ADDENDA & MƲTANDA, In the Late DEFENCE OF THE MARRIAGE OF AN UNCLE with his NIECE Being the Daughter of the Half-Brother BY THE FATHER's SIDE.

By the Author of that Defence.

LONDON, Printed Anno Dom. 1686.

Addenda & Mutanda, In the late Defence of the Marriage OF AN UNCLE with his NIECE, [...]eing the Daughter of the Half-Brother by the Father's Side.

PAge 20. And they take no manner of notice under the second of these Heads—of the Marriage of the Uncle with his Brother or Sisters Daugh­ter.) This, I confess, is not very agreeable to what I have written in my Resolution of Three Matrimonial Cases, p. 3. Where, to prove that a Parity of Reason ought to be allowed in Matrimonial Prohibitions, I appeal to the Practice of the Jews; and I did it with reference to this very Case of an Uncle marrying his Niece, though it [Page 2] appears the Jews have no where forbidden it: And the Reason of the Mistake was, That in general I remembred very well, that the Jews did prohibit several Degrees, which are not expresly set down in the Law of Moses; and the Marriage of an Uncle with his Niece, seeming to me at that time, to have so exact a parity of Reason with that of an Aunt and her Ne­phew, though now I am unalterably of another Opinion, and I presume, I have shewn very good reason for it; I took it for granted, without consulting the parti­cular Authorities which I there mention, and being in very great hast, as will ap­pear by comparing the date of my Resolu­tion, with the time when those Questions were proposed to me, which will appear by the Preface to those Cases, that the Marriage of an Uncle with his Niece was forbidden by the Jews themselves.

P. 35. Fratres patrueles, consobrini, ami­tini, &c. To this it belongs what my Lord Vaughan saith in his Reports. Har­rison and Burwells Case, p. 241. in the British names of Kindred my Fathers Cou­sin German hath the Appellation of my Ʋncle, and again in the very next Para­graph. The word Uncle is an equivocal Ex­pression, and in several places signifies seve­ral [Page 3] Relations; as in the British, the Fa­ther or Grandfathers Cousin German is ac­counted an Ʋncle to the Son.—But this was for no other reason, but because Cou­sin Germans in antient esteem were look'd upon as Brothers, and unless when they express it by a Periphrasis, the Hebrews have no one word to signifie a Cousin Ger­man, unless you will grant it to be inclu­ded under the name of Brother, which as it belongs in its utmost latitude, to the Nation of the Jews, and then more re­strictively to all of the same Tribe, the same Family or Kindred, so next to its most narrow and proper acceptation, it belongs most peculiarly to a Cousin German, especi­ally when the Declarative Circumstance is added, of his being born abroad.

P. 39. The Jews interpret this place of two real and proper Sisters, &c.) That is, the Rabbinical Jews, for the Karraites un­derstand it as I do, as a prohibition of Po­lygamy, and in this they are followed by Franciscus Junius and his Fellow-Partner in the Translation of the Bible Emanuel Tremellius, a converted Jew.

P. 42. This was not at first deny'd to Clergy-men themselves) this is thus far true, that being married before hand, did not hinder a Man from entring into Holy [Page 4] Orders, but after he was once entered, he could not Marry, though I confess, I did not consider this when I wrote this Para­graph, but this is an Observation, though natural from the Premises, yet foreign to our purpose; and it is no matter as to this particular business, whether it be true or no.

P. 48. That Marriage cannot be divorc'd by virtue of any Law—which is nei­ther expresly forbidden in it self, nor stands in the same rational parity with that which is) This is no more then what my L. C. J. Vaughan saith in the Case already mention­ed, p. 209. If Marriages neither prohibited in terminis in Leviticus, nor being in the same Degree with a Marriage there prohibi­ted, should be unlawful, there would be no stop or terminus of unlawful Marriages.—Now I have proved undeniably, That the Ʋncle and Niece is really a Degree lower, when we speak of Marriage, than the Aunt and Nephew: And besides, supposing the Marriage of the Ʋncle and Niece had been forbidden expresly, or by just and lawful Consequence, as it is by neither; yet here there would two other Questions have ari­sen: First, Whether the Prohibition did equally extend to the half Blood as the whole? And this St. Ambrose, tho' other­wise [Page 5] a rigid Man in these Cases, seems to have doubted very much; at least, he would not absolutely pronounce the Half Blood to be unlawful, in the Case of an Ʋncle Marrying such a Niece; but he saith of it, Hic autem gradus tertius est, qui etiam jure civili a consortio conjugii exceptus videtur; doubting, as it seems, within himself, whe­ther the Obligation of that Civil Law, which forbad the Marriage of the Sisters Daughter, did extend so far as to the Half Blood or no, and much more to the Half Blood by the Father's Side, which was the Case of Paternus his Son. And from hence the second Question arises, Whether the Half Blood by the Father's Side, be not still a Degree or a Remove further than the Half Blood by the Mothers? And this Question, after what I have said concerning it, I leave to the Adversaries of this Cause to determine for themselves; and if not­withstanding that the Marriage of the Ʋncle and Niece is not forbidden any other­wise than by a Parity betwixt that and the Marriage of an Aunt with her Nephew; and if this Parity be no Parity at all, no more than Even and Odd are paria to one another; if besides this Disparity, which I have shown to be threefold in the first Case, there be likewise a twofold Disparity [Page 6] arising from the Half-Blood, he must needs be a very hardy Man, that in the face of five good Reasons against his Assertion, will still pretend to say the Case is the same. At this rate of arguing, any thing may be inferr'd from any thing, and we may say very safely and assuredly with my Lord Vaughan, That there will be no stop or ter­minus of Ʋnlawful Marriages. And in another place, to assure this Point the more effectually, the same Reverend and Learn­ed Justiciary saith, We take the Degrees of 240. ib. Marriage, prohibited by God's Law, to be the Levitical Degrees expressed, or necessa­rily implied by Parity of Reason, or a fortiori.

P. 54. The Argument of St. Ambrose against the Marriage of the Ʋncle with his Niece, presses the hardest of any other up­on us.) My Answer to this Objection of St. Ambrose, to the best of my understand­ing, would not be unsatisfactory, tho' it had been the Niece by the Whole Blood, as it was not. But this was Man's Case in Crook's Reports, who for Marrying his ut su­a p. 247. Wives Sisters Daughter, which is a Niece in Affinity, was by the High Commissio­ners divorced, upon this Reason, because Degrees more remote * were forbidden, That is, [...]isin Ger­ [...]s. tho' they confessed themselves at the same [Page 7] time, that it was not prohibited within the Levitical Degrees; and for that Reason, upon the Suit of the Plaintiff, a Prohibition ib. p. 24 and Consultation was granted; but the Issue of it cannot be found upon Record.

After this, in the time of King James the First, for the former Case was in the Reign of Queen Elizabeth) there was such ib. another Case of one Richard Pearson, wherein a Prohibition was granted out of the Common-Pleas Court, for Marrying his Wives Sisters Daughter; and it was resol­ved by the said Court, upon consideration of the Statute 32 H. 8. c. 38. That the Marriage was not to be impeach'd, because declared by the said Act to be good, in as much as it was not prohibited by the Levi­tical Degrees. Which Determination of the Judges of that Court, at that time, must of necessity proceed upon one of these two Suppositions; either that our Law had no regard to Parity of Reason in these Ca­ses; or, that there was indeed no Parity betwixt the Marriage of an Aunt and Ne­phew, and that of a Man's marrying his Wives Sisters Daughter, which is his Niece by Affinity. But now, since Consanguini­ties and Affinities, by the Levitical as well as Civil Law, are the same, and equally for­bidden to the same Degrees, it follows, [Page 8] That if in the Judgment of our Law, the Marriage of the Wives Sisters Daughter shall stand good, so shall that likewise which is Consummated with her who is Daughter by the Half-Brother on the Fa­ther's Side. And indeed, the Half Blood by the more uncertain and imperfect Side, makes it still come nigher to Man and Pearson's Case, and makes it rather an Af­fine than Consanguineous Relation.

Furthermore, in the Case of Harrison and Burwell it self, Harrison had Married his Great Aunt, the Widow of Abbot his Grandfather's Brother; and my L. Vaughan declares this Marriage to be valid, p. 207. And this Case, by the Hill. 21 Car. 2. King's Com­mand, being referred to the Opinion of all the Judges of England, Trin. 22. Car. 2. the Chief-Justice delivered their Opinions, and accordingly Judgment was given, That a Prohibition ought to go to the Spiritual Court for the Plaintiff.

Now there is nothing more clear, than that the Aunt is expresly forbidden to the Nephew in Marriage; and for this Reason, which the Law assigns, She is thine Aunt, thy Senior, thy Superior, and, in Constru­ction of Law, Parentis loco. All which do hold as well, tho' not so immediately, and indeed the two first much more strongly, in [Page 9] the Great Aunt, than in the Aunt at the first remove. As the Jews in their prohibitory Tables do forbid by Analogy of Reason, as they conceive, not only the Wives Mother, which is expresly forbid­den, Levit. 18. 17. but also her Grand­mother, V. Selden Ux. Hebr [...] L. [...]. c. [...] & de ju [...] Nat. & Gent. L. 5 [...] c. 10. the one being look'd upon Paren­tis loco as much as the other, though not so immediate as the other is; but the Law of England proceeding only by the Let­ter, without any regard, or at least very little to Parity of Reason, (for the Mar­riage of the Daughter and the Whole Sister are not inferr'd to be unlawful by a Parity, but by a manifest Superiority of Reason) would not disanul the Marriage of the Great Aunt, though the immediate were so expresly forbidden.

And to shew yet further, That our Law in Matrimonial Cases do's not proceed by Parity of Reason, at least where that Pa­rity is so obscure, and so many ways de­fective, as it is in our Case; there are two passages of the same Judge Vaughan in his Report of the aforesaid Case of Harrison and Burwell which are very well worthy our notice and observation; the first is, where speaking of the Act 32 H. 8. c. 38. he saith, p. 211. Those words, God's Law except, must refer to such other Marriages [Page 10] as by Gods Law might be impeach'd, and not to any for consanguinity or affinity, for had not those words been, the generality of expression, no Marriage shall be impeach'd without the Levitical degrees, had exclu­ded the impeaching Marriages for plurality of Wives or Husbands at a time, for Im­potency, and for Adultery, as Sir Edward Coke observes, at the end of his Comment upon this Statute in his second Book of In­stitutes.—Adultery and Polygamy are both of them forbidden by the Levitical Law, but when we speak of the Levitical Degrees of Affinity and Consanguinity, they cannot properly be referred to them, and the sense of these two Reverend and Learned Gentlemen is this, that though Adultery, Polygamy, and Impotency are warrantable Causes of Divorce according to Gods Law, yet if the Act of Parliament had not mentioned Gods Law, but only insisted upon the Levitical degrees, there could no Divorce have ensued, by the Law of England, which keeps it self most strictly to the Letter, in any of these Cases.

The other Passage which I aim at is this; where speaking of the Acts of Par­liament 25 & 28 H. 8. concerning the Succession, wherein the Matrimonial Pro­hibitions [Page 11] are limited and declared from the Levitical Law, he saith thus, p. 216. The Marriages particularly declared by the Acts to be against God's Law, cannot be dispens'd with; but other Marriages, not by the Acts declared in particular to be against God's Law, are left statu quo prius, as to Dispen­sations with them: that is, so far as con­cerns the Levitical Degrees, they may be, and are actually dispensed with; not by the Pope, whose Power of Dispensation was now abolish'd and abrogated for ever; nor by any Priestly Absolution, which ac­counts only for what is past, but cannot make any thing lawful de futuro, which either the Law of God or Man makes null and void: but by the Law it self, which by not prohibiting such Marriages, hath made them Lawful.

It is true indeed, there are other Bars to Matrimony, besides the Levitical De­grees, which are included in the Act 32 H. 8. c. 38. under the general Term of God's Law, as hath been already observed: But yet my L. C. J. Coke was of another Cok. Lit. F. 235. a. mind, he understanding God's Law and the Levitical Degrees, to be only Terms de­clarative of one another. And in this In­terpretation he seems to be favoured by the Words of the Act of Parliament, 28 H. 8. [Page 12] c. 16. whereby it is Enacted, That all Mar­riages solemnized within this Realm—which be not prohibited by God's Law, li­mited and declared in the Act made this present Parliament, for establishing the King's Succession, or otherwise by Holy Scripture, shall be lawful and effectual by Authority of this present Parliament. Where there is no Question but by God's Law and the Levi­tical Degrees limited, and declared by that Act of Parliament, as also by another be­fore it, in the Twenty fifth of the same King, the same thing is to be understood; but when it is added, or otherwise by Holy Scripture; it is imply'd by this, that there are other barrs to Matrimony besides the Levitical Degrees: Yet notwithstanding, when in the Act 32 H. 8. c. 38. God's Law is only mentioned, without the insertion of that other Clause, or otherwise by Holy Scripture, we must either say, that the Parliament at that time had not so great a deference and regard to Holy Scripture, as when the former Act was made, or else, that under the comprehensive terms of God's Law, not only the Levitical Degrees, but all Scripture in general is included, and this is certainly most reasonable to believe, the Design and Intention of all these Acts of Parliament being only to reduce the Ma­trimonial [Page 13] Prohibitions, and the causes of Divorce to the Standard of God's Revealed Will, and to evacuate, annul, and disap­point the Encroachments and Usurpations of the Canon Law; so that in this I agree perfectly with Vaughan against Coke, but this do's not properly concern our Case, for it is the Levitical Degrees and they on­ly to which we are to appeal.

I wish my Lord Vaughan, as he disa­grees with Coke in this particular, in which we are not concerned, so in ano­ther in which we are, he had not disagreed with himself. For notwithstanding, in what hath been cited out of him above, he do's so plainly intimate, that we are not to strain the obligation of these Laws be­yond the Letter of them; yet, p. 216. he says, No degrees being mentioned in the Statute to be prohibited by God's Law, but those which are express'd, it cannot thence be concluded, that the Statute intended no other than those to be prohibited by God's Law, for take the words at most advantage for the purpose, viz. Since many incon­veniences have fallen by Marrying within the Degrees prohibited by God's Law; that is to say, the Son to Marry the Mo­ther, the Brother the Sister, &c. in the same manner is it, if a Statute should say, [Page 14] Since many inconveniencies have happened, P. 217. by doing things prohibited by the Kings Laws; that is to say, by depopulation of Farms, by substracting of Tithes, &c. It would not be concluded that the things so enumerated were all the things prohibi­ted by the Kings Laws.

For, besides that this seems to be a flat Contradiction to what he had said before, That all Marriages particularly declared by P. 216. the Acts to be against God's Law, cannot be dispensed with; but that all others may; or in Words to that effect; the Case is not the same in these two several Examples: For, when we speak of Levitical Degrees prohibited by God's Law, and then enu­merate all the several Particulars, as they are set down in Leviticus, than which there are no more Particulars of Prohibi­ted Degrees any where to be found in Scripture, in this Case God's Law, and the particular Branches of it thereafter ex­press'd, being taken all together, are co­extended to one another. But when we say, Whereas many Inconveniencies have hap­pened, by doing things prohibited by the King's Laws, that is to say, &c. instancing in three or four Particulars only; it is ma­nifest, that the King's Laws are abundant­ly of greater latitude than the Particulars [Page 15] that follow. But yet the words, That is to say, in both Cases refer only to the Parti­culars thereafter expressed; and if there be any other things prohibited by the King's Laws, which are not expressed and enu­merated in these Particulars, the abstaining from such forbidden Practices as those, is not bound upon us by vertue of this Law, but by the particular Sanctions of other re­spective Laws, wherein those Offences or Enormities are forbidden: For it would be a strange thing for a Man to be hanged for stealing an Horse, by virtue of a Law which punishes the Non-payment of Tythes. How can those words, That is to say, be referred to those Particulars which are no where said or expressed? or the words before-rehear­sed, or above-expressed, to those which are no where rehearsed, or expressed? I do not say that a Parity or Superiority of reason is not to be admitted, but I say the words of a Statute, which is the Statute-Law, will extend no further than themselves, and in what instances this Parity or Potio­rity of Reason lies, belongs to a Court of Conscience, or of Equity to determine, but then these Instances are not referr'd to by the Words, that is to say, or by the Words afore-rehearsed or above expressed, which belong only to the naked Letter of the [Page 16] Law, but they are pointed at by the In­stances themselves, as those Instances by Parity or Superiority of Reason do point at other Instances that are not mentioned; as for example, When it is forbidden to Marry the Half-Sister, this evidently darts a Pro­hibition upon the Whole-Sister likewise, because the Whole-Sister is really the Half-Sister and something more; and when it is forbidden for a Man to Marry his Grand­child; this points still more strongly up­on his Daughter: for, if the Grandchild be forbidden for the sake of the Daughter, as there is no question that is the reason, the Daughter is much more forbidden for her own and her Father's sake, and for the sake of the Grandchild, who is for her sake expresly forbidden at a further re­move: But if where there is neither an ex­press Prohibition, nor so much as a Parity of Reason, we will suppose a Law, not­withstanding to oblige, which is exactly our Case; we may as well extend the Pro­hibition in infinitum, so that there need have been but one Prohibition of Marriage, and that would effectually have barred all other Instances that can be supposed, for where a Prohibition stops not with Parity of Reason, what other Limit or Bounda­ry can we set?

Neither let any Man take shelter in Archbishop Parker's Matrimonial Table, which being first publish'd in 1563. was af­terwards in the Year 1603. among many other Canons of a Convocation held that Year, being 1 Jacobi 1. ratified, confirm­ed and allowed under the Broad Seal of England, in which Matrimonial Table a­mong other Prohibitions the Marriage of an Ʋncle with his Niece is forbidden.

For this Table was made with an un­questionable reguard to the Levitical Pro­hibitions, and it was upon supposition of a Parity of reason betwixt the Marriage of an Ʋncle with his Niece, and that of an Aunt with her Nephew; that the former of these was prohibited in that Table, not­withstanding it be not expresly mention'd in the Law of Moses it self, but now since I have shewn plainly that there is no such Parity of Reason as is pretended, the Table cannot prohibit such Marriages any longer, unless the Act of Parliament must give place to the Table: For by the Act of 32 H. 8. c. 38. it is expresly ordained, that, No Reservation or Prohibition, God's Law except, shall trouble or impeach any Marriage without the Levitical Degrees; and what those Degrees are, appears by 28 H. 8. c. 16. wherein those Degrees are [Page 18] said to be limited and declared in the Act made for establishing the Kings Successi­on, which is, 28 H. 8. c. 7. wherein the Degrees expresly mentioned and set down in Leviticus are exprest, and none other; and if we add any other, but what are in­cluded in the Degrees mentioned, either by Parity or Potiority of Reason, there can be no end of Prohibitions while the World stands, but they may be heap'd and piled in infinitum upon one another, with­out any other Authority to make them good, then what either prejudice or fan­cy shall create. I demand therefore, if the Marriage Table had quite altered the Degrees mentioned in Leviticus and sub­stituted others in their stead, whether it would have obliged or no, notwithstand­ing the Act of Parliament expresly saith, that, No Reservation or Prohibition, God's Law except, shall trouble or impeach any Marriage without the Levitical Degrees, which Degrees by another Act are limited and declared, as aforesaid? I believe no Man will be found so hardy as to take up­on him the Patronage of this Doctrine, and since the reason is the same in all, there can be no Prohibition in any one Case, (and consequently not in ours nei­ther) where the Law of Moses allows a Dispensation▪

P. 58. And all such Marriages were pronounced Valid) It is true, this Act of Parliament, so far as concerns Precon­tracts was repealed 2 Ed. 6. 23. and that Repeal confirmed 1 Eliz. 1. but it was for the greater inconveniences which were found by experience by nulling of real Contracts, then by pretending of Con­tracts, where there were really none, which was the reason of the Act in Henry the Eighth's time, and is a plain instance in both Cases, for the Repeal was not founded upon Right but Convenience, that Laws in many Instances do not so much regard, Quid fieri jus fasque sit, as Quid expediat, vel intersit Reip. ut fiat, vel non fiat.

P. 72. Being only the half Sister by the Father's side) the Daughter of the Half-Brother by the Father's side, which is a double Paternal Consanguinity, so that our Case is more favourable than that of St. Ambrose, which made him notwithstand­ing hesitate a little, in spite of all his Ri­gour and Severity in these matters; I sup­pose no Man will say, that the Half-blood and the Whole are the same; and Abra­ham's Case with respect to Sarah his Wife, is an unanswerable instance for the Fathers side, that it is more favourable and more [Page 20] allowable in Marriage than the Mothers.

Ib. Cannot without Ignorance or Wicked­ness, and in either Case without palpable injustice be vacated or dissolved) This ought not, and, I hope, it will not be in­terpreted as any disrespect to any Court of Justice, for I honour the Seats of Justice with all my Heart, and will do as much as any Man to the utmost of my Power to as­sert their just Authority and Reputation, for as much therefore as I am given to un­derstand that there is a Sentence passed in this Cause to the prejudice of the parties in in whose behalf I have pleaded, I do here­by declare, that these Papers were written a good while before the passing of that Sen­tence, and that they were actually Printed before it was possibly for me to know any thing of it, besides that a wrong Sentence may sometimes be pronounced not only by an Upright Judge, but a Wise and Learn­ed one too.—

[...] AN ADDITION Of some other CONSIDERATIONS Not hitherto suggested.

FIrst, As to the Half-Blood, the Tal­mudical Doctors were of opinion, that though it were forbidden for a Man to Marry his Brother's Wife, in any Selden U [...] Hebr. L. [...] c. 2. Case but only where the Brother died without Issue; yet this was to be under­stood only of the Brother by the same Fa­ther: but that it did not hold in the Frater Ʋterinus. Which Opinion of theirs was founded upon this Reason, That the Inhe­ritance, which was the Reason of such Marriages in default of Issue, did not de­scend from the Mother, but the Father; so that the Law of the Leviratus was not [Page 22] concerned in the Case of a Frater Ʋteri­nus, who was reputed of another and a distinct Family from his Half-Brother by another Father, though the Mother on both Sides were the same. I confess, I am very clear and positive against the Rabbins in this: For whatever becomes of the In­heritance, it is certain, that in case of Is­sue, the Brother by the Father's Side was forbidden upon account of nearness of Kin; but that nearness, for the Reason already mentioned more than once, is certainly greater in construction of Law on the Mo­ther's Side, than on the Father's. But I bring this Determination of the Rabbins, whether true or false, to shew that they did not think the Half-Blood so sacred, and so indispensably prohibited as the Whole; and that the Half-Blood on one Side may possibly in some Instances be more severely prohibited than the other: And if this Do­ctrine will hold in any Case, it will cer­tainly in ours, the Father's Side being certainly, as to Legal Construction, the weaker Consanguinity of the two.

Secondly, Though my Lord Vaughan, [...]ill and [...]od's [...]se, p. [...]2. in Hill and Good's Case, be very inconsi­stent with himself, if we compare him with himself in Harrison and Burwell's, where he speaks very favourably of the [Page 23] Marriage of a Man with his Wives Sisters Daughter: for in this latter Case of Hill and Good, citing all the same Precedents he had done before, he concludes, 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: Yet afterwards he makes us a sufficient Amends, if a flat, positive, and deliberate Contra­diction can do it. For within a very few Pages afterwards he puts the same Case, and resolves it as follows. A Man before ib. p. 326. the third of November, 26 H. 8. by Dispen­sation from Rome, had married his Wives Sisters Daughter, which Marriage was pro­hibited by the Canons of the Church; and no Divorce had been attempted in the Case, until after 1 Eliz. and the Reviver of the Statute of 28 H. 8. c. 16. which made void all Dispensations from Rome.

It is plain, that this Marriage being not prohibited by God's Law, limited and de­clared in the Act of 28 H. 8. c. 7. was by the express Words of the revived Act of 28 H. 8. c. 16. a Marriage to continue good without Separation, notwithstanding all Di­spensations from Rome were null'd; because it was no Marriage excepted out of the Grace intended to be given by that Act to the [Page 24] King's Subjects Married by Dispensation be­fore November the third, 26 H. 8. and not then separated.

And now from this Determination of my Lord Vaughan's, the Inference is plain, That our Case must stand a fortiori: For Consanguinities and Affinities in these Ca­ses are the same, and prohibited to the same Degrees; a Man and his Wife are all one; and his Wives Sister, as to this Parti­cular, is the same with his own; and her Daughter, the same with his Consanguine­ous Niece by the Whole Sister; which if it be determin'd lawful, the Daughter of the Half-Brother is much more, the Half-Blood and the Paternal Consanguinity ta­ken together, making the Case more fa­vourable by Four to One, which is the ex­act Proportion.

Thirdly, Though it be true what I have affirmed, That the Talmudists or Traditio­nary Doctors are agreed in permitting the Marriage of an Ʋncle with his Niece, and this as far off as the time of Josephus, and probably a great deal longer; yet the Kar­raites or Scriptuary Jews forbid it, as well by the Brother, as the Sisters Side, concei­ving it, as I suppose, to be included by Pa­rity of Reason: But this is so far from being a Prejudice to our Cause, that it is [Page 25] the greatest advantage it can possibly re­ceive, for it is absurd to think that the [...], the Misnical or Traditionary Jews were ignorant of this Opinion of the Karraitish Faction, and therefore their determination in this case did not proceed out of heedlesness or inadvertency, as it is found to have done in many others, but was certainly grounded upon one of these two bottoms, either that Parity of Rea­son was not to be regarded, and that, ac­cording to Antient Tradition, it did not indispensably oblige their Forefathers, who upon Prudential Considerations assumed a latitude and liberty to them­selves, either of entring into such Marri­ages, or abstaining from them; or else, that there was indeed no Parity in this Case, as certainly there is not, and much less in the Half-blood, and the Half-blood by the Fathers side; and though I am no great friend to the Traditions of the Jews, which in many cases are monstruously fa­bulous and impertinent, yet where a Tra­dition hath reason to assert it, this is a great Argument of its Truth and Credit, and the Reason and Tradition do reflect upon each other a mutual Authority and Reputation.

Fourthly and lastly, Though Archibishop [Page 26] Parkers Matrimonial Table were confirm­ed by Authority of a Convocation in the Second of King James the First; yet it is to be considered, that the power of such Assemblies, and Synods of the Clergy, and the Validity of what they shall determine is founded upon 25 H. 8. c. 12. and in that Act there is this provision made; Provid­ed alway, that no Canons, Constitutions or Ordinances shall be made or put in executi­on within this Realm, by Authority of the Convocation of the Clergy, which shall be contrariant or repugnant to the Kings Pre­rogative Royal, or the Customs, Laws or Statutes of this Realm. Wherefore all the Question is, whether this Marriage be against the Law of God, as I think I have abundantly proved that it is not, and upon supposition that I am in the right, the Ma­trimonial Table, as to this particular Pro­hibition is of no manner of force or obliga­tion, because the Statute of 32 H. 8. c. 38. expresly says, That no Reservation or Pro­hibition, Gods Law except, shall trouble or impeach any Marriage. And this is all I have to say, only since there is a Sentence of Divorce already past in this Cause, I would humbly recommend it to those before whom the final determination of this Con­troversie shall lie, that they would reflect [Page 27] upon our Saviours injunction in Cases of this Nature, whom God hath joyn'd, (as he hath joyned all those who being actually Married, are not antecedently by his Law forbidden to Marry) let no man put asun­der, and that in the Judgment they shall give upon this Case, they would set the great Judge of Heaven and Earth before them as a Pattern, who hath told us not only for our instruction, but imitation too. [...], I will have Mercy and not Sacrifice, and that in the midst of Judgment he remembers Mercy.

FINIS.

[...]. Reliquiae Secundae.

I Did believe upon the Writing of my last Paper that I had exhausted the Argument which was the Subject of it, but upon further enquiry I find I have not, and there is further to be added, to what I have said already, as fol­lows.

First, Learned Men are divided in their Opinions, whether the Prohibitions in Le­viticus are Natural, that is, founded and rooted in the Law of Nature, or in the Natural and Eternal Reason of things, or whether they are purely positive and no more. Of the first sort is Lyranus, Abulensis, Bonfrerius, Masius, Montanus, and Nicho­las Serarius, and among the Reformed Mr. Calvin; of the latter is Paulus Bur­gensis, Cajetanus, C. a Lapide, Sanchez, and the Authors by him cited, Tirinus, Lo­rinus, Menochius, and Magalianus, and a­mong the Reformed three great Authori­ties, Drusius, Episcopius, and our Learned [Page 2] Bishop Taylor; as for mine own Opinion, I must confess, that I incline rather to the Sentiments of the former, but they that think with the latter, that the Obligation of these Laws is positive and no more, they have no pretence for a Dissolution of this Marriage, because in Laws meerly positive there is no such thing as Parity to be ad­mitted, such Laws being all of them a manifest restraint upon the Natural Liber­ties of Mankind, and therefore ought not to be strained by Parities, and Interpreta­tions, whether true or false, beyond the Letter of them.

Secondly, As to my Interpretation of the Phrase of Dying Childless, it is con­firmed by the Authority of the Learned Jesuite Stephanus Menochius, who in his Comment upon that place, hath these remarkable Words to the very same Sense with mine, Hi incestuosi non sinentur in hoc scelere permanere donec liberos habere possint, sed occidantur, and this, when all is done, is the true meaning of the Text, though the Jews who are horribly unskil­ful in the remote Antiquities of their own Nation have devised other fanciful Glosses which will not abide the test of a judicious enquiry, and that we may not wonder at this severity of punishing all Incestuous [Page 3] Conjunctions with Death, Paulutius Foro­juliensis refers it as he very well might, besides the Reason I have given, to the Ar­bitrary disposal of Almighty God, who may annex what Sanction he pleases to his Laws, or, which is all one, to some Impul­sive Cause or Motive which he hath not thought fit to reveal, so that with respect to us it is Arbitrary, let it be what it will in it self, where speaking of Congress with a Menstruous Woman being punished with Death, he says, Multa alia quae non sunt peccata mortalia puniebantur paenâ mortis ex aliquâ causâ legislatorem movente, ut esus Sanguinis.

Thirdly, When it is said, Levit. 18. 6. None of you shall approach to any that is near of kin to him, to uncover their Naked­ness. It is to be observed, that this near­ness of kin is to be measured not from our selves, but from the Fountain of Kindred, that is, from a common Father or Parent, as when it is said in the Prohibition of the Aunt by the Fathers side, v. 12. Thou shalt not uncover the nakedness of thy Fathers Sister, she is thy Fathers near Kinswoman. And again, v. 13. of the Aunt by the Mo­thers side, Thou shalt not uncover the naked­ness of thy Mothers Sister, for she is thy Mothers near Kinswoman. It is plain, that [Page 4] though the Niece be at the same distance from me in the descending Line, that the Aunt is in the ascending, yet when the express Reason assigned in the Law, why I may not marry mine Aunt, is not because she is mine, but my Father or Mothers near Kinswoman, this is so far from darting any Prohibition upon my Niece, that it is on the contrary, plainly favourable and propitious to a Marriage in that Relation; because my Niece, who is my Fathers Grand­child, is plainly at a further distance from him than mine Aunt who is his Sister; and that for two Reasons, First, Because the one is an immediate Relation, but the other, by the interposition of a Son or Daughter betwixt, is a Relation at the se­cond remove; and because no Man or Wo­man can get or bear Children by them­selves without the Conjunction of another, it is therefore only a Relation by the half Blood, and if it be the Niece by the Bro­ther, there is not only the Half Blood to be considered, but that that Half Blood it self is the more weak and uncertain Con­sanguinity of the two, as hath been al­ready frequently declared; so that if the nearness to my Father or Mother be the ex­press Reason assigned in the Law of Mo­ses, why I may not Marry mine Aunt, [Page 5] no Man can with any shew of Reason infer from thence, that I am forbid likewise to Marry my Niece, because the distance is manifestly greater from the Fountain of Kindred, and the Relation unquestionably more imperfect.

So also, when it is said, v. 14. Thou shalt not uncover the Nakedness of thy Fa­thers Brother, thou shalt not approach to his Wife, she is thine Aunt. Here there are three things manifestly imply'd, First, That in the Levitical Prohibitions, Consanguinities and Affinities are conside­red as the same, and are prohibited to the same Degrees. Secondly, That the Reason of her being forbidden in Marriage is be­cause she is my Brothers Wife, that is, in Construction of Law, my Fathers Sister or near Kinswoman; And Thirdly, As in the two former Cases, that this is done out of respect and honour to my Father, with whom she stands upon the same Level or Horizontal Plane in the Scheme of Consan­guinity or Affinity, so that to Marry mine Aunt is to make my Fathers equal my infe­riour, and to subject her to the mean and ser­vile condition of a Wife to whom I owe the Service and Honour of a Parent. And this is the true Interpretation of those Words in this last place, She is thine Aunt; [Page] for every Man knows without the help of Revelation, that his Fathers Brothers Wife is his Aunt; but there is manifestly inclu­ded in them an intimation of her Superio­rity over us, by reason of her standing e­qual in the Table of Affinity with our Fa­ther or Mother, and therefore she ought not to submit to have her Nakedness unco­vered by her inferiour and dependant, or put her self into a condition of Subjection to him, from whom she may expect and challenge the Duty, Service and Allegiance of a Son; and therefore the Greeks called the Uncle and Aunt by the names of [...] and [...], alluding, as I suppose, in the use of these words to the Antient, Absolute and Arbitrary Power which all Parents had o­ver their Children; so that as to all the instances to which their Power or Possibi­lity of Action could extend it self, they were as absolute and unaccountable as God himself, and were his Vicegerents up­on Earth in their respective Families, and the Ʋncle and Aunt were [...] and [...], they had, as it were Aliquid divini juris in liberos liberasque fratrum & sororum, they had a right of Reverence, and a na­tural claim of Duty and Respect from their Nephews and Nieces, which were accounted but a remove from Children; [Page 7] and laid so great a weight upon all their Advices, Admonitions and Commands, that to disobey them in any thing not very un­reasonable, was accounted an heinous Crime, although their Power of Coercion were not all out so great, as that of their natural and proper Parents.

And now from what hath been just now said, it is plain, that the Reason of that Law by which the Nephew is prohibited to Marry his Aunt, being founded in these two things, First, In nearness of Kin, which is greater to the Father in his Sister than his Grandchild. Secondly, In the supe­riority and preeminence of the Aunt over the Nephew, I say, it is plain that it cannot from either of these considerations be inferred by any Parity of Reason, that the Marri­age of an Ʋncle with his Niece is forbidden, and with respect to the latter consideration, the superiority is not violated by such a Marriage, but rather pleased and gratified by it, because it still continues where it was, that is in the Ʋncle, only by Mar­riage it is rendred more absolute and per­fect, so that unless contraries may by Pa­rity of Reason be inferr'd from contraies, there can be no inference from the Prohi­bition of an Aunt, which shall debar or ob­struct the Marriage of a Niece.

Fourthly, It is certain, that Amram took to Wife Jochebed his Fathers Sister, and this could not be long before the giving of the Law, for of that Match Moses and Aaron and Miriam were descended; the thing is mentioned in more places than one of the Scripture without any manner of blame or reprehension, and we are not rashly to sup­pose Persons that were so highly honoured by God with a Prophetick Spirit, a gift of Miracles, a Priestly Character annexed for ever to the Family of the one, and a Le­gislative Power invested by God himself in the Person of the other, to have been Spu­rious or Illegitimate; from whence it fol­lows, that whatever reasons of Convenience or Interest there may be to hinder such Marriages From being entred into, yet it was not a matter of absolute and indis­pensable Obligation till after the giving of the Law by Moses, and that if it had not been for the giving of that Law, it would have remained still in the same prudential indifference which it had before; for what is once lawful, must always continue so, till a supervening Law forbids it, and makes it unlawful; but if the Marriage of the Ne­phew to his Aunt were a Marriage good and valid before the giving of the Law by Moses, that of the Ʋncle to his Niece was [Page 9] much more, it being shewn in so many and various respects to be so plainly a more favourable Case, and therefore not being any where expresly forbidden, it must con­tinue still as it was, prudential and indiffe­rent, and consequently lawful. For when restraints are lay'd upon lawful things, there is no inference from the prohibition of one thing to the prohibition of another by Parity of Reason, whether pretended or real, but the Prohibition stops within it self, and extends no further than the Let­ter, as if part of a Common Field should be enclos'd, and this Enclosure establish'd and warranted by Law, there lies here no In­ference by Parity of Reason for the Enclo­sure of the rest, but what is not actually and legally enclos'd, is common, and must remain open as it did before.

Besides, that Moses by Gods appoint­ment should so severely forbid the Mar­riage of an Aunt with her Nephew, a sort of Marriage of which he himself and his Brother Aaron were descended, bringing by that means a sort of Aspersion, and some­thing that is, at least, very like a Reproach upon himself and his Family, upon his Brother Aaron and the Family of Priests that were for ever after descended from his Loyns, and yet take no notice in the least [Page 10] of the Marriage of an Ʋncle with his Niece, in which he was not concern'd, but might have forbidden it without any manner of reflection upon himself or his Relations, if God had intended to prohibit them both a­like, is a thing to me so incredible, that nothing can be more, and I presume it will appear so to every indifferent Person that shall reflect upon it.

Fifthly, There is also the Case of Achsah and Othniel in the Books of Joshua and Judges, in which, if we understand the Text so as that Othniel, who was the Son of Kenaz, shall be the Half Brother of Caleb by the Mothers side, for Caleb was not the Son of Kenaz but Jephunneth; then here is another Instance after the Law, of the Ʋncle Marrying his Niece, the Daughter of his Half Brother by the Mothers side; the Words of the Text are these, Jos. 15. 17. Othniel the Son of Kenaz, the Brother of Caleb took it: (Kirjath-sepher) and he gave him Achsah his Daughter to Wife. And again, Judg. 1. 13. Othniel the Son of Ke­naz See also g. 3. 9. Calebs younger Brother took it, (Kir­jath-sepher) which words in both places may either be so Interpreted, that Othniel had this double Relation, he was the Son of Kenaz, and he was likewise Calebs younger Brother by the Mother's side, and [Page] then Achsah the Daughter of Caleb will be Othniel's Niece, and his Niece by a nearer Consanguinity than that in the Case before us; or else, that Othniel was the Son of Kenaz, which Kenaz was younger Brother to Caleb; and so Othniel and Achsah will be Cousin Germans. Both of these Interpreta­tions, if there were nothing else but these Words to be considered, are very natural and easie; but when I consider that after the Death of Caleb and Joshua the Chil­dren of Israel were made Captive by Cu­shan-rishathaim, for the space of Eight Years, Judg. 3. 8. that God raised up this Othniel to be their Saviour and Deliverer out of the Hands of this Oppressor, v. 9, 10. and that the Land had rest after­wards under the Government of this Othniel for the space of forty Years; no Man will ever think that Caleb and Othniel in that Age of the World could probably be the Sons of the same Mother, when it is so plainly demonstrable, that there was at least Forty nine or Fifty Years differance be­tween their Ages, for to this Fourty eight we must add one or two more, because be­fore this period began they were both Co­temporary, and Caleb, if he were Brother to Othniel, was then the elder by a Year or two at the least.

But this is not all, c. 2. 8. we have an account that Joshua dy'd, and v. 10. That all that Generation, of which Caleb was one, were gathered to their Fathers, and then, before this Revolution of Cushan-rishatha­im, we have an account of several other Oppressions which the Jews for their many Sins and Provocations laboured under; so that the distance between the Age of Caleb and Othniel is still considerably greater than what hath been represented. It re­mains therefore, that Achsah and Othniel were Cousin Germans, that is, Brothers Children, who in their Circumstance might lawfully Marry, for it appears, that Achsah was an Heiress, otherwise her Father could not have given her the Southland, as he did, and added afterwards to it the Ʋpper and the Nether Springs, all which, by the Mo­saick Platform of Inheritance would other­wise have devolved upon the Male Issue.

If you ask how any Woman can be cal­led an Heiress while her Father is yet li­ving? I answer, That in strictness she could not yet be called by that name, there being no Inheritance necessarily devolved upon her, but her Father was now so old, that he was past the hope or expectation of any more Children: For at the first en­trance of the Children of Israel into the [Page 13] Wilderness, he was one of the Heads of the Tribes, Numb. 13. 6. and one of those who together with Joshua and others, v. 17. were sent by Moses to spy out the Land of Canaan; after this they remained in the Wilderness Fourty Years, and Joshua who seems to have been much of the same Age with Caleb, soon after his entrance upon the Land of Canaan dy'd, being at his Death of the Age of an Hundred and ten Years, Josh. 24. 29. Judg. 2. 8. And if we allow ten or twenty Years by which Joshua, with­out any reason that appears, shall be sup­posed to be older than Caleb; the Age of Caleb at the Marriage of his Daughter Achsah, will be an Hundred or Ninety at the least, wherefore being so old and un­fit in Person to be at the Head of a Vigo­rous Assault, he propounds the taking of Kirjath-sepher to some other with a reward, He that smiteth Kirjath-sepher and taketh it, saith he, to him will I give Achsah my Daughter to Wife; not that any one Man could take a City or Town by himself, or that every Man was fit to Command a Par­ty; or that the Inheritance which was to go along with Achsah, could be legally diverted from Othniel, who was the next Heir Male of that Family, only by these general words he propounds the Conduct of the Expediti­on [Page 14] to Othniel with Promise upon Success, that he should immediately be Married to his Daughter, which the Old Man during his Life time, was not obliged to permit, and have part of the Inheritance in hand before hand. And this is the true State of this Case, which though in it self it be nothing to our purpose, yet there is an use that may be made of it, and that is this;

That it would be very strange, if God had intended equally to prohit the Marri­age of an Ʋncle with his Niece, as of an Aunt with her Nephew, not only that he should no where expresly prohibit the for­mer of these, as he hath done the latter, but that the Holy Spirit in this particular Case of Achsah and Othniel should speak of the Marriage of Cousin Germans after such a manner, that many, and those very Learn­ed Men too, have been induc'd to believe it was the Marriage of the Ʋncle with his Niece, for of this Opinion were most of those whom I have already cited as Asser­ters of the meerly positive Obligation of the Mosaick Law.

Sixthly, and lastly, Though I am far from disputing the Kings Power in dispen­sing with a Statute in Cases of necessity, of which he is the Judge, yet in ordinary Cases he is never supposed to intend it, and [Page 15] it is certain, that when among other Ar­ticles presented to him by the Convocation he gave his Royal Assent to the Matrimo­nial Table, in which the Uncle is prohi­bited to Marry his Niece, the Convocati­on themselves were of Opinion, that this Degree was some way or other prohibited by the Law of Moses, and the King agreed to this Prohibition among others, upon that supposition, but now since it appears so plain­ly, that this sort of Marriage was never actually forbidden by the Law of Moses nor so much as intended to be forbidden, either nothing but Gods Law can impeach any Marriage, and by consequence this cannot be impeach'd, or else an Act of Parliament may be Repealed by an Act of Convoca­tion, which yet hath no Power to make any Laws or Ordinances whatsoever, but what the Parliament it self hath given it, and the Parliament can never be supposed to put a Power destructive of their very Constitution into the Hands of the Clergy met together in a Convocation; nay, they have expresly provided, with the Kings Roy­al Assent, who, without necessity, which cannot here be pretended, will never break his Word with his People, and then the breach of it is the truest Justice, that no Con­vocation shall exercise any such Power.

FINIS.

AN Additional Advertisement Concerning the HALF-BLOOD.

DEut. 13. 6. It is provided in case of Idolatry; If thy Brother, the Son of thy Mother, or thy Son, or thy Daugh­ter, or the Wife of thy Bosom, or thy Friend which is as thine own Soul, entice thee se­cretly, saying, Let us go and serve other Gods, &c. v. 8. Thou shalt not consent unto him, nor hearken unto him, neither shall thine Eye pity him, neither shalt thou spare, neither shalt thou conceal him; v. 9. But thou shalt surely kill him; thine Hand shall be first upon him to put him to death, and afterwards the Hand of all the People.

The meaning of this Law is, that Ido­latry should certainly be punished with Death, let the Relation be never so nigh, or the Endearment and Friendship never so [Page 18] great, as appears by those Words, Or the Wife of thy Bosom, or thy Friend which is as thine own Soul; and when it is said, Thy Brother the Son of thy Mother, without mention of the Brother by the Father, it is imply'd, that the one is nearer of kin than the other, in the Interpretation of the Levitical Law, this best answering the intention of this Law of Moses which did oblige them not to conceal even their nearest Relations, and in this Prohibition the Brother being the Son or supposed Son of the Father is included a fortiori.

Books written by the same Author, and Printed for Walter Kettilby, at the Bishops-Head in St. Pauls Church-yard.

1. ANimadversions upon the Doctrine of Transubstantiation, in a Ser­mon Preached before the Lord Mayor, October 19th. 1679.

2. A Discourse of the Divine Omnipre­sence and its Consequences, in a Ser­mon Preached before the Honourable Society of Lincolns-Inn the first Sunday of Michaelmas Term, 1683.

3. A Sermon Preached before Sir P. W. 1681. with Additions. To which are annexed three Digressional Exercitati­ons. I. Concerning the true time of our Saviours Passover. II. Concerning the Prohibition of the Hebrew Canon to the Ancient Jews. III. Concerning the Jewish Tetragrammaton, and the Pytha­gorick Tetractys. Quarto.

4. Two Discourses Introductory to a Dis­quisition, demonstrating the unlawful­ness of the Marriage of Cousin Germans, from Law, Reason, Scripture and Anti­quity. Octavo.

[Page] 5. A Letter of Resolution to a Friend con­cerning the Marriage of Cousin Ger­mans. Octavo.

6. A Resolution of Three Matrimonial Cases, viz. I. Whether it be lawful for a Man to Marry his disceas'd Wives Sisters Daughter. II. Whether the Half-Blood makes Kindred. III. Whether such a Marriage being made, it ought to be dissolv'd or no.

7. Boaz and Ruth, A Disquisition upon Deut. 25. 5. concerning the the Bro­thers Propagating the Memory of his Elder-Brother deceas'd; in which the Antiquity, Reason and Circumstances of the Law are Explain'd, the Mistakes and Impositions of the Jewish Rabbins in this and other matters detected, and a fair way opened for a clearer under­standing of the most obscure and dark places in the Law of Moses; together with a discovery of several things as well in the Eastern as Roman Antiquities, never yet explained or understood by any.

8. An Argument in defence of the Mar­riage of an Uncle with the Daughter of his Half Brother by the Fathers side. Octavo.

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.