AN ARGUMENT In DEFENCE of the MARRIAGE OF AN UNCLE WITH THE Daughter of his Half-Brother By the FATHER's Side. By JOHN TƲRNER, Hospitaller of St. Thomas Southwark, and late Fellow of Christ's College in Cambridge.



March 16. 1685/6.

LONDON, Printed by H. Hills Jun for Walter Kettilby at the Bishops Head in St. Paul's Church-yard. 1686.

AN ARGUMENT In Defence of The Marriage of an Uncle WITH The Daughter of his Half Brother by the Father's Side.

THIS Case in Consangui­nity is exactly the same with that other in Affi­nity, which was former­ly, proposed to me, when I writ my Resolution of Three Matrimonial Ca­ses; in which having proved undeniably already, That Affinities and Consanguini­ties are prohibited to the same Degrees, as well by the Levitical as the Civil Law, the Resolution of that Case will of it self de­termine this in Favour of the Marriage: [Page 2] but yet, for the more clear Demonstration of the Truth, I will insist more particularly upon it.

There are two things in my former Re­solution in which I have been very plain, and I do still adhere to them both: The first is, That ex antecedenti I should have been against a Marriage of this nature; the second, That after such a Marriage is so­lemnized in the Face of the Church, and consummated by mutual Enjoyment, there can be no Divorce, no Separation admit­ted. To the latter of these I need add no­thing further, but may acquiesce perfectly in what hath been already represented, which I think to be so full, and so pertinent to the purpose in all its parts, that I should, and shall always look upon it, as one of the hardest Cases I ever met with in my Life, if any Sentence of Divorce or Separation should proceed against Parties in the De­gree and Circumstance there mentioned. But yet because nothing can be too sure in a matter of this moment, I desire it may be further considered, That there is a known Maxim in the Civil Law, Quod fieri non debet, factum valet: Which ac­cording to the needs of Equity, and either public or sometimes private Convenience, branches it self out into great variety of [Page 3] Cases. So Varro speaks of a Praetor, who did tria verba fari, upon one of those Days which By the Roman Laws and Usages were dies nefasti; and of a Magistrate who was vitio creatus, that is, in whose Ele­ction to his Office some of those Ceremo­nies or Customs which the ancient Laws of Rome required, or long Prescription had constantly put in practice, were omitted. But yet, notwithstanding, if the Praetor did bolt out his do, dico, addico before he was aware, or by a pretended Ignorance, in stead of a real one; or if a Magistrate were chosen with some Irregularity, yet the dies fastus stood good for all this, and so did any Legal Act which was done by the Praetor upon it, on the one side; and so did the Magistrate, though viciously ele­cted, on the other. They are the Words of the aforesaid Varro. Contrarii horum (fa­storum) Varro l. 5. de L. L. vocantur dies nefasti. Per quos dies nefas fari Praetorem: Do, Dico, Ad­dico; itaque non potest agi, necesse est ali­quo eorum uti verbo, cùm lege quid peragi­tur. Quod si tum imprudens id verbum emisit, aut quem manumisit, ille nihilominus est liber, sed vitio: ut Magistratus vitio creatus, nihilo secius Magistratus. And yet it is to be considered here, That in the Case of a Magistrate, not duely Elected, [Page 4] for want of some Ceremonies or Modali­ties that ought to have been used; among the Romans, who were so strangely fond of having every thing done ritê, or, as they sometimes speak, rectè atque ordine, and more majorum, there was a very strong Cur­rent of rooted Superstition and inveterate Prejudice against him; and in the other Instance of the Praetor, though the Legal Acts he did upon such a day were firm and valid, yet himself was liable to a severe Censure. If he did it really out of igno­rance or mistake, he was to expiate for himself by a Trespass-offering, as among the Jews; but if out of malicious wicked­ness, and of set purpose, there was no Ex­piation: For so the same Varro tells us in the Words immediately following those I have last cited. Praetor qui tum fatus est, si imprudens fecit, piaculari hostiâ factâ pi­atur: si prudens dixit, Quintus Mucius abnegabat eum expiari, & ut impium non posse dicebat. Where when Scaliger, in his Learned Conjectanea upon the Place, would needs have ambigebat in stead of ab­negabat; though he seems to have found it so in the MS. which he made use of, yet was he certainly mistaken, and his Copy was false. For first, There is a vast diffe­rence betwixt these two Expressions, ambi­gere [Page 5] aliquem posse expiari, and ambigere utrum aliquis possit expiari; and the lat­ter of these is Latin, the former is not. Secondly, This way of Reading will make the two Members of the Sentence to fall out with one another; for it follows im­mediately, & ut impium non posse dicebat; so that, it seems, he was at a great non­plus in the former part of the Sentence, and yet was very positive in the latter. Third­ly, If Scaliger had known who this Mucius was, and had compared this Place of Varro with another of Macrobius, he would have been out of doubt himself, and would not have supposed that Mucius was in any. For it was not C. or Cajus Mucius, as one of Scaliger's Copies falsly represented it; but Quintus Mucius Scaevola, who had as good reason as any Man to be positive in these Cases; and that he was so in this it self, the Words of Macrobius are a sufficient Proof. They are Macrob. Saturn. l. 1. c. 16. Per­haps this was the same whom he calls Q. Mucium jurecon­sultum, ib. l. 1. c. 3. For there was a jus Pontificium as well as a jus civile, and among the Pontifices there is more than one Scaevola to be met with in the Roman Story. See the same Macrob. ib. l. 2. c. 9. p, 295. Ed. Pontani. v. & Liv. 27. 8. & in Epit. lib. 86. these. Affirmabant (not ambi­gebant) autem Sacerdotes pol­lui ferias, si, indictis conce­ptisque, opus aliquod fieret. Praeterea regem sacrorum Fla­minesque non licebat videre feriis opus fieri, & ideo per praeconem denunciabatur, nè [Page 6] quid tale ageretur; & praecepti negligens multabatur; praeter multam verò affirmaba­tur (not ambigebatur) eum, qui talibus die­bus imprudens aliquid egisset, porco piaculum dare debere; prudentem expiare non posse Scaevola Pontifex affirmabat. For this same Scaevola was but the Sirname of the Family, their Name it self was Mucius or Mutius; and how extremely exactly these two places agree, let any man be judge that shall com­pare them together: So that this may serve for one Instance of the great Caution and Prudence of the Roman Law, in not rescin­ding certain Acts that had been already past, the better to maintain the publick or­der and quiet, notwithstanding they were antecedently prohibited and unlawful, not­withstanding they thwarted their Preju­dices or their Customs, and that the Per­sons by whose Intervention and Authority the said Acts had been passed, were severely punishable by the Roman Law.

Such another Case as this, is that which is mentioned by Pompeius Festus under the word Sacer; which he makes to signifie such a Person as was devoted to Destruction, and Excommunicate out of the Roman State, and denyed all the benefits and advantages of Life, yet he was not condemned to Death by any publick Sentence, so as to Die by [Page 7] the hands of the Executioner: but if any private Person happened to Kill him, either by chance, or of set purpose, he was ac­quitted by an express Provision of the Law from any Punishment, notwithstanding he had done what the Law did not allow him. Homo sacer is est, saith Festus, quem populus V. Jo. Scal. in Conject. ad Fest. p. 163. judicavit ob maleficium, neque fas est eum immolari; sed qui occidit, parricidii non damnatur, nam lege Tribuniciâ primâ cavetur; si quis eum qui eo plebiscito sacer sit occiderit, parricida ne sit. And this is the Second Instance.

But Thirdly. Livy l. 10. c. 9. Speaks at the same rate of the Valerian Law. Va­leria Lex, cum eum qui provocasset virgis caedi securique necari vetuisset, si quis adver­sus ea fecisset, nihil ultrà quam improbè factum V. Alb. Gen. de Nupt. l. 4 c. 6. p. 403. & H. Grot. de j. B. & P. in not. ad l. 5. c. 5. sect. 16. adjecit, id (qui tum pudor hominum erat) visum credo vinculum satis validum legis; nunc vix servo ità minetur quisquam. And this Law is expresly applied to the Matri­monial affair by Albericus Gentilis, and by Hugo Grotius; and in the same place out of Macrobius he calls those Laws by the name of imperfectae leges, which forbid a certain Fact, but yet have assigned no Pu­nishment to the offender; for so Macrobius saith towards the end of his Commentary, in somnium Scipionis, inter leges illa imper­fecta [Page 8] dicitur, in quâ nulla deviantibus paena sancitur; and he urges in the same place a rescript of the Emperor Marcus to the same purpose. Eum haeredem, qui prohibet Fu­nerari ab eo quem testator eligit, non rectè facere, poenam tamen in eum Statutam non esse. These passages of Grotius are in the Notes upon his excellent Treatise de jure Belli & Pacis, and the place he refers to is l. 2. c. 5. sect. 16. where he hath these re­markable Words, which come still closer to our purpose, concerning the possible vali­dity of unlawful Marriages, where the Law it self does not enjoyn a Divorce. Imò etiam si Lex humana conjugia inter certas personas contrahi prohibeat, non ideò sequetur irri­tum fore matrimonium si reipsâ contrahatur, sunt enim diversa, prohibere & irritum quid facere, nam prohibitio vim suam exerere po­test per paenam vel expressam vel arbitrariam, (which is as much as to say, that where the Law does neither assign a determinate Punishment, nor leave it to the Discretion of him to whom the Cognizance of the Fact shall appertain; in this case there is no Pu­nishment to be inflicted, neither can any legal Cognizance of the Fact be taken, and then he goes on) Et hoc genus leges imper­fectas vocat Ʋlpianus (which agrees exact­ly with what hath been already Cited out [Page 9] of Macrobius) quae fieri quid vetant sed factum non rescindunt; qualis erat Lex Cin­cia quae suprà certum modum donare vetabat, donatum non rescindebat.

So also in the Case of Marrying without consent of Parents or Friends, it is the posi­tive determination of Paulus in the Digests. L. 23. tit. 2. de ritu Nuptiarū. Nuptiae consistere non possunt nisi consentiant omnes, id est, qui coeunt, quorumque in po­testate sunt: and by Harmenopulus, and the Authors of the jus Graeco-Romanum Publisht by Leunclavius, such Marriages without consent are pronounced void: But yet the same Paulus in another place sings plainly to another Tune, for in his Second Book of V. Omninò etiam B. Brisson. de jur. Connub p. 75. received Opinions, he saith thus, non esse quidem Matrimonium contrahendum absque voluntate parentum at contractum non solvi tamen: in this opinion he is followed by Cujacius a man of great name in the Civil Law, notwithstanding that Albericus Gen­tilis hath in vain endeavoured in this and other particulars to Blast his Authority and Reputation: And this Testimony of Paulus is the more remarkable, because he puts it down inter Sententias receptas among the received Opinions of the Lawyers of his time, so that it was as good Law, and as commonly recevied, as any in that Age wherein this Paulus lived, which was be­fore [Page 10] the Digests were compiled, for many of those Decisions are laid at his Door as their Author; nay, both of these Deter­minations, however inconsistent they may seem, are to be met with in the Digests of Justinian: All the question is, how to bring him in this Case to a tolerable agree­ment with himself; and this cannot other­wise be done, but by interpreting the for­mer place of the Solennia Nuptiarum, as some of the Civilians do; for the Marriage in this Case could not be so Solemn or so Publick, as when the Consent of Friends was first obtained, and it is probable for the greater Secresie, that many Nuptial Rites were omitted. Or else Secondly, That if the Parents or Friends quorum in potestate conjuges antè nuptias fuissent, should still persist in their Aversion to the Match, as well after it was actually Consummated, as be­fore, for want of a Settlement on the one hand, or Dowry on the other, the Mar­riage out of perfect necessity might be dis­solved. But as for the latter Pandects of the Graecian Empire they are not to be heark­ened to, they being as scrupulous in their Prohibitions as the Cannon Law it self, which was so very much that Cujacius complained of it in these words, nimia in nuptiis coer­cendis Cuja. ad Rub. de Consang. coarctandisque posteriorum urbis Romae [Page 11] Pontificum severitas parum abesse videtur a nuptiarum prohibitione perpetuâ.

It is an undeniable Argument that these two maxims of the same Paulus are some way or other reconcileable to one another, not only that they are both owing to the same Author, but that they were both confir­med by the Imperial Sanction, which would otherwise by this means be flatly repugnant and contradictory to it self; wherefore the plain truth of the Story, as I take it, is this, a Son being Married without his Fathers consent, he would not contribute any thing towards his Maintenance; and in the Case of a Daughter doing the same thing, all manner of Portion or Dowry was denyed: The reason of which being demanded by the Plaintiff, the Defendant made Answer, quia sine consensu Parentum vel eorum in quorum potestate sumus, Nuptiae consistere non possunt; which was so far true, that, in this Case, the Parents or Friends of the contracting Parties were not obliged to do any thing for them, that is, though the Parties were lawful Man and Wife ex post facto, yet the proceeding was irregular, and the Relations were not bound to take no­tice of it, as of a lawful Marriage. But yet if it apear­ed that the Parent did wrongfully detain his Son or Daughter from Mar­riage, his Consent might be forced, and he compelled to give a Dowry by two several Rescripts of Severus and Antoninus, C. Tit. de ritu Nupt. l. 19. D. l. 23. Tit. 3. de jure dotium. Et [Page 12] ubi non est Matrimonium, ibi neque dos in­telligitur, saith the Civil Law, or in the words of Ʋlpian which come a little nigher to those of Paulus above Cited. Do­tis appellatio non refertur ad ea Matrimonia quae consistere non possunt: neque enim dos sine Matrimonio esse potest: ubicunque igitur Ma­trimonii nomen non est, nec dos est. And if a Woman had no Dower or Portion, which the Parent was not obliged to bestow, if she Married without his consent before the age of Five and Twenty; for after that she was sui juris and might Marry Lawfully V. Brisson. ubi supra. to whomsoever she pleased, it was looked upon to be so disgaceful and ignominious, that it was rather esteemed Concubinage than Marriage; and so in this sense also, we may perphas say with Paulus, that Nuptiae consistere non possunt, nisi consentiant omnes, id est, qui coeunt, quorumque in potestate sunt. So Plautus speaks in his Trinummus, in the person of Callicles. Flagitium quidem herclè fiet, nisi dos dabitur Virgini: And a little after in the same Comedy, in the person of Lesbonicus, who thus bespeaks Lysitiles that would have Married his Sister without a Portion:

—Nolo ego mihi te

Tam prospicere, quî meam egestatem leves: sed, ut inops, Infamis nè sim, nè mihi hanc [Page 13] famam differant, me Germanam meam Soro­rem in Concubinatum tibi sine dote Dedisse magis quam in Matrimonium, quis me im­probior Perhibeatur esse?

Not that it was really Concubinage, for then no poor Roman could have been law­fully Married, but that it had a sort of ig­nominious resemblance with it, and was not unfrequently upbraided with that name.

Nay, as strict as the Canon Law it self is, C. ult 2 [...]q. 1. yet Gratianus expresly affirms Marriages without consent after they are once actu­ally Solemnized to be valid. For so he distinguishes Conjugia into Legitima & rata, Legitima & non rata, and non Legitima & rata, and under the last of these Heads he puts down Marriages without consent, though this indeed, whatever may be said of Gratianus his private Opinion, cannot possibly be reconciled with many other ex­press determinations of the Canon Law. The reason given by Paulus, why Marriages though without consent, ought notwith­standing to be valid, is taken from the publick interest, which ought to be prefer­red before the private displeasure of non-consenting Parents or Friends, to which though Albericus Gentilis make answer, by applying to this Case a scrap of Tully, Reip. expedit pios habere Filios erga Parentes, [Page 14] yet considering the number of such Marri­ages, which will unavoidably happen, it being impossible to set a Bar to Concupi­scence, where there is no notional prejudice against the Contract, as in the Case of In­cest, it highly concerns the Publick that such Marriages should be valid, because of the great disturbance that might happen by re­scinding them; and because it is morally impossible by this expedient to prevent such Marriages for the future; for Love of all others is the most violent and ungovernable Passion, and there is a great deal of reason in that saying of Quintilian, Nunquam li­bertas tam necessaria quam in Matrimonio est, nam quis amare alieno animo potest? Where­fore the Civil Law of Rome did never make such Marriages ipso facto void, but only left it to the Parents or Friends to consider with themselves, what was fit for them to do, and whether such Marriages after they were Consummated should be Ratified and Confirmed or no. And this in Parents or those that were Parentum loco, proceeded from the absolute and unaccountable power, which by the old Laws and usages of Rome, all Parents had over their Children, which extended as far as to the power of Life and Death; and in the Case of Marriage, they could not only null and make void a Marri­age [Page 15] without consent, but which is still more, though Marriage were actually Consum­mate by the consent of all Parties, yet it was still in the power of the Parents to se­perate the Man and Wife as they pleased, as is evident by several Testimonies of Anti­quity Lib. 4. de nupt. c. 6. p. 411, 412. produced by Albericus Gentilis out of Plautus, Cicero, and Terence, though it is true he expound them chiefly not of the Ro­man but the Graecian Practice, and this not without some appearance of Reason; but yet this power being manifestly included within the greater power of Life and Death, I see no reason why we may not apply these Testimonies to Rome as well as to Greece: But however it is certain that the latter Laws of Rome lookt upon this to be too great a power, and a power, which perhaps ex­perience had shewed them, was too frequent­ly abused, and therefore took care that no Marriage which was Ratified by Solemn Consent, should after that become void, upon every caprice or displeasure of the Parents: and though all Marriages without consent were Illegal, yet by the best Lawyers they were declared valid, because of the de­triment that would accrue to the publick, as well as to private Persons by rescinding all Matches of this nature. Ulpianus qui­dem certè, De jure Connub. p. 75. saith Brissonius, benè concordan­tia [Page 16] matrimonia jure patriae potestatis turbari non posse, patrique interdicto sibi filiam exhi­beri desideranti persuadendum, nè acerbe pa­triam exerceat potestatem scribit, imò verò de uxore exhibendâ ac ducendâ patrem etiam qui in potestate eam habeat, a marito rectè conveniri posse, Hermogenianus auctor est, interdicto quoque succurri marito cujus uxor invita a parentibus detinetur Impp. rescrip­sere, ex illo verò generali Ulpiani axiomate, quo benè concordantia matrimonia jure patriae potestatis non esse turbanda definit, interpre­tationem meo quidem judicio accipit, quod Paulus in lib. Sententiarum scribit, eorum qui in patris potestate sunt, sine voluntate ejus matrimonia jure non contrahi, sed con­tracta non solvi. St. Ambrose in his Epistle S. Ambrose [...]. to Sisynnius, commends him very much for not dissolving his Sons Marriage, though it were without his consent; and he gives such a reason against a Divorce, as may ex­tend to many other Cases: Acquisisti Fili­am, saith he, sine electionis periculo, si bo­nam duxit, tibi acquisivit gratiam, si erra­vit, recipiendo meliores facies, refutando de­teriores. And certainly there ought great tenderness to be used in all the Cases of Matrimony Consummate, that two that have an entire and hearty Love for each other, and for that reason cannot brook a Divorce, [Page 17] may not be rendred desperate by a violent separation. Albericus Gentilis himself con­fesses De Nupt. c. 7. [...]. 419. that it is cruelty for the Parent in this Case to insist too much upon his right; but there can be no Cruelty without Injustice, and therefore that Marriage which it is un­just to make void, must needs be valid in its own nature. The same was likewise the Case of two that had been actually parted, they could not come together again with­out their Parents consent, as appears by this passage of Ʋlpianus, Nuptiae inter easdem L. tit. de ritu Nupt. l. 18. personas nisi volentibus parentibus renovatae justae non habentur. But yet notwithstand­ing if the Parties persisted in it, this Mar­riage must be valid for the same reason with those in the former Case. There was also required the Consensus eorum qui coeunt, as well as eorum in quorum potestate erant, the Consent of the Parties as well as of the Pa­rents. And this besides the Law already produced, is the express determination of Terentius Clemens, non cogitur filius familias Ib. l. 21. uxorem ducere. But yet such a forc'd Match whenever it was Consummate was valid, ac­cording to this of Celsus, Si patre cogente Ib. l. 22. duxit uxorem, quam non duceret, si sui arbi­trii esset, contraxit tamen matrimonium, quod inter invitos non contrahitur, maluisse hoc videtur.

And to apply what hath been here said to our present Case: If the Law be so ten­der of the Band of Matrimony, where the Parties Contracting are guilty of a wilful violation of one of the Prae-requisites in order to it, as there is no Man or Woman that Marries without the Consent of Pa­rents or Friends, but knows very well in the first place, that he or she do's really do it; and in the second, that this ought by no means to be done; and that, besides that the Law requires and expects, this Consent, they themselves in the same Circumstance should take it very ill, to have their Chil­dren or nearest Relations committed to their Charge, Marry without or contrary to their Advice and Counsel, how much more tender and favourable ought it then to be to the Matrimonial Band, where the Parties Contracting in a Degree not de­clared to be prohibited by the Law it self, but only inferred by Proportion or by Pa­rity of Reason, may very well be supposed to be ignorant, that what they did, was any Sin against God, or any Offence against the Law of the Land? If either of them be but ignorant, it is sufficient; for the Par­ty acting in simplicity and truth, ought not to suffer for the Presumption of the other: and therefore the Marriage must remain in­dissoluble [Page 19] and valid on both sides. And as to the particular Instance here before us, when it is no where expresly prohibited by Act of Parliament, certainly it must needs appear a very hard Case for two Parties to be violently separated from each other, both of which, but especially the Woman, may very well be supposed to have come toge­ther without any the least scruple or mis­prision of Offence, and without having ever thought of, or in the least suspected any of those pretended Consequences and Deductions which the Adversaries of such Marriages would charge them withal: When yet the most Learned of the Jews themselves, who spent their whole time in the Study of the Levitical Law, and who have prohibited many other Degrees, be­sides what the Code of Moses do's expresly mention, who are scrupulous even to all the nicety and fondness of Superstition it self, in the observance of the Mosaic San­ctions, yet could never discern, nor have V. Selden. Ux. Hebr. l. c. 1. 2. & de Jur. Nat. & Gent. ju­xtà Discipl. Hebraeor. l. 5. c. 1. & Buxtorf. Fil. de Sponsal & Divort. a p. 9. ad 37. ever given us the least intimation of the Marriage of an Ʋncle with his Niece being forbidden. For Maimonides and the Tal­mudists divide the Matrimonial Prohibiti­ons into Harajoth and Shenijoth, by the first understanding the Prohibitions exprest, and by the second, such as are implied by [Page 20] Parity of Reason, though they are not ex­presly set down; and they take no manner of notice under the second of these Heads, for it was impossible they should do it un­der the first, of the Marriage of the Ʋncle with his Brother or Sisters Daughter. I do not stand much upon the Judgment of the Jews, either in their Interpretations of the Text, or in their Inferences from it; but yet I say, it is very hard, nay, it is al­most palpably unjust and cruel, that a Di­vorce should proceed by virtue of a pre­tended Violation of the Law Levitical, in a Degree which neither the Act of Parlia­ment hath exprest, nor the Jews, the wisest and the learnedest of them, he whom they call the Talmud and the Chacham, did ever believe to be imply'd; but, on the contra­ry, they expresly allow'd, I do not say, di­spensed with Marriages of this nature, and there are several Instances of them to be V. Grot. de J. B. & P. l. 2. c. 5. sect. 14. & in Annotatis ib. met with in the Jewish Story: Certainly it must needs be a Consequence which do's not lie very plain; (and such cannot be sup­posed to come within the Obligation of a Law) which so many celebrated Rabbins and diligent Inquirers into the Meaning of the Law of Moses, could not after all their Search and Industry discern.

Again, If in the opinion of Celsus above-recited, [Page 21] which Opinion was past into a Law by the Sanction of Justinian, a Mar­riage which is forced upon the Parties Con­tracting by Threats or Hardships from their Parents or Friends, shall yet notwithstand­ing be valid, because of the great Incon­veniencies that follow from an unnecessary untying or cutting asunder the Matrimonial Knot; how much more ought Marriage to be Sacred, where the Contract is entred into by mutual Inclination, the Marri­age Solemnized by Law, Consummated by Enjoyment, made every day more pleasing and delightful by a strict Friendship and in­violable Union, by mutual Condescensions, Caresses, and Obligations, from whence the Nuptial Rites receive a Confirmation of Nature, by an Harmony of Love and Sympathy with and for one another, ex­trinfique to any thing of Covenant or Bargain?

What hath been said of Marriages with­out V. Alberic. Gentil. ex Cujacio l. 4. de Nup­tiis, c. 6. p. 41 [...]. Consent, which yet notwithstanding were valid by the Civil Law, the same was likewise true of Clandestine Marriage, and Marriage of a Christian with an Heathen or Pagan; both of which were forbidden by Imperial Rescripts, but yet were valid not­withstanding de futuro, although ex antece­dently prohibited and unlawful.

But to come up still nearer to the Instance before us; Grotius hath this remarkable L. 2. c. 5. sect. 14. pa­ragr. 4. Passage in his Book de Jure Belli & Pacis: Sed sciendum est, non quod vetitum est fieri lege divinâ, irritum quoque esse, nisi & hoc lex addiderit aut significaverit. Canon Eiliberinus LX, si quis post obitum uxoris suoe sororem ejus duxerit, & ipsa fuerit fi­delis, per quinquennium eum a communione abstinet: eo ipso ostendens manere vinculum matrimonii. Et ut jam diximus, in Cano­nonibus, qui Apostolici dicuntur, qui duas sorores duxerit aut fratris filiam, tantum Clericus fieri prohibetur. From which Pas­sage it is plain in the Judgment of this Great Man, what hath been already proved from several express Testimonies out of the Civil Law, not only that that Fact can­not be punish'd by any Legal Sentence, which is only implied obscurely to be for­bidden, but no where expresly declared to be so; but that even in case of a simple Prohibition, without a certain Punishment or Forfeiture assigned, no such Forfeiture can in this Case be incurred, nor any such Punishment inflicted: Wherefore the Mar­riage of an Ʋncle to his Niece being no where prohibited by any positive Levitical Decree, and much less having any Punish­ment allotted to it, it cannot be punish'd by [Page 23] any Judicial Sentence; for we must either say, That Divorce is no Punishment though with respect to the Relation betwixt Man and Wife, it be certainly the heaviest of all other, because it perfectly destroys and evacuates that Relation; or else, That a Divorce betwixt Persons Married in this Degree, is absolutely and undoubtedly un­lawful, upon account of any such Relation.

Further, Though I readily grant 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 pleased, as Servitude, hard Labour, 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 assigned any?

Adultery by the Law of Moses was pu­nish'd with Death in both Parties; but by ours it is not so: Which is a plain Argu­ment, whatever may be said of unlawful [Page 24] Marriages and unlawful Lusts, in which we are governed 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 Cognisance 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 25th. of H. 8. and Cap. 6. if that or some other Statute of 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 Judge by our Law, though it had been expresly pro­hibited, and more than that expresly pu­nishable by the Law of Moses, for a Man [Page 25] to Marry with his Niece; yet notwith­standing, it could not have been so by ours.

And to shew yet further that our Law does neither inflict any Punishment, nor re­move it, though the Case be never so plain, without an express Probibition in that particular behalf, I will instance in two other things not yet mentioned; the first, concerning the Infliction of Punishment; the second, concerning the Removal of it. The first is of a Clerk convict of Felony or Murther, and after Conviction breaking Prison. Concerning which, there is an Act in the 23d. of H. 8. the Preamble of which Cap. 11. is in these Words. Where divers Persons being convict of Murther or Felony, having the Privilege of their Clergy, and delive­red to the Ordinaries, afterwards wilfully break the Prisons of the Ordinaries, and escape their ways, doing and committing great, horrible, and detestable Offences: and as hitherto for such wilful breaking of Pri­sons of Ordinaries by Clerks Convict, hath not been provided any great Penalty, where­by they should stand in dread of doing the same; Be it therefore Enacted, &c. After which follows the Body of the Act, by which such Breach of Prison for the future is made to be Felony without Sanctuary or [Page 26] Benefit of Clergy. From which Words it is plain, for I do not argue from the Act it self, it being only a Repeal of 4 H. 7. c. 13. by which the Benefit of Clergy was al­lowed to Clergy-men as oft as they should offend, That it is the sense of the King, and his Three Estates assembled in Parliament, which is as much as to say, it is the Law of England, That no greater Penalty can be inflicted for any Crime, than what the Law hath expresly determined; neither hath any Man reason to dread any Punish­ment, but what the Law hath denounced against his Offence. From which general Rule I cannot discern that there is any one Exception, unless it be in the Case of those Punishments which are expresly left to Di­scretion by the Law, which I am sure is not the Case of an Ʋncle Marrying with his Niece; and therefore whether the thing be Naturally or Levitically Lawful or no, which I do not yet examine, it is certain, that a Divorce, which cannot be denied to be a Punishment, cannot legally ensue upon it.

The second thing is this; Because, ge­nerally speaking, it was a Rule in Law, that he that killed another should at least incur the Forfeiture of his Goods and Chattels, it was therefore doubted in Parliament, whe­ther 24 H. 8. [...]. 5. [Page 27] he that kill'd a Thief in his own de­fence should not forfeit his Goods: And this Doubt could not otherwise be deter­min'd, but by a definitive Sentence of that August Assembly, ratified by the King, by which it was declared for the future, That he should not incur any Damage or Preju­dice thereby. Now a Man would think this was a plain Case: Here was a Thief on the one hand, not only a Criminal, but a Capital Offender; and on the other there is Self-defence, a real and a necessary Duty, which the Laws of all Nations must needs be sup­posed to be very favourable and propitious to. It is a plain Case that here could be no Guilt, and therefore a Man would think no Punishment should accrue: But, it seems, our Law was not of this mind; and there being a general Rule that all sorts of Man­slaughter should be punish'd with Forfeiture of Goods and Chattels, this, though the plainest and the most reasonable Instance that can possibly be thought of, could not by any means be exempted out of it, with­out a definitive Declaration of the Legisla­tive Power, by which all such Forseitures should afterwards be remitted. So that no­thing can be more evident, than that the Law of England, both in the Obligations which it lays, and in the Privileges and Im­munities [Page 28] it confers upon us, do's not pro­ceed by Innuendoes, Consequences, and pro­bable Intimations; but by express, positive, and particular Decrees: And indeed if it should do otherwise, the Inconvenience would be infinite, and the true Extent and Latitude of every Law uncertain.

The Law of Moses, in the Twentieth of Leviticus, hath assigned 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: there being no imaginable co­lour of doubt, unless it be ver. 17, 19, 20, 21. in the two first of which it is said, he or they shall bear his or their iniquity; in the two latter, they shall bear their ini­quity, they shall die childless: The sense of which is certainly the same with, they shall surely be put to death, and their blood shall be upon them, in several other places of that Chapter; and by their being childless is meant, that the Sentence of Death and Execution of it should immediately pass upon them, without giving them time to propagate themselves by their Issue. Now the Marriage of an Ʋncle to his Niece, if it be unlawful at all, being no otherwise than consequentially so, because that of an Aunt with her Nephew was forbidden, if it [Page 29] be the same Crime, it deserves the same Punishment; and consequently, both Parties should be put to death: But if it be not the same Crime, it is no Crime at all; for it is no otherwise inferred to be a Crime, but by a pretended Parity of Reason. Wherefore since it must needs appear extremely hard, and for that Reason unjust, to put a Man or Woman to death for the sake of a Con­sequence which he or she might very well not foresee, as none of the Jewish Rabbins appear to have done; and since there is no other or lesser Punishment that can be in­ferred due by Parity of Reason, if any such Parity indeed there be, it follows plainly, that the Levitical Law hath assigned no Punishment to this supposed Offence; wherefore the Law of England proceeding upon the Levitical Measures, cannot possi­bly inflict any: and therefore two Parties standing in this Relation, are thus far at least Marriageable by the Law of England, that after they are once Married, they can­not be Divorced.

I do not deny that there is a great deal of regard to be had to Parity of Reason, where this Parity or Potiority of Reason and of Degree meet together; as there is no question but it is Levitically unlawful for a Man to lye with his own Daughter, or [Page 30] with his whole Sister, though neither of these are expresly forbidden: but it is for­bidden for him to do the same with his Daughters Daughter, which is a Degree farther off; and with his Half-Sister, who is but half so much a kin as the Whole-Si­ster; for the Whole Sister is really the Half Sister and as much again; and therefore these things must be Levitically unlawful, if there be any such thing as Reason or Obligation in the World; and if nearness of Kin, which is by much greater and stronger in the former Instances than in the latter, be, as it is positively declared to be, the Rule and Measure of Levitical Prohi­bition, besides that the Practice of the Jewish Church, and of all Nations, from the time of Moses, where any Matrimonial Prohibitions have obtained, hath constantly pronounced such Marriages to be unlawful, and the Issue propagated from them, if any such there should be, to be spurious and il­legitimate; which is so far from being true in our Case, that the latter Jews, at least as far off as Maimonides, and so much fur­ther as the Talmudical Doctors, have con­cluded the Degree we are speaking of to be Lawful; and I shall prove in the Sequel of this Discourse, that though there be indeed a Parity of Degree between the Marriage [Page 31] of the Aunt with her Nephew, and that of the Ʋncle with his Niece, yet there is by no means a Parity of Reason.

It is likewise true, that the old Roman Laws did forbid the Marriage of the Ʋncle to his Brother or Sisters Daughter; and so it did likewise the Marriage of Cousin-Ger­mans: and though the latter Jews have al­lowed both of these, yet I conceive the latter to be plainly prohibited in the Law it self, and the former, though it be no where expresly prohibited, yet, as I always thought, and do think still, it ought to be amongst us. It was probably avoided by the ancient Jews, for the Reason which St. Au­stin gives for the avoidance of Marriage with Cousin-Germans. Factum etiam licitum S. Aug. de C. D. l. 15 [...] c. 16. propter vicinitatem horrebatur illiciti, & quod fiebat cùm consobrinâ penè cum sorore fieri videbatur: And so here, Quod fiebat cum fratris vel sororis filiâ penè cùm amitâ vel materterâ fieri videbatur. From the Practice of the ancient Jews, as I have in­timated Letter con­cerning the Marriage of Cousin-Germans. elsewhere, the Romans seem to me to have derived both of these, together with all other their Matrimonial Prohibi­tions; but this, though it may be an Argu­ment ex antecedenti to weigh upon the Consciences of the Parties Contracting, when they stand in this Relation to each [Page 32] other, for a dissolution of such Contract or Matrimonial Agreement, by mutual and alternative Consent; and though a Casuist being consulted, may make use of it, if he pleases, as a Topique of Dissuasion, to hin­der any such Marriage, if it may be done: yet a Contract being once made, it cannot otherwise be dissolved, upon any such in­demonstrable Supposition; and a Marriage being once Consummated in pursuance of the aforesaid Contract, this is no sufficient ground for a Judge or Court Ecclesiastical to proceed to Sentence of Divorce upon, especially considering, that though there were such a customary Bar among the anci­ent Jews, which they did not usually vio­late or transgress, yet this does not in the least appear to have depended upon the Ob­ligation of any Law, but only upon a Re­semblance, though not amounting to a Pa­rity of Cases, and upon Modestinus his Rea­son, upon which it is a matter not of Obli­gation, but Prudence, whether we will proceed or no, semper in conjunctionibus non D [...]t [...]t. De Rita Nup­tiarum. l. 42. solum quid liceat considerandum est, sed & quid honestum sit; and in all such Cases, though a Marriage ought not to have been entred into, yet it cannot with any face of Justice be dissolved, because it is supposed before-hand to be at least barely Lawful.

And now we are speaking of the Marri­age of Cousin-Germans, which I have pro­ved already in my Papers upon that Sub­ject to be Levitically prohibited and unlaw­ful; and yet notwithstanding I am clearly of opinion, as I always was, that all such Marriages already Consummate, ought in all Reason and Conscience to be good and valid; and I suppose there is no Lawyer that is not of my mind: Is it not a very hard Case, if an Ʋncle and Niece Marrying should be Divorced violently, without ei­ther of their Consents, though neither the Law of Moses, nor of England, have any where so much as mentioned their Case, and much less expresly prohibited and for­bidden it; when yet notwithstanding Cou­sin-Germans, who are expresly condemned in all ordinary Cases by the Dispensation granted to the Daughters of Zelophehad, shall Marry as they please, without the least Disturbance, and without incurring any danger of Separation? On the other side, if all the Cousin-Germans now in be­ing, who are engaged in Matrimony to one another, should by the severity of the Law Ecclesiastical be Divorced, what a present Disturbance and Confusion would it make? And how would it reflect upon the Descen­dents of such Parents, who are much more [Page 34] numerous than the other? And how then can it be equitable to dissolve those Mar­riages against which there lies no manner of Legal Proof, when those that are so plain­ly excepted in the Levitical Law, unless in the Case there specified to the contrary, which do's not belong either to our Age or Nation, shall not only be spared and par­doned for what is past, but without control allow'd and practis'd for the future?

I know it will be said, notwithstanding the Case of the Daughters of Zelophehad, That such Marriages are not prohibited in those Chapters of Leviticus where the Degrees prohibited are set down. But first, I say, This is by no means a fair Objecti­on; for it is sufficient if it be any where forbidden, and there is no question but the thirty sixth of Numbers is a Chapter of every whit as good Authority, as the eigh­teenth and twentieth of Leviticus; and un­less it can be proved, that they any where contradict, they cannot possibly derogate from one another.

Secondly, If we consider that these and such-like Enormities were the declared Rea­sons of the Destruction of the Amorites, and other Nations, which shews Incestuous Marriages, for some Reason or other, to have been very displeasing to Almighty [Page 35] God; therefore out of a just tenderness to displease his Divine Majesty, and provoke his just Wrath and Indignation against us, we ought to explain all these Prohibitions in the utmost Latitude which the Words will bear; that Interpretation which is cer­tainly the safest, being in this Case also certainly the best. Therefore I would ask any Man, when it is said, Levit. 18. 9. The nakedness of thy Sister, the Daughter of thy Father, or Daughter of thy Mother, whe­ther she be born at home or born abroad, even their nakedness thou shalt not uncover; Whether the Sister born abroad may not very rationally be interpreted of a Cousin-German? For the Hebrew Idiom is used to call all by the name of Brethren and Si­sters, that are of the same Blood and Kin­dred with each other, as Abraham said to Lot his Brothers Son, Chi Achim anachnou, For we be Brethren; so the Romans called them Fratres patrueles, consobrini, amitini; and St. Austin saith, Fratres appellantur & S. Aug. ubi suprà. V. etiam Paul. Dia. l. 12. Ap­pend. ad Eutropium paenè Germani sunt; and Aurelius Victor saith of Theodosius Major, That he did tan­tum pudori & continentiae tribuere, ut con­sobrinarum conjugia vetuerit, tanquam soro­rum: And Deucalion says to Pyrrha his Wife and Cousin-German in Ovid,

O soror, O conjux, O faemina sola superstes,
Cui commune mihi genus & patruelis origo.

And then for the Expression of born abroad, nothing can suit more naturally than that does to a Cousin-German, who is born abroad, that is, in another House and Family, and is not descended of the same immediate Father or Mother. I am not ig­norant that there are other Interpretations, which I confess wnat not their shew of pro­bability; and that this which I have laid down, being carried as far as it will go, will prove more largely than I intend it should, that is, it will extend to a Prohibi­tion of the Ʋncle with relation to his Niece, according to that of Abraham to his Ne­phew Lot, We be Brethren: For if a Ne­phew be a Brother, a Niece is a Sister, and a Sister born abroad. But here I desire it may be considered, first, That by a Sister born abroad it is most probable some one thing is understood, not two or three seve­ral Relations under one, which would make the Signification of this Law to be very confused, uncertain, and obscure; therefore without some other apparent Reason to in­duce us to it, besides what we meet with in the Law it self, we are not to interpret any [Page 37] Law in this manner. Secondly, Though the Word Sister may be extended farther, yet it most properly signifies one that is born of the same Parents, one or both; and for the same reason, with analogy to the most strict and proper acceptation, a Sister born abroad will signifie rather a Relation in plano than in declivi, an equal and colla­teral, rather than an unequal and descending; so that this Interpretation which I have pitch'd upon, is, without any manner of prejudice or partiality, plainly preferreable before the other To this purpose it is remark­able, that the Codex Graeco-Ro­manus, cals Cousin-Germans all along by the name of [...], that is, [...]. Brethren born a­broad..

If any Man shall still further demand, What Punishment is allotted to the Violation of this Law against the Marriage of Cousin-Germans; it being unreasonable, as will be sure to be pretended, to make a Law without a Sanction to enforce Obedience to it? To this I answer, first, That this in Humane Laws is very certain, that when no temporal Damage or Inconvenience is proposed to Disobedience, the Law it self is a nullity, because a Man is still in the same condition, whether he obeys or no; or, it may be, he may get more by Disobe­dience against the Law, than by Compli­ance with it: But in Divine Laws the case is otherwise; for these, though no Punish­ment be expresly annexed to the Violation [Page 38] of them, yet besides an Obligation of the highest Gratitude which is laid upon us to him to whom we owe our Being and our Preservation, together with all the Com­forts and Enjoyments of Life; besides that he makes no Law, but what, without any Interest or Emolument accruing to himself, who is infinitely Happy and Blessed in his own Nature, is purely levell'd at the Good of his Creatures, and at the Happiness of those to whom such Laws are prescribed; besides all this, his Right of Punishment do's not therefore cease, because he hath not expresly denounced what the particular Punishment shall be, in case of the breach of this or that Prohibition; but, on the contrary, if we obstinately and wilfully re­sist what we believe to be his declared Mind and Will, though it be not enforced by any particular Sanction, we give him a Right of Justice, besides that of his Abso­lute Sovereignty over us, to punish us to what degree and in what manner he plea­ses; and we have the Terrors of Omnipo­tence before our Eyes, which are enough to terrifie the most daring Sinner, whenever he lays them seriously and attentively be­fore him.

Secondly, There is a plain Instance of a Levitical Prohibition to which there is no [Page 39] Sanction annext; Levit. 18. 18. Neither shalt thou take a Wife to her Sister to vex her, to uncover her nakedness, besides the other, in her life-time; as will appear by comparing this Chapter with the twentieth, where this Crime and its Punishment are not so much as mentioned. The Jews in­terpret V. Selde­num & Buxtorfi­um ubi suprà. this Place of two real and proper Sisters, in the most strict acceptation of that Word; that is, Sisters by the same common Parent, either one or both; and they agree unanimously, that though it be not lawful to be Married to two Sisters to­gether, yet that one after the other, there was no doubt but it might very safely and lawfully be done, because the Reason of the Law is added, to vex her in her life­time. But in this I am by no means of the same Opinion with the Rabbins, there be­ing so strict a Parity of Reason against it. For the Wives Sister is, as exactly as any thing can be, the very same Relation with the Husbands Brother; which being so se­verely prohibited in all Cases, but where the Propagating the Family, and the keep­ing the Inheritance in the same House and Line is concerned, it is impossible to con­ceive otherwise, where nearness of Kin is the declared Reason and Measure of these Prohibitions, but where there is exactly [Page 40] the same nearness of Kin, there must also be exactly the same Obligation, upon the Conscience of him or her that shall reflect upon it, at least, though the Breach of that Obligation which is not set down disertis verbis in the Law, may not possibly be at­tended with any Legal Effects. The Canon of the Council of Eliberis, already menti­oned out of Grotius, did not certainly un­derstand this Place as the Jews appear to have done, because it expresly prohibits the Marriage of two Sisters, though one after the Decease of the other, upon the same Reason I have mentioned; for I do not perceive that there can be any other: But yet those Fathers of the Eliberine Sy­nod did not proceed to a Divorce upon this occasion, but only banish'd the Husband so offending from the Communion of the Church for the space of five years after his Conviction of any such Offence; and the Apostolical Canon referr'd to by the same Grotius, which is the Nineteenth in Num­ber, and, as I take it, comes within the compass of those that have the Reputation of Genuine among Learned Men, and to be sure was a Canon of great Antiquity in the Church, though it forbids the Thing, yet is nothing so severe in the Punishment of it; for it only debars the Offender from [Page 41] being of the Clergy, because such ought to give the greatest Examples of Continence and Sobriety, but yet plainly intimating at the same time, that it would be highly com­mendable and Praise-worthy in others, not to engage themselves in Marriages of this nature. And from these two Canons com­pared together, or indeed from either of them considered by it self, we may make these three observations.

First, We have very great and sacred Au­thority to perswade us that a Divorce was never practiced in the Antient Christian Church, upon parity of reason, although that parity were never so plain, as I have shewn it in this Case to be so very exact that nothing can be more.

Secondly, That a consideration was al­ways had to the infirmity of Women, who generally speaking, cannot be supposed to understand the niceties of Law so well as their Husbands may do, or might have done, and therefore in these two Canons, the Church did not think it reasonable to inflict any Censure upon them.

Thirdly, But there was also another reason of this severity, which I have insisted more largely upon in other Papers. That notwithstanding the se­verity of the Canon Law against Bigamy, in the Clergy especially, which seems to have been founded upon a mistaken Interpreta­tion [Page 42] of this place of Leviticus, they taking Sister in this place for any woman in gene­ral, as indeed it ought to be taken, though not so as to make this inference from it, yet this was not first denyed to Clergy-men themselves; much less were they utterly debarr'd from Marriage, only they were forbidden to Marry two Sisters one after the other.

But, I confess, I do, and have of a long time understood this place as a Prohibition of Polygamy. The word Sister according to the Hebrew Idiom being coextended to all of the Female Sex among the Jews; be­cause the latitude of obligation in any Law whatsoever, where there are not other par­ticular and express restraints laid upon it, is to be taken from the extent of the reason upon which that obligation is founded, which in this place is, to vex her in her life time. Now if Competition, Jealousie, and Emulation, will cause Vexation and Strife among persons at never so great a distance, as well as among Sisters, then Sister in this place is of necessity to be ex­pounded in a greater Latitude, then in its first and primary signification; but yet Polygamy, notwithstanding this, was some­times practised without controul among the Jews, as indeed, there being no express pu­nishment [Page 43] assigned or left to the discretion of a Consistory or Court of Judicature, this Law was a nullity in it self, only being, as it was a Divine Prohibition, the Person offending wilfully against it, was left, with­out the Cognizance of humane Laws to the Divine Justice on the one hand, or Mercy upon his Repentance on the other. And that which gave occasion, by giving some glance of encouragement to the breach of this Law, was that it had no Sanction an­next; for not only an humane Law with­out a Sanction is a Nullity; but they might also reasonably conclude, that that Law wch had no Sanction annext, though it would be the greater act of Obedience to comply with it; yet that God would not be so heavi­ly offended with its breach, as with those against which he had expressly denounced excision and certain Death; for that there seemed to be as much difference betwixt the heinousness of these two Crimes, as there is betwixt Life and Death themselves; where­fore they might perhaps please themselves with an Opinion in this Case, that a Sin or a Trespass Offering would make Attonement for them, and set all things right. However, this is certain, though Polygamy were ex­presly forbidden in this place; yet there being no punishment annext to the Law it [Page 44] self, the Jews looked upon it, rather as a mat­ter of Prudence than Obligation, and that whenever strife might be avoided by the good temper of two or more Women in the same House, there Polygamy was next kin to lawful, and where no punishment of Divine institution was annext, there they would not presume to establish one of their own, and therefore no Divorce by any publick Sentence, unless the parties had a mind to separate from each other, was ever allowed upon the account of Polygamy, so tender were they of a Divorce, even in a Case that interfered with an express provision of the Divine Law, and perhaps the true reason why God annext no punishment to the vio­lation of this Law, was because Polygamy where it produces strife, is sufficiently pu­nisht by it self, which none of the other Prohibitions are, any otherwise than by the inward stings of a relenting Conscience, which the offender before hand may very well be supposed to have lost, let them be violated never so often. 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 Coverts to Christi­anity, then the Jewish was, though, after our having once embraced that holy Pro­fession, [Page 45] it is not only unlawful, ex antece­denti, See my re­solution of three Ma­trimonial Cases to­ward the latter end. but a Divorce ought to insue at least, besides what other punishment the Civil Laws 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 natural occasion of strife, from which no man can be perfectly secure, can never be a lawful Christian State, but also because the Ʋnion of the Husband to one Wife, as one and the same Flesh, is declared 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 Polytheisme, or of the Worship of many and False Gods, which is the most directly opposite to Chri­stianity that any thing can possibly be con­ceived 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 this Case, where there is not only no [Page 46] punishment assigned, but also no express Prohibition to be found, and where the breach of Charity, the honor 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 concerned.

But Thirdly, I say, the Marriage of Cou­sin-Germans is expresly threatned even with Capital Punishment, Levit. 20. 17. in these words, If a man shall take his sister, his fa­thers daughter or his mothers daughter, and see her nakedness, and she see his nakedness, it is a wicked thing; and they shall be cut off in the sight of their people, which place is manifestly parallel to Chap. 18. 9. where I have shewn the word Sister to be taken in this latitude, at least by a possible interpre­tation, which I have said, and shewn good reason for it, is in these Cases the safest, and consequently the best. Besides, that Aeschy­lus in his [...], as I have elsewhere obser­ved, refers manifestly to the story of the Daughters of Zelophehad, and the whole Play is little or nothing else but a continued harangue, and a perpetual, uninterrupted Declamation against the Incestuous Foulness of the Marriage of Cousin-Germans: And Theodosius the First, who punisht this sort of Marriage with Burning, Proscription and [Page 47] the declared illegitimacy of the offspring de­rived from it, did without question take his Copy from more Antient times, and pro­bably at the long run from the Jews, among whom the parties so offending were to be cut off in the sight of their people; for that general expression is indifferent in it self, whether it be determined to Burning or to any thing else, and this was expresly the Punishment of Incontinence with a Wife and her Mother, Ver. 14. of that Chap­ter. If therefore those Marriages shall be dispensed with, which were so plainly Pro­hibited by the Law of Moses, with what Face can we Divorce those which are not any where Prohibited at all, or so much as any where taken notice of or named?

If it be still further demanded, how can it appear rational to any man to suppose that the Law of Moses should be so extreamly se­vere against the Marriage of the Aunt and Nephew, as to punish it with present Death, Lev. 19. 20. and yet so very gentle and favor­able to that of an Ʋncle with his Niece, as to take no Cognizance, no notice of it, much less to punish it with any thing of rigor, not­withstanding there be so exact a parity of degree in both these Cases, the one being only as it were the reverse of the other?

By this Para­graph I desire I may be un­derstood, as to what I have said above con­cerning the same nearness of Kin, in the Case of a man Marrying two Sisters, or a wo­man two Bro­thers one after the other; for it is plain, that there is not on­ly a parity of degree but of reason also, o­therwise I con-confess, if ei­ther of these had failed, my argument there would have been very in­conclusive. To this I answer, in the first place, what I have already affirmed, and shall more largely demonstrate by and by, that though there be indeed a parity of Degree, yet there is not a parity of Reason; for the former of these may very well be without the latter, though the latter cannot be without the former: There cannot be a parity of Prohi­bition where there is not the same nearness of Kin, but there may be the same nearness of Kin where there is not a parity of Prohi­bition.

Secondly, I say, where there is not a parity of Reason, though there be a parity of degree, that is, the same distance from a common Parent by Consanguinity or Affi­nity of the Ʋncle and the Aunt, and of the Nephew and Niece, yet notwithstanding the Case is not the same; but the Ʋncle and Niece, though not by disparity of Affinity or Blood, yet by a manifest disparity of Rea­son, are really a degree lower then the Aunt and the Nephew, for there can be no dispa­tity without a gradation, and in every com­parison there must be a degree.

Thirdly, That Marriage cannot be Di­vorced by virtue of any Law, or by virtue of any pretended Consequence or Deduction from it, which is neither expresly forbidden in it self, nor stands in the same rational parity [Page 49] with that which is: but is a degree lower, tho not in Affinity or Consanguinity, yet in the nature, in the reason of the thing, in the equity of the Case, and in the construction of Law.

Fourthly, The Jewish Law was so tender of the Matrimonial Band, or of that mutual Vow of Cohabitation, and reciprocal enjoy­ment, which a Man and Woman had en­tred into with each other, that it never se­parated any Marriage by a Divorce, where the Man and Woman were willing to live together; if the Man hated his Wife, or otherwise had any just cause of Impeachment or Accusation against her, he might write her a Bill of Divorce and put her away as he pleased; and as the first of these proceeded out of a wise and just regard to the sacred and inviolable obligation of the Matrimo­nial Contract, so the last was a Relique of that absolute and arbitrary power which the Husband had over his Wife to dispose of her, and do with her as he thought fit, by the Antient Laws and Usages of the East, and the last of these duly reflected upon, might serve for a lesson of obedience to the Women towards their Husbands, upon whose discretion they did so entirely depend, and at whose disposal they were in so very absolute and uncontroulable a manner; the [Page 50] first might read a Lecture of Constancy to the Men, since it appeared by it, how ex­ceeding tender God Almighty was of dissol­ving the unity betwixt Man and Wife, by his not having made any provision without the consent or desire of at least one of the parties, for any separation, whilst they lived, between them.

Wherefore to bring the matter home to the instance before us, in case of an Incestuous Marriage, the Law not allowing any vio­lent separation unless it were by Death; it was necessary either that the parties so of­fending should yet notwithstanding be suf­fered to Cohabit together, or that they should be parted by the infliction of a Ca­pital Sentence on both sides, since they had both of them equally offended. 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, and had no punish­ment at all assign'd, but was as Legitimate to all intents and purposes as any other Mar­riage in the World could be. If then this Marriage of the Ʋncle to his Niece be so far from being expresly punisht by the Law of Moses, that it is not any where so much as mentioned among the Levitical Restraints and Prohibitions, if it be the hardest Case [Page 51] in Nature, to put a Man and Woman to death son a Consequence, a real or a 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, then it follows plainly, that the Marriage of the Ʋncle to the Niece is so far legiti­mate, that it was not at all punishable by the Levitical Law, and that it cannot be dissolved by virtue 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.

Fifthly, As there was no legal violent Separation among the Jews but by Death, so the Reason why Death was inflicted, seems to be, to prevent any Issue from such Incestuous Conjunctions; or, in the Lan­guage of the 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 Offspring: 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 looked upon as an accursed, abominable thing, and branded with still more peculiar and par­ticular Marks of Ignominy and Detestati­on; [Page 52] and the Descendants 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 Offspring of Incest and of 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 hapned to do something, 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 where ever the Offspring is not spuri­ous, the Marriage is legitimate: For a le­gitimate Son or Daughter cannot possibly be descended, but of legitimate Parents.

Sixthly, Since all Mankind are descend­ed of one common Parent, the propinquity of Blood or Kindred which is a Bar to Marriage, must of necessity stop some­where, or else there can be no such thing as Marriage in the World: And St. Austin [Page 53] thinks it very requisite, that before the Names of Kindred are worn out, which do not extend very far, there should be a re­turn back again to the same Family, by two of the Relations Marrying one ano­ther: For so he saith, Fuit autem antiquis S. Aug. de C. D. l. 15. c. 16. patribus religiosae curae, nè ipsa propinquitas, se paulatim propaginum ordinibus dirimens longius abiret & propinquitas esse desisteret, eam nondum longè positam rursus matrimo­nii vinculo colligare, & quodammodo revo­care fugientem: And not only by the Law of Moses, but by the Theodosian Law con­cerning Cousin-Germans, the next Degree to that which was Capital, was no Crime at all; for it does not appear that he forbad Second Cousins to Marry, though I believe the most ancient Prohibition, or at least the most ancient Practice of abstaining, to have extended so far both among Jews and Romans; and among the Jews, where there was no medium in these Cases betwixt Im­punity and Death, it is no wonder to find two Cases that have a Parity of Degree, when we speak of Consanguinity or Affinity, so long as they have not a Parity of Rea­son, (so that one of them is in some sense a real Degree lower than the other) the one of them to be punished with certain Death, and the other not to be punish'd at [Page 54] all; though, as I have said already, more than once, I believe such Marriages to have been very rarely practised among the anci­ent Jews, and that they might have said of themselves, with relation to the Marriage of the Ʋncle with his Niece, as St. Austin do's of himself and his Contemporaries, where he speaks of the Marriage of Cousin-Germans; Experti autem sumus in connu­biis S. Aug. ubi supra. consobrinarum etiam nostris temporibus, propter gradum propinquitatis fraterno gra­dui proximum: quam raro per mores fiebat, quod fieri per leges licebat, quia id nec di­vina prohibuit, & nondum prohibuerat lex humana: Veruntamen factum etiam licitum propter vicinitatem illiciti horrebatur.

The truth is, the Argument of St. Am­brose against the Marriage of the Ʋncle with his Niece, presses the hardest of any other upon us, where, in his Epistle to Pa­ternus, he says, Quid est quod dubitari queat Epist. 66. cùm lex divina etiam patrueles fratres pro­hibeat convenire, qui sibi quarto sociantur gradu? hujuscemodi autem gradus tertius est, qui etiam jure civili a consortio conju­gii exceptus videtur. So that there seems to be not only a Parity, but a Potiority of Reason, when we compare the Ʋncle with his Niece and two Cousin-Germans together, against the Marriage of the two former, [Page 55] according to the Levitical Degrees: Which Argument of his, though some would an­swer, by denying the unlawfulness of the Marriage of Cousin-Germans; yet I, who am very firmly of another Opinion, can­not make use of such a Plea as that is: But then there are two other things taken to­gether, which will, if I am not mistaken, give no incompetent Solution of this Diffi­culty. The first is this, That there is a wide difference in the Reason of the Thing, as I shall prove in the process of this Di­scourse, betwixt the Marriage of an Aunt with her Nephew, and of an Ʋncle with his Niece; so that if the former be a Marriage in the third Degree, the latter, though the Consanguinity or Affinity be the same, may not improperly be called the fourth: For there is no Comparison or Distance but by Degrees; and at that rate the Marriage of an Ʋncle with his Niece will be in a manner the same with the Marriage of Cousin-Ger­mans: But then, if you consider in the se­cond place, that Cousin-Germans are a Rela­tion in plano Or rather the one is an Horizon­tal Relati­on, the o­ther comes nearer to a Perperdi­cular; the one is a Relation in eodem plano, the other is respectus vel ratio plani supe­rioris, ad inferius a latere con­stitutum., they standing both upon the same Level, which brings things, as it were, nearer to one another, and represents Ob­jects in their full proportion at a considera­ble distance; but the other is a Relation in declivi, by which Objects are lessen'd at [Page 56] a smaller distance, and neither appear so big, nor so nigh as they are. In this respect the Marriage of the Ʋncle with the Niece hath much the advantage of that of two Cousin-Germans; so as the one might be esteemed lawful by reason of a greater seeming distance, when the other was for­bidden.

And now to all that hath been said, there are still Four things to be added, to favour that Opinion which it hath been my chief Design hitherto to establish, That although such a Marriage ought not perhaps at first to have been entred into, yet being once Consummate by Solemnization, and Frui­tion consequent upon it, it ought not to be dissolved; and that, at the least, it is not so very unlawful as the Adversaries of such Marriages would make us believe.

First then we have it upon the Authori­ty of Servius, Tribus modis apud veteres Servius Danielis in excerpt. a Pithaeo cit. Lips. ad Tacit. An­ual. l. 4. nuptioe fiebant, usu, Farre, & coemptione, usu, si verbi gratiâ, mulier anno uno cùm 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 [Page 57] in their first coming together. And per­haps from the validity of such Marriages ex post facto, though at first they were no better than meer Fornications, the obscene use of the Words Nubo and Nuptiae in seve­ral of the Roman Authors was derived; concerning which Justus Lipsius hath made Antiqu. Lect. l. 2. c. 9. v. & Selden. & Authores ab eo cit. l. 5. de jur Nat. & Gen. c. 4. this Observation. Nubendi verbum antiqui­tus inter ea fuit, quae custos ille hortorum libentius quam virgines Vestae usurparent. In­de Festo nupta verba, obsaena & Petronio nuptias facere, [...]. And to this purpose it is very pertinent, what our Law hath Enacted in the Case of Prae-contracts, which not only by the Canon and Civil Law, but in the Nature and Reason of the Thing, are, and ought to be a Bar to Mar­riage with any other, without the Consent of the prae-contracted Party. For a Man or Woman, after such a mutual Contract, have no longer the disposal of themselves, and therefore cannot properly transfer that to another which in themselves they have not; besides, that as no Man ought to break any lawful Promise, so certainly no Bar­gain ought to be more sacred than that by which the Matrimonial Contract is as­sured. But yet by reason of many Frauds and Inconveniencies under colour of Prae-contracts, which it was not difficult to get [Page 58] two Witnesses to attest, when ever one Par­ty 32 H. 8. c. 38. was weary of the other; therefore to prevent such Abuses for the future, all Prae­contracts were declared null and void, af­ter the Solemnization and Consummation of Marriage with another Person; and all such Marriages were pronounced valid.

Secondly, What Abraham said of Sarah his Wife, Gen. 20. 12. And yet indeed she is my Sister; she is the Daughter of my Fa­ther, and not the Daughter of my Mother, and she became my Wife, is interpreted not only by the Rabbins, but by Josephus him­self, of his Brother by the Father Side's Daughter. I do not stand to justifie this Interpretation, neither do I indeed believe it to be true; but that which I observe from it is, first, That the Reason why both they and Josephus have had recourse to this In­terpretation, was to excuse Abraham and Sarah from an incestuous Conjunction; o­therwise it would have been great folly and madness to depart, without any man­ner of necessity, from the first and most simple Interpretation of the Place. Se­condly, If we consider the Age of Josephus, who was present at the Siege and Destructi­on of Jerusalem under Titus, and wrote his History not long after, in the Reign of Do­mitian, by this we are assured that this [Page 59] Opinion of the Jews, That the Marriage of the Ʋncle to his Brothers Daughter is not incestuous, is at the least of about Sixteen hundred years standing; and how much elder it is, we cannot tell. Only I say again, that I believe, though it was never prohibi­ted, yet it was used with great caution by the ancient Jews; and that I should always advise against Marriages of this Nature, if ever I were made acquainted with them be­fore-hand.

Thirdly, The Canon of the Apostles so of­ten referred to, and which without question is of great Antiquity, is conceived in these Words, [...] He that mar­ries two Sisters, or his Brother or Sisters Daughter, cannot be a Clergy-man. So that it is plain by virtue of this Canon, that the Person so married was not to be Divorced; only all his Punishment, which to the greatest part was no Punishment at all, codsisted in this, that he was not suffered to enter into Holy Orders: But for any Man that was a Lay-man, and intended to conti­nue so, the Marriage of the Ʋncle to his Niece was at least lawful ex antecedenti, by the plain Concession and Acknowledgment of this Canon; and this, for ought appears, though the Brother or Sisters Daughter, be [Page 60] understood in the most strict sense of the Brother or Sister both by the Father and the Mothers Side. But if one who was al­ready actually a Clergy-man, should engage himself in such a Marriage, contrary to the express Inhibition of this Canon, then I conceive a Divorce was to ensue, or else he was debarr'd the Exercise of his Function any longer, or perhaps both of these; for the Canon saith expresly, [...], he cannot, or [...], it is impossible for him to be a Clergy-man. I know Haloander in his Exposition of this Canon translates [...] by Consobrinam, a Cousin-German, cùm vertere debuisset fra­tris De jure Connub. p. 69. filiam, saith Brissonius; and he hath not only said, but abundantly proved it, by comparing a Testimony of Xiphiline where he saith of the Emperour Adrian, Ib. p. 60. [...], with another of Aelius Spartianus, where he saith of the same Prince, Trajani per sororem neptem eum uxorem accepisse: And he confirms and establishes this Exposition still further, by the concurrent Suffrages of Pollux, Hesy­chius, and Moschopulus; so that it is a very great wonder to me, how Haloander came to be guilty of so palpable a Mistake.

Fourthly, and lastly, St. Ambrose, in his Epistle to Paternus, so often appealed to, [Page 61] though he use all the Arguments he could possibly muster up, to persuade him not to Marry his Son with his said Son's Niece, by his Sister on his Father Paternus his Side, (a Case in which the Bishop of the Diocese where Paternus lived, and who was first consulted, do's not seem to have been posi­tive against it) yet he speaks not one word of a Divorce, in case they should be Mar­ried, though he dissuades from it ex ante­cedenti; and he might have threatned it at least, as a Motive to deter Paternus from proceeding any further in that Affair: but that it seems, as if, not looking upon a Di­vorce to be lawful, he would not make use of the Fear of it as an Argument to dis­suade from Marriage in this Case. And this is sufficient to shew, that no Divorce can be allowed in such a Marriage as this. I will now proceed further, to shew a little more particularly than I have done yet, That all such Marriages are antecedently Lawful.

But then, by Lawful, I mean no more, than that they are not actually forbidden, by any Divine Law, nor, so far as concerns us here in England, by any Humane; and that they do not come within the rational Intention of either of these two Laws. For the first of these, it hath been sufficiently insisted upon already, and it is plain in it [Page 62] self, that there is no mention made in the Law Levitical, nor in the Statute-Law of England, which, as to this Particular, takes the other for its Copy, of the Marriage of the Ʋncle with his Niece; and then I am sure it cannot be actually forbidden.

As for the Intention of the Law Leviti­cal, though I am clearly for admitting a Parity of Reason, where such a Parity can be made out; yet I am afraid, upon a due examination, that it is but an Imaginary Pa­rity all this while. For, in the first place, it is very strange, that there should be so express and careful a Prohibition of the Marriage of the Aunt with the Nephew, as there is in Levit. 18. v. 12, 13, 14. by which the Nephew is forbid to Marry his Father 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. v. 19, 20. and yet no mention in the least made of the Ʋncle Marrying with the Niece, whether of half or whole Kindred, or whether by Consan­guinity or Affinity, in any wise whatsoever: So great Sollicitude on the one hand, seems utterly inconsistent with so great Careles­ness and Silence on the other, if the Law of Moses had intended to prohibit both [Page 63] these sorts of Marriages alike; Much more must it needs have appeared very hard a­mong the Jews, as hath been said already, for a Man to be put to death for a Crime, which could not be inferred to be so, any otherwise than by a pretended Parity of Reason; for there was no other Punish­ment but Death assigned in these Cases. And that this Parity of Reason is not real, will appear, in the second place, by this; That in the Marriage of an Aunt with her Nephew, the natural Subordination of Re­lations is destroyed, and the true depen­dance of Things upon one another; a Su­periour, as the Aunt unquestionably was, and one that was loco parentis, as well by the Jewish as the Civil Law, as I have pro­ved in my Resolution of Three Matrimonial Cases, was forced 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 De­pendance was preserved, she being already his Inferiour and his Servant. The Impie­ty of this sort of Marriage of a Man to his Superiour, and to her that in legal constru­ction was parentis loco, is thus detested by Papinius Statius.

—illum, illum sacris adhibete nefastis,
Thebaid. l. 4.
Qui leto dedit ense patrem, qui semet in ortus
Vertit & indignae regerit sua pignora matri.

And by Lucan,

—Cui fas implere parentem
Pharsal. [...]. 8.
Quid rear esse nefas?—

Which Places, though 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 ena­mour'd of her Son-in-Law Hippolytus, yet knowing the Disgrace and Infamy of a Mother-in-Law lying down to her Son, though 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 65] desirous to forget that name for good and all, for thus she says,

Matris superbum est nomen & nimium potens
Seneca in Hippolyto Act. 2.
Nostros humilius nomen affectus decet,
Me vel Sororem, Hippolyte, vel famulam voca.

Thirdly, In the Marriage of the Ʋncle to the Niece, there is a greater fitness for Propagation, which is the great and decla­red end of Marriage, then 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 De Nup­tiis l. 5. c. 10. p. 547. Aunts that were younger then 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 does 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, though the Aunt at the time of Marriage, may not in many instances be effoete and barren, yet she will not continue Prolifique so long as a Niece, so that here is a double natural obstruction a­gainst [Page 66] the Marriage of an Aunt with her Nephew, which does not hold in that of an Ʋncle with his Niece.

Fourthly, 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 extreams 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 his Niece, then 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 avoided, and yet at the same time to inculcate that with so much seeming industry and sollicitude, of which there was scarce any danger, and to omit that wholly without the least word [Page 67] 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.

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 indefensible after they are once Marryed, but that consider­ing the Levitical, as a positive Law, it is lawful ex antecedenti, since it is neither for­bidden in express words, neither can it be inferred to be unlawful by parity of reason, and since the measures of the Levitical Law are in this Case of Matrimony the declared measures of ours, it follows unavoidably that what is left indifferent in the Law of Moses, preserves the same liberty and indifference in ours, then which I need say no more, but because nothing can be too plain or too sure, therefore I add further, that though there had been such a parity as is pretended, yet our Law has no regard to any such way of illative proceeding. And this I will prove, First by an instance Forreign to our Case. Secondly, by another instance Bor­dering [Page 68] upon it. And Thirdly by the ex­press words of the Act it self, where the Levitical Prohibitions are made the mea­sure of ours.

As to the first of these, the instance I aim at, is this, by an Act of Parliament, 21 H. 8. c. 13 it is provided that the Brethren and Sons Born in Wedlock of every Knight may every of them purchase Licence or Dis­pensation (for the holding of pluralities) and receive, take, and keep, two Parsonages or Benefices with cure of Soul. But now it is a ru­led Case that a Baronets Son or Brother shall not enjoy this Priviledge, notwithstanding the reason of it was manifestly honourary, and a Baronet shall take place of a Knight, besides that the one is hereditary which the other is not; so that here is not only unquestio­nably a parity, but a twofold very great po­tiority of reason, in the behalf of the Baro­nets Son or Brother, and yet the Law ad­heres so strictly to the Letter, that he shall enjoy no priviledge by virtue of this Statute.

I know it is said that this Statute is an en­croachment upon a common right, there being no natural reason why one man should have two Livings more than another, and there­fore it ought not to be extended further than the Letter: But then it is to be consi­dered, that this reason will hold as well in [Page 69] natural as in positive obligations; for the Laws of nature, as such, oblige only by na­tural sanctions, neither is any man punisht for the breach of any Law of nature, as such, by an humane or divine positive Law, but as that Law of nature ratified by Divine Au­thority or humane appointment, is made posi­tive and hath a positive Sanction annexed to it, so that let a Law oblige naturally never so much, yet to oblige any man not to break it by an humane Law, without which an humane Law cannot punish the offence, is manifestly a restraint laid upon that possible and humanely lawful liberty of action which he had before, and therefore the humane obligation cannot extend further then the Letter of the Law, for what the Law hath not restrained it leaves still indifferent, and it is true of humane Laws, with respect to natural as well as positive obligations, in le­ge prohibitoriâ quodcunque non prohibetur, in­telligitur permissum.

Secondly, To come nearer to our present Case, the intermarriage of Brother and Or of two Brothers to two Si­sters. Sister to Sister and Brother among us, as likewise of the Son in Law to the Mother in Laws Daughter or Father in Laws Daughter are clear instances that our Law does not proceed by parity of reason; for all these are manifest violations of one of those great [Page 70] and fundamental reasons of all those prohibitions, which was to spread Friendships, and propagate Good­will and Charity among Men, by not restraining the Matrimonial affinities within too narrow a compass.

Thirdly, In the Law it self, which is the 25 of H. 8. c. 22. the particulars there specified are ushered in with a, that is to say, and in the Conclusion of it, there is a reference made to them by the Word, a­fore rehearsed and above expressed: now if any man will shew me, that the words, that is to say, were ever referr'd to any other than the particulars there­after expresly declared, without respect to any dark intimations by parity of reason, or if the word afore rehearsed or above expressed were ever in any Act, or other good Writing of Law, referred to any other Particulars, than what were before in the said Act, or Writing expresly enumerated, than I will yield the Cause, notwithstanding what ever else hath been said in its defence; but if these words are no where used otherwise than I have said, and by consequence cannot be so here neither, then I am as certain as the Law can make me, as certain as the plainest evidence of demonstration can be, that I must undeniably and infallibly carry it.

Besides, that all this is spoken in defence of the Marriage of an Ʋncle with his Niece, ex post facto at least, for though it may be defensible, though that Niece should be the Daughter of a Brother or Sister German by Father and Mothers side, yet I would not advise, or so much as yield to it before hand; but our case is still more favourable, we are the Niece only by the Half-blood, and that not the Blood of the Mother, but the Father, which, because the more un­certain, is in all these Cases the more favourable of the two, which was the foundation of Abrahams justifi­cation of himself to Abimelech the King of Gerar, she is the Daughter of my Father, and not the Daughter of my Mother, and she became my Wife, as much as to say, according to the custom and usage of those [Page 71] times, that the one is not a Sister prohibited in Mar­riage, though the other be, or that the Sister by the Fa­thers side is not legally so near a kin as the Sister by the Mother. So Albericus Gentilis determines in this De Nupt. L. 5 c. 10. p. 540. very case, ut tanto minus fuerit peccatum, quanto est carnis conjunctio simplicior & minor a patre. And in another place, in his Paraphrase upon one of the Levitical prohibitions he says. Filiam matris tuae, Ib. c. 8. p. 522. hoc est, uterinam sororem ne accipias, pari ratione (cum filia patris tui) aut forte etiam majori: quia conjunctio carnis major ex parte est matris; and this was perhaps one reason among others, why the Marriage of Clau­dius with Agrippina his Brothers Daughter was not on­ly ratify'd, but perswaded by the Senate; for Tacitus, Suetonius and Zonaras do all of them speak of it after Tacit. An­nal L. 12. Sueton & Zonar. in Claudio. such a manner, as if he were almost compelled to what he did by the importunity of the Senate and People: which I, for my part, when it was so una­nimous, can scarce believe to have been dissembled, especially to so easie a Prince as Claudius is represented, I am sure we do not live in such flattering times, though we have the Honour and happiness of much better Princes to sway the Scepter over us, than ever the Romans could boast of, and the example had been like to have been imitated afterwards by that good Prince Titus Vespatian, who recom­mended Sueton, in Damitia­no, juxta finem. his Daughter for a Wife to his Brother Da­mitian, though he did not think fit to accept of her in any higher quality than that of a Mistress, which, as to the business of Incest was the same thing.

Besides, that several of the after Emperours did con­firm this Licence, (though afterwards it were re­strain'd Mosaic. & Roman. legg. col­lat. tit. de incest. Nupt. p. 92. and prohibited again by others) as appears by the Edict of Diocletian and Maximian publisht in the Fragments of Pythaeus, where the marriage of the Sisters Daughter, (not that of the Brother) is only forbidden. And Ʋlpian saith, speaking of his own time, nunc ex tertio (gradu) licet uxorem ducere, where when Cujacius would correct it Quarto, he is [Page 72] deservedly chastised for it by Albericus Gentilis, for Alberic. Gent. der. Nupt. l. 5. c. 10 p. [...]39. Ʋlpian certainly meant, that it was lawful in his time to marry the Brothers Daughter, though not the Sisters. Nay, that even in Justinian's time the Fe­male Consanguinity was more Sacred, and the con­junction with it more Incestuous than the Male, though it is true, the Marriage of the Brother's Daughter were in his time forbidden likewise, appears by this resolution of Papinianus ad Plautium. Sororis proneptem non possum ducere uxorem, quoniam parentis loco ei sum. He do's not say, Fratris proneptem, but Tit deritu Nupt. l. 39. Sororis, implying the latter to be much more Sacred, and more indispensably prohibited than the former. Neither can any reason be given why Caracalla, who married his Mother-in-law, was never imitated so V. Sparti­an in Ca­racalla. commonly as Claudius, bating the difference of Age betwixt a Mother-in-law and a Niece, but that the one was always look'd upon to be much more fowl and incestuous than the other.

Lastly, St. Ambrose dehorting Paternus from mar­rying his Son to his the said Son's Sisters Daughter by Paternus the Fathers side, which was but the Halfe-blood, durst not say positively, that it was against Law, (though it were a Sisters Daughter) as this is not, being only the half Sister by the Fathers side. Hic autem gradus tertius est, qui etiam civili jure a consortio conjugii exceptus videtur. And now I con­clude from the Premises, that the Marriage of the Ʋncle to his Half-brother by the Father's sides Daughter cannot without Ignorance or Wickedness: and in either Case without palpable injustice be Vacated or Dissolved.


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.