Selected quad for the lemma: judgement_n
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A63896
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Addenda & mvtanda, in the late defence of the marriage of an uncle with his niece being the daughter of the half-brother by the father's side / by the author of that defence.
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Turner, John, b. 1649 or 50.
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1686
(1686)
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Wing T3298; ESTC R6190
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18,827
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51
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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
same Degrees a Man and his Wife are all one and his Wives Sister as to this Particular is the same with his own and her Daughter the same with his Consanguineous Niece by the Whole Sister which if it be determin'd lawful the Daughter of the Half-Brother is much more the Half-Blood and the Paternal Consanguinity taken together making the Case more favourable by Four to One which is the exact Proportion Thirdly Though it be true what I have affirmed That the Talmudists or Traditionary Doctors are agreed in permitting the Marriage of an Vncle with his Niece and this as far off as the time of Josephus and probably a great deal longer yet the Karraites or Scriptuary Jews forbid it as well by the Brother as the Sisters Side conceiving it as I suppose to be included by Parity of Reason But this is so far from being a Prejudice to our Cause that it is the greatest advantage it can possibly receive for it is absurd to think that the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Misnical or Traditionary Jews were ignorant of this Opinion of the Karraitish Faction and therefore their determination in this case did not proceed out of heedlesness or inadvertency as it is found to have done in many others but was certainly grounded upon one of these two bottoms either that Parity of Reason was not to be regarded and that according to Antient Tradition it did not indispensably oblige their Forefathers who upon Prudential Considerations assumed a latitude and liberty to themselves either of entring into such Marriages or abstaining from them or else that there was indeed no Parity in this Case as certainly there is not and much less in the Half-blood and the Half-blood by the Fathers side and though I am no great friend to the Traditions of the Jews which in many cases are monstruously fabulous and impertinent yet where a Tradition hath reason to assert it this is a great Argument of its Truth and Credit and the Reason and Tradition do reflect upon each other a mutual Authority and Reputation Fourthly and lastly Though Archibishop Parkers Matrimonial Table were confirmed by Authority of a Convocation in the Second of King James the First yet it is to be considered that the power of such Assemblies and Synods of the Clergy and the Validity of what they shall determine is founded upon 25 H. 8. c. 12. and in that Act there is this provision made Provided alway that no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the Kings Prerogative Royal or the Customs Laws or Statutes of this Realm Wherefore all the Question is whether this Marriage be against the Law of God as I think I have abundantly proved that it is not and upon supposition that I am in the right the Matrimonial Table as to this particular Prohibition is of no manner of force or obligation because the Statute of 32 H. 8. c. 38. expresly says That no Reservation or Prohibition Gods Law except shall trouble or impeach any Marriage And this is all I have to say only since there is a Sentence of Divorce already past in this Cause I would humbly recommend it to those before whom the final determination of this Controversie shall lie that they would reflect upon our Saviours injunction in Cases of this Nature whom God hath joyn'd as he hath joyned all those who being actually Married are not antecedently by his Law forbidden to Marry let no man put asunder and that in the Judgment they shall give upon this Case they would set the great Judge of Heaven and Earth before them as a Pattern who hath told us not only for our instruction but imitation too 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I will have Mercy and not Sacrifice and that in the midst of Judgment he remembers Mercy FINIS 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Reliquiae Secundae I Did believe upon the Writing of my last Paper that I had exhausted the Argument which was the Subject of it but upon further enquiry I find I have not and there is further to be added to what I have said already as follows First Learned Men are divided in their Opinions whether the Prohibitions in Leviticus are Natural that is founded and rooted in the Law of Nature or in the Natural and Eternal Reason of things or whether they are purely positive and no more Of the first sort is Lyranus Abulensis Bonfrerius Masius Montanus and Nicholas Serarius and among the Reformed Mr. Calvin of the latter is Paulus Burgensis Cajetanus C. a Lapide Sanchez and the Authors by him cited Tirinus Lorinus Menochius and Magalianus and among the Reformed three great Authorities Drusius Episcopius and our Learned Bishop Taylor as for mine own Opinion I must confess that I incline rather to the Sentiments of the former but they that think with the latter 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 strained by Parities and Interpretations whether true or false beyond the Letter of them Secondly As to my Interpretation of the Phrase of Dying Childless it is confirmed 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 habere 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 I have 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 punished with Death he says Multa alia quae non sunt peccata mortalia puniebantur paenâ mortis ex aliquâ causâ legislatorem movente ut esus Sanguinis Thirdly When it is said Levit. 18. 6. None of you shall approach to any that is near of kin to him to uncover their Nakedness It is to be observed that this nearness of kin is to be measured not from our selves but from the Fountain of Kindred that is from a common Father or Parent