul and abominable a thing that the example was not followed in that age by any more then one as Tacitus informs us or two at the most as Suetonius would have it and they also did it rather out of Complaisance and Flattery to Agrippina at whose instance it was done then out of any natural inclination in the Contracting parties and for the same reason because of its Turpitude and Incestuous nature it was repealed by Nerva and though it were afterwards restored by
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