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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
nature_n	humane_a	law_n	positive_a	2,470	5	10.9031	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A63901	An argument in defence of the marriage of an uncle with the daughter of his half-brother by the father's side by John Turner ...	Turner, John, b. 1649 or 50.	1686 (1686)	Wing T3301; ESTC R6144	34,383	76

pignora matri And by Lucan Cui fas implere parentem Pharsal ● 8. Quid rear esse nefas Which Places though they be indeed meant of the Mother in the most proper sense yet they may be extended without immoderate straining to all that are parentum loco And to this purpose the manner of Expression is remarkable Lev. 18 14. Thou shalt not uncover the nakedness of thy Fathers Brother thou shalt not approach to his Wife she is thine Aunt As much as to say that though she be of Kin to thee only by Affinity being only thy Fathers Brothers Wife and coming from abroad out of a foreign Stock yet she is thine Aunt she is parentis loco notwithstanding and therefore it is a great Irreverence and a very high and heinous Breach of Duty and Good Manners in thee to uncover her nakedness And Phaedra in Seneca being deeply enamour'd of her Son-in-Law Hippolytus yet knowing the Disgrace and Infamy of a Mother-in-Law lying down to her Son though this were only a Relation of Affinity and not really so near a Kin as the Aunt by the Father or Mothers Side was desirous to forget that name for good and all for thus she says Matris superbum est nomen nimium potens Seneca in Hippolyto Act. 2. Nostros humilius nomen affectus decet Me vel Sororem Hippolyte vel famulam voca Thirdly In the Marriage of the Vncle to the Niece there is a greater fitness for Propagation which is the great and declared end of Marriage then in that of the Aunt to the Nephew And this Argument is never the less cogent because Albericus Gentilis knew three or four Bonny brisk De Nuptiis l. 5. c. 10. p. 547. Aunts that were younger then their Nephews and his own Aunt it seems was one of the number for a Law is a general Rule which regards only the generality of instances without regard to those that are so rare and so seldom to be met with besides that there are other reasons upon which the Marriage of an Aunt with her Nephew is prohibited and where this does not hold the others do It is enough that generally speaking Aunts are much older than their Nephews and that Women do not continue fit for Generation so long as Men by which means it comes to pass though the Aunt at the time of Marriage may not in many instances be effoete and barren yet she will not continue Prolifique so long as a Niece so that here is a double natural obstruction against the Marriage of an Aunt with her Nephew which does not hold in that of an Vncle with his Niece Fourthly If we consider the same man as an Vncle with respect to his Niece and as a Nephew with respect to his Aunt here are three terms at a distance from each other and the two extreams are probably very far asunder there is in all probability Youth Beauty and Virginity on the one hand and on the other Old Age Widowhood and an imparturient Estate so that generally speaking there is manifestly a greater temptation to the Marriage of the Vncle with his Niece then to that of the Nephew with his Aunt therefore if the Law of Moses had intended to forbid the former as well as the latter this is that which ought to have been Prohibited in the first place because there is the greater Temptation to it and therefore the instances of Transgression must of necessity be more frequent neither can any thing be a greater disparagement to the wisdom of God than to say that he intended both of these sorts of Marriages should be equally avoided and yet at the same time to inculcate that with so much seeming industry and sollicitude of which there was scarce any danger and to omit that wholly without the least word of notice whose danger was so apparent whose temptation is so strong and whose instances without a very severe and peremptory Prohibition could not in all Probability be unfrequent Wherefore it being so clear as it is that there is no parity of reason between the Marriage of an Vncle with his Niece and that of a Nephew with his Aunt it is now manifest if we proceed upon the Levitical measures that the Divorce of the Vncle from his Niece is not only indefensible after they are once Marryed but that considering the Levitical as a positive Law it is lawful ex antecedenti since it is neither forbidden in express words neither can it be inferred to be unlawful by parity of reason and since the measures of the Levitical Law are in this Case of Matrimony the declared measures of ours it follows unavoidably that what is left indifferent in the Law of Moses preserves the same liberty and indifference in ours then which I need say no more but because nothing can be too plain or too sure therefore I add further that though there had been such a parity as is pretended yet our Law has no regard to any such way of illative proceeding And this I will prove First by an instance Forreign to our Case Secondly by another instance Bordering upon it And Thirdly by the express words of the Act it self where the Levitical Prohibitions are made the measure of ours As to the first of these the instance I aim at is this by an Act of Parliament 21 H. 8. c. 13 it is provided that the Brethren and Sons Born in Wedlock of every Knight may every of them purchase Licence or Dispensation for the holding of pluralities and receive take and keep two Parsonages or Benefices with cure of Soul But now it is a ruled Case that a Baronets Son or Brother shall not enjoy this Priviledge notwithstanding the reason of it was manifestly honourary and a Baronet shall take place of a Knight besides that the one is hereditary which the other is not so that here is not only unquestionably a parity but a twofold very great potiority of reason in the behalf of the Baronets Son or Brother and yet the Law adheres so strictly to the Letter that he shall enjoy no priviledge by virtue of this Statute I know it is said that this Statute is an encroachment upon a common right there being no natural reason why one man should have two Livings more than another and therefore it ought not to be extended further than the Letter But then it is to be considered that this reason will hold as well in natural as in positive obligations for the Laws of nature as such oblige only by natural sanctions neither is any man punisht for the breach of any Law of nature as such by an humane or divine positive Law but as that Law of nature ratified by Divine Authority or humane appointment is made positive and hath a positive Sanction annexed to it so that let a Law oblige naturally never so much yet to oblige any man not to break it by an humane Law without which an humane Law cannot punish the

extrinfique to any thing of Covenant or Bargain What hath been said of Marriages without V. Alberic Gentil ex Cujacio l. 4. de Nuptiis c. 6. p. 41● Consent which yet notwithstanding were valid by the Civil Law the same was likewise true of Clandestine Marriage and Marriage of a Christian with an Heathen or Pagan both of which were forbidden by Imperial Rescripts but yet were valid notwithstanding de futuro although ex antecedently prohibited and unlawful But to come up still nearer to the Instance before us Grotius hath this remarkable L. 2. c. 5. sect 14. paragr 4. Passage in his Book de Jure Belli Pacis Sed sciendum est non quod vetitum est fieri lege divinâ irritum quoque esse nisi hoc lex addiderit aut significaverit Canon Eiliberinus LX si quis post obitum uxoris suoe sororem ejus duxerit ipsa fuerit fidelis per quinquennium eum a communione abstinet eo ipso ostendens manere vinculum matrimonii Et ut jam diximus in Canononibus qui Apostolici dicuntur qui duas sorores duxerit aut fratris filiam tantum Clericus fieri prohibetur From which Passage it is plain in the Judgment of this Great Man what hath been already proved from several express Testimonies out of the Civil Law not only that that Fact cannot be punish'd by any Legal Sentence which is only implied obscurely to be forbidden but no where expresly declared to be so but that even in case of a simple Prohibition without a certain Punishment or Forfeiture assigned no such Forfeiture can in this Case be incurred nor any such Punishment inflicted Wherefore the Marriage of an Vncle to his Niece being no where prohibited by any positive Levitical Decree and much less having any Punishment allotted to it it cannot be punish'd by any Judicial Sentence for we must either say That Divorce is no Punishment though with respect to the Relation betwixt Man and Wife it be certainly the heaviest of all other because it perfectly destroys and evacuates that Relation or else That a Divorce betwixt Persons Married in this Degree is absolutely and undoubtedly unlawful upon account of any such Relation Further Though I readily grant 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 pleased as Servitude hard Labour 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 assigned any Adultery by the Law of Moses was punish'd with Death in both Parties but by ours it is not so Which is a plain Argument whatever may be said of unlawful Marriages and unlawful Lusts in which we are governed 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 Cognisance 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 25th of H. 8. and Cap. 6. if that or some other Statute of 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 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 with his Niece yet notwithstanding it could not have been so by ours And to shew yet further that our Law does neither inflict any Punishment nor remove it though the Case be never so plain without an express Probibition in that particular behalf I will instance in two other things not yet mentioned the first concerning the Infliction of Punishment the second concerning the Removal of it The first is of a Clerk convict of Felony or Murther and after Conviction breaking Prison Concerning which there is an Act in the 23 d. of H. 8. the Preamble of which Cap. 11. is in these Words Where divers Persons being convict of Murther or Felony having the Privilege of their Clergy and delivered to the Ordinaries afterwards wilfully break the Prisons of the Ordinaries and escape their ways doing and committing great horrible and detestable Offences and as hitherto for such wilful breaking of Prisons of Ordinaries by Clerks Convict hath not been provided any great Penalty whereby they should stand in dread of doing the same Be it therefore Enacted c. After which follows the Body of the Act by which such Breach of Prison for the future is made to be Felony without Sanctuary or Benefit of Clergy From which Words it is plain for I do not argue from the Act it self it being only a Repeal of 4 H. 7. c. 13. by which the Benefit of Clergy was allowed to Clergy-men as oft as they should offend That it is the sense of the King and his Three Estates assembled in Parliament which is as much as to say it is the Law of England That no greater Penalty can be inflicted for any Crime than what the Law hath expresly determined neither hath any Man reason to dread any Punishment but what the Law hath denounced against his Offence From which general Rule I cannot discern that there is any one Exception unless it be in the Case of those Punishments which are expresly left to Discretion by the Law which I am sure is not the Case of an Vncle Marrying with his Niece and therefore whether the thing be Naturally or Levitically Lawful or no which I do not yet examine it is certain that a Divorce which cannot be denied to be a Punishment cannot legally ensue upon it The second thing is this Because generally speaking it was a Rule in Law that he that killed another should at least incur the Forfeiture of his Goods and Chattels it was therefore doubted in Parliament whether 24 H. 8. ● 5. he that kill'd a Thief in his own defence should not forfeit his Goods And this Doubt could