Grammer and to the sence and scope of the Canon which plainly intends to aver that all those degrees prohibited in that table are also forbidden by the laws of God A truth so certain that if either self-love or love of gaine did not betray the eye it is a wonder how it should abide a contradiction It is observable that neither statute nor canon speak of an expresse prohibition in Gods law And the Canon purposely distinguisheth the termes prohibited by Gods law and expressed in the Table as justly supposing there may be as strong a prohibition in a sense implyed as verbally expressed Else if our Lawes as is pretended should give allowance which God forbid to any marriages not expresly in terminis forbidden wee should have strange and uncouth mixtures God by Moses expresly forbad the uncovering the nakedness of Father and Mother hee expressed not the nakednesse of Son and Daughter he expresly names the nakednesse of the Fathers wife he expresseth not the nakednesse of the Mothers husband He expresly names the nakednesse of thy Sister he expresseth not the nakedness of thy Brother he expresseth the nakednesse of thy Sons Daughter he expresseth not the nakednesse of thy Daughters Son He expresseth the nakednesse of thy Fathers wives Daughter he expresseth not the Mothers Husbands Sonne he expresseth the Fathers Sister not the Mothers Brother He expresses the Daughter in law not the Son in law So as by this Rule if it should be carried only by meer verball expressions a woman might marry her Son in law the Nephew might marry his great aunt the neece her grea-uncle the Daughter might marry her Mothers husbands Sonne the Grand-mother might marry her Daughters son the Daughter might marry with her Mothers Husband Were these things to be allowed the world would be all Sodome These things therefore are of necessity included in the law by a clere Analogy no lesse then if they had beene expressed But have there been as hee saith precedents of this march I am sory to heare it surely the more the worse and the more need to redresse it the addition of this if neglected would help to strengthen an ill claim Cozens-german he saith have beene allowed to marry What is that to the present case The difference is as much as betwixt a Nephew and an Uncle The Uncle hath too much of the Parents both right and blood to challenge an equall claim with a Cozen. In the shutting up it pitties me to see your worthy Friend driven to this plea and like a drowning man to snatch at so small a twig Being done he saith it ought not to be undone Alas the Canon is peremptory It is incestuous and unlawfull what plea is there for continuance Speak not therfore of either connivence or dispensation This match is only capable of a late but much wished repentance on the Offenders part and a just diremption on the part of the Judges CASE II. Whether it be lawfull for a Man to marry his wives Brothers widow AMongst all the heads of Case Divinity there is no one that yeeldeth more scruples then this of Marriage whether wee regard the qualification of the Persons or the emergency of actions and events It is the lawfulness of this match that you inquire after not the expedience and I must shape my answer accordingly It hath been the wisdom and care of our godly and prudent Predecessors to ordaine a Table of all the prohibited degrees to be publiquely hang'd up in all the severall Churches of this Nation to which all commers might have recourse for satisfaction This Catalogue you have perused and find no exception of the case specified I know no reason therfore why you may not conclude it not unlawfull The question of the Expedience would require another debate doubt less in all cases of this nature it must needs be yeelded that it were more meet and safe since the world yeilds so large a latitude of choice to look further off a wise and good man will not willingly trespasse against the rules of just expedience and will be as carefull to consider what is fit to be done as what is lawfull but that comes not at this time within your inquiry Whiles therfore I give my opinion for the lawfulness of this Marriage with the Relict of the wives brother I doe no whit clash as you suggest with the judgement of Beza and Master Perkins who professe their dislike of such copulations I shal as readily cry them down for unmeet and inconvenient as those that with too much boldnesse come over neere to the Verge of a sinfull conjunction but for the not unlawfulnesse of this match I did upon the first hearing give my affirmative answer and the more I consider of it I am the more confirmed in that resolution That universal rule mentioned by you as laid down by those two worthy Authors must indure a limitation Cujus non licet inire nuptias ejus nec conjugis licet that there is the same degree and force of relation of a third person in the case of Marriage to the husband and to the wife so as proximity of blood in the one should not be a greater bar then the same proximity of alliance in the other Otherwise many more copulations will fall under censure then common practise will condescend unto and that ground of uxor pars quadam viri The wife is as a part of the husband as it holds not in naturall relation at all so not in all conjugall as might be too easily instanced in divers particulars And if there were not som difference in these relations those second persons which are interessed in the Husband or Wife might not come neer to the next in affinity to them For example my Brother may not marry my Sister therefore by this rule he might not marry my Wives Sister and so it should bee unlawfull for two Brothers to marry two Sisters then which nothing is more ordinary or lesse obnoxious to disallowance That generall rule therefore must be restrained necessarily to the first ranke of affinity if we descend lower it holds not For further explanation our Civilians and Canonists are wont to make two kinds or degrees of Affinity the one primary the other secondary In the first is the affinity between the husband and the Cozens of blood to his wife or è cōverse which indeed is justly held no lesse for a barr of marriage then his own naturall consanguinity for that is an affinity contracted upon interest of blood by virtue of that entire union between Man and Wife wherby they both become one flesh The Secondary affinity is that wherein there is another person added moreover to that first kinde now mentioned the affinity arising only from the interest of an affinity formerly contracted not from consanguinity and this is not so binding as either to hinder a marriage to be contracted or being contracted to dissolve it In this rank are the brothers wife and sisters
law against such marriages is so high flowne that no lesse can take it off then an utter diremtion of them even though they be not ratified only but consummate by carnall knowledg and the grave authority of some ancient and holy Fathers and eminent Doctors of the Church besides five severall Councels have passed an hard sentence upon them The maine ground of the supposed unlawfulness is that clause of Gods Law which was more then judiciall No man shall approach unto any neere of kin to his flesh to uncover their nakednesse I am the Lord Levit. 18. 6. Which though Cornelius à Lapide following his Radulphus would seeme to restraine to the ensuing particularities onely yet they may not think that God will suffer so universal a charge to be so straitly pent especially when we know that there are divers other no lesse unlawful copulations omitted in this black Roll of uncleannesses then those which are expresly mentioned the rest being intended to come in by way of analogy only for it is easy for any reader to observe that all the severalities of the degrees prohibited run still upon the male under which if the like exorbitances of the other sexe were not meant to be comprehended females should be lawlesse and the lawe imperfect To marry then with a Cousen-german is apprehended by these Canonists to be an approach to one neare kinne to our flesh and therefore intimated in that inhibition Doctor Willet a man much deserving of Gods Church conceives these marriages to bee analogically forbidden in this catalogue of Moses For saith he if the degrees of affinity be limited to the third or fourth degree as it is not lawfull for a man to marry his wives daughters daughter Levit. 18. 17. why should not the line of consanguinity hold to the fourth degree likwise and so neither the sonne to marry his fathers brothers daughter or the daughter the sonne But that worthy Divine did not heedfully observe the great difference betwixt these instanced degrees for the one of these is an equal line the other in an unequal the one is a collaterall consanguinity the other is in a directly descending affinity so as the husband should bee grandfather in law to the wife which in all reason were very unlawful and absurd since in all those descending degrees there is a kinde of reverential inequality betwixt the lower and superiour which abhorres from all proportion of a match whereas the collateral equidistance of Cousensgerman from the stock whence both descend hath in it no such appearance of inequality Certainly then no analogy can draw these marriages within the prohibition whether the neerenesse of approach to our flesh be a just bar to them must be further considered Gregory whom some would faine interess in our English Apostle ship writing to his Augustine in way of answere to his Interrogations puts these mariages in the same rank with the marriages of brothers and sisters which hee brands with this note that they seldom ever prove fruitfull As for those of brothers and sisters which were usual as Dio dorus Siculus tells us amongst the Egiptians and are this day in use in barbarous nations nature it selfe abominates the mention of them In the first plantation of the world there was a necessity of them as without which there could have been no humane generation but afterwards as the Earth grew more peopled so these matches grew still more odious like as it was also in the first plantation of the Church the holy Seed being confined to a narrow compasse were forced unlesse they would joyne with Infidels to match somtimes over-neer to themselves as even Abraham himself the father of the faithfull married his brothers daughter but when the bounds of men and beleevers came to be enlarged the greater elbow room opened a wider liberty of choice and now Gods select people found it meet to observe a due distance in the elections of their wives so regarding the entireness of their Tribes as that they fell not within the lines of prohibition wherein no mention being made of brothers and sisters children in all ages and nations some have thought fit to make use of their free-dom in this kind What neede I to urge the case of Zelophehads five daughters Num. 36. 11. who by Gods own approbation were married to their fathers brothers sonnes To mince the matter and to make these sonnes nephews according ao the Hebrew phrase as Doctor Willet indeavors to doe is without either need or warrant since these scruples were not since that time stood upon by the Jewish people yea this practise was no lesse current among the civiller heathens of old I could tell you of Cluentia by Ciceroes relation married to her cousen Marc. Aurius of Marcus Antonius the wise and vertuous Philosopher marrying his cousen Faustina and a world of others were not this labor saved me by the learned lawyer Hotoman who tells us how universall this liberty was of old as being enacted by the lawes of the Roman Empire and descending to the lawes of Justitian confidently affirmes that for five hundred yeeres all Christian people magno consensu allowed and followed these Imperiall constitutions concerning Matrimony Although I might here put him in minde of Theodosius enacting the contrary in his time as it is like by S. Ambroses instigation who then sharply inveighed against these matches in a vehement epistle to Paternus being then in hand with a marriage betwixt his son his sisters daughter But excepting that good Emperour the coast was cleare perhaps for the Cesarean constitutions not so for the judgement of Divines amongst whom it were enough that S. Ambrose and S. Augustine the flower of the Latine fathers if no other doe bitterly oppose it This judgement being found not probable only but exceeding profitable to the Roman See it is no wonder if it obteyned both credit and vigour from thence Decrees Decretals make this inhibition good not without damning the contrary practise and now the Civill and Canon lawes clashing with one another how can it be but the prevalence must be according to the power of the abettor What liberty the Court of Rome hath taken to it self in the restraint of marriages and upon what ground all Christendom both sees and feeles One while their prohibition reaches to the seventh degree in natural kindred then to the fourth One while the impediment of spirituall cognation is streched so far without any colour of divine authority as that what by Baptisme what by Confirmation twenty severall persons are excluded from the capacitie of intermarriage Anotherwhile the market is faln to fourteene And wherefore this but for the sweet scarce valuable gaine of Dispensations upon these occasions flowing in to the Lateran treasure For which considerations wee have learned not to attribute too much to the judgement or practise of the Roman courtiers in this point Upon the sūming up then of this discourse
were Iscah Nahor his neece Milcha Amram his Aunt Jochebed and these not without a large bles-upon the bed Let him tell me also that Jacob married two Sisters and conversed conjugally with both which were now shamefully incestuous yet was herein blessed with the issue of six of those Patriarchs who were the root of those glorious stemmes of Israel If we should speak most favourably of these conjunctions to ranke them under malum quia prohibitum it must needs follow that till the prohibition came they could not bee censured as evill Though good Authors make it justly questionable whether these fore-alledged marriages should deservedly bee charged with a sin or excused by Gods extraordinary dispensation in the meane time the blessing was to the person not to the act even Lots incestuous copulatio with his daughters sped well two famous nations sprang thence of one of them the gracious progenitrice of the Saviour of the world Yet this is no plea for the allowance of that monstrous conjunction After â—he law one justifiable example were worth a thousand before it Lo good Caleb saith he married his daughter Achsah to his brother Othoniel Joshua 15. 16 17. Indeede this case comes as home to the businesse as it is farre off from the text See whether mes-prision of Scripture may mislead us a man that understands nothing but the english or vulgar latin may easily run into so foul an error weigh but the place well you will soon find the fault without me Othniel the son of Kenaz Calebs brother tooke Kerath-Sepher and Caleb gave him Achsah his daughter to wife The English wanting cases expresses it doubtfuly it will be cleare in the Latin as Montanus and Pagnine two great Masters of the Hebrew in their Interlinear read it Othniel filius Kenaz fratris Calebi Othniel the sonne of Kenaz which Kenaz was Caleb's brother both the Hebrew Chaldee cleare that sense So the Septuagint as Emanuel-Sa also urges upon that place Judg 1. 13. expresly say that Kenaz was the brother of Caleb and not Othoniel wherein yet I cannot much blame an unballanced judgement whiles I find the Septuagint contrary to themselves For in Josh. 15. 16 they say Othniel was Calebs younger brother In Judg. 3. 9. they say Kenaz the father of Othniel was so for which there is no excuse but the large sense of a brother in the Hebrew We are brethren saith Abraham to Lot yet he was Lots uncle so was Kenaz a progenitor to Othniel for Caleb is stiled the son of Jephunneh the Kenezite Josh. 14. 14. Num. 32 12. The case was only this Kenaz was the ancestor of Caleb and one of the same name was his brother the father of Othniel what can be more plain then 1 Chron. 4. 13. And the sons of Kenaz Othniel Seraiah So as if wee take this most strictly to the letter it implies nothing but the marriage of two cozens german Othniel the son of Kenaz and Achsah the daughter of Caleb brothers children as Bucer upon the place Melanchton in his Tract De Conjugio Junius and indeede who otherwise And now by this time you see what a poore ground this is to build upon rather you see a castle not built on the sand but in the ayre meer misconceit But saith the Advocate this marriage is no where directly forbidden in the Law I must tell him it is but a meer shuffle to stand upon the terms of a direct prohibition when there is one no lesse forceable convictive Two wayes may ought be effectually forbidden in the law Either in plain expression of terms or in clear implication of sense surely that is rather more in the law which it means irrefragably than what it verbally expresseth now however this be not in the letter of the law yet in the sense it is the same law that forbids the nephew to marry the aunt doth eadem operâ forbid the uncle to marry the neece In regard as of neerness yea identity of blood the case is the same however som inequality may be conceived in respect of government subjection And if upon som oeconomicall termes it be more unfit for a Nephew to marry his Aunt than for an Uncle to marry his Neece yet in regard of blood and that bodily conjunction which God principally aymes at in this prohibition what difference can possibly bee conceived Nature hath made no other distance betwixt the Nephew and the Aunt than bewixt the Neece the Uncle or if there be any they must be sharper eys than mine that can discerne it God himself me thinks hath put this out of doubt the reason wherewith hee backs his command is iresistible The Nephew shall not marry the fathers sister why so For she is thy fathers neer kinswoman v. 12. Lo it is the neerness of blood that makes this match unlawfull not respect of civil inequality Where the blood then is equally neere the marriage must be equally unlawfull That rule of law which is pretended in prohibitoriis quicquid non prohibetur permittitur What is not forbidden is permitted had neede of a fair construction Indeed that which is not forbidden either in words or in necessary analogy implication of sense is supposed to be left at large But what place hath this Axiome in a case not less really forbidden than the expressed And if wee should strictly follow the letter of this Maxime it would lead us into Sodome since there are marriages not specified which would be monstrously incestuous such as honesty would blush to mention as shall appeare in the sequele Neither is there any more force in that other In poenalibus non fit extensio That penall lawes should not bee stretcht further then their words import Certainly in som sense I know no law that is not penall but why this law Thou shalt not marry thy Aunt or Neece should be rather penal than Thou shalt not commit adultry I know not I am sure learned Zanchius accounts these of the 18. of Leviticus equally morall and Bucanus holds them to be against the law of nature And if in humane laws this axiom may challenge a place yet in the roy all laws of our Maker where under one sin mentioned all the species appendances and the whols claim of that wickednesse is wont to be comprised doubtless it is utterly unsufferable Neither is here any extension of this prohibition beyond those limits which God hath fixed in the undoubted sense of his law In the seventh Commandement nothing is expressed but adultry shall we therefore say neither fornication nor pollution nor sodomie is there forbidden were not this to destroy that lawe which God makes to be spirituall and to open the flood gates to a torrent of licentiousnesse surely it is easy to observe that Gods Spirit no lesse meanes that which he pleaseth to suppresse The Psalmist sayes Promotion comes neither from the East nor from the West nor from the South Psal. 75.
husband and therefore upon the decease of the brother and sister the husband of the sister deceased and the wife of the deceased brother may marry together as Dr. NicholausEverhardus out of Richardus de Media Villa and Of this kind is the marriage now questioned which therfore doth not fall within the compasse of the prohibition Secundum geâ—us affinitatis c. The second kind of affinity which is by a Person added unto the first kinde is no bar to Matrimony And with this judgment I find no reason why I should not concur but if any man think that he sees just ground to entertaine a contrary opinion I prejudge him not but modestly leave him to the freedom of his owne thoughts CASE III. Whether an incestuous Marriage contracted in simplicity of heart betwixt two Persons ignorant of such a defilement and so farre consummate as that Children are borne in that wedlock ought to be made known and prosecuted to a dissolution IT is a question as it may be put full of doubt and intricacy Parallel whereunto and eminent in this kind was that case which I had long since from the relation of M. Perkins and since that have met with it in the report of two severall German Authors The case thus A Gentlewoman of great note in those parts being left a Widow had her son trained up in her house who now having passed the age of his puberty grew up as in stature so in wanton desires earnestly soliciting her Chamber-maid to his lust she had the grace not only to repell his offers but being wearied with his wicked importunity to complain to her Mistresse of his impetuous motions The Mother out of a purpose to repress this wild humor in her Son bids the maid in a seeming yieldance to make appointment the night following with him at which time shee would change beds with the maid schoole the young man to purpose This being accordingly done the Devil so farre prevailed with the Mother that instead of chastising she yeelded to the lust of her Son and by him conceived a Daughter now finding her self to grow big for the hiding of her shame she retired secretly to a remote part of the country where she unknowne left the burden of her wombe and took order for all care secrecy of education After som yeeres the Mother thinks fit to call home her concealed issue under the pretence of a kinswoman and gives her such breeding in her house as might become the Child of a friend The maid grew up to such comelinesse both of person and behaviour that the Sonne now grown a Man fell into passionate love with her in short married her little thinking that hee was now matched with his owne Daughter he gotten by him of his own Mother They lived lovingly and comfortably together and had divers children betwixt them Only the Mother who was alone conscious of this monstrous copulation began to finde an hell in her bosom and in a deep remorse made the case at last known to some learned Divines of that time who be stowed many serious thoughts upon so uncouth a businesse and finally agreed upon this determination That all circumstances throughly weighed the penitent Mother should after a sound humiliation secretly make her peace with God for so foul and prodigious a sin but that the knowledge of the horrible incestuousness of this match should still and ever be concealed from the yong couple who thought of nothing but a faire and honest legality in this their conjunction The decision of this point comes somwhat home to yours to spend my opinion therefore in this case I find no reason all things considered to vary from their judgment I say then that the Mothers sinne was not more hainous in yeilding to so abominable an act of incest with her Son then in smothering the seasonable notice of it for the preventing of a worse incest with her Daughter for that first act of her incest was transient but this incest which was occasioned by her silence was permanent and derivable to her posterity She ought therfore though to her perpetuall shame when she saw an inclination in her Son to so foully unnaturall a match to have forestalled it by a free confession and to have made him sensible of so odious a procreation Which not being done it must needs be said that as the first act of the Sonne was a voluntary fornication but an involuntary incest so this incestuous copulation of the Son with the Daughter was involuntary in them both and there cannot be an actuall sinne wherein there is not a consent of the will On the one side it is shamefull to thinke that so grievous a sin should passe without som exemplary censure that so foule blood should be propagated to succeeding ages for want of the timely intervention of a vindicative authority but on the other side it would be well considered what miserable inconveniences yea mischiefs would follow upon so late a discovery First all honest hearts are put into a just but unprofitable horror to think that such a flagitious wickedness could be committed Then the Mother who had rinced her soule with a fountain of teares for so hatefull a miscarriage and reconciled her self to that God who was the only witness of her sin should bee so late exposed to the unseasonable shame of that world which never was privy to her offence As for the yong couple thus prodigiously conjoyn'd how could they choose upon the too late notice of their so deplorable condition but run mad for anguish of soule and weare out the rest of their dayes in shame and sorrow And for the children born to them in so detestable a wedlock whom they had formerly beheld with complacence comfort as the sweet pledges of their conjugall love how must they now needs look upon them as the living monuments of their ignominy and loath them as the most basely begotten imps of a worse then besti all copulation And when riper age should bring that unhappy of spring forth into the world how should they be every where pointed at hooted after as som strange aberrations of nature all which are avoyded by this secrecy But if on the other side you shall reply that this one evill is more then equivalent to all these that in the meane time these parties live in a continuall Incest and traduce it to following generations I must put you in minde to distinguish betwixt the state of Incest and the Sin of Incest It is true they live in a state of Incest but from the sin of Incest they are excused by an ignorance altogether invincible an ignorance both of the originall fact of their mutual relations for it is to be supposed that had they had the least intimation of the natural interest of father daughter they would with much indignation have defied so foul a coÌ„mixture which even bruite creatures if wee may