Selected quad for the lemma: judgement_n

Word A Word B Word C Word D Occurrence Frequency Band MI MI Band Prominent
judgement_n case_n court_n plaintiff_n 3,427 5 9.9986 5 true
View all documents for the selected quad

Text snippets containing the quad

ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
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

There are 2 snippets containing the selected quad. | View lemmatised text

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
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