wherein some marriages were not lawful and others unlawful but the Iudgment of both was meerly Ecclesiastick insomuch That if a man were question'd in the Spiritual Court for a lawful marriage the Temporal Law would afford him no Remedy by Prohibition or otherwise because they neither had any Iurisdiction of that Subject matter nor were presumed to have any knowledge in those Laws by which such matters were to be determined which were the Laws of God contained in the Scriptures and the Canon Law either by Councils or the Popes Decretals admitted in the Kingdom 3. Although the Canon Law had been formerly relaxed and the lawfulness of marriage enlarged by Councils and Decretals as they might be and were so as sundry marriages became lawful which were before Canonically prohibited Thus it happen'd in the Council of Lateran Concil Lateran sub Innocent 3. 1215. Seld. de Jure Natur. f. 608. under Pope Innocent the Third In quo Sancitum prohibitionem Copulae Conjugalis quartum Consanguinitatis Affinitatis gradum non excedere quoniam in ulterioribus gradibus jam non potest absque gravi dispendio hujusmodi prohibitio generaliter observari for before many Degrees beyond the fourth were forbid yet could the Common Law take no notice of this enlargement of lawful marriages nor did not Because the lawfulness still depended upon the Law Divine and the Canon Law as then it stood by that alteration whereof the Secular Judges had no Conuzance or Skill to Iudge nor is there any Prohibition in the Register or elsewhere to be found concerning the questioning of any marriage in the Spiritual Court in all the time preceding the Acts of Parliament nor long after some of them But if at the time of this Council it had been enacted by Parliament That all marriages should be lawful after the fourth Degree from Cosen Germans inclusively then if such marriages had been questioned in the Spiritual Courts a Prohibition had lain because a marriage was questioned which an Act of Parliament had expresly made lawful and whereof the Secular Judges were the most Conuzant But if then by an Act of Parliament all marriages had been made lawful not prohibited by Gods Law or not prohibited in the Old or New Testament though by that Act all marriages prohibited by Canon Law and not by Scripture had been made lawful yet the Temporal Courts had thereby no manner of Iurisdiction in Cases of Marriage because the lawfulness of them were still to be measured by a Law out of their Conuzance that is by the Divine Law And such an Act of Parliament was directory only to the proceeding of the Spiritual Iudges in Cases of Matrimony and no way advancing the Iurisdiction of the Temporal Courts nor enabling them to prohibit the questioning of any marriage The Law and Reason of it being thus stated before the Acts of Parliament of 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. We will see what alteration was induc'd by these respective Statutes in order And first the Act of 25 H. 8. hath these words Since many inconveniences have fallen as well within this Realm as in others by reason of marrying within the Degrees prohibited by Gods Law That is to say The Son to marry the Mother The Son to marry the Step-mother The Brother to marry the Sister The Father to marry his Sons daughter The Father to marry his Daughters daughter The Son to marry his Fathers daughter procreated and born by his Step-mother The Son to marry his Aunt his Fathers Sister or Mothers Sister The Son to marry his Uncles Wife The Father to marry his Sons Wife The Brother to marry his Brothers Wife A man to marry his Wives daughter His Wives Sons daughter His Wives Daughters daughter His Wives Sister Which Degrees 1. are the Degrees expresly mentioned in the Eighteenth Chapter of Leviticus and were for matter and language by this Act first made of Lay Conizance It declares those Marriages to be plainly prohibited by Gods Law that notwithstanding they have sometimes proceeded by colour of Dispensation by mans power which ought not to be For no man can dispense with Gods Law as the Clergy in the Convocation and most of the famous Universities of Christendome have affirmed c. Then it enacts a Separation by definitive Sentence in the Spiritual Courts of the Kingdom without Prohibition from or Appeal to Rome of such marriages The next Act of Parliament concerning marriages prohibited 28 H. 8. c. 7. is 28 H. 8. c. 7. By which Act the former Act of 25. is repeal'd not for the matter of the marriages there prohibited as is said in that Act and therefore In the same words The marriages within those Degrees are recited again and declared to be prohibited by Gods Law But with these differences that in the Prohibition 1. Of the Sons marrying the Step-mother is added Carnally known by his Father 2. In the Prohibition of marrying his Uncles Wife is added Carnally known by his Uncle 3. In the Prohibition of the Father to marry his Sons Wife is added Carnally known by his Son 4. In that of the Brother to marry his Brothers Wife is added Carnally known by his Brother 5. In those of marrying a mans Wives daughter So Sir Edw. Coke referrs the Levitical Degrees to this Act. Second Inst f. 683. or her Sons daughter or her Daughters daughter is added having the Carnal knowledge of his Wife By this Act these Degrees were the second time made of Lay Conizance Another alteration in this Act from the former is That if any man carnally know any woman all persons in any Degree of Consanguinity or Affinity of the parties so offending shall be adjudg'd to be within the said Prohibitions in like manner as if the parties so carnally knowing one another had been married For example If a man carnally know a woman not marrying her he is prohibited to marry her Daughter or Daughters daughter è converso In all other Clauses this Act and the former of 25. are verbatim the same and this Act is in force Observations upon those two Acts 25 28 H. 8. 1. That by neither of these Acts no marriage prohibited before either by Gods Law or the Canon Law differenc'd from it is made lawful 2. That the marriages particularly declared by the Acts to be against Gods Law cannot be dispens'd with but other marriages not by the Acts declared in particular to be against Gods Law are left statu quo prius as to dispensations with them 3. That neither of these Acts gave any Jurisdiction to the Temporal Courts concerning marriages more than they had before but were Acts directory only to the Ecclesiastick proceeding in matters of marriage 4. Neither of these Acts say or declare That the Degrees rehears'd in the said Acts
particular being a part of that Law the Temporal Iudges had no Conuzance after this Act more than before and that this Act excepting in the matter of Marriages to the fourth Degree and onwards which it declares not to be against Gods Law was only directory to the Ecclesiastick Courts as the former Statutes were and gave the Temporal Courts no Iurisdiction to prohibit questioning any Marriage but those of Cosen Germans and onwards But the Judges of the Temporal Courts have long since and often after the Act of 32 H. 8. granted Prohibitions for questioning marriages out of the Levitical Degrees and thereby determined the lawfulness of such Prohibitions So as many Parliaments having past since Prohibitions granted in that kind without complaint of it as is likely but certainly without redress for it It is not safe in a Case of publique Law as this is between the Spiritual and Temporal Jurisdiction to change the receiv'd Law nor do I think it is expected That being taken then as setled That the Spiritual Courts may be prohibited to question marriages out of the Levitical Degrees The first question will be Whether any marriages be against Gods Law but those within the Levitical Degrees for if none else be the Temporal Courts having Conuzance of marriages within those Degrees have consequently Conuzance of all marriages against Gods Law Then must the words of the Statute No marriage shall be impeach'd Gods Law excepted without the Levitical Degrees be understood thus No marriage shall be impeach'd Gods Law excepted viz. his Law of the Levitical Degrees Cok. Litt. f. 235. a. The Authority which makes for this Exposition is Coke in his Littleton where these words are For by the Statute of 32 H. 8. cap. 38. it is declared That all persons be lawful that is may lawfully marry that be not prohibited by Gods Law to marry that is to say that be not prohibited by the Levitical Degrees By which evidently he makes all the Law of God which prohibits marriages to be only the Levitical Degrees But I conceive clearly There are other Laws of God prohibiting marriages to be made and if made warranting their Dissolution and so intended to be by this Statute of 32 H. 8. besides the Law of God in the Levitical Degrees 1. For persons pre-contracted to another are prohibited by Gods Law to marry against such pre-contract 2. Persons of natural Impotency for Generation are prohibited to marry For marriage being to avoid Fornication 1 Cor. 7. v. 2. if it be useless for that purpose as natural Impotency is it is as null So is the Case of Sabell and another Case of one Bury Dyer 2 El. 178 divorc'd at the Suit of their Wives for Impotency 3. Plurality of Wives or Husbands is prohibited by Gods Law the first being not prohibited by the Levitical Degrees And Sir Edward Coke Cok. Mag. Ch. f. 687. a. in the end of his Comment upon this Statute notwithstanding the passage before in his Littleton saith expresly That marriages made with a person pre-contracted or with an Impotent person could not have been question'd in order to a Divorce by reason of this Statute but because such marriages are against Gods Law yet are they all without the Levitical Degrees This is the reason of the words Gods Law except for these marriages may be impeach'd though out of the Levitical Degrees this answers the words or otherwise by Holy Scripture in 28 H. 8. c. 16. also In what sense any Marriages and Copulations of Man with Woman may be said to be Natural and in what not In the first place to speak strictly what is unnatural it is evident that nothing which actually is can be said to be unnatural for Nature is but the production of effects from causes sufficient to produce them and whatever is had a sufficient cause to make it be else it had never been and whatsoever is effected by a cause sufficient to effect it is as natural as any other thing effected by its sufficient cause And in this sense nothing is unnatural but that which cannot be and consequently nothing that is is unnatural and so no Copulation of any man with any woman nor an effect of that Copulation by Generation can be said unnatural for if it were it could not be and if it be it had a sufficient cause There are other Males and Females differing in their Species which never have Appetite of Generation to each other and consequently can never have the effect of that Appetite the kinds whereof are innumerable Between these the acts of Generation are so unnatural that they are impossible and no restraint is necessary to such by Laws or by other Industry Marriages forbidden in Leviticus lawful before Those marriages and carnal knowledge which are amongst the most Incestuous enumerated in Leviticus the Eighteenth were so far from being unnatural in primordiis rerum that they were not only natural but necessary and commanded in that Command of Increase and Multiply that is the Carnal knowledge between Brothers and Sisters For the World could not have been peopled but by Adams Sons going in to their Sisters being Brothers and Sisters by the same Father and Mother or by a more incestuous coupling than that and if such Carnal knowledge had been absolutely unnatural in any sense it had never been either lawful or necessary For whatsoever is simply and strictly unnatural at any time was always unnatural and unchangeable Marriages lawful after restoring the World in Noah After the peopling of the World first from Adam then from Noah and to the time of Moses giving the Levitical Law Many other marriages prohibited in the Levitical Degrees were not only lawful but prosecuted with the most signal benedictions and promises of God Gen. 20. v. 12. As the marriage of Abraham with Sarah who was his Sister that is the daughter of his father but not the daughter of his mother So is his answer to Abimelech and so is the Tradition of her Genealogy But by the Eighteenth of Leviticus the marriage of the Sister by the Father is prohibited to the Son viz. Lev. 18. v. 9. Thou shalt not discover the shame of thy Sister the Daughter of thy Father or the Daughter of thy Mother whether she be born at home or born without c. The next instance is of Amram the Father of Moses and Aaron who married Jochobed his Fathers Sister namely the Sister of Roath And Amram took Jochebed his Fathers sister to his Wife Exod. 6. v. 20. and she bare him Aaron and Moses Which marriage is prohibited in the 18. of Leviticus viz. Thou shalt not uncover the shame of thy Fathers Sister Lev. 18. v. 12. for she is thy Fathers Kinswoman Jacob had two Wives at the same time Leah and Rachel Gen. c. 29. c. being Sisters which is a known Story But by the Eighteenth of Leviticus Thou shalt not take a Wife with her
constancy speak of such Laws as given to all mankind in this particular matter of marriage and carnal mixture and derive them traditionally through all antiquity as binding all Nations and People by Gods Precept and therefore call them among others so given Leges Noachidarum or the Laws of all the Sons of Noah by which men were from the beginning prohibited 1. Marriage or Copulation with their Mother 2. With the Fathers wife 3. With a Sister by the same Mother or with a Soror uterina 4. With the Wife of another man 5. Man with man 6. Man or Woman with Beast From these Laws they justifie Abrams marrying his Sister by the same Father Amrams marrying his Fathers Sister Jacob marrying two Sisters at the same time Thamars endeavouring to marry her Husbands brother as not prohibited before the Levitical Law or any other marriage those before mentioned excepted And as to Adams Sons marrying their Sisters by the same Mother the Law was given in the beginning prohibiting it but God dispens'd with it until the World was competently peopled as they receive it And it is observed by Mr. Selden That upon the Tradition of this general Law 1 Cor. 5. v. 1. St. Paul rebukes the Corinthians for permitting among them such a Fornication that is such an Incest as was not named among the Gentiles That a man should have his Fathers wife Some Examples of which were in Syria as in Antiochus and Stratonice In this sense it is said A man is a natural Subject when he is so born and is bound by the Law of his Allegiance as soon as he is and that a Prince is that Subjects natural Soveraign because he is bound to protect him as soon as he can be protected Of which kind of Law of Nature much is said in Calvins Case but confusedly and without clearness of conception For these Laws of a mans subjection as soon as he is born being the immediate means of his preservation and good cannot but be assented to as soon as it is possible to assent and in that are called Natural Laws Of the Natural Laws in this sense given to all Mankind by the Deity from the beginning of time concerning Marriage and bodily knowledge See excellent matter in that incomparable Work of Mr. Selden De Jure Naturali Gentium Juxta disciplinam Ebraeorum And under this sense of Natural Laws hath he titled that Book De Jure Naturali Gentium Juxta disciplinam Ebraeorum for so the Iews accounted the Laws or Leges Noachidarum given in the beginning to all Mankind Natural Laws though they were in truth but positive Divine Laws because with relation to Mankind there was no time wherein they oblig'd not In what sense a man is said to act unnaturally against Civil Laws or Agreement There is a fourth way whereby a man is said to act unnaturally which acting is subsequent to Human Laws and Contracts between man and man which is when after Laws made and Contracts civilly setled a man shall oblige himself diametrally repugnant and contrary to his former Obligation As when A Subject shall by Oath promise or otherwise bind himself to judge or force his King when by his Obligation to his King he is bound to obey him and be judg'd by him When a Servant shall command and compel his Master by whom he ought to be commanded To contract marriage with two Husbands when plenary duty and obedience is to be paid to each and therefore impossible to be performed to both So is it with a Servant who contracts his absolute Service to two Masters at the same time those things are unnatural as not consisting with the nature of the Obligation a man or woman is under whereof much hath been already said The Levitical Prohibitions of Marriage are no general Law but particular to the Israelites 1. All the Prohibitions of the Levitical Degrees were not coeval with mankind as some were viz. Marriage with the Mother the Soror uterina the Step-mother 2. They were not in the restoration of mankind declared to Noah as a Law for mankind Both these appear by the marriages of the holy men before mentioned within many of those Degrees 3. They were undoubtedly deliver'd by Moses to the Jews but not to mankind for Moses neither did nor could publish them as the World was then peopled to mankind And a Law not published is no more obligative than a Law only conceal'd in the mind of the Law-giver is obligative 4. As they were delivered to the Jews only by Moses they bind other Nations no more than other laws of the Jews do concerning other Subjects as the laws of succession and inheriting lands or goods 5. They must then be made obligative if at all to the generality of Christians by the New Testament but by what medium can that be proved 6. They are not obligative to Christians any where as to the Jews which appears by the law of raising seed to the Brother vid. Canon to that purpose de Divortiis And by the marriage of two Sisters successively but not together 7. Were they obligative to Christians as to the Jews then all Christians would be bound to the same punishment as the Jews were for transgressing them which was never heard It remains then that Christians are bound to them upon another account Besides it is manifest in the Fifteenth Chapter of the Acts that when divers taught That if the Gentiles would be saved they must keep the Law of Moses It was upon that very Question resolv'd in a Council of the Apostles It was a yoke neither they nor their Fathers were able to bear It seem'd good to the Holy Ghost and to them to lay no more burthen on the Gentiles than to abstain from some necessary things that is 1. From things offered to Idols 2. From things Strangled 3. From Blood 4. From Fornication Which necessary things are after clearly expounded by St. Paul to the Corinthians not to be things unlawful simply but convenient to keep a Communion between the Jews and Gentiles that is the Old Church and the New It is further cleared That this law was no more than the other Judicial laws given to the Gentiles For when the Gentiles which have not the law Rom. 2. v. 14. do by nature the things contained in the Law What is then the preferment of the Jew or what is the profit of Circumcision Rom. 3. v. 1 2. Much every manner of way chiefly because unto them were committed the Oracles of God There is no colour of Argument That the Prohibitions in the Eighteenth of Leviticus were universal laws but that it is said Lev. 18. v. 24. Ye shall not defile your selves in any of these things for in all these things the Nations are defiled which I cast out before you Lev. 18. v 27. For all these Abominations have the men of the Land done c. How could the Land be defiled or the men
unnatural For as a Husband to her the Son is both to command and correct the Mother as his wife but as a Son to be commanded and endure her Correction as Mother So between the Father and Daughter there is a Reverence from the Daughter to the Father inconsistent with the parity between man and wife and Laws give often a power over the daughter which they forbid over the wife And the reverence and obedience from the Grand-child to the Grand-mother in what degree soever is the same as to the Mother and the same consequences follow For if the Mother or Father have power absolute or in tantum over the Son or Daughter to create reverence to them the same hath the Grand-mother or Grand-father and so forwards For if B. the Father have absolute or qualified power over A. the Son and C. the Grand-father hath the same over B. the Father then hath C. the Grand-father the same over A. the Son not immediately but mediately by the Father To this purpose the Case put in Platt's Case in the Com. is most opposite A woman Guardian of the Fleet marries her Prisoner in Execution he is immediately out of Execution for the Husband cannot be Prisoner to his Wife it being repugnant that she as Jaylor should have the Custody of him and he as Husband the Custody of her To this purpose also it is remarkable what that great Scholar and Lawyer Hugo Grotius hath Eximo ab hac generalitate matrimonium parentum cujuscunque gradus cum liberis quae quo minus licita sint ratio ni fallor satis apparet Grot. de Jure belli l. 2. c. 5 Paragr 12. Nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludat But as to other Relations the same Author in the same place De Conjugiis eorum qui sanguine aut affinitate junguntur satis gravis est quaestio non raro magnis motibus agitata nam causas certas ac naturales cur talia conjugia ita ut legibus aut moribus vetantur illicita sint assignare qui voluerit experiendo discet quam id sit difficile imo praestari non possit I add only That as the mutual duties of Parents and Children consist not with their marrying one another so the Procreations between them will have a necessary and monstrous inconsistence of Relation For the Son or Daughter born of the Mother and begot by the Son as born of the mother will be a Brother or Sister to the Father but as begot by him will be a Son or Daughter So the Issue procreate upon the Grand-mother as born of the Grand-mother will be Uncles or Aunts to the Father as begot by the Son they will be Sons or Daughters to him and this in the first degrees of Kindred Besides by the Laws of England Children inherit their Ancestors without limit in the right ascending Line and are not inherited by them But in the Collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle In the Civil Law the Agnati viz. the Father or Grand-fathers Brother are loco parentum and the Canons borrow it thence but that is because they were Legitimi Tutores or Guardians by Law to their Nephews with us the Lord of whom the Land is held is Guardian or the next of Kin to whom the Land cannot descend and by the same reason they should be loco parentum In a Synod or Convocation holden in London in the year 1603. of the Province of Canterbury by the Kings Writ and with Licence under the Great Seal to consent and agree of such Canons and Constitutions Ecclesiastick as they should think fit Several Canons were concluded and after ratified under the Great Seal as they ought to be among which the Ninety ninth Canon is this No person shall marry within the Degrees prohibited by Gods Law and expressed in a Table set forth by Authority Canons 1 Jac. 1603. Can. 99. in the year of our Lord 1563. and all marriages so made and contracted shall be adjudg'd incestuous and unlawful And the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish This Table was first publisht in Arch-bishop Parker's time in 1563. I know not by what Authority then and after made a Canon of this Convocation with the Kings Licence under the Great Seal and so confirm'd and since continually set up in Parishes By which expresly the Degrees by Gods Law prohibited are said to be expressed in that Table and is the same as No person shall marry within the Degrees prohibited by Gods Law and which are expressed in the Table Any other Exposition of the Canon will be forc'd and violent and the Table set up for the Peoples direction from Incest but a snare and a deceit to them And this marriage is not prohibited in that Table There is an Objection That by the Canon and Civil Law this Degree of Marriage in question is prohibited It is true but by the Statute of 32 H. 8. c. 38. All Prohibitions by the Canon or Civil Law quatenus Canon or Civil Law are wholly excluded and unless the marriage be prohibited by the Divine Law it is made lawful But suppose the Canon or Civil Law were to be taken as a measure in the subject of marriage of what were lawful With the Canon Law of what time would you begin for it varies as the Laws Civil of any Nation do in successive Ages Before the Council of Lateran it was another Law than since for marriages before were forbid to the Seventh Degree from Cosen Germans inclusively since to the Fourth Every Council varied somewhat in the Canon Law and every Pope from the former and often from himself as every new Act of Parliament varies the Law of England more or less and that which always changeth can be no measure of Rectitude unless confin'd to what was the Law in a certain time and then no reason will make that a better measure than what was the Law in a certain other time As the Law of England is not a righter Law of England in one Kings Reign than in another yet much differing Nerva forbad it Heraclius permitted it Grot. Annot. 167. So doth the Civil Law before the marriage of Claudius the Emperour with Agrippina his Brothers daughter the marriage of the Uncle with his Neece was not allowed among the Romans But by a Law of the People and Senate upon that Occasion such marriages were permitted Many others of the like kind Nor did the Canon Law and perhaps truly take more persons to be prohibited within the Levitical Degrees than are there expressed What else is the meaning of that place
Conizance in matrimonial matters to the Temporal Courts but had been only directory to the Courts which had the Conizance and if any Iudgment had been given amiss in them it was to be rectified by appeal according to those Statutes or by Commissions of Delegacy But I then said That since 32 H. 8. many Prohibitions have been granted to the Spiritual Courts concerning marriages without the Levitical Degrees in several Ages And that therefore in a Case concerning the Extent of the Spiritual and Temporal Jurisdiction and after so many Parliaments wherein no complaint hath been made or certainly no redress given it cannot be expected we should against so many judicial Presidents take upon us to alter the Law so long practiz'd specially after Harisons Case in which all the Iudges were advised with Therefore taking it for granted That the Temporal Courts can prohibit the impeaching of marriages without the Levitical Degrees by the Statute of 32 H. 8. for before no Prohibition was ever granted in that kind The Question is Whether the marriage of the Husband with his Wives Sister after the Wives death be such a marriage as by the Act of 32. the Temporal Courts may prohibit the impeaching or drawing it into question in the Spiritual Courts in order to a Divorce or separation of the parties And I conceive they cannot for these Reasons 1. I affirm this marriage to be expresly prohibited within the Eighteenth of Leviticus and then it must be within the Levitical Degrees 2. If it were not so prohibited yet it is not a marriage without the Levitical Degrees but within them and therefore no Prohibition will lye for impeaching it for marriages not to be impeached must be without the Degrees and for that some marriages within the Degrees may be lawful 3. That if this marriage be without the Levitical Degrees yet it is a marriage prohibited by Gods Law and therefore to be impeached notwithstanding the Statute of 32. whose words are No marriage Gods Law excepted shall be impeached without the Levitical Degrees As to the first 1. When a Law is given to any people it is necessary that it be conceiv'd and publish'd in words which may be understood for without that the Law cannot be obey'd and a Law that cannot be obey'd is no Law 2. The meaning of words in any Law are to be known either from their use and signification according to common acceptation before the Law made or from some Law or Institution declaring their signification 3. The Interdicts of marriage and carnal knowledge in the Levitical Law were directed formally to the men not to the women who are interdicted but by consequent for marriage and carnal knowledge being a reciprocal Act and impossible to be done by one party it follows that the woman being interdicted to the man the man must also consequently be interdicted to the woman for a man cannot marry a woman and she not marry him 4. The Reasons why the Interdict is ever formally to the man are 1. Because in the prohibited Act of uncovering the nakedness the man properly is the primary Agent and the woman but patient and consenting for a woman can no more uncover the mans nakedness naturally than she can ravish him 2. The man after marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him but the womans consent to have her nakedness uncovered is forbid and makes her consenting an equal offence with the mans for by the Twentieth of Leviticus the man and woman offending in that kind were to dye which had not been but that both were Transgressors 5. The first and most express Law prohibiting the carnal knowledge of certain persons in the Eighteenth Chapter of Leviticus Vers 6. is None of you shall approach to any that is near of kin to him to uncover their nakedness 6. Near of kin are words of relation and have no positive certainty nor are intelligible but relatively to remoter kin for all the posterity of Adam being of kin in some degree A person of kin to a man within two Degrees is nearer of kin than one within four Degrees and one within four Degrees nearer than one within eight Degrees and so interminately Whence it follows That the Law before cited Not to approach to any near of kin to uncover their nakedness had been useless without knowing the persons accepted and accounted to be the near of kin Those persons were known to the Jews to whom the Law was given by the Law it self declaring them precisely Lev. 21.1 2. The words are There shall none be defiled for the dead among his people but for his kin that is near unto him that is for his mother and for his father and for his son and for his daughter and for his brother and for his sister And without this declaring Law it is evident that these persons are a mans next of kin in the ascending and descending and in the collateral line And they which are next of kin to him must be a mans near kin necessarily although others more remote may be also denominated a mans near kin by custome of speech Vpon this foundation all the Prohibitions concerning incestuous marriages are grounded by the Eighteenth Chapter of Leviticus The first and most general Levitical prohibition in that kind is in the same words as this Law prohibiting being defiled for the dead but for a mans kin that is near unto him None of you shall approach to any that is near of kin to him to uncover their nakedness And after Instances are given of the persons comprehended under those words Near of kin as is done in the other Law concerning the dead As in the father the brother the son whose nakedness appears to consist and terminate in their Wives For a man cannot otherwise uncover the nakedness of a man but in his wife which is the mans nakedness as appears in the Text and those are three of the persons comprehended under the words near of kin The nakedness of thy father shalt thou not uncover Lev. 18. v. 7. v. 8. which is explained as before in the next verse The nakedness of thy Fathers wise shalt thou not uncover It is thy Fathers nakedness Thou shalt not uncover the nakedness of thy daughter in law v. 15. she is thy sons wife The nakedness of thy brother wife shalt thou not uncover v. 16. it is thy brothers nakedness Which is the same as to say Thy father thy brother thy son are thy near of kin therefore thou shalt not uncover their nakedness by uncovering the nakedness of their wives Then as to the nakedness of the females terminating in their own persons The nakedness of thy mother shall thou not uncover v. 7. v. 9. she is thy mother The nakedness of thy sister the daughter of thy father or the daughter of thy mother thou shall not uncover which is to
say Thy mother and sister are thy near of kin therefore shalt thou not uncover their nakedness So express Instances are made in five of the six sorts of persons declared to be near of kin But as Instance is made in the daughter though she be as immediately as the son near of kin to the father and eminently comprehended under that Law of not approaching to a mans near of kin and by all both reason and exposition within it which made Sir Edward Coke Cok. Inst 2. f. 683. by mistake in his Table of Prohibited Marriages in his Comment upon the Statute of 32 H. 8. to set down the daughter as nominally prohibited by the Eighteenth of Leviticus and then in the Margent to say those Degrees are truly set down in the Statutes of 25 28 H. 8. whereas the daughter is mentioned in neither of them nor in the Eighteenth of Leviticus The use I make of this is to shew That the extent of the prohibiting Law is not to be measured from the persons instanced in Leviticus for should it be so estimated the Law would be narrower than it self the Instances comprehending only five prohibited persons But the Clause of not approaching to a mans near of kin comprehending six and so the Law would be inconsistent with it self The second General Law Besides those six Degrees of persons before mentioned who are past question a mans next of kin and consequently his near of kin and declared by the Levitical Law so to be there are other degrees of kin prohibited which are also undoubtedly a mans next of kin after the former six kinds and are denoted also in Leviticus as a mans near kin and who are instanc'd in as and indeed are the next and so the near of kin to a mans near of kin as before and prohibited for that reason beyond which kindred no prohibition is found in Leviticus Whence a seond general Law is deduced from Leviticus the Eighteenth That no man shall discover their nakedness who are the near of kin to his near of kin or of them who are propinqui propinquis suis which they draw from these words Lev. 18. v. 12. Thou shalt not uncover the nakedness of thy fathers sister she is thy fathers near kinswoman v. 13. v. 14. v. 10. Nor of thy mothers sister for she is thy mothers near kinswoman Nor of thy fathers brother which must be for the same reason he being his fathers near kinsman Nor of thy sons daughter or of thy daughters daughter for the like reason they being near of kin to his son and daughter as his son and daughter are to him All which are instanced in in Leviticus as prohibited for that reason and many others are of the same relation not instanced in as a mans mothers brother his fathers father his mothers father his fathers mother his mothers mother his brothers daughter his sisters daughter and others who are equally near of kin to his near of kin as his immediate near of kin are to himself and were never doubted to be prohibited within the Levitical Degrees by any Whence also it appears That the Instances given in this second Rule drawn out of Leviticus are not the Law it self nor comprehend the extent of it but are examples only of another or second degree of kindred comprehended under the general Law of not approaching to those near of kin and which are particularly specified by the Karait Rabbies That all persons near of kin strictly to any the six persons first interdicted are likewise interdicted by that Law None shall approach to any near of kin to him to uncover their nakedness within the meaning of the words near of kin is further proved by these Reasons 1. When the Law hath denominated the Relations to be accompted near of kin as is done in this case none comprised under that denomination can be more or less near of kin than others so denominated As when the Law denominates a man an Attorney Serjeant or the like no Attorney is more or less an Attorney and no Serjeant more or less a Serjeant than any other Attorney or Serjeant And so is it in all orders of men of the same denomination Therefore it appearing by the Law to be the reason of interdicting a person because near of kin to a mans father or mother and none of those six Relations being more or less near of kin than the other the nearness of kin to any of them is as much reason of interdicting as the nearness of kin to the father or mother or any other of them instanced in Another reason is because the Law forbidding the approach to any near of kin forbids in that expression the near of kin to any of the six persons strictly denominated near of kin as well as those six persons themselves For in Leviticus a man is interdicted his wives daughter and his wives sons daughter and her daughters daughter because they are his wives near kinswomen whereas her daughter only is the near kinswoman to the wife in the strictest sense and the other but near of kin to her near of kin that is to her daughter yet all of them are said to be the wives near kinswomen So Thou shalt not uncover the nakedness of thy mothers or fathers sister Lev. 20.19 for he uncovereth his near kin before they were said to be the near kin to the mother and father and here to be the sons near kin The third General Law The third prohibiting Rule drawn out of Leviticus is A man is prohibited to take a wife and any other near of kin to her which is grounded upon these words Lev. 18.17 Thou shalt not uncover the nakedness of a woman and her daughter neither shalt thou take her sons daughter or her daughters daughter to uncover their nakedness for they are her near kinswomen None of the wives near kinswomen are here clearly instanced in but her daughter not her mother not her sister who are equally her near kinswomen and comprised in this prohibition and in the reason of it as well as the daughter For the reason of prohibiting these persons instanced in being 1. Because they are the wives near kinswoman it is evident that the wives mother and the wives sister are by the same reason prohibited for they are her near kinswomen in the strictest sense of nearness His wives daughter is literally forbidden the husband and so is but not so obviously his wives mother For example If he marry the mother the words forbid him her daughter and if he marry the daughter he is prohibited the mother else he would marry a woman and her daughter which the words forbid and accordingly by the Karaits Doctrine grounded upon clear exposition as I conceive of the Levitical prohibitions the husband is forbidden as near of kin to his wife Her mother Her daughter Her sister And as the mother and daughter of his wife are expresly forbidden him in that
Seventeenth verse so is his wives sister in the next following Verse Neither shalt thou take a wife to her sister to vex her during her life They add also as prohibited the husband by this Rule His wives fathers wife Her brothers wife Her sons wife From the same Verse they deduce a fourth Rule For these Rules vid. Seldens ux Ebraica c. 4 5. That the Husband is prohibited the near of kin to his wives near of kin as before in the prohibitions of consanguinity for he is literally prohibited the daughter of his wives son and her daughters daughter and by necessary inference also his wives grand-mother by father and mother who are the near of kin to his wives daughter and her mother who are his wives near of kin which they thus strongly prove A man is forbidden to take a woman and her sons daughter or her daughters daughter Therefore if a man marry his wives grand-mother he hath taken a woman and her sons daughter or her daughters daughter which is expresly forbid And in these are express instances given of prohibiting the near of kin to his wives near of kin and are also termed his wives near kinswomen as well as those which strictly are so By the same reason all others near of kin to his wives father brother or sister are prohibited the husband as well as those near of kin to her mother her daughter or son and are equally in terminis within the words his wives near kinswomen of which sort they number Sixteen the same with those prohibited in the second Rule for Consanguinity And it is observable That the Parochial Matrimonial Table in use in England agrees in its prohibitions of marriages which are Thirty in number for Consanguinity and Affinity with the Levitical Prohibitions according to the Doctrine of the Karait Rabbins in the four former Rules But the Karaits prohibit Eleven Degrees of Affinity much of the same nature more than the Table doth in their two last Rules that is The wives fathers wife Her brothers wife Her sons wife Her Grand-fathers wife by the father Her Grand-fathers wife by the mother Her fathers brothers wife Her mothers brothers wife Her brothers sons wife Her sisters sons wife Her sons sons wife Her daughters sons wife And they have Seven other Prohibitions by a fifth Rule whereof our Table receives none And this harmony between our Matrimonial Table and the Karaits exposition of the Levitical Degrees is more perhaps than hath been observed to justifie the persons prohibited by the Table for as many as they are to be the same levitically prohibited To this may be added That by our Vulgar Translation and also by the Septuagint as I conceive the words Neither shalt thou take a wife to her sister to vex her Lev. 18.18 to uncover her nakedness besides the other during her life may be understood to prohibit the husband his wives sister absolutely as well as to prohibit her during his wives life For the words during her life may relate either to the words Thou shalt not take a wife to her sister viz. during her life and in that sense the meaning will be That a man is not prohibited to marry his wives sister absolutely Seld. de Jure naturali Gentium l. 5. c. 10. f. 591. but only until his wives death and is consonant to the exposition of that place in Leviticus by the Scribes and Talmudical Rabbies Or the words may be read thus Thou shalt not take a wife to her sister to vex her during her life or as long as she lives that is to cause jealousie and vexation to thy wife during the whole time of her life which sense and reading squares with the Doctrine of the Karaits upon Leviticus and I think may well be defended by the Septuagint Translation The next thing I shall insist on is The Authority of the Canons of the Apostles so stiled Whether they were re vera the Apostles or not doubtless they are of great both Antiquity and Authority Of those Canons the Eighteenth hath these words as they are published in the Canon Law Can. Apost 18 Qui duas sorores duxit aut consobrinam clericus esse non potest 1. This Canon cannot be understood of having two Sisters for wives at the same time for the Christians never admitted two wives or more at one time and therefore interdicting of two sisters qua sisters at a time was to no purpose 2. The other part of the Canon which is aut consobrinam that is his brother or sisters daughter taken to wife shews the Canon respected only the nearness of Relation That clear'd I reason thus either marrying the wives sister after the wives death was lawful when the Canon was made or unlawful for it relates to an offence done qui duxit not to a new made offence If lawful why then was any punishment namely exclusion from the Clergy inflicted for a lawful Act If it were unlawful in the Apostles time how is it become now lawful It is true as the Learned Grotius observes on this Subject Grot. de Jure Belli l. 2. c. 5. Sect. 14. A marriage may be unlawful in many respects and yet the marriage stand good and the vinculum matrimonii not dissolv'd but punishable some other ways if made unlawful by Humane Authority But this Precept of the Apostles cannot be said of Humane Authority only nor a new Institution as is already noted nor was there any Divorce for Incest among the Iews as is noted after but was always among the Christians in Christian States 2. In that time the Apostles and Primitive Christian Church had no Jurisdiction or Power of Legal Divorce Separation and Bastarding the Issue how incestuous soever the marriage were for those were Acts of Jurisdiction and Coercion and could not be done but by the power of Laws to which the parties were locally subject But the Apostles and Church power was only to forbid them communion with the rest of their brethren Christians and to deny the Offenders such things as were in their power namely to be of the Clergy as was done by this Canon This appears by St. Paul 1 Cor. 5. 1 Cor. 5 1. It is reported there is fornication among you and such fornication as is not so much as named among the Gentiles That one should have his Fathers wife which was an Incest of the highest degree although denoted by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet St. Paul could do no more but direct the Corinthians from Communion with that man and to put away from among them that wicked person He could neither null his marriage nor illegitimate his Issue if he had any nor put the Offender to death according to the Mosaical Law for these are effects of the Civil Power and among the Hebrews no Divorce was for Incest but the marriage was void and the Incest punisht Seld. Ux. Ebraica l. 1. c. 12. f. 87. 89.
as in persons unmarried The next thing observable from this Canon is That the Makers were of opinion that the marriage with the Consobrina or brother or sisters daughter was equally unlawful as marriage with two sisters and the punishment by the Canon is equal Whence it follows That the Makers of the Canon Apostles or others did in those two Cases follow the exposition of the Karaits and not of the Talmudists The Karaits holding both marriages unlawful but the Talmudists holding neither unlawful by Moses's Law But by what Law Divine the primitive and succeeding Christian Churches conceived themselves obliged as generally they did and do in the matter of marriage to observe the Levitical prohibitions strictly and indispensably is a question of great difficulty But surely they took their measures of those Prohibitions from the Doctrine of the Karaits more than from the Scribes and Pharisees though the last were of more Authority in the Hebrews Commonwealth as appears by that of Matthew cap. 23. v. 2 3. The Scribes and Pharisees sit in Moses his Seat all therefore they bid you observe that observe and do Nor was it without reason done for such of those degrees which are not particularly specified in the Eighteenth of Leviticus for in those the Scribes and Karaits agree but are deduc'd by Argument to be prohibited Seld. Uxor Ebraica l. 1. c. 3 4. Uxor Ebraica l. 1. c. 1 2. The Karaits conclude in their Prohibitions of Marriage from the Scripture it self but the Scribes in theirs from the Tradition and Sanctions of the Elders which Traditions the Christians often heeded not as introduced frequently against Gods Law as appears in the Tradition of Corban against Gods Precept of honouring the Father and Mother Mark 7.11 Mat. 15.3 4 5 6. most signally Nor is it strange that the Opinions of private men prevail above the publick in process of time So happened it in Luther Calvin and others in the beginning of the Reformation whose Opinions in time grew more authentique both in Doctrine and Discipline here and in many other States than the Doctrine of the Church of Rome which was the publique before in both kinds Many like Examples might be given ancient and modern which I purposely omit By a Canon of another very ancient Provincial Council called Concilium Eliberinum under Pope Silvester Three hundred and fourteen years after Christ and before the Council of Nice by the Sixteenth Canon of that Council Si quis post obitum Uxoris suae sororem ejus duxerit per quinquennium à communione abstineat Grot. l. 2. c. 5. p. 256. Sect. 14. By this so ancient Council marrying the wives sister was accompted unlawful but for the same reasons as before they could punish it no otherwise than by wayes in the power of the Church which was to hinder the Offender from Communion for five years And in this Council they followed the exposition of the Karaits also concerning marriages and not of the Talmudists nor is it rational to conceive that Canons then forbidding any sort of marriage proceeded from an Arbitrary power assumed by those who made them as Law makers to which they could no way pretend but because it was unlawful by the Principles and Persuasion of all Christian Believers Vide for these Rules Selden's Uxor Ebraica l. 1. cap. 4 5. By the first Rule is interdicted to a man his near of Kin By the Matrimonial Table of England interdicted The fathers wife The fathers wife or Step-mother f. 11 The mother The mother f. 10 The brothers wife The brothers wife f. 18 The sister The sister f. 16 The sons wife The sons wife f. 15 The daughter The daughter f. 13 By the second Rule is interdicted to a man the near of kin to his near of kin The Grand-fathers wife by the father The Grand fathers wife by the father f. 2 The Grand-fathers wife by the Mother The Grand-fathers wife by the mother f. 2 The Grand-mother by the Father The Grand-mother by the father f. 1 The Grand-mother by the mother The Grand-mother by the mother f. 1 The fathers brothers wife The fathers brothers wife f. 6 The fathers sister The fathers sister f. 4 The mothers brothers wife The mothers brothers wife f. 7 The mothers sister The mothers sister f. 5 The brothers sons wife The brothers sons wife f. 27 The brothers daughter The brothers daughter f. 25 The sisters sons wife The sisters sons wife f. 28 The sisters daughter The sisters daughter f. 26 The sons sons wife The sons sons wife f. 21 The sons daughter The sons daughter f. 19 The daughters sons wife The daughters sons wife f. 22 The daughters daughter The daughters daughter f. 20 By the third Rule is interdicted to the husband his wives near of kin From a woman and her fathers wife Omitted From a woman and her mother From a woman and her mother f. 12 From a woman and her Brothers wife Omitted From a woman and her sister A woman and her sister f. 17 From a woman and her sons wife Omitted From a woman and her daughter A woman and her daughter f. 14 By the fourth Rule is interdicted to a man the near of Kin to his wives near of Kin. A woman and her grand-mother by the mother A woman and her grand-mother by the mother f. 3 A woman and her grand-mother by the father A woman and her grand-mother by the father f. 3 A woman and her fathers brothers wife O. A woman and her fathers brothers wife f. 6 A woman and her mothers brothers wife O. A woman and her mothers brothers wife A woman and her brothers sons wife Omitted A woman and her brothers daughter A woman and her brothers daughter f. 29 A woman and her sisters daughter A woman and her sisters daughter f. 30 A woman and her sisters sons wife Omitted A woman and her sons sons wife Omitted A woman and her sons daughter A woman and her sons daughter f. 23 A woman and her daughters sons wife Omitted A woman and her daughters daughter A woman and her daughters daughter f. 24 A woman and her fathers sister A woman and her fathers sister A woman and her mothers sister A woman and her mothers sister A woman and her grand-fathers wife by the father Omitted A woman and her grand-fathers wife by the mother Omitted These last four Degrees are not mentioned under the fourth Rule by Mr. Selden but referred to by the words reliquis quae supersunt ex iis quae in regula secunda propinquorum sunt propinquae but the two first of these last four are forbid in our Matrimonial Table not the two last as several others of the same kind for the husband is not forbid by the Table the wives of his wives Grand-fathers nor her Fathers nor Brothers wife nor sons wife nor her fathers brothers nor mothers brothers wife nor her brothers sons wife nor sisters sons wife nor her sons sons wife
requires Accordingly Sir Edward Coke commenting upon the Statute of 32 H. 8. in his second Institutes Cok. Inst 2 f. 683. sets forth a Scheme of the Levitical degrees as necessary to the exposition of that Statute and therein enumerates the marriage of the wives husband with her sister to be both within the Levitical degrees and prohibited by the Eighteenth Chapter of Leviticus One Man was sued before the High Commissioners Mans Case Moore 's Rep. f. 907. a. 33 Eliz. for marrying his wives sisters daughter and a Prohibition was granted as Moore Reports the Case because the marriage was not prohibited by the Levitical Law which was no Reason Crook reports the same Case Crook 33 El. f. 228. Mans Case and that a prohibition was granted but that a consultation was after granted and that a sentence of Divorce was given In reporting this Case of Mans Justice Crook's words are A Consultation was granted because the Prohibition is not to be if the marriage be not within the Levitical degrees Which is a great mistake for if the marriage be within the Levitical degrees no prohibition ought to issue for it ought not to be but when the marriage is without the Levitical degrees Then he adds But here the prohibition was general and therefore not good which is not intelligible whatever he intended by it For by the Libel it must necessarily appear to the Court That the marriage in question was either without the Levitical degrees or within them If it were without the degrees the Court did most unjustly to grant the Consultation for it ought not to have been granted If the marriage were within the Levitical degrees it had been unjust not to grant a Consultation But a Consultation was granted therefore the Court conceived the marriage of the husband with his wives sisters daughter to be a marriage within the Levitical degrees and not without them though it be not specified in the Eighteenth of Leviticus to be prohibited Cok. Litt. Edit 1. f. 235. a. Peirsons Case not Parsons Sir Edward Coke in the first Edition of his Littleton saith That one Peirson was sued in the Ecclesiastical Court for marrying his first wives sisters daughter against the Canons of the Church and that the Court of Common Pleas upon consideration taken of the Statute of 32 H. 8. granted a prohibition because the marriage was not prohibited by the Levitical degrees And these two Cases have been principally insisted on to prove no marriage is within the Levitical degrees if the degree be not particularly mentioned in the Eighteenth of Leviticus But upon occasion of Harrison's Case lately adjudg'd in this Court I made search for the Records of those two Cases but no Record could be found of Man's Case but by Crook a Consultation was granted in it Trin. 2 Jac. Rot. 1032. By the Record of Pierson's Case which was in Trinity 2 Jac. it appears that in Hillary Term following a Consultation was granted which Sir Edward Coke mentions not in his Littleton And in the Second Edition of his Littleton and all the subsequent Editions that Case is omitted Hob. f. 181. a. Howard vers Bartlet Rennington's Case I find likewise in the Lord Hobarts Reports That one Rennington was questioned by the High Commissioners for marrying his wives Neece and was sentenced to Penance and bound to abstain from her Company but they were not divorced à vinculo Matrimonii though there was cause saith the Book and therefore the wife had her Dower nor was there any prohibition in the Case So as by all these Cases the marriage of the husband with his wives sisters daughter is a marriage prohibited within the Levitical degrees for nearness of kindred to the wife Then of necessity the wives sisters marriage who is nearer to the wife with the wives husband must be prohibited à fortiori So I conceive these three Cases full against the Plaintiff It is not strange That at first Prohibitions were granted upon the Statute of 32. in Cases which were not specifically mentioned in the Eighteenth of Leviticus but after discussions of the Levitical degrees upon Consultations pray'd It was manifestly found That divers marriages must be prohibited within the Levitical degrees not nominally expressed in the Eighteenth of Leviticus As the marriage of the father with his own daughter Of the Grandson with his Grand-mother or Grand-fathers wife Of the Son with his Mothers brothers wife Of the Uncle with his brothers or sisters daughter Cok. Inst 2. f. 683 684. which since appears by Sir Edward Coke to be a prohibited marriage and others upon like reason And was resolved in Arch-bishop Laud's time in the Case of Sir Giles Alington who was deeply fined and a Sentence of Divorce given for marrying his brother or sisters daughter which I heard at Lambeth House And no prohibition was granted though moved for as was very probable and commonly reported but we find no Record of Prohibitions denied for there is no Entry made of Motions not granted but of Prohibitions granted there is which makes the granting of a Prohibition of no great Authority unless upon Action brought a Consultation be denied upon Demurrer So of the husband with his wives sisters daughter The third Assertion As to the third Assertion That admitting this marriage be without the Levitical degrees yet it is prohibited by Gods Law and therefore to be impeached notwithstanding the Statute of 32 H. 8. whose words are No marriage Gods Law excepted shall be impeached without the Levitical degrees When an Act of Parliament declares a marriage to be against Gods Law it must be admitted in all Courts and Proceedings of this Kingdom to be so By an Act 25 H. 8. c. 22. intituled An Act declaring the Establishment of the Succession of the Kings most Royal Majesty in the Imperial Crown of this Realm Among sundry marriages declared by that Act to be marriages within the degrees of marriage prohibited by Gods Law the marriage of a man with his wives sister is expresly declared to be prohibited by Gods Law and that a Divorce should be of such marriage if any such were But this Act is expresly repeal'd by an Act in 28 H. 8. c. 7. intituled An Act for the Establishment of the Imperial Crown of this Realm By that Act of 28 H. 8. it is declared in these words And furthermore since many Inconveniences have fallen as well in this Realm as others by reason of the marrying within the degrees of marriage prohibited by Gods Law That is to say The Son to marry the Mother or the Step-mother carnally known by his Father The Brother the Sisters The Father his Sons daughter or his Daughters daughter Or the Son to marry the Daughter of his Father procreat and born by his Step-mother Or the Son to marry his Aunt being his Fathers or Mothers sister Or to marry his Uncles wife carnally known by his Uncle Or the Father to marry his Sons wife carnally known by his Son Or the Brother to marry his Brothers wife carnally known by his Brother Or any man married and carnally knowing his wife to marry his Wives daughter or his Wives sons daughter Or his Wives daughters daughter Or his Wives sister Then
and thereby declared to be prohibited by Gods Law are all the Degrees of marriage prohibited by Gods Law For take the words at most advantage for that purpose viz. Since many inconveniences have fallen by marrying within the Degrees prohibited by Gods Law That is to say The Son to marry the Mother the Brother the Sister c. and that the enumeration in the Act of prohibited Degrees had gone no further than to the Degrees of Consanguinity not enumerating any Degrees of Affinity as then it had been no Inference to conclude that there were no more prohibited Degrees by Gods Law intended by the Statute than the Degrees of Consanguinity only So now no Degrees being mentioned in the Statute to be prohibited by Gods Law but those which are express'd it cannot thence be concluded That the Statute intended no other than those to be prohibited by Gods Law For those are therefore mentioned to be prohibited because they were Degrees signally expressed and concerning which no question or doubt could be made In the same manner is it if a Statute should say Since many Inconveniences have happen'd by doing things prohibited by the Kings Laws that is to say By Depopulation of Farms by subtracting of Tithes by committing Dilapidations and of many other things forbidden by the Law It would not be concluded That the things so enumerated were all the things prohibited by the Kings Laws no more can it that the enumerated Degrees of prohibited Marriages in the Act by Gods Law are all the Degrees by Gods Law prohibited The next Statute is an Act of the same Parliament 28 H. 8. c. 16 28 H. 8. c. 16. making invalid Licences Dispensations Bulls and other Instruments purchas'd from Rome Which Act hath these words That all Marriages solemnized within this Realm By this Act the Levitical Degrees are made the third time of Lay Conizance or in any the Kings Dominions before the Third day of November in the Six and twentieth year of the King whereof there is no Divorce had by the Ecclesiastick Laws of the Realm and which be not prohibited by Gods Law limited and declared in the Act made this present Parliament for establishing the Kings Succession or otherwise by Holy Scripture shall be lawful and effectual by Authority of this present Parliament 1. By this Law all Marriages made before that Third of November 26 H. 8. no divorce being had are made good and lawful 2. All Marriages made before that time and not prohibited in the Degrees limited and declared in the Act of 28 H. 8. c. 7. if the Act had rested there and gone no further had been made good and if any of them had been questioned a Prohibition would have lain out of the Temporal Courts because the unlawfulness of marrying was restrained to the Degrees limited in 28 H. 8. c. 7. whereof the Temporal Judges had perfect Conizance as of a lay Law But the Act going further and saying Prohibited by Gods Law limited in the Act of 28. or otherwise by Holy Scripture leaves as is objected all Conuzance of Marriages as before to the Ecclesiastick Courts though not so amply So by those added words Or otherwise by holy Scripture the Act made all Marriages solemnized before that time not prohibited by Holy Scripture good and lawful by which Act though Marriages prohibited only by the Canon Law divided from Scripture were made good Yet the tryal was Whether the Marriage was prohibited by Holy Scripture which being only of Ecclesiastick Conizance they only could judge of the lawfulness And that the Temporal Courts could by that Act no more judge what Marriage was lawful or Incestuous by the Holy Scripture than what was Schism or Heresie by the Holy Scripture 3. By this Act it is evident The Law-makers thought some Marriages were or might be prohibited by Gods Law not limited in the Act of 28 H. 8. So if the Act had limited all Marriages lawful but those forbidden in the Five Books of Moses or in the Book of Moses called Leviticus though the unlawfulness of Marriage had been more restrain'd under that expression than under the general expression of Holy Scripture Yet Those Books being part of Holy Scripture the Secular Iudges had no more Conuzance of the parts than of the whole And so would it have been if the Act had restrained the unlawfulness of Marriage to the Eighteenth Chapter of Leviticus that being a part of the Book called Leviticus the Temporal Courts could have no more Conuzance of that part or Chapter of the Book than of the whole Book This I think is the full of the Objection The last Law and which is Cardo Questionis as being pleaded by the Plaintiff Harrison in the Books is the Act of 32 H. 8. cap. 38. consisting of several parts 32 H. 8. c. 28. some whereof are Repeal'd as the branch concerning Pre-contracts I shall therefore examine that Act as it stands in force 1. Marriages between Cosen Germans and all Marriages onwards between Collateral Cosens which were prohibited very far before the Council of Lateran and since it those to the fourth Degree to the making of this Act are made lawful and declared not to be against the Law of God viz in these words And be not prohibited by Gods Law 2. Restraining of Marriage by reason of Carnal Knowledge within any of those Degrees is expresly taken away Coke's Mag. Chart. f. 6. 84. and the Marriages declared not to be against the Law of God In these Sir Edward Coke in his Comment upon this Statute in his Magna Charta is express So if any Marriage within those Degrees shall be questioned as Incestuous in the Spiritual Courts a Prohibition will lye upon this Act because the Marriages by one part of the Act are declared expresly 1. Not to be against the Law of God 2. By another All Marriages contracted between lawful persons as we declare all persons to be lawful that are not prohibited by Gods Law to marry are lawful Ioyning then those two Clauses together That all Marriages are lawful not prohibited by the Law of God and that such Marriages of Cosen Germans and so onwards are not prohibited by Gods Law It is manifest that Prohibitions will lye in such Cases But these Marriages concern not the Case in question The next Clause in the Act and upon which the present Case stands That no Reservation or Prohibition Gods Law except shall trouble or impeach any Marriage without the Levitical Degrees The clear sense of which Clause must be That all Marriages are lawful which are not prohibited within the Levitical Degrees or otherwise by Gods Law So as the prohibiting of Marriages within the Levitical Degrees and within Gods Law whereof the Levitical Degrees are a part is no more or less in effect than to say All Marriages shall be lawful that Gods Law doth not prohibit Whence is collected That of Gods Law in general or of the Levitical Degrees in
of the Land Or How could they be Abominations if not prohibited To the 24. and 27. Verses of the Eighteenth Chapter of Leviticus the Answer is That those words referr to those universal laws of the Leges Noachidarum wherein Egypt and Canaan were defiled As Incest with the Mother Soror uterina the Fathers wife and to those horrid offences of lying with man or beast prohibited to all mankind from the beginning And if the Levitical Incest were prohibited to the people of Egypt or Canaan by some extraordinary publication which is not probable it follows not therefore they were prohibited to all mankind the words before referring but to those Nations or to one of them Concerning universal Obligation to the Levitical Prohibitions in Cases of Matrimony and Incest Though it be generally receiv'd by the Christian Churches from the primitive times of Christianity That all Christians are obliged to observe those Prohibitions as such which Human Authority cannot dispense with yet by what Law that Obligation was introduc'd upon the Gentiles converted to Christianity is not known with any satisfactory clearness For 1. It is evident they are not bound by them as they were Laws promulged by Moses to the Hebrews both because a Law deliver'd to a particular man or men or to a particular Nation or Nations is not universal to mankind nor binding them under any reason of a Law for every Precept or Prohibition is but to him or them to whom it is given 2. There being many several States who had their Civil Power and Jurisdiction separate from that of the Jews the promulging of a Law by Moses to the Jews could be no promulgation of it to different Nations under other Civil Powers and though the Jews believed Moses a Messenger of God's and so were bound to what he delivered as by that office other Nations who believed not so of him were not bound by his Testimony had he testified to other Nations the same things to be the will of God to them as he did to the Jews which he never did nor could Nor are other Nations bound to the Decalogue quatenus published by Moses for the same reason but are bound only to what is moral of it 3. Without a sufficient promulgation of a Law it obligeth no more than a Law conceiv'd only in the mind of the Law-giver 4. If Moses his Laws in cases of Incest extended to mankind quatenus reveal'd to the Jews mankind were equally bound to all other the Mosaick Laws whereof no alteration had been made upon the coming of the Messias which is contrary to the perswasion and practise of all the Gentile Nations converted to Christianity at the beginning of it and ever since 5. It is likewise contrary to the determination of the Holy Ghost and the Apostles at the great and first Council of Antioch mentioned in the Fifteenth of the Acts where the Gentiles were directed to observe but four Particulars of the Mosaick Law as necessary for them but upon what reason more necessary than the rest observed by the Christian Iews is not clear 6. It is true That by some of our Statutes many of the Levitical Prohibitions are affirmed to be Gods Law obligative to us yet the Particulars are not therein named the Levitical Prohibitions or to be according to the Mosaick Law and many Levitical Prohibitions are omitted in the enumeration of the marriages against Gods Law made by those Statutes And though such declaration of them to be by Divine Law be concluding as to any gain-saying of ours yet as to others not subject to the same Authority with us such declaration may not only be of no authority but may be accounted sensless and absurd I shall therefore endeavour to shew in what notion some of those Prohibitions may be obligative as universal positive Law and some obliging as moral Laws and so universal and of Divine Obligation the residue obliging not quatenus delivered to the Jews but as the same Laws delivered to them are made universal by a new Obligation 1. And first All those Prohibitions mentioned in the Eighteenth of Leviticus were positive Laws of God to them quatenus they relate to and terminate in degrees of Kindred therein specified and the breach of them punishable by the punishments ordained to that end in the Mosaick Law And in these respects none of them are binding to any other people than the Hebrews 2. Divers of those Prohibitions are likewise of moral prohibition and in that sense binding all men as in the descending and ascending Line of Generation As the Father is prohibited to marry his Daughter his Sons daughter and his Daughters daughter and further the Levitical Prohibition for nearness of Kin and for the respects before extends not But the Father is likewise morally and universally therefore prohibited not only those persons but all others descended from them interminately that is as far as may be known So in the Ascending Line the Son is prohibited his Mother and Grand-mother and no further by the Mosaick Law but morally not only them but all other his great Grand-mothers interminately as far as may be known and so as well as the Son are all Males descended lineally from him The reason of this Moral Obligation is well given by the Learned Grotius in these words Grot. de Jure belli l. 2. c. 5. Sect. 12. pars 2. Ab hac generalitate eximo matrimonia parentum cujuscunque gradûs cum liberis quae quo minus illicita sint ratio ni fallor satis apparet nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludat c. And again Grot. de Jure belli l. 2. c. 5. Sect. 13. pars 3. Ut de parentibus liberis nihil jam dicam quippe quos ut existimo etiam sine expressa lege ratio naturalis jungi satis vetat By the same reason by the Moral Law the Father or Mother cannot be Servants to their Sons or Daughters for as Father or Mothers honour is due to them from those they serve but as Servant honour is due from them to those they serve that is their Children who are their Masters and Superiors As Parents their Children whom they serve ought to obey and reverence them As Servants they are to obey their Children who are their Masters and Superiors and to reverence them So as this office and relation is inconsistent and repugnant between Parents and Children and unnatural therefore morally unlawful 3. There are other of the Levitical Prohibitions that by the constant tradition of the Jews were delivered to mankind in the beginning and which they term praecepta Noachidarum to which they conceiv'd all the sons of Adam obliged and these Precepts seem warranted by several
places of Holy Scripture These are That a man is prohibited his Mother his Fathers wife his Sister by the same venter positively from the beginning but a dispensation was as to the Sisters until a competent peopling of the world they add the prohibition of another mans wife which is also Moral as that of the Mother is 4. How the rest of the Levitical Prohibitions in the matter of marriage came to be so generally receiv'd by Christians as being authorized and prescribed by God seems to have no foundation so warrantable as that Council of the Apostles in the Fifteenth of the Acts. Where the Gentiles are directed to observe as necessary only four particulars of Moses his Law among which they are required to abstain from Fornication which if it had been rendred from the Septuagint from Incest or Turpitude of Copulation which answered the Original best it had much facilitated the solution of this Inquiry For it hath no colour That Fornication there should signifie the same with Stuprum and Scortum and that it should be abstained from as a special particular of the Law of Moses being an Offence not only prohibited by him yet not at all among the Prohibitions in the Eighteenth of Leviticus but by all the Nations of the Gentiles respectively as well as by Moses And it is plain the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there rendred Fornication most frequently signifies in the Septuagint both Adultery and Incest and indeed any unlawful Copulation of man and woman The ends and reasons of this general Law to Christians might be First 1. If the State of the Jews as many particular men of that State did had embraced Christianity yet the Law of Moses had still been obliging to them as to their Civil Government as far as it could consist with Christianity and had been an eternal Law not to be abrogated but by God himself who was the Law-giver Therefore if the Gentiles observed not such of their Laws which preserved their Communion with the Gentiles from being odious and abominated by them The Gentiles and the Jews though both had embraced Christianity must never have had Communion the Jews being bound by God still to observe Moses's Law 2. This detestation among them could not sort with the Precepts of Christianity newly received by both 3. Marrying at what remoteness of Kindred they thought fit was in the power of the Gentiles for the future at their own election without transgressing their local and native Laws And therefore induc'd no inconvenience to observe that Precept 4. Since all Nations of the Gentiles had some restraint of marriages by humane prudence the Apostles conceived these dictated to the Jews to be the most convenient restraints to be voluntarily practised among Christians 5. Other the restraints directed by that Council all which concerned Meats which were necessary Mediums to make Communion between men are prohibited upon the same ground though in themselves indifferent and of no obligation if not made use of in a Jew's presence who was bound from them But Incest being a lasting offence and scandal to the Jews could not be concealed from them as the eating of Meats might and therefore was to be abstained from with resolution to continue it or not at all The three other Precepts by that Council by Authority of the Holy Ghost as the words import It hath seemed good to the Holy Ghost and to us are only concerning Meats that is First of things offered to Idols Secondly of Blood And thirdly of things strangled without abstinence from which no Communion could be between the converted Jews and Gentiles For 1. Generally in all Nations eating together is the most signal instance and proof of Fellowship and Communion and if the meat prepared be desirable by some and odious to others of the Company the fellowship must break 2. Among the Primitive Christians at their Sacramental Communion which was essential to the Christian Religion they had their Agapae or Love Feasts wherein 2 Cor. if the Food were such as the Christian Gentiles approv'd and was abominable to the Christian Jews a dissolution of the Communion between them must necessarily follow and consequently the Precepts of Christianity be frustrated both as to form and Christian kindness And this Fraction must have continued as long as the Hebrews Common-wealth lasted which might have been perpetual but by the dissolution of that State and Government their Laws likewise vanished which were peculiar to that Nation as it will fall out in the Cases of all States when dissolved If the State of England France or Spain or of any other Nation be dissolved their respective Laws end with their dissolution nor is it as to this purpose material whether the Laws of a Nation proceed from Divine Dictates and Authority or Humane For the State being dissolved there is no lawful Coercion left for keeping nor punishment for violating the Laws and where that is not there is no Law common to that people For without coercion and punishment every man is free that is he is not bound to any Law of Community at least But perhaps Laws may be to particular men as to Abraham to sacrifice his Son to which he was bound under the displeasure of the Numen And thus by the dissolution of the Hebrew Common-wealth the Gentiles were freed from those Obligations touching Meats because the Jews were so too The observation of them being after the dissolution of the State but the pleasure of a particular person or persons and more than in order to preserve Communion between the people of the Jews and Gentiles those particular Precepts were of no sanctity to oblige universally more than any other the Mosaical Institutions 2. As before the dissolution of the Hebrew Common-wealth it was against Christian Charity and Love to give scandal and offence to an Hebrew by eating Meat detestable to him because God had bound him from it and the Christian Gentile might without offending any Law abstain from the Meat and decline giving scandal So after the dissolution of the Israelitish State when the Jew was equally free as the Christian Gentile it grew a scandal to the Gentile That the Jew should abhor or despise Meats which God had made lawful to the Gentile It hath been observed by learned men That it may be collected from the last part of the Eighteenth Chapter of Leviticus that there was some universal preceding Law given to abstain from those Carnal Mixtures forbid by Moses Defile not your selves in any of these things for in all these the Nations are defiled which I cast out before you verse 24. And many of the subsequent Verses are to the same purpose And these things are called Abominations Whence it is inferr'd The people could not be faulty of transgressing had there not been a Law for without Law there can be no transgression But many Answers may be given to this as First 1. From the Eighteenth of Leviticus no pretence can
marriages instanc'd in which were lawful before the Law of Moses and which have not a moral inconsistency with them and so a natural iniquity and which therefore are prohibited among all civilized Nations whether ancient or modern as well as among the Jews for the most part Selden de Jure Gentium In some places some particular examples may be to the contrary for special reasons of Revelation or Prophecy believ'd as the Mother to marry the Son Accordingly it is affirmed by the Statutes of 28 H. 8. c. 7. 25 H. 8. c. 22. That the marriages enumerated in both those Acts to be prohibited by Gods Law were notwithstanding allow'd by colour of Dispensations by mans power The words of the Statute of 28. are after the recital of the prohibited marriages All which marriages albeit they be plainly prohibited and detested by the Laws of God yet nevertheless at some times they have proceeded under colours of Dispensations by mans power which is but usurped and of right ought not to be granted admitted nor allow'd The same words are in the Statute of 25. but instead of All which marriages the words are Which marriages c. The second Question What are the Levitical Degrees I omit because the marriage in question is in no sort in the Degrees Observation And by the way it is very observable That as we take the Degrees of Marriage prohibited by Gods Law to be the Levitical Degrees expressed or necessarily implyed in the Eighteenth of Leviticus upon parity of reason or by Argument à fortiori So there are some in Leviticus which by the Act of 28 H. 8. cap. 7. and otherwise in our enumeration of the Levitical Degrees we admit as absolutely prohibited which in the Levitical Law and in the meaning of the Eighteenth of Leviticus were not absolutely but circumstantially prohibited that is 1. The marriage of a man with his Brothers wife which by 28 H. 8. cap. 7. is absolutely prohibited and commonly receiv'd to be absolutely prohibited by the Levitical Degrees But was not so by the Levitical Law nor by the meaning of the Eighteenth Chapter of Leviticus but when the dead brother left Issue by his wife But if he did not the surviving Brother was by the Law to marry his wife and raise Issue to his Brother This Law was so known that by all the Evangelists a Woman who had Seven Brothers successively our Saviour was asked Whose Wife she should be at the Resurrection 2. The second of this kind is A man is prohibited by 28 H. 8. and by the receiv'd Interpretation of the Levitical Degrees absolutely to marry his Wives sister but within the meaning of Leviticus and the constant practise of the Common-wealth of the Jews a man was prohibited not to marry his Wives Sister only during her life after he might So the Text is Thou shalt not take a Wife with her Sister during her life to vex her by uncovering her shame upon her This perhaps is a knot not easily untied how the Levitical Degrees are Gods Law in this Kingdome but not as they were in the Common-wealth of Israel where first given Third Question The third Question and chiefly concerning the Case in question is Whether Harrison's marriage with his great Vncles that is his Grand-fathers Brothers wife be a marriage by good and sound deduction of Consequence within the Levitical Degrees not particularly expressed For I think it evident it is not among those that are express'd neither in the Greek nor Latin Translations nor in the British names of Kindred where my Fathers Cosen German hath the appellation of my Uncle nor holpen by the gloss of being prohibited in the Twentieth of Leviticus though not in the Eighteenth 1. The word Uncle is an equivocal expression and in several places signifies several Relations as in the British the Father or Grand-fathers Cosen German is accounted an Uncle to the Son 2. The Fathers Brother hath in Latin a specifique term of Relation to the Son or Daughter viz. Patruus But the Stat. of 28 H. 8. c. 7. recites this prohibition to be To marry his Uncles Wife So hath the Mothers brother Avunculus but in the Greek it hath not and is express'd only by the word Kinsman 3. In Junius and Tremellius's Translation done with regard to the Septuagint and the Original the Twentieth of Leviticus verse the twentieth is rendred Quisquis cubaverit cum Amita sua nuditatem patrui sui retexit where expresly instead of and uncovered his Uncles shame it is uncover'd his Uncle his Fathers Brothers shame which makes it the same with the Eighteenth of Leviticus verse the fourteenth I shall therefore first agree That marriage with the Grand-mother great-grand-Great-grand-mother and with the great-grand-Great-grand-father and so upwards without limit is though not expressed equally prohibited in Leviticus as marriage with the Father Mother or Grand-father to the Son or Daughter So as in the right Ascending Line of Generation there can be no lawful marriage 1. The Father and Mother are the immediate natural Causes of the being of their Children and the Grand-father and Grand-mother are natural mediate causes of their being and so upwards in the right ascending Line interminately for a man could no more be what he is without his Grand-father and Grand-mother and so upwards than without his Father or Mother Therefore they are really Parents and necessary mediate causes of bringing the Children to have being and consequently what is due of reverence or acknowledgment for his being from the Child to Father or Mother is likewise due to those other Relations in the Ascending right Line But the Uncle quatenus Vncle c. doth no more contribute to the natural being of the Nephew or Neece than as if he had not at all been The marriage of the Son or Daughter with Grand-mother or Grand-father and so with any Ancestor Male or Female in the right Ascending Line is after Laws determining the knowledge and reverence due to Parents unnatural and repugnant in it self For there is unnaturalness in Civil things when constituted sometimes Though there be no Master or Servant originally in nature but only parity yet after Laws have constituted those Relations A. cannot at the same time be both Master and Servant to B. there is a repugnancy in the nature of those two Offices to be consistent in the same persons at once A Father or Mother cannot be Servant to their Son or Daughter for under the relation of Father or Mother the Son is to obey them but in that of Servant they to obey him which is repugnant and against the nature of those Relations Vnder the Law it was not forbidden a man to Curse his Servant but Death to Curse his Father or Mother A man might correct and chastise his Servant qua such but penal alike to chastise his Father or Mother in this sense The marriage of the Son with his Mother or the Daughter with her Father are
The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
nor her daughters sons wife By the fifth Rule is interdicted that two near of Kin marry two other near of Kin. A man and his father from a woman and her daughter O. A man and his father from a woman and her sons wife O. A man and his father from a woman and her brothers wife O. A man and his father from a woman and her sister O. A man and his brother from a woman and her brothers wife O. A man and his brother from a woman and her daughter O. A man and his brother from a woman and her sons wife O. None of those comprised in this fifth Rule are prohibited by the Matrimonial Table but all the persons interdicted by the Doctrine of the Karaits or Scripture Rabbies are also interdicted by the Matrimonial Table of England excepting eleven persons before mentioned not interdicted to the wives husband by the Table who are interdicted by the Karaits enumeration but in this paper are marked with Ciphers as to the Matrimonial Table in the first four Rules of the Karaits Doctrine So as all the persons prohibited in those first four Rules of the Karaits being in number Four and forty are also prohibited by the Matrimonial Table which together with Eleven persons ciphered in the Table as excepted make up the like number of Four and forty from which if you deduct Eleven as excepted there will remain Three and thirty wherein the Table and the Karaits agree And whereas the enumeration of the prohibited marriages to a man are in the Table but Thirty and by consequence so many to the woman for where the man is prohibited to marry the woman the woman must reciprocally be prohibited to marry the man the reason is because in the number of degrees in the Table the Grand-fathers wife the Grand-mother and the wives Grand-mother make but three degrees But in the enumeration of the Karaits the Grand-fathers wife by the father the Grand-fathers wife by the mother the Grand-mother by the father and the Grand-mother by the mother the wives Grand-mother by the father and the wives Grand-mother by the mother are severally enumerated and so make Six persons Three more than are enumerated in the Table and so the Numbers agree The second Assertion And as to the second Assertion That admitting this marriage is not within the Levitical Prohibitions yet the Temporal Courts cannot prohibit the impeaching or drawing it into question by the Spiritual Court There is a great difference between marriage within the Levitical prohibitions and marriage within the Levitical degrees which commonly are taken to be the same For marriage within the Levitical prohibitions was always unlawful to the Hebrews by Gods Law that is the Mosaick Law But marriage within the Levitical degrees was not always unlawful for marriage between persons of the same nearness in Affinity or Consanguinity which only makes the degree was in some case and circumstance unlawful in others lawful So a marriage unlawful and a marriage lawful as the Circumstance varied in the same degree that is the same nearness of Relation The Levitical degrees qua such are set forth by no Act of Parliament but marriages which fall within some of those degrees are said to be marriages within the degrees prohibited by Gods Law by 28. H. 8. c. 7. 28 H. 8. c. 16. Nor is it said in any Act of Parliament That all marriages within the Levitical degrees are prohibited by Gods Law Sir Edward Coke in the first Edition but not in the rest Cok. Litt. f. 235. a. Edit 1. of his Littleton hath I confess these words By the Statute of 32 H. 8. it is declared That all persons be lawful that is may lawfully marry that are not prohibited by Gods Law to marry that is to say that be not prohibited by the Levitical degrees By which he makes all Gods Law by which any marriage is prohibited to be the Levitical degrees which is not so nor doth he constare sibi for in his Comment upon the Statute of 32 H. 8. he saith expresly That marriage made with a person pre-contracted or with a person naturally impotent could not have been impeached in order to a Divorce by reason of the Statute of 32 H. 8. but because such marriages are against Gods Law Yet they are not marriages within the Levitical degrees This marriage in question therefore though by way of Admission not within the Levitical prohibitions if it be within the Levitical degrees at all and whether unlawful or lawful within them and by what Law soever so unlawful or lawful cannot be prohibited to be impeached by the Spiritual Courts by the Statute of 32 H. 8. For that Act prohibits the impeaching of marriages only which are absolutely without the Levitical degrees leaving all other to the Spiritual Jurisdiction as before the Act of 32. Now The Levitical degrees are to be reckon'd by the persons whose carnal knowledge is forbidden a man in respect of Consanguinity or Affinity by the Law of Moses As the carnal knowledge of the mother the fathers wife the sons wife c. in respect of Consanguinity of the wives daughter her daughters daughter her mother c. in respect of Affinity And it is plain the wives sister is prohibited in some respect of Affinity by the words Neither shalt thou take a wife to her sister to vex her Therefore her marriage with her sisters husband is a marriage within the Levitical degrees And agreed on all sides to be unlawful within the degrees if during the wives life but doubted if unlawful after her death Next it is certain the wives husband was restrained from taking his wives sister as he might take another woman that is either during his wives life or after Therefore his marriage with her was within the Levitical degrees But it must be clearly without those degrees if the impeachment of it may be prohibited by the Act of 32 H. 8. This marriage permitted lawful by the Canon Law where used Decret Greg. l. 4. Tit. de Divortiis c. 9. If a man marry his brothers wife none will deny that marriage to be within the Levitical degrees yet in some case that marriage was lawful by the Mosaick Law that is if the deceased brother died issuless But that will not hinder the impeachment of such a marriage by the Statute of 32 H. 8. So if a man marry his fathers brothers wife it is a marriage within the Levitical degrees Yet if the fathers brother were by the half blood only of the mothers side the Rabbies and Scribes held such marriage not unlawful by the Levitical Law but by the Sanctions of the Elders Seld. Uxor Ebraica l. 1 c. 2. f. 8. Many such cases may be found to prove a marriage may be lawful though it be a marriage within the Levitical degrees But none of those can therefore be prohibited to be impeached for they are not marriages without the Levitical degrees as the Statute
the Issue was not found Hill 10 Car. 1. B. R. Wilkinson and Meriams Case Rolls 700. 701. Tit. Tryal If a Jury find that J.S. was seis'd in Fee of Land and posses'd of certain Leases for years of other Land made his Will in writing and thereby devis'd his Leases to J.D. and after devis'd to his Executors the residue of his Estate Mortgages Goods c. his Debts being paid and funeral Expences discharg'd It being referred by the Jury to the Court Whether by this devise the Executor hath an Estate in Fee or not This is no perfect special Verdict because the Jury find not the Debts paid and the Funeral Expences discharg'd which is a Condition precedent to the Executors having an Estate in Fee and without finding which the Court cannot resolve the matter to them referr'd by the Jury Therefore a Venire facias de novo was awarded Judgment was given for the Defendant Trin. 22. Car. II. C. B. Rot. 461. Richard Edgcomb Knight of the Bath Executor of Pierce Edgcomb Esquire his Father is Plaintiff Rowland d ee Administrator of Charles Everard Esquire during the Minority of Charles Everard Son of the Intestate Defendant In an Action of the Case upon an Assumpsit THE Plaintiff declares That the Intestate the Thirteenth of July 1664. at London in the Parish of St. Mary Bow in the Ward of Cheap in consideration that the said Pierce Edgcomb would at his request lend him 500 l. promis'd the said Pierce to repay it within Seven daies after demand with Interest after the rate of 4 l. per Centum That thereupon the said Pierce Edgcomb after at the time and place aforesaid did lend the said Intestate 500 l. That the said Pierce the Testator afterwards the Fourteenth of July 17 Car. 2. at the place aforesaid required the Intestate to pay the said 500 l. with Interest after the rate aforesaid both which amounted to the Sum of 520 l. He lays further That the said Intestate was indebted to Pierce the Testator the Fourteenth day of July 1664. in the Sum of 500 l. for mony before that time to him lent by the said Pierce And in Consideration thereof the said Fourteenth of July 1664. in the said Parish and Ward promis'd to pay when requir'd But that neither the Intestate in his life time nor the Defendant to whom the Administration of his Goods were committed during the Minority of Charles Everard Son of the said Intestate at London in the Parish and Ward aforesaid did pay the said Sums nor either of them amounting to 1020 l. to the said Pierce Edgcomb in his life time nor to the said Richard the Plaintiff after his death Though required by the Intestate afterwards in his life time that is upon the First of August 17 Car. 2. And the said Defendant after the death of the Intestate viz. the Tenth day of March 18 Car. 2. and often after at the said Parish and Ward by the Testator Pierce were requir'd And the said Defendant after the death of the Testator the First day of January 21 Car. 2. was required at the place aforesaid by the Plaintiff to pay the said mony which he did not and still refuses to his damage of 800 l. The Defendant pleads payment after the Plaintiffs Writ purchas'd of several great debts due by Bond and Bills obligatory from the Intestate to several persons at his death in number One and thirty That the Intestate the Two and twentieth of December 16 Car. 2. became bound in a Recognizance in the Chancery to Sir Harbottle Grimstone Baronet Master of the Rolls and to Sir Nathaniel Hobart one of the Masters of the Chancery in 2000 l. And that the said 2000 l. is still due and unpaid and the said Recognizance in its full force unsatisfied or discharg'd He pleads the City of London is an ancient City and that within it time out of mind hath been held a Court of Record of the Kings c. before the Mayor and Aldermen of the said City in Camera Guild-hall ejusdem Civitatis of all personal Actions arising and growing within the said City That the Intestate at the time of his death was indebted apud London praedict in the Parish and Ward praedict to one William Allington in 2670 l. 17 s. 7 d. And who after the purchase of the Plaintiffs Writ the Tenth of March the Eighteenth of the King came to the said Court before Sir Thomas Bludworth then Mayor and the Aldermen in the said Chamber according to the Custome of the said City held us'd and approv'd Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem praedictae Civitatis affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam Billam originalem de placito debiti super demand Mille sexcentarum septuaginta librarum decem septem solidorum septem denariorum legalis monetae c. And that it was so proceeded according to the Custome of the said City that the said William Allington had Judgment to recover against the Defendant the said Debt and 85 l. 16 s. for damages c. And that after the Defendant in full satisfaction of the said Judgment paid to the said William Allington the Sum of 2670 l. and 17 s. Then pleads about Four and twenty Recoveries and Judgments thereupon in the Kings Bench in Pleas of Debt without Specialties all satisfied but one of 7000 l. and more due to one Cornwallis Then pleads Plene administravit all the Goods of the Intestate at the time of his death to be administred and that he had not die Impetrationis brevis Originalis praedicti nec unquam postea aliqua bona seu cattalla predict Car. Everard tempore mortis suae in manibus suis administrand praeterquam bona cattalla ad valentiam separalium denariorum summarum per ipsum sic ut praefertur solutarum in exonerationem separalium Judiciorum scriptorum obligatori orum billarum obligatoriarum predict Ac praeter alia bona cattalla ad valentiam decem solidorum quae executioni Recognitionis praedict ac Judicii praedicti per praefatum Carolum Cornwallis versus ipsum ut praefertur recuperat onerabilia onerata existunt Et quod ipse Rolandus modo non habet aliqua bona seu cattalla quae fuerunt praedict Caroli tempore mortis suae administrand praeter praedicta bona catalla ad valentiam praedictorum decem solidorum quae executioni recognitionis praedict ac Judicii praedict per praefatum Carolum Cornwallis recuperat sic ut praefertur onerata onerabilia existunt Et hoc paratus est c. Et petit Judicium Then Averrs the debts so as aforesaid by him paid to be bonâ fide paid pro veris justis debitis owing and unpaid by the Intestate at the time of his death And that the several Iudgments aforesaid against him recover'd were for true and just debts of
by the party This difference is very material for if the Father could devise the Land in trust for him until his Son came to One and twenty as he can grant the Custody then as in other Cases of Leases for years the Land undoubtedly should go to the Executor or Administrator of him whom the Father named for the tuition and the trust should follow the Land as in other Cases where Lands are convey'd in trust But when he cannot ex directo devise the Land in trust then the Land follows the Custody and not the Custody the Land and the Land must go as the Custody can go and not the Custody as the Land can go Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office or a Chamber to a Corody the Office or Corody being granted by Deed the House and Land follows as incident or belonging without Livery because the Office is the principal and the Land but pertaining to it A second Consideration is That by this Act no new custody is instituted but the office of Guardian as to the duty and power of the place is left the same as the Law before had prescrib'd and setled of Guardian in Soccage But the modus habendi of that office is alter'd by this Act in two Circumstances The first 1. It may be held for a longer time viz. to the Age of the Heir of One and twenty where before it was but to Fourteen 2. It may be by other persons held for before it was the next of Kindred not inheritable could have it now who the Father names shall have it So it is as if an Office grantable for life only before should be made grantable for years by Parliament or grantable before to any person should be made grantable but to some kind of persons only The Office as to the Duty of it and its essence is the same it was But the Modus habendi alter'd If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage and varies from it only in the Modus habendi then the Ward hath the same legal Remedy against this Guardian as was against the old But if this be a new Office of Guardianship differing in its nature from the other the Heir hath no remedy against him at all in Law For though this new Guardian be enabled to have such Actions as the old might have yet this Act enables not the Heir to have like Actions or any other against him as he might against the Guardian in Soccage The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir and the time of his Wardship under One and twenty But leaves the Heirs of all other Ancestors Wards in Soccage as before Therefore I hold 1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other 2. That he hath no different Interest from a Guardian in Soccage but for the time of the Wardship 1. When an Act of Parliament alteâ—s the Common Law the meaning shall not be strained beyond the words except in Cases of publick Vtility when the end of the Act appears to be larger than the enacting words But by the words the Father only can appoint the Guardian therefore the Guardian so appointed cannot appoint another Guardian 2. The Mother hath the same concern for her Heir as the Father hath But she cannot by the Act name a Guardian therefore much less can the Guardian named by the Father 3. The Father cannot by the Act give the custody to a Papist but if it may be transferr'd over by him whom the Father names or by Act in Law go to his Executor or Administrator it may come to a Papist against the meaning of the Act. 4. Offices or Acts of personal Trust cannot be assign'd for the Trust is not personal which any man may have Dyer 2 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father yet the Father could not grant or sell the Custody and Marriage of his Heir apparent though the marriage was to his own benefit as was resolved by the greater number of the Iudges in the Lord Bray's Case who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent in the time of Henry the Eighth to the Lord Audley Chancellor of England Lord Cromwell Lord Privy Seal Sir William Paulett Treasurer of the Houshold The Marquis of Winchester Lord Treasurer Dyer supra f. 190. b. pl. 19. The Reason given is That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son but it is inseparably annex'd to the person of the Father Two Judges differ'd because an Action of Trespass would lye for taking away a mans Heir apparent and marrying him whence they conclude he might be granted as a Chattel 11 H. 4. f. 23. a. Fitz. N. Br. Tresp f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant For taking away a Monk where he was cloyster'd in Castigationem Pro Uxore abducta cum bonis Viri yet none of these are assignable West 1. c. 48. By the Statute of Westminster the First If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant and the Land recover'd should be deliver'd to the next of kinn to the Heir to be kept and accompted for to him at his full Age. This was neither Guardian in Soccage nor Chivalry Coke 2. Inst f. 260. b. By 4 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will yet this is no Lease of the Custody till 16. nor is it assignable Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute and such a Guardian could not assign over nor should it go to his Executors by the Express Book This Case likewise and common Experience proves That Guardian in Soccage cannot assign nor shall the Custody go to his Executors though some ancient Books make some doubt therein For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage as this special Guardian is here by Westminster the First These several sorts of Guardians trusted for the Heir could neither assign their Custody nor did it go to their Executors because the Trust was personal and they had no Interest for themselves The Trust is as personal in this new Guardian nor hath he any Interest in it for himself and
therefore he shall not assign it A Guardian in Soccage cannot transferr his Custody because it is a personal Trust but the Trust of this special Guardian is more personal therefore that he shall transferr it concludes strangely The Office of a Philizer is an Office of personal Trust to do the business of the Court and not assignable 28 H. 8. f. 7. Dyer no Execution can be upon it Sir George Reynels Case an Office of Trust and Confidence cannot be granted for years because then it might go to persons that is to Executors or Administrators never trusted or confided in So is Littleton expresly That all Offices of Trust Sect. 379. as Steward Constable Bedlary Bailiffwick must be personally occupied unless they be granted to be occupied by a Deputy and are not assignable And a more near or tenderer Trust cannot be than the Custody and Education of a mans Child and Heir and preservation of his Estate It may be said That in these Cases the Law doth particularly appoint the Guardians and therefore no others can be But in the Case at Barr the Father appoints the person not the Law It is true there is a difference in the Cases but not to make the Trust more assignable in the one Case than the other Where the Law appoints who shall be trusted the Trust cannot be refused as in the several Guardians before mentioned But where the Person names the Trustee the Trust may be refused but once accepted it cannot be transfer'd to others more than where the Law names the Trustee An Executor hath a private office of Trust for we speak not of publique and is named by the Testator not by the Law therefore he may refuse but cannot assign his Executorship But it is true an Executor may make an Executor due Circumstances observed who shall discharge the first Testators Trust but the reason is that after Debts paid and Legacies the Surplus of the Goods belongs to the Executor proprio jure An Administrator hath a private Office of Trust he cannot assign nor leave it to his Executor he is not named by the Intestate but by the Law in part for him but not peremptorily he may not claim it if he will because it must pass through the Ordinary A mans Bailiff or Receiver are Offices of personal Trust and not assignable so is the Office of every Servant An Arbitrator or one authorized to sell a mans Land to give Livery or receive it cannot assign it is a personal Confidence 1. A Custody is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms. 2. It is not accomptable for to the Ordinary as Intestates Goods are 3. The Heir ought to have a Guardian without interruption but an Executor may be long before he proves the Will and may at length refuse An Administration long before it be granted and after may be suspended by Appeal and in these times the Ward hath no certain Guardian responsal for his Estate or Person Shopland's C. 3 Jac. Cr. f. 99. And where it may be said That these are naked Authorities and the persons have no Interest but a Guardian hath Interest he may lett and sett the Wards Land during minority Avow in his own name Grant Copy-hold Estates and the like It is an Interest conjoyned with his trust for the Ward I speak not here of equitable trusts without which Interest he could not discharge the trust but it must be an Interest for himself which is transferrable or shall go to his Executor All Executors and Administrators have Interest and Property necessary to their Trusts for they may sell the Goods or Leases of the Testator or Intestate without which they could not execute the Trust A Monk made an Executor might do the like who in his own right could have no Interest or Property But such Interest proves not that the Executors or Administrators may assign their Trust Guardian in Soccage may demise his Guardianship and grant over his Estate N. Br. f. 145. b. Letter H. quod nota or that it shall go to their Executors for it is agreed in that Case of Shopland That such Interest as a Guardian in Soccage hath shall not go to his Executor but is annexed to his Person and therefore not transferrable So as I take the sense of the Act collected in short to be Whereas all Tenures are now Soccage and the next of kinn to whom the Land cannot descend is Guardian until the Heirs Age of Fourteen yet the Father if he will may henceforth nominate the Guardian to his Heir and for any time until the Heirs Age of One and twenty and such Guardian shall have like remedy for the Ward as the Guardian in Soccage by the Common Law hath Another Exposition of this Act hath been offer'd as if the Father did devise his Land by way of Lease during the minority of the Heir to him to whom he gave the Custody in Trust for the Heir and so the Land was assignable over and went to the Executors but follow'd with the Trust 1. This is a forc'd Exposition to carry the Custody to any Stranger to the Father or to the Child or to any that may inherit the Land contrary to the ancient and excellent policy of the Law 2. By such an Exposition the Heir should have no Accompt of such a Lessee as he may against a Guardian but must sue in equity for this Statute gives Actions such as Guardians might have to him who hath the Custody but gives none against him 3. If such Lessee should give the Heirs marriage Coke Litt. f. 896. the Heir hath no Remedy but the Guardian in Soccage shall accompt for what the marriage was worth Stat. Malbridge c. 17. The Statute only saith That such person nominated by the Father may take to his Custody the Profits of all Lands Tenements and Hereditaments of such Child and Children and also the Custody Tuition and Management of the Goods Chattels and personal Estate of such Child or Children And may bring such Action in relation thereto as a Guardian in Soccage might do None of which words will charge him with the value of the Marriage if he had nothing for it Na. Br. f. 139. b Lett. H. 4. If the Heir be in custody of such a Lessee and be Guardian by nearness of kinn to another Infant The Guardian of the Heir by Law is Guardian to both but such a Lessee hath no pretence to be Guardian of the second Infant by any word of the Act For he is neither an Hereditament or Goods or Chattels of the first Infant As to the second part If the Father being of Age should devise his Land to J. S. during the Minority of his Son and Heir in trust for his Heir and for his Maintenance and Education until he be of Age. This is no devising of the Custody within this Statute for he might have done this before
could not be granted but to one because its nature was confin'd to one A man cannot have an Assise of Common in his own Soyl nor an Admensuratio pasturae and a Common being a thing that lies in grant he cannot grant it to himself and no other can grant it in his Soyl to him So as I conclude one or more may have Solam separalem Communiam from other Commoners but not from the Lord who is no Commoner I cannot discern the use of this kind of Prescription for the Tenants for if it be to hinder the Lord from approving the Common I think they are mistaken The Statute of Merton gives the Owner of the Soyl power to approve Common Grounds appendant Cok. 2. Instit f. 86.475 West 2. c. 46. or appurtenant by Prescription as this is if sufficient Pasture be left for the Commoners without considering whether the Commoners had the Common solely to themselves excluding the Lord or otherwise For as to Approvement which the Statute provided for the Lord was equally bound pasturing with his Tenants or not pasturing with them Therefore the Statute consider'd not that but that the Lord should approve his own ground so the Commoners had sufficient whatever the nature of the Common were To prescribe to have in such a part of the Lord's Lands Communiam for their Cattel excludes not the Lord. To prescribe to have their Pasturam Communem for their Cattel is the same thing and excludes not the Lord. To prescribe to have solam separalem Communiam is naught by Admittance Why then to prescribe to have solam separalem Pasturam Communiam which is agreed to be the same with Communiam is naught also Now to express another way that they have solam separalem Pasturam Common to them or wherein they Common changeth not the matter in the meaning but order of the words The Statute of Merton is cap. 4. 1. The Lords could not make their profit de Vastis Boscis Pasturis Communibus when the Tenants had sufficientem pasturam quantum pertinet ad tenementa sua 2. Si coram Justiciariis recognitum sit quod tantum pasturae habeant quantum sufficit c. 3. Et quod habeant liberum ingressum egressum de tenementis suis usque ad pasturam suam tunc recedant quiet 4. And that then the Lords faciant commodum suum de terris vastis pasturis 5. Et si per Assisam recognitum fuerit quod non habent sufficientem pasturam 6. Tunc recuperent Seisinam suam per visum Juratorum ita quod per Sacramentum eorum habeant sufficientem pasturam 7. Quod si Recognitum sit quod habeant sufficientem pasturam c. Communibus pasturis is once named Pastura sua for Communia sua seven times and the word Communia not named in this Act but where it mentions 8. The Writ of Novel disseisin de Communia pasturae suae which makes eight times 1. The granting solam separalem Pasturam of or in Black-acre may signifie an exclusion only of having Pasture in White-acre or any other place than Black-acre 2. The granting solam separalem pasturam of or in Black-acre may signifie the exclusion of any other person to have Pasture in Black-acre but the Grantee in which sense the word Solam signifies as much as totam pasturam 3. If the Grant be of all the Pasture the Grantor reserves nothing to himself of that which he grants but all passes into the Grantee but if the Grantor restrains the Grant after general words of granting all the Pasture the Restriction is for the benefit of the Grantor Therefore when the Grant is of Solam separalem pasturam of or in Black-acre all the Pasture is supposed to pass without restriction to the Grantee but if words follow in the Grant pro duabus vaccis tantum or pro averiis levantibus cubantibus super certum tenementum that is a restriction for the benefit of the Grantor for a man cannot in the same Grant restrain for his own benefit the largeness of his Grant and yet have no benefit of his restriction The Court was divided The Chief Justice and Justice Tyrrell for the Plaintiff Justice Archer and Justice Wylde for the Defendant Hill 20 21 Car. II. C. B. Rot. 1552. Adjud'gd 23 Car. II. C. B. Gardner vers Sheldon In Ejectione Firmae for Lands in Sussex Vpon not Guilty pleaded IT is found by the Special Verdict that long before the supposed Trespass and Ejectment One William Rose was seis'd of the Land in question in his Demesne as of Fee and so seis'd made his last Will and Testament November the Second 13 Jac. prout sequitur and sets forth the Will wherein among other things As touching the Lease which I have in my Farm called Easter-gate and all my Interest therein I do give and assign the said Lease and all my Interest therein unto my Friends John Clerk George Littlebury and Edward Rose to the intent that with the Rents and Profits thereof they may help to pay my Debts if my other Goods and Chattels shall not suffice And after my Debts paid my will is that the Rents and Profits of the said Land shall wholly go for and towards the raising of Portions for my two Daughters Mary and Katherine for each of them Six hundred pounds and for my Daughter Mary Two hundred pounds more which was given her by my Father her Grand-fathers Will. And those Sums being raised my will is the Rents and Profits of the said Land shall be wholly to the use and benefit of my Son George c. Item I give to my daughter Mary my greatest Silver Bowl Item I give to my daughter Katherine one plain Silver Bowl c. My will and meaning is That if it happen that my Son George Mary and Katherine my daughters to die without Issue of their Bodies lawfully begotten then all my Free-lands which I am now seis'd of shall come remain and be to my said Nephew William Rose and his Heirs for ever They find that the said William Rose the Testator before the Trespass viz. the First of June 14 Jac. died at Easter-gate in the said County of Sussex seis'd as aforesaid That at the time of his death he had Issue of his body lawfully begotten George Rose his only Son and Mary and Katherine his two Daughters That George the Son entred into the Premisses the First of July 14 Jac. and was seis'd prout Lex postulat Then after and before the time of the Trespass viz. June the Eight and twentieth 14 Car. 2. George died so seis'd of the Premisses at Easter-gate aforesaid That at the time of his death he had Issue of his body two Daughters Judith now wife of Daniel Sheldon one of the Defendants and Margaret now wife of Sir Joseph Sheldon the other Defendant That after the death of George their Father the said Judith and Margaret
entred and were seis'd before the Trespass suppos'd prout Lex postulat That Mary one of the daughters of the said William Rose July the First 1 Car. 2. died and that Katherine her Sister surviv'd her and is still living That the said Katherine October the First 20 Car. 2. at East-Grimsted entred into the said Tenements and was seis'd prout Lex postulat and the same day and year demis'd the same to the said Thomas Gardner the Plaintiff from the Feast of St. Michael the Arch-angel then last past for the term of Five years then next following By virtue whereof the said Thomas Gardner entred and was possessed until the said Joseph and Daniel Sheldon the same First day of October 20 Car. 2. entred upon him and Ejected him If upon the whole matter the Justices shall think the said Joseph and Daniel Sheldon culpable they find them culpable and assess Damages to Six pence and Costs to Twenty shillings But if the Justices shall conceive them not culpable they find them not culpable upon the words My will is if it happen my Son George Mary and Katherine my Daughters do dye without Issue of their Bodies lawfully begotten then all my Free Lands which I am now seised of shall come remain and be to my said Nephew William Rose and his Heirs for ever The first Question is Whether by this Will any Estate be Q. 1 devis'd to the Son and Heir of the Testator or to his Sisters If any Estate be devis'd what Estate is so devis'd to them Q. 2 or any of them The third Question is What Estate is by this Will devis'd Q. 3 to the Nephew and if any be how it shall take effect whether as a Remainder or as an Executory devise 1. As to the first it is clear That no Estate is devis'd to the Son or Daughters or any of them by express and explicit devise but if any be it is devis'd by implication only and collection of the Testators intent 2. If any Estate be given by this Will by Implication to the Son or Daughters or any of them it must be either a Joynt Estate to them for their lives with several inheritances in tayl or several Estates tayl to them in Succession that is to one first and the Heirs of his or her body and then to another and so successively 3. Such an Intail in Succession cannot possibly be because it appears not by the Will who should first take and have such Estate and who next c. and therefore such an Intail were meerly void for the incertainty of the person first taking as was rightly observ'd and assented to at the Bar. It remains then That the Estate devis'd by this Will if any be to the Son and his two Sisters must be a joynt Estate for their lives with several Inheritances to them in tayl by implication only And I am of Opinion That no such Estate is devis'd by this Will to the Son and two Daughters and I shall first observe That the Law doth not in Conveyances of Estates admit Estates to pass by implication regularly as being a way of passing Estates not agreeable to the plainness requir'd by Law in transferring Estates from one to another And for that the Case is A man according to the Custome of the Mannor Seagood and Hones Case 10 C. 1. Cr. f 336. surrendred to the use of Francis Reeve and of John Son of the said Francis and of the longest liver of them and for want of Issue of John lawfully begotten the Remainder to the youngest Son of Mary Seagood John had only an Estate for life and no Estate tayl by implication it being by conveyance Though as the Book is it might perhaps be an Estate tayl by Will which shews Estates by implication are not at all favour'd in Law though in mens last Wills they are allow'd with due restrictions In a Will Estates are often given by implication But I shall take this difference concerning Estates that pass by implication though it be by Will An Estate given by implication of a Will if it be to the disinheriting of the Heir at Law is not good if such implication be only constructive and possible but not a necessary implication I mean by a possible implication when it may be intended that the Testator did purpose and had an intention to devise his Land to A. but it may also be as reasonably intended that he had no such purpose or intention to devise it to A. But I call that a devise by necessary implication to A. when A. must have the thing devis'd or none else can have it And therefore if the implication be only possible and not necessary the Testators intent ought not to be construed to disinherit the Heir in thwarting the Dispose which the Law makes of the Land leaving it to descend where the intention of the Testator is not apparently and not ambiguously to the contrary Spirt Bences C. 8 Car. 1. Cro. 368. To this purpose the Case is 8 Car. 1. where Thomas Cann devis'd to Henry his youngest Son Item I give to the said Henry my Pastures in the South-fields and also I will that all Bargains Grants and Covenants which I have from Nicholas Welb my Son Henry shall enjoy and his Heirs for ever and for lack of Heirs of his Body to remain to my Son Francis for ever It grew a Question Whether this were an Intayl to Henry of the South-fields or only of the Bargains and Grants which the Testator had from Welb which was a very measuring Case and in determining this Case All the Four Judges agreed That the words of a Will which shall disinherit the Heir at Common Law must have a clear and apparent intent and not be ambiguous or any way doubtful So are the very words of the Book and therefore they resolv'd in that Case That only the Bargains and Grants had from Welb were intayl'd to the youngest Son and that he had only an Estate for life in the Pastures in the South-fields 1. I shall therefore now clear the difference I have taken That the Heir shall never be disinherited by a devise in a Will by implication and not explicit where the implication is only a possible implication and not a necessary implication 2. In the second place I shall shew That the words of this Will do not import a devise to the son and the two daughters for their lives joyntly with respective Inheritances in tayl to the Heirs of their several bodies by any necessary implication but only by an implication that is possible by construction 3. In the third place I shall shew That being so as to the Case in question it is not material whether the devise by way of Remainder to the Nephew be void or not 4. In the fourth place ex abundante and to make the Will of the Testator not ineffectual in that part of the Will I shall shew That the Nephew hath
the words of a Will are of ambiguous and doubtful construction they shall not be interpreted to the disinheriting of the right Heir as is already shew'd This being clear That there is no devise by this Will of the Land by implication in any kind to the Son and Daughters it follows that Katherine the surviving Daughter of the Testator and Lessor of the Plaintiff had no Title to enter and make the Lease to the Plaintiff Gardner and then as to the Case in question before us which is only Whether the Defendants be culpable of Ejecting the Plaintiff It will not be material whether The devise to the Nephew William Rose be void or not and if not void how and when he shall take by the devise which may come in question perhaps hereafter But to that point ex abundante and to make the Will not ineffectual in that point of the devise to the Nephew if no Estate for lives or other Estate be created by this Will by Implication to the Son and Daughters it follows That the Nephew can take nothing by way of Remainder for the Remainder must depend upon some particular Estate and be created the same time with the particular Estate Cok. Litt. f. 49. a. The Remainder is the residue of an Estate in Land depending upon a particular Estate and created together with the same and the Will creating no particular Estate the consequent must be That the Land was left to descend in Fee-simple to the heir at law without creating either particular Estate or Remainder upon it Sir Edward Coke hath a Case Cok. Litt. f. 18. a. but quotes no Authority for it If Land be given to H. and his heirs as long as B. hath heirs of his body the Remainder over in Fee the Remainder is void being a Remainder after a Fee-simple though that Fee-simple determines when no heirs are left of the body of B. whether that case be law or not I shall not now discuss in regard that when such a base Fee determines for want of Issue of the body of B. the Land returns to the Grantor and his heirs as a kind of Reversion and if there can be a Reversion of such Estate I know not why a Remainder may not be granted of it but for the former reason this can be no Remainder because no particular Estate is upon which it depends and if the Lord Coke's Case be law it is the stronger Cok. Litt. f. 18. a. Sect. 11. that no Remainder is in this Case But without question a Remainder cannot depend upon an absolute Fee-simple by necessary reason For when all a man hath of Estate or any thing else is given or gone away nothing remains but an absolute Fee-simple being given or gone out of a man that being all no other or further Estate can remain to be given or dispos'd and therefore no Remainder can be of a pure Fee-simple To this purpose is the Case of Hearne and Allen in this Court 2 Car. 1. Cr. f. 57. Richard Keen seis'd of a Messuage and Lands in Cheping-Norton having Issue Thomas his Son and Anne a Daughter by the same Venter devis'd his Land to Thomas his Son and his heirs for ever and for want of heirs of Thomas to Anne and her heirs and died It became a Question Whether Thomas had an Estate in Fee or in Tayl by this Will for he could not dye without heir if his Sister outlived him who was to take according to the intent of the Devisor Two Judges held it and with reason to be an Estate tayl in Thomas and the Remainder to the Daughter who might be his heir shew'd That the Devise to him and his heirs could be intended only to be to him and the heirs of his body But three other Judges held it to be a devise in Fee but all agreed if the Remainder had been to a Stranger it had been void for then Thomas which is only to my purpose had had an absolute Estate in Fee after which there could be no Remainder which is undoubted law The Case out of Coke's Littleton and this Case are the same to this purpose That a Remainder cannot depend upon a Fee-simple yet in another respect they much differ For in this last Case after an Estate in Fee devis'd to Thomas and if he died without heir the Remainder to a Stranger or Sister of the half blood not only the Remainder was void as a Remainder but no future devise could have been made of the land by the Devisor for if Thomas died without heir the land escheated and the Lords Title would precede any future devise But in that Case of Sir Edward Coke which he puts by way of Grant if it be put by way of devise That if land be devised to H. and his heirs as long as B. hath heirs of his body the Remainder over such later devise will be good though not as a Remainder yet as an Executory devise because somewhat remain'd to be devis'd when the Estate in Fee determin'd upon B. his having no Issue of his Body And as an Executory Devise and not as a Remainder I conceive the Nephew shall well take in the present Case And the intention of the Testator by his Will will run as if he had said I leave my Land to descend to my Son and his Heirs according to the Common Law until he and both my Daughters shall happen to dye without Issue And then I devise my Land to my Nephew William Rose and his Heirs Or as if he had said my Son shall have all my Land To have and to hold to him and his Heirs in Fee-simple as long as any Heirs of the bodies of A.B. and c. shall be living and for want of such Heirs I devise my Land to my Nephew William Rose and his Heirs The Nephew shall take as by a future and Executory Devise And there is no difference whether such devise be limited upon the contingent of three Strangers dying without Heirs of their bodies or upon the contingent of three of the Devisors own Children dying without Heirs of their Bodies for if a future devise may be upon any contingent after a Fee-simple it may as well be upon any other contingent if it appear by the Will the Testator intended his Son and Heir should have his Land in Fee-simple This way of Executory devise after a Fee-simple of any nature was in former Ages unknown as appears by a Case in the Lord Dyer 29 H. 8. f. 33. concerning a Devise to the Prior of St. Bartholomew in West-Smithfield by the clear Opinion of Baldwin and Fitz herbert the greatest Lawyers of the Age. But now nothing more ordinary The Cases are for the most part remembred in Pell and Browns Case that is Dyer f. 124. Ed. Clatch his Case f. 330. b. 354. Wellock Hamonds Case cited in Borastons Case 3. Rep. Fulmerston Stewards Case c. I shall instance two Cases
Relatives and if an Act of Naturalization should thereby make a man a natural Subject the same Subject would have two natural Soveraigns one when he was born the other when naturalized which he can never have more then two Natural Fathers or two Natural Mothers except the Soveraigns be subordinate the Inferior holding his Kingdome as Liege Homager from the Superiour And perhaps in the Case of Severing the Kingdoms Calvins Case 27. as Sir Edward Coke saith Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power And the Law of England being That an Antenatus shall not inherit because an Alien without an Act of Parliament making him none The fiction of an Act in another Kingdom to which England never consented shall not alter the law here because he is made in Ireland as if born there If there were an Act of Parliament in England That persons naturalized in Ireland or Scotland should be no Aliens in England no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England But a man naturalized there would by consequent be naturalized in England because the law of England did warrant that consequent But to say That a man naturalized in Ireland is not directly naturalized in England but by consequent when the question is Whether one naturalized in Ireland be thereby naturalized in England is to beg for a proof that which is the question Therefore it must be first proved That there is a Law of England to warrant that consequent Inconveniences The Law of England is That no Alien can be naturalized but by Act of Parliament with the assent of the whole Nation 1. Now if this naturalization in Ireland should be effectual for England then a whole Nation should become Natives in England without Act of Parliament of what Country Religion or Manners soever they be by an Act of Ireland 2. If the Parliament of England should refuse to naturalize a number of men or Nation as dangerous or incommodious to the Kingdom yet they might be naturalized whether the Houses of Parliament would or not by an Act of Ireland 3. By this invention the King may naturalize in England without an Act of Parliament as well as he may Denizen for if the Parliament of Ireland enact That the King by Letters Patents shall naturalize in Ireland then they so naturalized in Ireland by Patent will be naturalized in England by consequent so they may enact the Deputy or Council of Ireland to naturalize 4. If an Alien hath Issue an Alien Son and the Father be denizen'd in England and after hath a Son born in England the Law hath been taken That the youngest Son shall inherit the Fathers Land Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books yet if the elder be naturaliz'd in Ireland the Estate which the youngest hath by the Law of England will be plucked from him Having thus opened the Inconveniences consequent to this Irish Naturalization the next is That Judges must judge according as the Law is not as it ought to be But then the Premisses must be clear out of the established Law and the Conclusion well deduc'd before great Inconveniences be admitted for Law But if Inconveniences necessarily follow out of the Law only the Parliament can cure them 1. I shall begin with the admitted Doctrine of Calvin's Case By that Case He that is born a Subject of the King of England in another Dominion than England is no Alien in England So the Scots born when the King of Scots was King of England are no Aliens those born before in Scotland are Therefore Nicholas Ramsey who is not born the Kings Subject of Ireland must be an Alien in England whose Law by the Rule of that Case makes only Subjects born and not made of another Dominion not to be Aliens in England 2. It is agreed to my hand That an Alien naturalized at this day in Scotland remains an Alien in England notwithstanding 3. By the Doctrine of Calvin's Case a natural born Subject to the Kings person of a Forraign Dominion is not priviledg'd in England from being an Alien else the Antenati of Scotland were priviledg'd for they are natural born Subjects to the Kings person as well as the Postnati 4. It stands not with the Resolution of that Case That the natural born Subjects of the Dominions belonging to the Crown of England qua such should be no Aliens in England which was the principal matter to have been discuss'd but was not in Calvin's Case and chiefly concerns the point in question The Case relied on to justifie the Iudgment in Calvins Case are several Authorities That the King of England's Subjects formerly were never accounted Aliens in England though they were all out of the Realm of England and many within the Realm of France But all these are admitted in that Case as most of them were Dominions belonging to the Crown of England and if so Of Normandy Brittain Aquitain Anjou Gascoigne Guien Calais Jersey and Gernsey Isle of Man Berwick and other Parts of Scotland Ireland Tourney c. What Inference could be made for the Resolution of Calvin's Case That because the Kings natural Subjects of Dominions belonging to the Crown of England as these did were no Aliens in England Therefore that Subjects of a Dominion not belonging to the Crown as the Postnati of Scotland are should be no Aliens in England Non sequitur Therefore it is for other reason then because natural Subjects of Dominions belonging to the Crown of England they were no Aliens by the meaning of that Resolution And the Adequate Reason being found out why they are not Aliens will determine the point in question 1. It was not because they were natural Subjects to him that was King of England for then the Antenati of Scotland would be no Aliens they being natural Subjects to him that is King of England as well as the Postnati 2. It was not because they were natural Subjects of Dominions belonging to the Crown of England for then the Postnati would be Aliens in England for they are not Subjects of a Dominion belonging to the Crown of England 3. It remains then the Reason can be no other but because they were born under the same Liegeance with the Subjects of England which is the direct reason of that Resolution in Calvins Case Calvins Case f. 18. b. a. The words are The time of the birth is of the essence of a Subject born for he cannot be a Subject to the King of England that is to be no Alien unless at the time of his birth he was under the Liegeance and Obedience of the King that is of England And that is the reason that Antenati in Scotland for that at the time of their birth they were not under the
the Remainder because it is a Collateral warranty but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder as hath been clear'd but leaves it as at Common Law but it doth restrain his warranty from barring him in the Reversion as shall appear There is one Case in Littleton remarkable for many Reasons where the warranty of Tenant in tayl is lineal and not collateral to the person in Remainder and therefore binds not if the Case be Law as may be justly doubted as Littleton is commonly understood Litt. Sect. 719. Land is given to a man and the heirs males of his body the Remainder to the heirs females of his body and the Donee in tayl makes a Feoffment in Fee with warranty and hath Issue a Son and a Daughter and dieth this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder unless the Brother dieth without Issue male because she claimeth as Heir female of the body of her Father engendred But if her Brother release to the Discontinuee with warranty and after dye without Issue this is a collateral warranty to the daughter because she cannot conveigh the right which she hath to the Remainder by any means of descent by her brother 1. Here the warranty of the Father Donee in tayl is but lineal to the Daughter in Remainder in tayl But she claims saith the Book her Remainder as heir female of the body of the Donee in tayl which differs the Case from other persons in Remainder of an Estate tayl But of this more hereafter 2. And by the way in this Case Sir Edward Coke though he hath commented upon it hath committed an over-sight of some moment by using a Copy that wanted a critical emendation For where it is said That the warranty of the Father is but lineal to the Daughter to demand the Land by a Formedon in the Remainder unless the Brother dye without Issue-male because she claims as Heir female of the body of her Father By which reading and context the sense must be That if the Son dye without Issue male of his body then the warranty of the Father is not lineal to the Daughter cujus contrarium est verum for she can claim her Remainder as heir female of the body of her Father and thereby make the Fathers warranty lineal to her but only because her Brother died without Issue male That which deceived Sir Edward Coke to admit this Case as he hath printed it was a deprav'd French Copy thus Si non frere devyast sans Issue male which truly read should be Si son frere devyast and the Translation should be Not unless the Brother dye without Issue male but If her Brother dye without Issue male Another reason is that his French Copy was deprav'd Because the French of it is Si non frere devyast sans Issue male which is no Language for that rendred in English is Vnless Brother dye For it cannot be rendred as he hath done it unless the Brother dye without the French had been Si non le frere devyast and not Si non frere devyast Sir Edward Coke's first Edition of his Littleton and all the following Editions are alike false in this Section I have an Edition of Littleton in 1604. so deprav'd which was long before Sir Edward Coke publisht his but I have a right Edition in 1581. which it seems Sir Edward Coke saw not where the Reading is right Si son frere devyast sans Issue male Therefore you may mend all your Littletons if you please and in perusing the Case you will find the grossness of the false Copies more clearly than you can by this my Discourse of it And after all I much doubt whether this Case as Littleton is commonly understood that is That this lineal warranty doth not bind the Daughter without Assets descending be Law my Reason is for that no Issue in tayl is defended from the warranty of the Donee or Tenant in tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law And no Estate in Remainder of an Estate tayl that is of a Fee Conditional could be at Common Law All Issues in tayl within that Statute are to claim by the Writ there purposely formed for them which is a Formedon in the Descender not in Remainder 3. A third thing to be cleared is That the Statute de Donis did not intend to preserve the Estate tayl for the Issue or the Reversion for the Donor absolutely against all warranties that might barr them but only against the Alienation with or without warranty of the Donee and Tenant in tayl only for if it had intended otherwise it had restrain'd all Collateral warranties of any other Ancestor from binding the Issue in tayl which it neither did nor intended though well it might such warranters having no title 4. The Statute de Donis did not intend to restrain the Alienation of any Estates but Estates of Inheritance upon Condition expressed or implyed such as were Fee-simples Conditional at Common Law And therefore if Tenant for life aliened with warranty which descended upon the Reversioner such Alienation or Warranty were not restrained by this Statute but left at Common Law 1. Because the Estate aliened was not of Inheritance upon Condition within that Statute 2. He in the Reversion had his remedy by entring for the forfeiture upon the Alienation if he pleas'd which the Donors of Fee-simples Conditional could not do These things cleared I think it will be most manifest by the Statute de Donis and all ancient Authority That the warranty of Tenant in tayl though it be a Collateral warranty will not barr the Donor or his Heir of the Reversion After the Inconvenience before recited That the Donees disinherited their Issue against the form of the Gift then follows Et praeterea cum deficienti exitu de hujusmodi Feoffatis Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam licet exitus si quis fuerit obiisset per factum tamen Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees and to the Donor when they fail'd by the Donees power of Alienation are only recited in the Statute without a word of restraint or remedy The follows the remedy and restraint in these words only and no other Propter quod Dominus Rex perpendens quod necessarium utile est in praedictis casibus which
matter of the Law 239 14. A man hath no Right to any thing for which the Law gives no remedy 253 15. The effect of Law can do more than an act of Law 280 16. How things become natural by custome 224 17. What natural Laws are 226 227 18. Of transgressing Natural Laws and in what sense that is to be understood 226 227 228 19. It is not safe in case of a publick Law as between the Spiritual and Temporal Jurisdiction to change the Received Law 220 20. The Law of the Land cannot be altered by the Pope 20 21 132 21. Many Laws made in the time of the Saxon Kings are now received as Common Law 358 Lease Lessor Lessee See Title Statute 23. 1. A Demise having no certain commencement is void 85 2. In what cases the Lessee shall bring an Action against his Lessor for breach of Covenant upon a Covenant of Quiet Enjoyment without the lawful disturbance of himself c it being a full exposition of that Covenant when it is either by Law or Express and general or particular from 118 to 128 3. A Demise of Tythe with Land is good within the 13 El. but a Demise of Tythe barely is not good 203 204 4. A man leases Lands for certain years habendum post dimissionem inde factum to J. N. and J. N. hath no Lease in esse the Lease shall commence immediately from the Sealing 73 74 80 81 83 84 5. A power is granted to Demise Lands usually letten Lands which have been twice letten are within this Proviso 38 6. Which at any time before have been usually letten that which was not in lease at the time of the Proviso nor twenty years before is not within the Proviso 34 35 by the Demise of the Farm of H. the Mannor of H. will pass 71 7. Proviso that the Plaintiff may lease for One and twenty years reserving the ancient Rents so long as the Lessees shall pay the Rents these are words of limitation and the Non-payment of the Rent determines the term without a Demand 32 License See Title King Dispensation  Limitation 1. A Limitation determines a Lease without demand of the Rent 32 2. What words shall be taken to be a Limitation and no Condition 32 Livery and Seisin 1. Where a Rectory is granted Una cum Decimis de D the Tythe which alone cannot pass without Deed doth pass by the Livery of the Rectory and without Livery the Tythe will not pass because it was intended to pass with the Rectory by Livery 197 198 London 1. The Customes of London are confirmed by Act of Parliament 93 2. How Declarations are in London according to their Custome ibid. Marriages See Title Statute 16. 1. Incest was formerly of Spiritual Conizance 212 2. The Judges of the Temporal Courts have by several Acts of Parliament full conizance of Marriages within or without the Levitical Degrees 207 209 210 3. They have full conizance of what Marriages are Incestuous and what not according to the Law of the Kingdom and may prohibit the Spiritual Courts from questioning of them 207 209 210 305 4. The Interdicts of Marriage and carnal Knowledge in the Levitical Law were directed to the men not to the women who are interdicted by a consequent For the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 5. A man married his Grand-fathers Brothers wife by the Mothers side and held lawful 206 207 6. A man married his first Wives sisters daughter and held unlawful and after a Prohibition a Consultation granted 247 321 322 7. For a man to marry his wives sister is a Marriage expresly prohibited within the Eighteenth of Leviticus 305 8. What Marriages are lawful and what not 210 218 219 305 306 307 308 309 9. How the words No Marriages shall be impeached Gods Law except shall be understood 211 10. What Marriages are prohibited within the Levitical Degrees 214 215 306 307 308 11. What Marriages are by Gods Law otherwise prohibited 220 221 12. Marriages contrary thereunto ought not to be dispensed with 214 216 13. Marriages with Cosen Germans lawful 218 219 14. All Marriages are lawful which are not prohibited within the Levitical Degrees or otherwise by Gods Law 219 240 242 305 15. In what sense any Marriages and Copulations of man with woman may be said to be natural and in what not 221 16. Marriages forbidden in Leviticus lawful before 222 17. Marriages lawful after restoring the world in Noah ibid. 18. Concerning Universal Obligation to the Levitical Prohibitions in cases of Matrimony and Incest 230 19. What Marriages were usual in old times 237 20. How simple Fornication was satisfied in the time of Moses ibid. 21. Who shall be said to be the near of kin which are prohibited Marriage 307 308 309 310 311 22. What Marriages are by the Matrimonial Table of England interdicted 315 316 317 318 23. Marriages within the Levitical Prohibitions were always unlawful but Marriages within the Levitical Degrees were not always unlawful 319 320 321 24. How the Levitical Degrees are to be reckoned 320 25. All Marriages prohibited by the Table are declared to be within the Degrees prohibited by Gods Law 328 26. In what the Parochial Matrimonial Table used in England agrees with the Karait Rabbins 311 312 27. The primitive Christian Church could punish Incestuous Marriages no otherwise than by forbidding them the Communion 313 28. By what Law the primitive Christian Churches conceived themselves obliged in the matter of Marriage to observe the Levitical prohibitions strictly and indispensibly 314 29. Amongst the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried 313 Master and Servant 1. Although there is no Master or Servant originally in Nature but only parity yet after Laws have constituted those Relations 242 2. A Father cannot be Servant to his Son 243 Metropolitan See Arch-bishop Ordinary  Misrecital See Lease 1. Where a Lease is misrecited in the date and the habendum is to be from the date which is misrecited there the Lease shall commence from the Sealing 73 Monopoly 1. If Exportation or Importation of a Commodity or Exercise of a Trade is prohibited generally by Act of Parliament and no cause thereof expressed a license may be granted to one or more persons with a Non obstante for by such general Restraint the Law intended to limit the over-numerous Importers and Traders and such general Licenses shall not be accounted Monopolies 345 2. To avoid a Monopoly the Kings Dispensation upon all prohibitory Laws must generally be limited by Law 346 Naturalization See Title Alien  Non obstante 1. IT is a license to do a thing which at the Common Law might be done without it but now being restrained by some Act of Parliament cannot be done without it 345 356 2. Where a
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would