indifferent and consequently lawful For when restraints are lay'd upon lawful things there is no inference from the prohibition of one thing to the prohibition of another by Parity of Reason whether pretended or real but the Prohibition stops within it self and extends no further than the Letter as if part of a Common Field should be enclos'd and this Enclosure establish'd and warranted by Law there lies here no Inference by Parity of Reason for the Enclosure of the rest but what is not actually and legally enclos'd is common and must remain open as it did before Besides that Moses by Gods appointment should so severely forbid the Marriage of an Aunt with her Nephew a sort of Marriage of which he himself and his Brother Aaron were descended bringing by that means a sort of Aspersion and something that is at least very like a Reproach upon himself and his Family upon his Brother Aaron and the Family of Priests that were for ever after descended from his Loyns and yet take no notice in the least of the Marriage of an Vncle with his Niece in which he was not concern'd but might have forbidden it without any manner of reflection upon himself or his Relations if God had intended to prohibit them both alike is a thing to me so incredible that nothing can be more and I presume it will appear so to every indifferent Person that shall reflect upon it Fifthly There is also the Case of Achsah and Othniel in the Books of Joshua and Judges in which if we understand the Text so as that Othniel who was the Son of Kenaz shall be the Half Brother of Caleb by the Mothers side for Caleb was not the Son of Kenaz but Jephunneth then here is another Instance after the Law of the Vncle Marrying his Niece the Daughter of his Half Brother by the Mothers side the Words of the Text are these Jos 15. 17. Othniel the Son of Kenaz the Brother of Caleb took it Kirjath-sepher and he gave him Achsah his Daughter to Wife And again Judg. 1. 13. Othniel the Son of Kenaz See also g. 3. 9. Calebs younger Brother took it Kirjath-sepher which words in both places may either be so Interpreted that Othniel had this double Relation he was the Son of Kenaz and he was likewise Calebs younger Brother by the Mother's side and then Achsah the Daughter of Caleb will be Othniel's Niece and his Niece by a nearer Consanguinity than that in the Case before us or else that Othniel was the Son of Kenaz which Kenaz was younger Brother to Caleb and so Othniel and Achsah will be Cousin Germans Both of these Interpretations if there were nothing else but these Words to be considered are very natural and easie but when I consider that after the Death of Caleb and Joshua the Children of Israel were made Captive by Cushan-rishathaim for the space of Eight Years Judg. 3. 8. that God raised up this Othniel to be their Saviour and Deliverer out of the Hands of this Oppressor v. 9 10. and that the Land had rest afterwards under the Government of this Othniel for the space of forty Years no Man will ever think that Caleb and Othniel in that Age of the World could probably be the Sons of the same Mother when it is so plainly demonstrable that there was at least Forty nine or Fifty Years differance between their Ages for to this Fourty eight we must add one or two more because before this period began they were both Cotemporary and Caleb if he were Brother to Othniel was then the elder by a Year or two at the least But this is not all c. 2. 8. we have an account that Joshua dy'd and v. 10. That all that Generation of which Caleb was one were gathered to their Fathers and then before this Revolution of Cushan-rishathaim we have an account of several other Oppressions which the Jews for their many Sins and Provocations laboured under so that the distance between the Age of Caleb and Othniel is still considerably greater than what hath been represented It remains therefore that Achsah and Othniel were Cousin Germans that is Brothers Children who in their Circumstance might lawfully Marry for it appears that Achsah was an Heiress otherwise her Father could not have given her the Southland as he did and added afterwards to it the Vpper and the Nether Springs all which by the Mosaick Platform of Inheritance would otherwise have devolved upon the Male Issue If you ask how any Woman can be called an Heiress while her Father is yet living I answer That in strictness she could not yet be called by that name there being no Inheritance necessarily devolved upon her but her Father was now so old that he was past the hope or expectation of any more Children For at the first entrance of the Children of Israel into the Wilderness he was one of the Heads of the Tribes Numb 13. 6. and one of those who together with Joshua and others v. 17. were sent by Moses to spy out the Land of Canaan after this they remained in the Wilderness Fourty Years and Joshua who seems to have been much of the same Age with Caleb soon after his entrance upon the Land of Canaan dy'd being at his Death of the Age of an Hundred and ten Years Josh 24. 29. Judg. 2. 8. And if we allow ten or twenty Years by which Joshua without any reason that appears shall be supposed to be older than Caleb the Age of Caleb at the Marriage of his Daughter Achsah will be an Hundred or Ninety at the least wherefore being so old and unfit in Person to be at the Head of a Vigorous Assault he propounds the taking of Kirjath-sepher to some other with a reward He that smiteth Kirjath-sepher and taketh it saith he to him will I give Achsah my Daughter to Wife not that any one Man could take a City or Town by himself or that every Man was fit to Command a Party or that the Inheritance which was to go along with Achsah could be legally diverted from Othniel who was the next Heir Male of that Family only by these general words he propounds the Conduct of the Expedition to Othniel with Promise upon Success that he should immediately be Married to his Daughter which the Old Man during his Life time was not obliged to permit and have part of the Inheritance in hand before hand And this is the true State of this Case which though in it self it be nothing to our purpose yet there is an use that may be made of it and that is this That it would be very strange if God had intended equally to prohit the Marriage of an Vncle with his Niece as of an Aunt with her Nephew not only that he should no where expresly prohibit the former of these as he hath done the latter but that the Holy Spirit in this particular Case of Achsah and Othniel should speak of the Marriage of Cousin Germans
the Twenty fifth of the same King the same thing is to be understood but when it is added or otherwise by Holy Scripture it is imply'd by this that there are other barrs to Matrimony besides the Levitical Degrees Yet notwithstanding when in the Act 32 H. 8. c. 38. God's Law is only mentioned without the insertion of that other Clause or otherwise by Holy Scripture we must either say that the Parliament at that time had not so great a deference and regard to Holy Scripture as when the former Act was made or else that under the comprehensive terms of God's Law not only the Levitical Degrees but all Scripture in general is included and this is certainly most reasonable to believe the Design and Intention of all these Acts of Parliament being only to reduce the Matrimonial Prohibitions and the causes of Divorce to the Standard of God's Revealed Will and to evacuate annul and disappoint the Encroachments and Usurpations of the Canon Law so that in this I agree perfectly with Vaughan against Coke but this do's not properly concern our Case for it is the Levitical Degrees and they only to which we are to appeal I wish my Lord Vaughan as he disagrees with Coke in this particular in which we are not concerned so in another in which we are he had not disagreed with himself For notwithstanding in what hath been cited out of him above he do's so plainly intimate that we are not to strain the obligation of these Laws beyond the Letter of them yet p. 216. he says No degrees being mentioned in the Statute to be prohibited by God's Law but those which are express'd it cannot thence be concluded that the Statute intended no other than those to be prohibited by God's Law for take the words at most advantage for the purpose viz. Since many inconveniences have fallen by Marrying within the Degrees prohibited by God's Law that is to say the Son to Marry the Mother the Brother the Sister c. in the same manner is it if a Statute should say Since many inconveniencies have happened P. 217. by doing things prohibited by the Kings Laws that is to say by depopulation of Farms by substracting of Tithes c. It would not be concluded that the things so enumerated were all the things prohibited by the Kings Laws For besides that this seems to be a flat Contradiction to what he had said before That all Marriages particularly declared by P. 216. the Acts to be against God's Law cannot be dispensed with but that all others may or in Words to that effect the Case is not the same in these two several Examples For when we speak of Levitical Degrees prohibited by God's Law and then enumerate all the several Particulars as they are set down in Leviticus than which there are no more Particulars of Prohibited Degrees any where to be found in Scripture in this Case God's Law and the particular Branches of it thereafter express'd being taken all together are coextended to one another But when we say Whereas many Inconveniencies have happened by doing things prohibited by the King's Laws that is to say c. instancing in three or four Particulars only it is manifest that the King's Laws are abundantly of greater latitude than the Particulars that follow But yet the words That is to say in both Cases refer only to the Particulars thereafter expressed and if there be any other things prohibited by the King's Laws which are not expressed and enumerated in these Particulars the abstaining from such forbidden Practices as those is not bound upon us by vertue of this Law but by the particular Sanctions of other respective Laws wherein those Offences or Enormities are forbidden For it would be a strange thing for a Man to be hanged for stealing an Horse by virtue of a Law which punishes the Non-payment of Tythes How can those words That is to say be referred to those Particulars which are no where said or expressed or the words before-rehearsed or above-expressed to those which are no where rehearsed or expressed I do not say that a Parity or Superiority of reason is not to be admitted but I say the words of a Statute which is the Statute-Law will extend no further than themselves and in what instances this Parity or Potiority of Reason lies belongs to a Court of Conscience or of Equity to determine but then these Instances are not referr'd to by the Words that is to say or by the Words afore-rehearsed or above expressed which belong only to the naked Letter of the Law but they are pointed at by the Instances themselves as those Instances by Parity or Superiority of Reason do point at other Instances that are not mentioned as for example When it is forbidden to Marry the Half-Sister this evidently darts a Prohibition upon the Whole-Sister likewise because the Whole-Sister is really the Half-Sister and something more and when it is forbidden for a Man to Marry his Grandchild this points still more strongly upon his Daughter for if the Grandchild be forbidden for the sake of the Daughter as there is no question that is the reason the Daughter is much more forbidden for her own and her Father's sake and for the sake of the Grandchild who is for her sake expresly forbidden at a further remove But if where there is neither an express Prohibition nor so much as a Parity of Reason we will suppose a Law notwithstanding to oblige which is exactly our Case we may as well extend the Prohibition in infinitum so that there need have been but one Prohibition of Marriage and that would effectually have barred all other Instances that can be supposed for where a Prohibition stops not with Parity of Reason what other Limit or Boundary can we set Neither let any Man take shelter in Archbishop Parker's Matrimonial Table which being first publish'd in 1563. was afterwards in the Year 1603. among many other Canons of a Convocation held that Year being 1 Jacobi 1. ratified confirmed and allowed under the Broad Seal of England in which Matrimonial Table among other Prohibitions the Marriage of an Vncle with his Niece is forbidden For this Table was made with an unquestionable reguard to the Levitical Prohibitions and it was upon supposition of a Parity of reason betwixt the Marriage of an Vncle with his Niece and that of an Aunt with her Nephew that the former of these was prohibited in that Table notwithstanding it be not expresly mention'd in the Law of Moses it self but now since I have shewn plainly that there is no such Parity of Reason as is pretended the Table cannot prohibit such Marriages any longer unless the Act of Parliament must give place to the Table For by the Act of 32 H. 8. c. 38. it is expresly ordained that No Reservation or Prohibition God's Law except shall trouble or impeach any Marriage without the Levitical Degrees and what those Degrees are appears by 28 H.
after such a manner that many and those very Learned Men too have been induc'd to believe it was the Marriage of the Vncle with his Niece for of this Opinion were most of those whom I have already cited as Asserters of the meerly positive Obligation of the Mosaick Law Sixthly and lastly Though I am far from disputing the Kings Power in dispensing with a Statute in Cases of necessity of which he is the Judge yet in ordinary Cases he is never supposed to intend it and it is certain that when among other Articles presented to him by the Convocation he gave his Royal Assent to the Matrimonial Table in which the Uncle is prohibited to Marry his Niece the Convocation themselves were of Opinion that this Degree was some way or other prohibited by the Law of Moses and the King agreed to this Prohibition among others upon that supposition but now since it appears so plainly that this sort of Marriage was never actually forbidden by the Law of Moses nor so much as intended to be forbidden either nothing but Gods Law can impeach any Marriage and by consequence this cannot be impeach'd or else an Act of Parliament may be Repealed by an Act of Convocation which yet hath no Power to make any Laws or Ordinances whatsoever but what the Parliament it self hath given it and the Parliament can never be supposed to put a Power destructive of their very Constitution into the Hands of the Clergy met together in a Convocation nay they have expresly provided with the Kings Royal Assent who without necessity which cannot here be pretended will never break his Word with his People and then the breach of it is the truest Justice that no Convocation shall exercise any such Power FINIS AN Additional Advertisement Concerning the HALF-BLOOD DEut. 13. 6. It is provided in case of Idolatry If thy Brother the Son of thy Mother or thy Son or thy Daughter or the Wife of thy Bosom or thy Friend which is as thine own Soul entice thee secretly saying Let us go and serve other Gods c. v. 8. Thou shalt not consent unto him nor hearken unto him neither shall thine Eye pity him neither shalt thou spare neither shalt thou conceal him v. 9. But thou shalt surely kill him thine Hand shall be first upon him to put him to death and afterwards the Hand of all the People The meaning of this Law is that Idolatry should certainly be punished with Death let the Relation be never so nigh or the Endearment and Friendship never so great as appears by those Words Or the Wife of thy Bosom or thy Friend which is as thine own Soul and when it is said Thy Brother the Son of thy Mother without mention of the Brother by the Father it is imply'd that the one is nearer of kin than the other in the Interpretation of the Levitical Law this best answering the intention of this Law of Moses which did oblige them not to conceal even their nearest Relations and in this Prohibition the Brother being the Son or supposed Son of the Father is included a fortiori Books written by the same Author and Printed for Walter Kettilby at the Bishops-Head in St. Pauls Church-yard 1. ANimadversions upon the Doctrine of Transubstantiation in a Sermon Preached before the Lord Mayor October 19th 1679. 2. A Discourse of the Divine Omnipresence and its Consequences in a Sermon Preached before the Honourable Society of Lincolns-Inn the first Sunday of Michaelmas Term 1683. 3. A Sermon Preached before Sir P. W. 1681. with Additions To which are annexed three Digressional Exercitations I. Concerning the true time of our Saviours Passover II. Concerning the Prohibition of the Hebrew Canon to the Ancient Jews III. Concerning the Jewish Tetragrammaton and the Pythagorick Tetractys Quarto 4. Two Discourses Introductory to a Disquisition demonstrating the unlawfulness of the Marriage of Cousin Germans from Law Reason Scripture and Antiquity Octavo 5. A Letter of Resolution to a Friend concerning the Marriage of Cousin Germans Octavo 6. A Resolution of Three Matrimonial Cases viz. I. Whether it be lawful for a Man to Marry his disceas'd Wives Sisters Daughter II. Whether the Half-Blood makes Kindred III. Whether such a Marriage being made it ought to be dissolv'd or no. 7. Boaz and Ruth A Disquisition upon Deut. 25. 5. concerning the the Brothers Propagating the Memory of his Elder-Brother deceas'd in which the Antiquity Reason and Circumstances of the Law are Explain'd the Mistakes and Impositions of the Jewish Rabbins in this and other matters detected and a fair way opened for a clearer understanding of the most obscure and dark places in the Law of Moses together with a discovery of several things as well in the Eastern as Roman Antiquities never yet explained or understood by any 8. An Argument in defence of the Marriage of an Uncle with the Daughter of his Half Brother by the Fathers side Octavo