ADDENDA & MUTANDA, In the Late DEFENCE OF THE MARRIAGE OF AN UNCLE with his NIECE Being the Daughter of the Half-Brother BY THE FATHER's SIDE.  
By the Author of that Defence.  
LONDON, Printed Anno Dom. 1686.   

Addenda & Mutanda, In the late Defence of the Marriage OF AN UNCLE with his NIECE, ●eing the Daughter of the Half-Brother by the Father's Side.  
PAge 20. And they take no manner of notice under the second of these Heads— of the Marriage of the Uncle with his Brother or Sister's Daughter.) This, I confess, is not very agreeable to what I have written in my Resolution of Three Matrimonial Cases, p. 3. Where, to prove that a Parity of Reason ought to be allowed in Matrimonial Prohibitions, I appeal to the Practice of the Jews; and I did it with reference to this very Case of an Uncle marrying his Niece, though it appears the Jews have not where forbidden it: And the Reason of the Mistake was, That in general I remembered very well, that the Jews did prohibit several Degrees, which are not expressly set down in the Law of Moses; and the Marriage of an Uncle with his Niece, seeming to me at that time, to have so exact a parity of Reason with that of an Aunt and her Nephew, though now I am unalterably of another Opinion, and I presume, I have shown very good reason for it; I took it for granted, without consulting the particular Authorities which I there mention, and being in very great haste, as will appear by comparing the date of my Resolution, with the time when those Questions were proposed to me, which will appear by the Preface to those Cases, that the Marriage of an Uncle with his Niece was forbidden by the Jews themselves.  
P. 35. Fratres patrueles, consobrini, amitini, etc. To this it belongs what my Lord Vaughan saith in his Reports. Harrison and Burwells Case, p. 241. in the British names of Kindred my Father's Cousin German hath the Appellation of my Uncle, and again in the very next Paragraph. The word Uncle is an equivocal Expression, and in several places signifies several Relations; as in the British, the Father or Grandfather's Cousin German is accounted an Uncle to the Son.— But this was for no other reason, but because Cousin Germane in ancient esteem were looked upon as Brothers, and unless when they express it by a Periphrasis, the Hebrews have no one word to signify a Cousin German, unless you will grant it to be included under the name of Brother, which as it belongs in its utmost latitude, to the Nation of the Jews, and then more restrictively to all of the same Tribe, the same Family or Kindred, so next to its most narrow and proper acceptation, it belongs most peculiarly to a Cousin German, especially when the Declarative Circumstance is added, of his being born abroad.  
P. 39 The Jews interpret this place of two real and proper Sisters, etc.) That is, the Rabbinical Jews, for the Karraites understand it as I do, as a prohibition of Polygamy, and in this they are followed by Franciscus Junius and his Fellow-Partner in the Translation of the Bible Emanuel Tremellius, a converted Jew.  
P. 42. This was not at first denied to Clergymen themselves) this is thus far true, that being married before hand, did not hinder a Man from entering into Holy Orders, but after he was once entered, he could not Marry, though I confess, I did not consider this when I wrote this Paragraph, but this is an Observation, though natural from the Premises, yet foreign to our purpose; and it is no matter as to this particular business, whether it be true or no.  
P. 48. That Marriage cannot be divorced by virtue of any Law— which is neither expressly forbidden in itself, nor stands in the same rational parity with that which is) This is no more than what my L. C. J. Vaughan saith in the Case already mentioned, p. 209. If Marriages neither prohibited in terminis in Leviticus, nor being in the same Degree with a Marriage there prohibited, should be unlawful, there would be no stop or terminus of unlawful Marriages.— Now I have proved undeniably, That the Uncle and Niece is really a Degree lower, when we speak of Marriage, than the Aunt and Nephew: And besides, supposing the Marriage of the Uncle and Niece had been forbidden expressly, or by just and lawful Consequence, as it is by neither; yet here there would two other Questions have arisen: First, Whether the Prohibition did equally extend to the half Blood as the whole? And this St. Ambrose, tho' otherwise a rigid Man in these Cases, seems to have doubted very much; at least, he would not absolutely pronounce the Half Blood to be unlawful, in the Case of an Uncle Marrying such a Niece; but he saith of it, Hic autem gradus tertius est, qui etiam jure civili a consortio conjugii exceptus videtur; doubting, as it seems, within himself, whether the Obligation of that Civil Law, which forbade the Marriage of the Sister's Daughter, did extend so far as to the Half Blood or no, and much more to the Half Blood by the Father's Side, which was the Case of Paternus his Son. And from hence the second Question arises, Whether the Half Blood by the Father's Side, be not still a Degree or a Remove further than the Half Blood by the Mothers? And this Question, after what I have said concerning it, I leave to the Adversaries of this Cause to determine for themselves; and if notwithstanding that the Marriage of the Uncle and Niece is not forbidden any otherwise than by a Parity betwixt that and the Marriage of an Aunt with her Nephew; and if this Parity be no Parity at all, no more than Even and Odd are paria to one another; if besides this Disparity, which I have shown to be threefold in the first Case, there be likewise a twofold Disparity arising from the Half-Blood, he must needs be a very hardy Man, that in the face of five good Reasons against his Assertion, will still pretend to say the Case is the same. At this rate of arguing, any thing may be inferred from any thing, and we may say very safely and assuredly with my Lord Vaughan, That there will be no stop or terminus of Unlawful Marriages. And in another place, to assure this Point the more effectually, the same Reverend and Learned Justiciary saith, We take the Degrees of 
240. ib.  Marriage, prohibited by God's Law, to be the Levitical Degrees expressed, or necessarily implied by Parity of Reason, or a fortiori.  
P. 54. The Argument of St. Ambrose against the Marriage of the Uncle with his Niece, presses the hardest of any other upon us.) My Answer to this Objection of St. Ambrose, to the best of my understanding, would not be unsatisfactory, tho' it had been the Niece by the Whole Blood, as it was not. But this was Man's Case in Crook's Reports, who for Marrying his 
ut sua p. 247.  Wife's Sisters Daughter, which is a Niece in Affinity, was by the High Commissioners divorced, upon this Reason, because Degrees more remote * were forbidden, 
That is, ●●isin Ger●●●s.  tho' they confessed themselves at the same time, that it was not prohibited within the Levitical Degrees; and for that Reason, upon the Suit of the Plaintiff, a Prohibition 
ib. p. 24  and Consultation was granted; but the Issue of it cannot be found upon Record.  
After this, in the time of King James the First, for the former Case was in the Reign of Queen Elizabeth) there was such 
ib.  another Case of one Richard Pearson, wherein a Prohibition was granted out of the Common-Pleas Court, for Marrying his Wife's Sisters Daughter; and it was resolved by the said Court, upon consideration of the Statute 32 H. 8. c. 38. That the Marriage was not to be impeached, because declared by the said Act to be good, in as much as it was not prohibited by the Levitical Degrees. Which Determination of the Judges of that Court, at that time, must of necessity proceed upon one of these two Suppositions; either that our Law had no regard to Parity of Reason in these Cases; or, that there was indeed no Parity betwixt the Marriage of an Aunt and Nephew, and that of a Man's marrying his Wife's Sisters Daughter, which is his Niece by Affinity. But now, since Consanguinities and Affinities, by the Levitical as well as Civil Law, are the same, and equally forbidden to the same Degrees, it follows, That if in the Judgement of our Law, the Marriage of the Wives Sisters Daughter shall stand good, so shall that likewise which is Consummated with her who is Daughter by the Half-Brother on the Father's Side. And indeed, the Half Blood by the more uncertain and imperfect Side, makes it still come nigher to Man and Pearson's Case, and makes it rather an Affine than Consanguineous Relation.  
Furthermore, in the Case of Harrison and Burwell itself, Harrison had Married his Great Aunt, the Widow of Abbot his Grandfather's Brother; and my L. Vaughan declares this Marriage to be valid, p. 207. And this Case, by the 
(a) Hill. 21 Car. 2.  King's Command, being referred to the Opinion of all the Judges of England, 
(b) Trin. 22. Car. 2.  the Chief-Justice delivered their Opinions, and accordingly Judgement was given, That a Prohibition ought to go to the Spiritual Court for the Plaintiff.  
Now there is nothing more clear, than that the Aunt is expressly forbidden to the Nephew in Marriage; and for this Reason, which the Law assigns, She is thine Aunt, thy Senior, thy Superior, and, in Construction of Law, Parentis loco. All which do hold as well, tho' not so immediately, and indeed the two first much more strongly, in the Great Aunt, than in the Aunt at the first remove. As the Jews in their prohibitory Tables do forbid by Analogy of Reason, as they conceive, not only the Wife's Mother, which is expressly forbidden, Levit. 18. 17. but also her Grandmother, 
V Selden Ux. Hebr● L. ●. c. ● & de ju● Nat. & Gent. L. 5● c. 10.  the one being looked upon Parentis loco as much as the other, though not so immediate as the other is; but the Law of England proceeding only by the Letter, without any regard, or at least very little to Parity of Reason, (for the Marriage of the Daughter and the Whole Sister are not inferred to be unlawful by a Parity, but by a manifest Superiority of Reason) would not disannul the Marriage of the Great Aunt, though the immediate were so expressly forbidden.  
And to show yet further, That our Law in Matrimonial Cases does not proceed by Parity of Reason, at least where that Parity is so obscure, and so many ways defective, as it is in our Case; there are two passages of the same Judge Vaughan in his Report of the aforesaid Case of Harrison and Burwell which are very well worthy our notice and observation; the first is, where speaking of the Act 32 H. 8. c. 38. he saith, p. 211. Those words, God's Law except, must refer to such other Marriages as by God's Law might be impeached, and not to any for consanguinity or affinity, for had not those words been, the generality of expression, no Marriage shall be impeached without the Levitical degrees, had excluded the impeaching Marriages for plurality of Wives or Husbands at a time, for Impotency, and for Adultery, as Sir Edward Coke observes, at the end of his Comment upon this Statute in his second Book of Institutes.— Adultery and Polygamy are both of them forbidden by the Levitical Law, but when we speak of the Levitical Degrees of Affinity and Consanguinity, they cannot properly be referred to them, and the sense of these two Reverend and Learned Gentlemen is this, that though Adultery, Polygamy, and Impotency are warrantable Causes of Divorce according to God's Law, yet if the Act of Parliament had not mentioned God's Law, but only insisted upon the Levitical degrees, there could no Divorce have ensued, by the Law of England, which keeps itself most strictly to the Letter, in any of these Cases.  
The other Passage which I aim at is this; where speaking of the Acts of Parliament 25 & 28 H. 8. concerning the Succession, wherein the Matrimonial Prohibitions are limited and declared from the Levitical Law, he saith thus, p. 216. The Marriages particularly declared by the Acts to be against God's Law, cannot be dispensed with; but other Marriages, not by the Acts declared in particular to be against God's Law, are left statu quo prius, as to Dispensations with them: that is, so far as concerns the Levitical Degrees, they may be, and are actually dispensed with; not by the Pope, whose Power of Dispensation was now abolished and abrogated for ever; nor by any Priestly Absolution, which accounts only for what is past, but cannot make any thing lawful de futuro, which either the Law of God or Man makes null and void: but by the Law itself, which by not prohibiting such Marriages, hath made them Lawful.  
It is true indeed, there are other Bars to Matrimony, besides the Levitical Degrees, which are included in the Act 32 H. 8. c. 38. under the general Term of God's Law, as hath been already observed: But yet my L. C. J. Coke was of another 
Cok. Lit. F. 235. a.  mind, he understanding God's Law and the Levitical Degrees, to be only Terms declarative of one another. And in this Interpretation he seems to be favoured by the Words of the Act of Parliament, 28 H. 8. c. 16. whereby it is Enacted, That all Marriages solemnised within this Realm— which be not prohibited by God's Law, limited and declared in the Act made this present Parliament, for establishing the King's Succession, or otherwise by Holy Scripture, shall be lawful and effectual by Authority of this present Parliament. Where there is no Question but by God's Law and the Levitical Degrees limited, and declared by that Act of Parliament, as also by another before it, in the Twenty fifth of the same King, the same thing is to be understood; but when it is added, or otherwise by Holy Scripture; it is employed by this, that there are other bars to Matrimony besides the Levitical Degrees: Yet notwithstanding, when in the Act 32 H. 8. c. 38. God's Law is only mentioned, without the insertion of that other Clause, or otherwise by Holy Scripture, we must either say, that the Parliament at that time had not so great a deference and regard to Holy Scripture, as when the former Act was made, or else, that under the comprehensive terms of God's Law, not only the Levitical Degrees, but all Scripture in general is included, and this is certainly most reasonable to believe, the Design and Intention of all these Acts of Parliament being only to reduce the Matrimonial Prohibitions, and the causes of Divorce to the Standard of God's Revealed Will, and to evacuate, annul, and disappoint the Encroachments and Usurpations of the Canon Law; so that in this I agree perfectly with Vaughan against Coke, but this does not properly concern our Case, for it is the Levitical Degrees and they only to which we are to appeal.  
I wish my Lord Vaughan, as he disagrees with Coke in this particular, in which we are not concerned, so in another in which we are, he had not disagreed with himself. For notwithstanding, in what hath been cited out of him above, he does so plainly intimate, that we are not to strain the obligation of these Laws beyond the Letter of them; yet, p. 216. he says, No degrees being mentioned in the Statute to be prohibited by God's Law, but those which are expressed, it cannot thence be concluded, that the Statute intended no other than those to be prohibited by God's Law, for take the words at most advantage for the purpose, viz. Since many inconveniences have fallen by Marrying within the Degrees prohibited by God's Law; that is to say, the Son to Marry the Mother, the Brother the Sister, etc. in the same manner is it, if a Statute should say, Since many inconveniencies have happened, 
P. 217.  by doing things prohibited by the King's Laws; that is to say, by depopulation of Farms, by substracting of Tithes, etc. It would not be concluded that the things so enumerated were all the things prohibited by the King's Laws.  
For, besides that this seems to be a flat Contradiction to what he had said before, That all Marriages particularly declared by 
P. 216.  the Acts to be against God's Law, cannot be dispensed with; but that all others may; or in Words to that effect; the Case is not the same in these two several Examples: For, when we speak of Levitical Degrees prohibited by God's Law, and then enumerate all the several Particulars, as they are set down in Leviticus, than which there are no more Particulars of Prohibited Degrees any where to be found in Scripture, in this Case God's Law, and the particular Branches of it thereafter expressed, being taken all together, are coextended to one another. But when we say, Whereas many Inconveniencies have happened, by doing things prohibited by the King's Laws, that is to say, etc. instancing in three or four Particulars only; it is manifest, that the King's Laws are abundantly of greater latitude than the Particulars that follow. But yet the words, That is to say, in both Cases refer only to the Particulars thereafter expressed; and if there be any other things prohibited by the King's Laws, which are not expressed and enumerated in these Particulars, the abstaining from such forbidden Practices as those, is not bound upon us by virtue of this Law, but by the particular Sanctions of other respective Laws, wherein those Offences or Enormities are forbidden: For it would be a strange thing for a Man to be hanged for stealing an Horse, by virtue of a Law which punishes the Nonpayment of Tithes. How can those words, That is to say, be referred to those Particulars which are not where said or expressed? or the words before-rehearsed, or above-expressed, to those which are not where rehearsed, or expressed? I do not say that a Parity or Superiority of reason is not to be admitted, but I say the words of a Statute, which is the Statute-Law, will extend no further than themselves, and in what instances this Parity or Potiority of Reason lies, belongs to a Court of Conscience, or of Equity to determine, but then these Instances are not referred to by the Words, that is to say, or by the Words afore-rehearsed or above expressed, which belong only to the naked Letter of the Law, but they are pointed at by the Instances themselves, as those Instances by Parity or Superiority of Reason do point at other Instances that are not mentioned; as for example, When it is forbidden to Marry the Half-Sister, this evidently darts a Prohibition upon the Whole-Sister likewise, because the Whole-Sister is really the Half-Sister and something more; and when it is forbidden for a Man to Marry his Grandchild; this points still more strongly upon his Daughter: for, if the Grandchild be forbidden for the sake of the Daughter, as there is no question that is the reason, the Daughter is much more forbidden for her own and her Father's sake, and for the sake of the Grandchild, who is for her sake expressly forbidden at a further remove: But if where there is neither an express Prohibition, nor so much as a Parity of Reason, we will suppose a Law, notwithstanding to oblige, which is exactly our Case; we may as well extend the Prohibition in infinitum, so that there need have been but one Prohibition of Marriage, and that would effectually have barred all other Instances that can be supposed, for where a Prohibition stops not with Parity of Reason, what other Limit or Boundary can we set?  
Neither let any Man take shelter in Archbishop Parker's Matrimonial Table, which being first published in 1563. was afterwards in the Year 1603. among many other Canons of a Convocation held that Year, being 1 Jacobi 1. ratified, confirmed and allowed under the Broad Seal of England, in which Matrimonial Table among other Prohibitions the Marriage of an Uncle with his Niece is forbidden.  
For this Table was made with an unquestionable regard to the Levitical Prohibitions, and it was upon supposition of a Parity of reason betwixt the Marriage of an Uncle with his Niece, and that of an Aunt with her Nephew; that the former of these was prohibited in that Table, notwithstanding it be not expressly mentioned in the Law of Moses itself, but now since I have shown plainly that there is no such Parity of Reason as is pretended, the Table cannot prohibit such Marriages any longer, unless the Act of Parliament must give place to the Table: For by the Act of 32 H. 8. c. 38. it is expressly ordained, that, No Reservation or Prohibition, God's Law except, shall trouble or impeach any Marriage without the Levitical Degrees; and what those Degrees are, appears by 28 H. 8. c. 16. wherein those Degrees are said to be limited and declared in the Act made for establishing the King's Succession, which is, 28 H. 8. c. 7. wherein the Degrees expressly mentioned and set down in Leviticus are expressed, and none other; and if we add any other, but what are included in the Degrees mentioned, either by Parity or Potiority of Reason, there can be no end of Prohibitions while the World stands, but they may be heaped and piled in infinitum upon one another, without any other Authority to make them good, than what either prejudice or fancy shall create. I demand therefore, if the Marriage Table had quite altered the Degrees mentioned in Leviticus and substituted others in their stead, whether it would have obliged or no, notwithstanding the Act of Parliament expressly saith, that, No Reservation or Prohibition, God's Law except, shall trouble or impeach any Marriage without the Levitical Degrees, which Degrees by another Act are limited and declared, as aforesaid? I believe no Man will be found so hardy as to take upon him the Patronage of this Doctrine, and since the reason is the same in all, there can be no Prohibition in any one Case, (and consequently not in ours neither) where the Law of Moses allows a Dispensation▪  
P. 58. And all such Marriages were pronounced Valid) It is true, this Act of Parliament, so far as concerns Precontracts was repealed 2 Ed. 6. 23. and that Repeal confirmed 1 Eliz. 1. but it was for the greater inconveniences which were found by experience by nulling of real Contracts, then by pretending of Contracts, where there were really none, which was the reason of the Act in Henry the Eighth's time, and is a plain instance in both Cases, for the Repeal was not founded upon Right but Convenience, that Laws in many Instances do not so much regard, Quid fieri jus fasque sit, as Quid expediat, vel intersit Reip. ut fiat, vel non fiat.  
P. 72. Being only the half Sister by the Father's side) the Daughter of the Half-Brother by the Father's side, which is a double Paternal Consanguinity, so that our Case is more favourable than that of St. Ambrose, which made him notwithstanding hesitate a little, in spite of all his Rigour and Severity in these matters; I suppose no Man will say, that the Half-blood and the Whole are the same; and Abraham's Case with respect to Sarah his Wife, is an unanswerable instance for the Father's side, that it is more favourable and more allowable in Marriage than the Mothers.  
Ib. Cannot without Ignorance or Wickedness, and in either Case without palpable injustice be vacated or dissolved) This ought not, and, I hope, it will not be interpreted as any disrespect to any Court of Justice, for I honour the Seats of Justice with all my Heart, and will do as much as any Man to the utmost of my Power to assert their just Authority and Reputation, for as much therefore as I am given to understand that there is a Sentence passed in this Cause to the prejudice of the parties in in whose behalf I have pleaded, I do hereby declare, that these Papers were written a good while before the passing of that Sentence, and that they were actually Printed before it was possibly for me to know any thing of it, besides that a wrong Sentence may sometimes be pronounced not only by an Upright Judge, but a Wise and Learned one too.—   

〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 AN ADDITION Of some other CONSIDERATIONS Not hitherto suggested.  
FIrst, As to the Half-Blood, the Talmudical Doctors were of opinion, that though it were forbidden for a Man to Marry his Brother's Wife, in any 
Selden U● Hebr. L. ● c. 2.  Case but only where the Brother died without Issue; yet this was to be understood only of the Brother by the same Father: but that it did not hold in the Frater Vterinus. Which Opinion of theirs was founded upon this Reason, That the Inheritance, which was the Reason of such Marriages in default of Issue, did not descend from the Mother, but the Father; so that the Law of the Leviratus was not concerned in the Case of a Frater Vterinus, who was reputed of another and a distinct Family from his Half-Brother by another Father, though the Mother on both Sides were the same. I confess, I am very clear and positive against the Rabbins in this: For whatever becomes of the Inheritance, it is certain, that in case of Issue, the Brother by the Father's Side was forbidden upon account of nearness of Kin; but that nearness, for the Reason already mentioned more than once, is certainly greater in construction of Law on the Mother's Side, than on the Father's. But I bring this Determination of the Rabbins, whether true or false, to show that they did not think the Half-Blood so sacred, and so indispensably prohibited as the Whole; and that the Half-Blood on one Side may possibly in some Instances be more severely prohibited than the other: And if this Doctrine will hold in any Case, it will certainly in ours, the Father's Side being certainly, as to Legal Construction, the weaker Consanguinity of the two.  
Secondly, Though my Lord Vaughan, 
●ill and ●●od 's ●se, p. ●2.  in Hill and Good's Case, be very inconsistent with himself, if we compare him with himself in Harrison and Burwell's, where he speaks very favourably of the Marriage of a Man with his Wife's Sisters Daughter: for in this latter Case of Hill and Good, citing all the same Precedents he had done before, he concludes, By all these Cases, the Marriage of the Husband with his Wife's Sisters Daughter, is a Marriage prohibited within the Levitical Degrees, for nearness of Kindred to the Wife: Yet afterwards he makes us a sufficient Amends, if a flat, positive, and deliberate Contradiction can do it. For within a very few Pages afterwards he puts the same Case, and resolves it as follows. A Man before 
ib. p. 326.  the third of November, 26 H. 8. by Dispensation from Rome, had married his Wife's Sisters Daughter, which Marriage was prohibited by the Canons of the Church; and no Divorce had been attempted in the Case, until after 1 Eliz. and the Reviver of the Statute of 28 H. 8. c. 16. which made void all Dispensations from Rome.  
It is plain, that this Marriage being not prohibited by God's Law, limited and declared in the Act of 28 H. 8. c. 7. was by the express Words of the revived Act of 28 H. 8. c. 16. a Marriage to continue good without Separation, notwithstanding all Dispensations from Rome were nulled; because it was no Marriage excepted out of the Grace intended to be given by that Act to the King's Subjects Married by Dispensation before November the third, 26 H. 8. and not then separated.  
And now from this Determination of my Lord Vaughan's, the Inference is plain, That our Case must stand a fortiori: For Consanguinities and Affinities in these Cases are the same, and prohibited to the same Degrees; a Man and his Wife are all one; and his Wife's Sister, as to this Particular, is the same with his own; and her Daughter, the same with his Consanguineous Niece by the Whole Sister; which if it be determined lawful, the Daughter of the Half-Brother is much more, the Half-Blood and the Paternal Consanguinity taken together, making the Case more favourable by Four to One, which is the exact Proportion.  
Thirdly, Though it be true what I have affirmed, That the Talmudists or Traditionary Doctors are agreed in permitting the Marriage of an Uncle with his Niece, and this as far off as the time of Josephus, and probably a great deal longer; yet the Karraites or Scriptuary Jews forbidden it, as well by the Brother, as the Sister's Side, conceiving it, as I suppose, to be included by Parity of Reason: But this is so far from being a Prejudice to our Cause, that it is the greatest advantage it can possibly receive, for it is absurd to think that the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the Misnical or Traditionary Jews were ignorant of this Opinion of the Karraitish Faction, and therefore their determination in this case did not proceed out of heedlessness or inadvertency, as it is found to have done in many others, but was certainly grounded upon one of these two bottoms, either that Parity of Reason was not to be regarded, and that, according to Ancient Tradition, it did not indispensably oblige their Forefathers, who upon Prudential Considerations assumed a latitude and liberty to themselves, either of entering into such Marriages, or abstaining from them; or else, that there was indeed no Parity in this Case, as certainly there is not, and much less in the Half-blood, and the Half-blood by the Father's side; and though I am no great friend to the Traditions of the Jews, which in many cases are monstruously fabulous and impertinent, yet where a Tradition hath reason to assert it, this is a great Argument of its Truth and Credit, and the Reason and Tradition do reflect upon each other a mutual Authority and Reputation.  
Fourthly and lastly, Though Archbishop Parker's Matrimonial Table were confirmed by Authority of a Convocation in the Second of King James the First; yet it is to be considered, that the power of such Assemblies, and Synods of the Clergy, and the Validity of what they shall determine is founded upon 25 H. 8. c. 12. and in that Act there is this provision made; Provided always, that no Canons, Constitutions or Ordinances shall be made or put in execution within this Realm, by Authority of the Convocation of the Clergy, which shall be contrariant or repugnant to the King's Prerogative Royal, or the Customs, Laws or Statutes of this Realm. Wherefore all the Question is, whether this Marriage be against the Law of God, as I think I have abundantly proved that it is not, and upon supposition that I am in the right, the Matrimonial Table, as to this particular Prohibition is of no manner of force or obligation, because the Statute of 32 H. 8. c. 38. expressly says, That no Reservation or Prohibition, God's Law except, shall trouble or impeach any Marriage. And this is all I have to say, only since there is a Sentence of Divorce already past in this Cause, I would humbly recommend it to those before whom the final determination of this Controversy shall lie, that they would reflect upon our Saviour's injunction in Cases of this Nature, whom God hath joined, (as he hath joined all those who being actually Married, are not antecedently by his Law forbidden to Marry) let no man put asunder, and that in the Judgement they shall give upon this Case, they would set the great Judge of Heaven and Earth before them as a Pattern, who hath told us not only for our instruction, but imitation too. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, I will have Mercy and not Sacrifice, and that in the midst of Judgement he remembers Mercy.  
FINIS.   

〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Reliquiae Secundae.  
I Did believe upon the Writing of my last Paper that I had exhausted the Argument which was the Subject of it, but upon further enquiry I find I have not, and there is further to be added, to what I have said already, as follows.  
First, Learned Men are divided in their Opinions, whether the Prohibitions in Leviticus are Natural, that is, founded and rooted in the Law of Nature, or in the Natural and Eternal Reason of things, or whether they are purely positive and no more. Of the first sort is Lyranus, Abulensis, Bonfrerius, Masius, Montanus, and Nicholas Serarius, and among the Reformed Mr. Calvin; of the latter is Paulus Burgensis, Cajetanus, C. a Lapide, Sanchez, and the Authors by him cited, Tirinus, Lorinus, Menochius, and Magalianus, and among the Reformed three great Authorities, Drusius, Episcopius, and our Learned Bishop Tailor; as for mine own Opinion, I must confess, that I incline rather to the Sentiments of the former, but they that think with the latter, that the Obligation of these Laws is positive and no more, they have no pretence for a Dissolution of this Marriage, because in Laws merely positive there is no such thing as Parity to be admitted, such Laws being all of them a manifest restraint upon the Natural Liberties of Mankind, and therefore ought not to be strained by Parities, and Interpretations, whether true or false, beyond the Letter of them.  
Secondly, As to my Interpretation of the Phrase of Dying Childless, it is confirmed by the Authority of the Learned Jesuit Stephanus Menochius, who in his Comment upon that place, hath these remarkable Words to the very same Sense with mine, Hi incestuosis none sinentur in hoc scelere permanere donec liberos habere possint, sed occidantur, and this, when all is done, is the true meaning of the Text, though the Jews who are horribly unskilful in the remote Antiquities of their own Nation have devised other fanciful Glosses which will not abide the test of a judicious enquiry, and that we may not wonder at this severity of punishing all Incestuous Conjunctions with Death, Paulutius Forojuliensis refers it as he very well might, besides the Reason I have given, to the Arbitrary disposal of Almighty God, who may annex what Sanction he pleases to his Laws, or, which is all one, to some Impulsive Cause or Motive which he hath not thought fit to reveal, so that with respect to us it is Arbitrary, let it be what it will in itself, where speaking of Congress with a Menstruous Woman being punished with Death, he says, Multa alia quae non sunt peccata mortalia puniebantur paenâ mortis ex aliquâ causâ legislatorem movente, ut esus Sanguinis.  
Thirdly, When it is said, Levit. 18. 6. None of you shall approach to any that is near of kin to him, to uncover their Nakedness. It is to be observed, that this nearness of kin is to be measured not from ourselves, but from the Fountain of Kindred, that is, from a common Father or Parent, as when it is said in the Prohibition of the Aunt by the Father's side, v. 12. Thou shalt not uncover the nakedness of thy Father's Sister, she is thy Fathers near Kinswoman. And again, v. 13. of the Aunt by the Mother's side, Thou shalt not uncover the nakedness of thy Mother's Sister, for she is thy Mother's near Kinswoman. It is plain, that though the Niece be at the same distance from me in the descending Line, that the Aunt is in the ascending, yet when the express Reason assigned in the Law, why I may not marry mine Aunt, is not because she is mine, but my Father or Mothers near Kinswoman, this is so far from darting any Prohibition upon my Niece, that it is on the contrary, plainly favourable and propitious to a Marriage in that Relation; because my Niece, who is my Father's Grandchild, is plainly at a further distance from him than mine Aunt who is his Sister; and that for two Reasons, First, Because the one is an immediate Relation, but the other, by the interposition of a Son or Daughter betwixt, is a Relation at the second remove; and because no Man or Woman can get or bear Children by themselves without the Conjunction of another, it is therefore only a Relation by the half Blood, and if it be the Niece by the Brother, there is not only the Half Blood to be considered, but that that Half Blood itself is the more weak and uncertain Consanguinity of the two, as hath been already frequently declared; so that if the nearness to my Father or Mother be the express Reason assigned in the Law of Moses, why I may not Marry mine Aunt, no Man can with any show of Reason infer from thence, that I am forbid likewise to Marry my Niece, because the distance is manifestly greater from the Fountain of Kindred, and the Relation unquestionably more imperfect.  
So also, when it is said, v. 14. Thou shalt not uncover the Nakedness of thy Father's Brother, thou shalt not approach to his Wife, she is thine Aunt. Here there are three things manifestly employed, First, That in the Levitical Prohibitions, Consanguinities and Affinities are considered as the same, and are prohibited to the same Degrees. Secondly, That the Reason of her being forbidden in Marriage is because she is my Brother's Wife, that is, in Construction of Law, my Father's Sister or near Kinswoman; And Thirdly, As in the two former Cases, that this is done out of respect and honour to my Father, with whom she stands upon the same Level or Horizontal Plane in the Scheme of Consanguinity or Affinity, so that to Marry mine Aunt is to make my Father's equal my inferior, and to subject her to the mean and servile condition of a Wife to whom I own the Service and Honour of a Parent. And this is the true Interpretation of those Words in this last place, She is thine Aunt; for every Man knows without the help of Revelation, that his Father's Brothers Wife is his Aunt; but there is manifestly included in them an intimation of her Superiority over us, by reason of her standing equal in the Table of Affinity with our Father or Mother, and therefore she ought not to submit to have her Nakedness uncovered by her inferior and dependant, or put herself into a condition of Subjection to him, from whom she may expect and challenge the Duty, Service and Allegiance of a Son; and therefore the Greeks called the Uncle and Aunt by the names of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, alluding, as I suppose, in the use of these words to the Ancient, Absolute and Arbitrary Power which all Parents had over their Children; so that as to all the instances to which their Power or Possibility of Action could extend itself, they were as absolute and unaccountable as God himself, and were his Vicegerents upon Earth in their respective Families, and the Uncle and Aunt were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, they had, as it were Aliquid divini juris in liberos liberasque fratrum & sororum, they had a right of Reverence, and a natural claim of Duty and Respect from their Nephews and Nieces, which were accounted but a remove from Children; and laid so great a weight upon all their Advices, Admonitions and Commands, that to disobey them in any thing not very unreasonable, was accounted an heinous Crime, although their Power of Coercion were not all out so great, as that of their natural and proper Parents.  
And now from what hath been just now said, it is plain, that the Reason of that Law by which the Nephew is prohibited to Marry his Aunt, being founded in these two things, First, In nearness of Kin, which is greater to the Father in his Sister than his Grandchild. Secondly, In the superiority and preeminence of the Aunt over the Nephew, I say, it is plain that it cannot from either of these considerations be inferred by any Parity of Reason, that the Marriage of an Uncle with his Niece is forbidden, and with respect to the latter consideration, the superiority is not violated by such a Marriage, but rather pleased and gratified by it, because it still continues where it was, that is in the Uncle, only by Marriage it is rendered more absolute and perfect, so that unless contraries may by Parity of Reason be inferred from contraies, there can be no inference from the Prohibition of an Aunt, which shall debar or obstruct the Marriage of a Niece.  
Fourthly, It is certain, that Amram took to Wife Jochebed his Father's Sister, and this could not be long before the giving of the Law, for of that Match Moses and Aaron and Miriam were descended; the thing is mentioned in more places than one of the Scripture without any manner of blame or reprehension, and we are not rashly to suppose Persons that were so highly honoured by God with a Prophetic Spirit, a gift of Miracles, a Priestly Character annexed for ever to the Family of the one, and a Legislative Power invested by God himself in the Person of the other, to have been Spurious or Illegitimate; from whence it follows, that whatever reasons of Convenience or Interest there may be to hinder such Marriages From being entered into, yet it was not a matter of absolute and indispensable Obligation till after the giving of the Law by Moses, and that if it had not been for the giving of that Law, it would have remained still in the same prudential indifference which it had before; for what is once lawful, must always continue so, till a supervening Law forbids it, and makes it unlawful; but if the Marriage of the Nephew to his Aunt were a Marriage good and valid before the giving of the Law by Moses, that of the Uncle to his Niece was much more, it being shown in so many and various respects to be so plainly a more favourable Case, and therefore not being any where expressly forbidden, it must continue still as it was, prudential and indifferent, and consequently lawful. For when restraints are laid upon lawful things, there is no inference from the prohibition of one thing to the prohibition of another by Parity of Reason, whether pretended or real, but the Prohibition stops within itself, and extends no further than the Letter, as if part of a Common Field should be enclosed, and this Enclosure established and warranted by Law, there lies here no Inference by Parity of Reason for the Enclosure of the rest, but what is not actually and legally enclosed, is common, and must remain open as it did before.  
Besides, that Moses by God's appointment should so severely forbidden the Marriage of an Aunt with her Nephew, a sort of Marriage of which he himself and his Brother Aaron were descended, bringing by that means a sort of Aspersion, and something that is, at least, very like a Reproach upon himself and his Family, upon his Brother Aaron and the Family of Priests that were for ever after descended from his Loins, and yet take no notice in the least of the Marriage of an Uncle with his Niece, in which he was not concerned, but might have forbidden it without any manner of reflection upon himself or his Relations, if God had intended to prohibit them both alike, is a thing to me so incredible, that nothing can be more, and I presume it will appear so to every indifferent Person that shall reflect upon it.  
Fifthly, There is also the Case of Achsah and Othniel in the Books of Joshua and Judges, in which, if we understand the Text so as that Othniel, who was the Son of Kenaz, shall be the Half Brother of Caleb by the Mother's side, for Caleb was not the Son of Kenaz but Jephunneth; then here is another Instance after the Law, of the Uncle Marrying his Niece, the Daughter of his Half Brother by the Mother's side; the Words of the Text are these, Jos. 15. 17. Othniel the Son of Kenaz, the Brother of Caleb took it: (Kirjath-sepher) and he gave him Achsah his Daughter to Wife. And again, Judg. 1. 13. Othniel the Son of Kenaz 
See also g. 3. 9  Calebs' younger Brother took it, (Kirjath-sepher) which words in both places may either be so Interpreted, that Othniel had this double Relation, he was the Son of Kenaz, and he was likewise Calebs' younger Brother by the Mother's side, and then Achsah the Daughter of Caleb will be Othniel's Niece, and his Niece by a nearer Consanguinity than that in the Case before us; or else, that Othniel was the Son of Kenaz, which Kenaz was younger Brother to Caleb; and so Othniel and Achsah will be Cousin Germane. Both of these Interpretations, if there were nothing else but these Words to be considered, are very natural and easy; but when I consider that after the Death of Caleb and Joshua the Children of Israel were made Captive by Cushan-rishathaim, for the space of Eight Years, Judg. 3. 8. that God raised up this Othniel to be their Saviour and Deliverer out of the Hands of this Oppressor, v. 9, 10. and that the Land had rest afterwards under the Government of this Othniel for the space of forty Years; no Man will ever think that Caleb and Othniel in that Age of the World could probably be the Sons of the same Mother, when it is so plainly demonstrable, that there was at least Forty nine or Fifty Years differance between their Ages, for to this Forty eight we must add one or two more, because before this period began they were both Cotemporary, and Caleb, if he were Brother to Othniel, was then the elder by a Year or two at the least.  
But this is not all, c. 2. 8. we have an account that Joshua died, and v. 10. That all that Generation, of which Caleb was one, were gathered to their Fathers, and then, before this Revolution of Cushan-rishathaim, we have an account of several other Oppressions which the Jews for their many Sins and Provocations laboured under; so that the distance between the Age of Caleb and Othniel is still considerably greater than what hath been represented. It remains therefore, that Achsah and Othniel were Cousin Germane, that is, Brother's Children, who in their Circumstance might lawfully Marry, for it appears, that Achsah was an Heiress, otherwise her Father could not have given her the Southland, as he did, and added afterwards to it the Upper and the Nether Springs, all which, by the Mosaic Platform of Inheritance would otherwise have devolved upon the Male Issue.  
If you ask how any Woman can be called an Heiress while her Father is yet living? I answer, That in strictness she could not yet be called by that name, there being no Inheritance necessarily devolved upon her, but her Father was now so old, that he was past the hope or expectation of any more Children: For at the first entrance of the Children of Israel into the Wilderness, he was one of the Heads of the Tribes, Numb. 13. 6. and one of those who together with Joshua and others, v. 17. were sent by Moses to spy out the Land of Canaan; after this they remained in the Wilderness Forty Years, and Joshua who seems to have been much of the same Age with Caleb, soon after his entrance upon the Land of Canaan died, being at his Death of the Age of an Hundred and ten Years, Josh. 24. 29. Judg. 2. 8. And if we allow ten or twenty Years by which Joshua, without any reason that appears, shall be supposed to be older than Caleb; the Age of Caleb at the Marriage of his Daughter Achsah, will be an Hundred or Ninety at the least, wherefore being so old and unfit in Person to be at the Head of a Vigorous Assault, he propounds the taking of Kirjath-sepher to some other with a reward, He that smiteth Kirjath-sepher and taketh it, saith he, to him will I give Achsah my Daughter to Wife; not that any one Man could take a City or Town by himself, or that every Man was fit to Command a Party; or that the Inheritance which was to go along with Achsah, could be legally diverted from Othniel, who was the next Heir Male of that Family, only by these general words he propounds the Conduct of the Expedition to Othniel with Promise upon Success, that he should immediately be Married to his Daughter, which the Old Man during his Life time, was not obliged to permit, and have part of the Inheritance in hand before hand. And this is the true State of this Case, which though in itself it be nothing to our purpose, yet there is an use that may be made of it, and that is this;  
That it would be very strange, if God had intended equally to prohit the Marriage of an Uncle with his Niece, as of an Aunt with her Nephew, not only that he should not where expressly prohibit the former of these, as he hath done the latter, but that the Holy Spirit in this particular Case of Achsah and Othniel should speak of the Marriage of Cousin Germane after such a manner, that many, and those very Learned Men too, have been induced to believe it was the Marriage of the Uncle with his Niece, for of this Opinion were most of those whom I have already cited as Asserters of the merely positive Obligation of the Mosaic Law.  
Sixthly, and lastly, Though I am far from disputing the King's Power in dispensing with a Statute in Cases of necessity, of which he is the Judge, yet in ordinary Cases he is never supposed to intent it, and it is certain, that when among other Articles presented to him by the Convocation he gave his Royal Assent to the Matrimonial Table, in which the Uncle is prohibited to Marry his Niece, the Convocation themselves were of Opinion, that this Degree was some way or other prohibited by the Law of Moses, and the King agreed to this Prohibition among others, upon that supposition, but now since it appears so plainly, that this sort of Marriage was never actually forbidden by the Law of Moses nor so much as intended to be forbidden, either nothing but God's Law can impeach any Marriage, and by consequence this cannot be impeached, or else an Act of Parliament may be Repealed by an Act of Convocation, which yet hath no Power to make any Laws or Ordinances whatsoever, but what the Parliament itself hath given it, and the Parliament can never be supposed to put a Power destructive of their very Constitution into the Hands of the Clergy met together in a Convocation; nay, they have expressly provided, with the King's Royal Assent, who, without necessity, which cannot here be pretended, will never break his Word with his People, and then the breach of it is the truest Justice, that no Convocation shall exercise any such Power.  
FINIS.   

AN Additional Advertisement Concerning the HALF-BLOOD.  
DEut. 13. 6. It is provided in case of Idolatry; If thy Brother, the Son of thy Mother, or thy Son, or thy Daughter, or the Wife of thy Bosom, or thy Friend which is as thine own Soul, entice thee secretly, saying, Let us go and serve other Gods, etc. v. 8. Thou shalt not consent unto him, nor hearken unto him, neither shall thine Eye pity him, neither shalt thou spare, neither shalt thou conceal him; v. 9 But thou shalt surely kill him; thine Hand shall be first upon him to put him to death, and afterwards the Hand of all the People.  
The meaning of this Law is, that Idolatry should certainly be punished with Death, let the Relation be never so nigh, or the Endearment and Friendship never so great, as appears by those Words, Or the Wife of thy Bosom, or thy Friend which is as thine own Soul; and when it is said, Thy Brother the Son of thy Mother, without mention of the Brother by the Father, it is employed, that the one is nearer of kin than the other, in the Interpretation of the Levitical Law, this best answering the intention of this Law of Moses which did oblige them not to conceal even their nearest Relations, and in this Prohibition the Brother being the Son or supposed Son of the Father is included a fortiori.   

Books written by the same Author, and Printed for Walter Kettilby, at the Bishops-Head in St. Paul's Churchyard.  
1. ANimadversions upon the Doctrine of Transubstantiation, in a Sermon Preached before the Lord Mayor, October 19th. 1679.  
2. A Discourse of the Divine Omnipresence and its Consequences, in a Sermon Preached before the Honourable Society of Lincolns-Inn the first Sunday of Michaelmas Term, 1683.  
3. A Sermon Preached before Sir P. W. 1681. with Additions. To which are annexed three Digressional Exercitations. I. Concerning the true time of our Saviour's Passover. II. Concerning the Prohibition of the Hebrew Canon to the Ancient Jews. III. Concerning the Jewish Tetragrammaton, and the Pythagorick Tetractys. Quarto.  
4. Two Discourses Introductory to a Disquisition, demonstrating the unlawfulness of the Marriage of Cousin Germans, from Law, Reason, Scripture and Antiquity. Octavo.  
5. A Letter of Resolution to a Friend concerning the Marriage of Cousin Germane. Octavo.  
6. A Resolution of Three Matrimonial Cases, viz. I. Whether it be lawful for a Man to Marry his disceased Wives Sisters Daughter. II. Whether the Half-Blood makes Kindred. III. Whether such a Marriage being made, it ought to be dissolved or no.  
7. Boaz and Ruth, A Disquisition upon Deut. 25. 5. concerning the the Brother's Propagating the Memory of his Elder-Brother deceased; in which the Antiquity, Reason and Circumstances of the Law are Explained, the Mistakes and Impositions of the Jewish Rabbins in this and other matters detected, and a fair way opened for a clearer understanding of the most obscure and dark places in the Law of Moses; together with a discovery of several things as well in the Eastern as Roman Antiquities, never yet explained or understood by any.  
8. An Argument in defence of the Marriage of an Uncle with the Daughter of his Half Brother by the Father's side. Octavo.