FIRST, The aforesaid Marriage is not expresly forbidden in any Act of Parliament, wherein the Degrees prohibited are set down.

Secondly, It is not expressly mention'd in the Levitical Law, which the Law of England follows as its Pattern.

Thirdly, The Law of England, especi­cially [Page 4] in its Penal Sanctions, hath no regard to Parity of Reason; and the Case is usual­ly the same in Priviledges or Exemptions: This appears by several Proofs alledged to this purpose, pag. 25, 26, 27. of the First Discourse. And this is likewise prov'd more largely by three other Considerati­ons mention'd afterwards, pag. 68, 69, 70. The First is of a Priviledge allow'd by Act of Parliament to a Knights eldest Son, which shall not extend to the eldest Son of a Baronet. The Second is a Matrimonial Custom, concerning the Marriage of two Brothers to two Sisters, or of Brother and Sister to Sister and Brother; or of the Son­in-law to the Mother-in-laws Daughter, or Father-in-laws Daughter, which are not so much as pretended to be disallow'd by our Law, notwithstanding they are all of them so great and manifest violations of the great and fundamental Reason; if all these Prohibitions, which was to spread Friend­ships, and propagate Good-will and Chari­ty amongst Men, by not restraining the Matrimonial Affinities within too narrow a a compass. The Third is taken from the express words of the Statute, 25 H. 8. c. 22. wherein the particular prohibited Degrees which are there enumerated and set down are usher'd in with a, that is to say; and after­wards [Page 5] there is reference made to the said Degrees by the words Afore rehearsed, and above expressed; by which it is manifest, that this Act sticks closely to its own Letter, without admitting Parities or probable In­terpretations, it being absurd to suppose the words that is to say, to refer to those particulars, of which no mention after­wards is made; or that the words afore re­hearsed, or above expressed, can refer to such pretended Instances of Prohibition as are no where rehearsed or expressed; for certainly it is one thing to rehearse or to express, and another to intimate, to infer, to argue by Parities, Consequences, or Deductions, how natural, easie, and genuine soever they be: And this is still farther made out against the exception of my Lord Chief Justice Vaughan, pag. 13, 14, 15, 16. of the Addenda & Mutanda.

Fourthly, Learned Men are divided in their Opinions concerning the Nature of these Laws, whether they be Natural or meerly positive: Among the latter sort are Paulus Burgensis, Cajetanus, C. à Lapide, Sanchez, and the Authors by him cited, Tirinus, Lorinus, Menochius, and Magalia­nus. And among the Reform'd, three great Authorities, Drusius, Episcopius, and our Learned Bishop Taylor; and they that with [Page 6] these Gentlemen are of this Opinion, 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 strain'd by Pari­ties and Interpretations, whether true or false, beyond the Letter of them.

Fifthly, Though we should allow the prohibitions of Leviticus, to proceed all of them upon the Measures of Nature, yet though the Laws are Natural, the Sanction of them is positive, and no more; for God might have assigned other punishments if he had pleas'd, as Servitude, hard Labor, Ig­nominy, Fine, Confiscation, Imprisonment, the loss of any Limb, or Member, or any other Punishment short of life it self, with­out any manner of disparagement to his Justice, or any violation of the Laws of Nature, wherefore in so great variety of possible infliction, what punishment can we assign as an Act of Obedience to the Le­vitical Law, when that Law it self hath not assign'd any?

Adultery by the Law of Moses, was pu­nished with Death in both parties, but by [Page 7] ours it is not so, which is a plain Argu­ment, whatever may be said of unlawful Marriages, or unlawful Lusts, in which we are govern'd by the Levitical Measures; yet, as to the punishments consequent up­on them, we have Measures of our own; and therefore where no Punishment is ex­presly determined by our Law, or at least expresly left to the Discretion of the Judge, or Court, or of any other Person or Persons to whom the Cognizance of the Matter shall appertain; in this Case no Punish­ment can lawfully be inflicted: How then can we with Justice proceed to a Divorce in case of such a Marriage as to which the Levitical Law is silent as well as ours?

So likewise in the Case of Buggery or Bestiality, it was Death without Mercy by the Law of Moses; and so it is by ours made Felony without benefit of Clergy; but this was not till the 25 H. 8. and if by that or some other Statute, provision had not been made, we must either say, that that Act of Parliament was altogether fruitless, or else, that it would not have been Capital to this Moment. Wherefore there being no Punishment expresly assign­ed, or expresly left to the Judgment and Discretion of any Ecclesiastical or other Judge by our Law, though it had been ex­presly [Page 8] prohibited, and more than that ex­presly punishable by the Law of Moses, for a Man to Marry his Niece; yet▪ notwith­standing it could not have been so by ours.

Sixthly, If Cousin Germans in the com­mon practice and usage of our Laws are not prohibited to Marry with each other, notwithstanding the Dispensation granted to the Daughters of Zelophehad, which Dispensation shews it undeniably to have been prohibited in all ordinary Cases, and, as it was, it concerned only the particu­lar Oeconomy of the Jewish State, and the preservation of the Mosaick Platform of Inheritances among that People, I say, if they are notwithstanding allow'd to Inter­marry, meerly for this Reason, because they are not expresly mention'd in that Act of Parliament, wherein the prohibi­ted Degrees are specified and set down, how shall not then the same priviledge be ex­tended for the same, and for a greater Rea­son to the Ʋncle and the Niece, who are not only not expresly mentioned as Persons prohibited and disallowed by our Law, but are not so much as mentioned in the Law of Moses it self, where Cousin Germans are undeniably forbidden?

Seventhly, In the Eighteenth of those Canons which are called Apostolical, and [Page 9] are without question of great Antiquity and Authority in the Church, A Man that Marries his Brothers Daughter is not by virtue of the said Canon divorc'd from his said Marriage, or excluded from the Communion of the Church, or debarr'd any other Priviledge, or Immunity of a Christian Man, or of a Member of the Body Politick, or Ecclesiastick whatsoever; only for Examples sake, he is not permit­ted to enter into Holy Orders; which though it shew sufficiently, that the Com­pilers of these Canons were against all Marriages in this Degree, and therefore the Clergy were prohibited for an Example to others; yet it is plain, that at the same time they did not look upon it as a Mar­riage prohibited or detested by the Law of God, and such as Christianity, which hath a more tender regard to the propagation of Friendship and Good-will, than the Law of Moses had, lays an absolute and indis­pensable obligation upon us to avoid: And this being, as it is, such a plain testimony of the Opinion of the Ancient Church con­cerning Marriages of this Nature, carries great Weight and Authority along with it, for the deciding this particular Case in fa­vour of the parties that are concerned in it.

Eighthly, Though this Marriage should be granted to be antecedently prohibited and unlawful; yet it doth not presently fol­low, that being actually Solemniz'd and Consummated by fruition, it shall be made null and void.

Mr. T. in his First Paper hath given se­veralFrom. p. 2. [...]o 18. Pag. 42, 43, 44, ib. & in ad­dend. pag. [...]. instances of unlawful Acts, which yet notwithstanding, were valid ex post facto; but what he saith as to the Case of Polyga­my comes still more home to our purpose, which though it was forbidden by the Law of Moses, yet a Divorce was not to ensue upon it; neither was the Christian Law less tender of a Divorce in the Case of Po­lygamy with respect to such Parties as had engaged in it, before they became Disci­ples and Converts to Christianity, than the Jewish was, though after our having once embrac'd that holy Profession; it is now not only unlawful ex Antecedenti, but a Divorce ought to ensue at least, besides what other Punishments the Civil Laws shall think reasonable to inflict after such Polygamy is actually engaged in, not only be­cause of the general design of Christianity, which aims much more earnestly at all the highest instances of Charity and Good-will than the Jewish Dispensation did: And therefore the state of Polygamy, which is a [Page 11] natural occasion of strife, can never be a lawful Christian State; but also because this Union of the Husband to one Wife, as one and the same Flesh is declar'd to be a Sym­bol of the inseparable Union of Christ and his Church, and of the intire and incom­municable Love of the one to the other: And on the other hand, Polygamy, by the Rule of Contraries, is a Symbol of Polythe­ism, or of the Worship of many and false Gods, which is the most directly opposite to Christianity that any thing can possibly be conceiv'd to be: Wherefore, if the Law of Moses, and if the Christian Dispensation it self were so extremely tender of a Di­vorce in this Case, notwithstanding it was a plain disobedience to an express Divine Prohibition; how much more tender ought it to be in ours, where there is not only no Punishment assign'd (which we ac­knowledge to be true of Polygamy it self) but also no express Prohibition to be found; and where the Breach of Charity, the Honour of Christianity, and the in­communicable respect and service due to the True and Only God, are the two first of them not so much, and the latter not at all concern'd.

Ninthly, It is very strange, that there should be so express and careful a Prohibi­tion [Page 12] of the Marriage of the Aunt with the Nephew as there is, Levit. 18. Vers. 12, 13, 14. by which the Nephew is forbidden to Marry with his Fathers or Mothers Si­ster, or Ʋncles Wife, which is all the pos­sibility of Auntship that can be supposed: And that all these Cases should be so ex­presly and so severely punish'd as they are Levit. 20. vers. 19, 20. and yet no men­tion in the least made of the Ʋncles Mar­riage with the Niece, whither of half or whole Blood, or whether by Consanguity or Affinity in any wise whatsoever; so great sollicitude on the one hand seems ut­terly inconsistent with so great careless­ness and silence on the other, if the Law of Moses had intended to prohibit both these sorts of Marriages alike.

Tenthly, What Opinion our best Law­yers have had of Marriages of this kind, may be seen by these following Precedents, and Reports to be met with in their Books.

Richard Pearson in the time of KingVaughan's Reports, pag. 248. James the First, Married his Wives Sisters Daughter, for which a Process was com­menc'd against him in the Spiritual Court, and upon the Suit of the said Richard Pearson a Prohibition was granted out of the Common-Pleas; And it was resolved by that [Page 13] Court, upon consideration of the Statute 32 Hen. 8. Cap. 38. that the Marriage was not to be impeach'd, because declar'd by the said Act to be good, in as much as it was not prohibited by the Levitical De­grees; and since Consanguinities and Affini­ties, as well by the Levitical as the Civil Law are the same, and prohibited to the same Degrees; it follows, that this Marri­age must be valid also, if this determinati­on of those Reverend Judges be good, it be­ing a Consanguinity at the same remove with the allow'd and ratify'd Affinity of this Instance. Much the same with this was the Case of Harrison versus Burwell: Harrison had Married his great Aunt, the Widdow of Abbot his Grandfathers Brother, and my Lord Vaughan declares this Mar­riage to be valid, pag. 207. And not only so, but this Case by the Kings Command being referred to the Opinion of all the Judges of England, the Chief Justice de­liver'd their Opinions, and accordingly Judgment was given, that a Prohibition ought to go to the Spiritual Court for the Plantiff.

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 of Moses assigns, S [...]e i [...] [Page 14] thine Aunt, thy Senior, thy Superior, and in Construction of Law, Parentis loco, which holds as well, though not so im­mediately, and indeed the two first much more strongly in the great Aunt, than in the Aunt at the first remove; but yet in the Judgment of these Learned Gentlemen, the Law of England proceeding only by the Letter without any regard, or at least, very little to Parity of Reason, would not disannul the Marriage of the great Aunt, though the immediate were so expresly forbidden. Besides this, my Lord Vaughan gives it in general terms, as his Opinion, pag. 216. The Marriages particularly de­clared by the Acts to be against Gods Law, cannot be dispensed with; but other Marriages, not by the Acts declar'd in particular to be against Gods Law are left in 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, as many as are not particularly and actually forbidden; 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 nul [Page 15] and void; but by the Law it self, which by not prohibiting such Marriages hath made them lawful, which is exactly our Case, and therefore it must be lawful if my Lord Vaughan's Judgment be of any value. It is true indeed, in Hill and Good's Case, he seems to vary one while from this determination, but within a very lit­tle while, he returns to his former mind, and confirms this Opinion by a fiction of a Case of a Man that had Married his Wives Sisters Daughter, before the third of November, 26 Hen. 8. by dispensation from Rome; and notwithstanding, that all dis­pensations from Rome were afterwards made void, yet he declares this Marriage, being not prohibited by Gods Law, limit­ed and declared in the Act of 28. Hen. 8. Cap. 7. to be by the express words of the re­viv'd Act, 28 H. 8. Cap. 16. a Marriage to continue good without separation, as having a validity of its own to stand upon, extrin­sick to any thing of Dispensation from Rome.

Lastly, When in the Act of 32 Hen. 8. Cap. 38. it is enacted, that, No Prohibiti­on, Gods Law excepted, shall trouble or im­peach any Marriage without the Levitical Degrees. My Lord Cook declares it, as his Judgment, that if it had not been for those words (Gods Law except) this Act had [Page 16] excluded the Impeaching Marriages for plurality of Wives and Husbands at a time, for Impotency, and for Adultery, because if the Levitical Degrees by our Law had been made the sole and only measure of Prohibition, and if no Marriage could have been vacated but for offending a­gainst these, our Law which keeps it self strictly to the Letter in these Cases, would have taken no Cognizance of any such im­pediment or obstruction, as did not pro­perly belong to one of these, which can­not be pretended in any of these three Cases.

Eleventhly, The Law of Moses in the Twentieth of Leviticus hath assign'd no Punishment, but that of present Death, in case of any incestuous or prohibited Con­junction, as will appear to any Man that shall look over that Chapter. The Law knew no other Punishment for illegitimate Marriages, but Death; and therefore the Marriage which was not Capital was no offence at all against it, but was as Legi­timate to all intents and purposes as any other Marriage in the World could be; and not only by the Law of Moses, but by the Theodosian Rescript concerning Cousin Ger­mans, the next Degree to that which was Capital, was no Crime at all: For it do's not appear, that he forbad Second Cousins [Page 17] to Marry. If then this Marriage of the Uncle to his Niece be so far from being expresly punish'd by the Law of Moses, that it is not any where so much as mention'd among the Levitical Restraints and Prohi­bitions; if it be the hardest Case in Nature to put a Man and Woman to Death for a Consequence, a real or pretended Parity of Reason, which either he, or she, or both of them might very well not foresee or un­derstand; and if, at last, there be no Con­sequence, no Parity in the Case, as will be undeniably manifested by and by; then it follows plainly, that the Marriage of the Ʋncle to the Niece, is so far at least Legi­timate, that it was not at all punishable by the Levitical Law, and that it cannot be dissolv'd by vertue of any Act of Par­liament now extant among us, or by any other Power that will proceed either in Punishment or Prohibition upon the Levi­tical Measures.

Twelfthly, As there was no legal vio­lent separation among the Jews, but by Death, unless, when an Husband for Rea­sons of his own had written a Bill of Di­vorce against his Wife; so the reason why Death was inflicted, seems to have been to prevent any Issue from such Incestuous Conjunctions; or in the Language of the [Page 18] Law it self, that they might die Childless▪ the Woman for endeavouring to bear, and the Man to beget at once a Spurious and Incestuous Off-spring. For a Bastard, as it is every where a Name full of reproach, so among the Jews, he that was descended of an unlawful Bed, was look'd upon as an accursed, abominable thing, and branded with peculiar and particular marks of Ig­nominy and Detestation, and the Descen­dents from him as far as to the Tenth Gene­ration, were not to enter into the Congre­gation of the Lord, Deut. 23. 2. And this, though it should happen, as it did for the most part, to be the effect of no more than Simple Fornication. And how much more detestable must such a Bastard needs be, who was the Off-spring of Incest and Whore­dom (for such sort of Marriages were e­steemed no better) in a most execrable Con­junction and Combination together.

But now it is certainly a very hard Case to make any Man a Bastard by Parity of Reason, because his Father and Mother happened to do some thing which it was impossible for him to hinder, which is like another thing which is forbidden, much less is there any Bastardy in such a Case, where the Parity of Reason do's not hold; and whereever the Off-spring is not Spuri­ous [Page 19] the Marriage is Legitimate: For a Le­gitimate Son or Daughter cannot possibly be descended but of Legitimate Parents. And the better to remove all obstacles as to this matter, out of the way, it is to be observ'd, that, as to the Phrase of Dying Childless, the Interpretation just now given, is confirm'd 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 babere 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 Conjunctions with Death, Paulutius Foroju­liensis refers it, as he very well might, besides the Reason 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 [Page 20] speaking of Congress with a Menstruous Woman being punish'd with Death, he says, Multa alia quae non sunt peccata Mor­talia puniebantur poenâ mortis ex aliquâ causa legislatorem movente, ut esus Sanguinis.

Thirteenthly, 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 mention'd 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 honour'd by God with a Prophetick Spirit, a Gift of Miracles, a Priestly Cha­racter annex'd 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 indispensible 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 remain'd still in the same prudential indifference which it had before; for what is once Lawful, must al­ways [Page 21] 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 much more, it be­ing in many repects a more favourable Case, as shall be hereafter declar'd; 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 laid 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 God's 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 [Page 22] 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 Loins, and yet take no notice in the least 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 Reflexion 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.

Fourteenthly, There is also the Case of Achsah and Othniel, in the Books of Josuah 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 Mohters Side, for Caleb was not the Son of Kenaz, but Jephunneh) 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 Wise. And again, Judges 1. 13. Othniel [Page 23] the Son of Kenaz, Caleb's 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 Caleb's younger Brother by the Mothers Side; and then Achsah the Daughter of Caleb will be Othniel's Niece, and his Niece by a nearer Consanguinity than that in the Case before us: Or else, that Othniel was the Son of Kenaz, which Kenaz was younger Brother to Caleb; and so Othniel and Ach­sah will be Cousin-Germans. Both of these Interpretations, if there were nothing else but these words to be consider'd, are very natural and easie; but when we consider, that after the Death of Caleb and Josuah the Children of Israel were made Captive by Cushan-rishathaim for the space of Eight years, Judg. 3. 8. that God rais'd up this Othniel to be their Saviour and Deliverer out of the Hands of their Oppressor, ver. 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 difference be­tween [Page 24] their Ages; for to this Forty 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: Chap. 2. 8. we have an Account that Josuah died, and ver. 10. that all that Generation, of which Caleb was one, were gather'd to their Fathers; and then before this Revolution of Cushan­rishathaim, we have an account of several other Oppressions which the Jews for their many Sins and Provocations labour'd 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 devolv'd upon the Male Issue.

If you ask, how any Woman can be call'd an Heiress, while her Father is yet [Page 25] living; I answer, That in strictness she could not yet be call'd by that Name, there being no Inheritance necessarily devolv'd upon her; but her Father was now so old, that he was past the hope or expectation of any more Children: For at the first en­trance of the Children of Israel into the Wilderness, he was one of the Heads of the Tribes, Numb. 13. 6. and one of those who together with Josuah and others, v. 17. were sent by Moses to spy out the Land of Canaan. After this they remain'd in the Wilderness Forty years; and Josuah, who seems to have been much of the same Age with Caleb, soon after his entrance upon the Land of Canaan died, being at his death of the Age of an hundred and ten years, Jos. 24. 29. Judg. 2. 8. And if we allow Ten or Twenty years, by which Josuah, without any Reason that appears, shall be suppos'd to be older than Caleb, the Age of Caleb at the Marriage of his Daughter Achsah will be an Hundred, or Ninety at 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 [Page 26] could take a City or Town by himself, or that every Man was fit to command a Par­ty, or that the Inheritance which was to go along with Achsah could be legally di­verted from Othniel, who was the next Heir-male of that Family; only by these general Words he propounds the Conduct of the Expedition to Othniel, with promise upon Success that he should be immediately married to his Daughter, which the Old Man during his Life-time was not oblig'd to permit, and have part of the Inheritance before-hand. And this is the true State of this Case; which tho' 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 prohibit the Mar­riage of an Ʋncle with his Niece, with that 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, [Page 27] as Assertors of the meerly positive Obliga­tion of the Mosaick Law.

Fifteenthly, As to the Pretence of Parity of Reason by which a Niece and her Ʋncle are debarr'd from Marriage, because the Aunt and her Nephew are expresly forbid­den, there are these following things to be said in answer to it.

First, That the Rabbinical or Talmudical Jews did allow of the Marriage of an Ʋn­cle with his Niece; which tho' the Karrai­tes or Scripturary Jews did not, yet this is so far from doing any prejudice to this Cause, that, on the contrary, it is a mani­fest advantage to it; because this is a plain Sign, that the Talmudists, who could not be ignorant of this disagreement of the Karraitish Faction, did not err through Inadvertency, as too frequently they do; but their Opinion was partly founded upon the Tradition of their Church, and partly upon one of these two Reasons, either that Parity of Reason was not to be admitted in any of these Matrimonial Affairs, or that indeed there was no such Parity as is pre­tended, as will be shewn immediately that there is not. And tho' the Traditions of the Jewish Masters are in many Cases very uncertain, and in others plainly false; yet where Tradition and Reason do conspire [Page 28] together, they give a mutual Strength and Reputation to each other.

For, in the second place, it is plain, that this Parity will not hold, and that upon these several accounts.

First, In the Marriage of an Aunt with her Nephew, the natural Subordination of Relations is destroy'd, and the true Depen­dence of Things upon one another. A Su­perior, as the Aunt unquestionably was, and one that was loco Parentis, as well by the Jewish as the Civil Law, as Mr. T. hath prov'd in his Resolutiou of Three Matrimo­nial Cases, was forc'd to submit not only to all the Familiarities of a Wife, but also to all the Slaveries of a Servant; for Wives were no better according to the Law of Moses. Whereas in the other Case, of an Ʋncle marrying with his Niece, the natural Dependence was preserv'd, she being al­ready his Inferior and his Servant. The Impiety of this sort of Marriage of a Man to his Superior, and to her that in Legal Construction was Parentis loco, is thus de­tested by Papinius Statius:

And by Lucan,

Which Places tho' they be indeed meant of the Mother in the most proper sense, yet they may be extended without immode­rate straining to all that are Parentum loco. And to this purpose the manner of Expres­sion is remarkable, Lev. 18. 14. Thou shalt not uncover the nakedness of thy Fathers Brother; thou shalt not approach to his Wife: she is thine Aunt: as much as to say, that though she be of kin to thee only by affinity, being only thy Fathers Brothers Wife, and coming from abroad out of a Foreign Stock, yet she is thine Aunt, she is Parentis loco notwithstanding: And there­fore it is a great Irreverence, and a very high and heinous Breach of Duty and Good Manners in thee, to uncover her na­kedness. And Phaedra in Seneca being deeply enamourd of her Son-in-Law Hip­polytus, and yet knowing the Disgrace and Infamy of a Mother-in-Law lying down to her Son, tho' this were only a Relation of Affinity, and not really so near a kin as the Aunt by the Father or Mothers Side, was [Page 30] desirous to forget that Name for good and all: For thus she says;

Secondly, In the Marriage of the Ʋncle to the Niece there is greater fitness for Pro­pagation, which is the great and declar'd end of Marriage, than in that of the Aunt to the Nephew. And this Argument is ne­ver the less cogent, because Albericus Gen­tilis knew three or four Bonny, Brisk Aunts, that were younger than their Nephews, and his own Aunt, it seems, was one of the number: For a Law is a general Rule, which regards only the generality of In­stances, without regard to those that are so rare, and so seldom to be met with; be­sides that there are other Reasons upon which the Marriage of an Aunt with her Nephew is prohibited; and where this do's not hold, the others do. It is enough, that generally speaking, Aunts are much Older than their Nephews, and that Women do not continue fit for Generation so long as Men, by which means it comes to pass, tho' the Aunt at the time of Marriage may not in many Instances be effaete and bar­ren, [Page 31] yet she will not continue Prolifick so long as a Niece: So that there is a double natural Obstruction against the Marriage of an Aunt with her Nephew, which do's not hold in that of an Ʋncle with his Niece.

Thirdly, If we consider the same Man as an Ʋncle with respect to his Niece, and as a Nephew with respect to his Aunt, here are three Terms at a distance from each other, and the two Extremes are probably very far asunder: There is, in all probabi­lity, Youth, Beauty, and Virginity, on the one hand; and on the other, Old Age, Wi­dowhood, and an imparturient Estate. So that, generally speaking, there is manifestly a greater Temptation to the Marriage of the Ʋncle with the Niece, than to that of the Nephew with his Aunt; therefore if the Law of Moses had intended to forbid the former, as well as the latter, this is that which ought to have been prohibited in the first place, because there is the greater Temptation to it; and therefore the In­stances of Transgression must of necessity be more frequent. Neither can any thing be a greater disparagement to the Wisdom of God, than to say, that he intended both of these sorts of Marriages should be equal­ly void; and yet at the same time to in­culcate that with so much seeming industry [Page 32] and solicitude, of which there was scarce any danger; and to omit that wholly, with­out the least word of notice, whose Danger was so apparent, whose Temptation is so strong, and whose Instances, without a ve­ry severe and peremptory Prohibition, could not, in all probability, be unfrequent.

Fourthly, 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 observ'd, that this Nearness of Kin is to be measur'd 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 Father's Side, ver. 12. Thou shalt not uncover the Nakedness of thy Father's Sister, she is thy Father's near Kinswoman: And again, ver. 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 tho' my Niece be at the same distance from me in the descending Line, that mine Aunt is in the ascending; yet when the express Reason assign'd in the Law, why I may not marry mine Aunt, is not because she is mine, but my Fathers or Mothers near Kinswoman, this is so far from darting any Prohibition upon my Niece, that it is, on [Page 33] the contrary, plainly favourable and pro­pitious to a Marriage in that Relation; because my Niece, who is my Father's 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 consider'd, but that that Half Blood it self is the more weak and uncertain Consan­guinity of the two, as will be seen hereaf­ter. So that if the Nearness to my Father or Mother be the express Reason assign'd in the Law of Moses, why I may not marry mine Aunt, 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, ver. 14. Thou shalt not uncover the Nakedness of thy Father's Brother, thou shalt not approach to his Wife, she is thine [Page 34] Aunt, here there are three things manifest­ly imply'd.

First, That in the Levitical Prohibitions Consangninities and Affinities are consider'd 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 Fathers 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 Father's Equal my Inferior, and to subject her to the mean and servile Condition of a Wife, to whom I own the Service and Honour of a Parent. And this is the true Interpretation of those words in this last place, She is thine Aunt; 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 uncover'd by her Inferior and D [...]pendent, or put her self [Page 35] 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 call'd the Uncle and Aunt by the Names of [...] and [...], alluding, as I suppose, in the use of these words, to the Ancient, 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 Uncle and Aunt were [...] and [...], that is, they has 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, 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, altho' 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 [Page 36] 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 in 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 in­ferr'd 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 pleas'd 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 Con­traries, there can be no Inference from the Prohibition of an Aunt, which shall debar or obstruct the Marriage of a Niece.

Wherefore it being so clear as it is, that there is no Parity of Reason between the Marriage of an Ʋncle with his Niece, and that of a Nephew with his Aunt, it is now manifest, if we proceed upon the Levitical Measures, that the Divorce of the Ʋncle from his Niece is not only indefesible af­ter they are once married, but that, consi­dering the Levitical as a Positive Law, it [Page 37] is lawful ex antecedenti, since it is neither forbidden in express words, neither can it be inferr'd to be unlawful by parity of Rea­son; and since the Measures of the Leviti­cal Law are in this Case of Matrimony the declar'd Measures of ours, it follows una­voidably, that what is left indifferent in the Law of Moses, preserves the same Liberty and Indifference in ours.

In the sixteenth place, it is still further to be consider'd, That Cohabitation it self, if it have been of long continuance, is in Law a powerful Remedy against other De­fects; for so we have it upon the Authority of Servius, Tribus modis apud veteres nup­tiae fiebant, (usu Farre & Coemptione) usu si verbi gratia Mulier anno uno cum viro li­cet sine legibus fuisset, &c. So that if the Parties married together, and standing in this Relation, have cohabited for any con­siderable time, this is one great Argument, and hath been all along so taken in the Ci­vil Law against a Divorce, notwithstand­ing there be a Fault admitted in their first coming together.

Seventeenthly, This Case being only the Niece by the Half Blood on the Fathers Side, which is the more weak and imper­fect, this is still a farther Circumstance ve­ry much conducing to favour, and defends it, [Page 38] as appears by the Case of Abraham, who married his Half Sister by the Fathers Side: For had she been his Whole Sister, she could not have been his Wife. And this is that which he urges in his own Defence to Abi­melech the King of Gerar, She is the Daugh­ter of my Father, but not the Daughter of my Mother; and she became my Wife. And 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. ver. 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: ver. 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 which Law is, That Idolatry should certainly be punish'd with Death, let the Relation be never so nigh, or the Endearment and Friendship never so great, as appears by those words, or the Wife of thy Bosom, or thy Friend which is as thine own Soul: And when it is said, Thy Brother the Son of thy Mother, without mention of the Brother by the Father, it [Page 39] 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 the Law of Moses, which did oblige them not to conceal even their near­est Relations: And in this Prohibition the Brother being the Son or suppos'd Son of the Father, is included à fortiori.

Lastly, The whole stress of our Adver­saries Cause is grounded upon Archbishop Parker's Matrimonial Table; and tho' we are far from presuming to dispute the King's Power in dispensing with a Statute in Ca­ses of Necessity, of which He is the Judge; yet in all Ordinary Cases He is never sup­pos'd to intend it: And it is certain, that when, among other Articles presented to Him by the Convocation, he gave the Royal Assent to the Matrimonial Table, in which the Ʋncle 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 God's Law can impeach any Marriage, and by [Page 40] consequence this cannot be impeach'd; or else an Act of Parliament may be repeal'd 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 suppos'd 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 King's 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.