AN ABSTRACT OF THE ARGUMENT IN Mr. TVRNER's PAPERS Concerning the MARRIAGE OF AN UNCLE With the DAUGHTER OF HIS HALF-BROTHER BY THE Father's-side.  
LONDON, Printed in the Year, 1686.   

AN ABSTRACT OF THE ARGUMENT IN Mr. TVRNER's PAPERS Concerning The Marriage of an Uncle with the Daughter of his Half-Brother by the Father's side.  
FIRST, The aforesaid Marriage is not expressly forbidden in any Act of Parliament, wherein the Degrees prohibited are set down.  
Secondly, It is not expressly mentioned in the Levitical Law, which the Law of England follows as its Pattern.  
Thirdly, The Law of England, especicially in its Penal Sanctions, hath no regard to Parity of Reason; and the Case is usually the same in Privileges or Exemptions: This appears by several Proofs alleged to this purpose, pag. 25, 26, 27. of the First Discourse. And this is likewise proved more largely by three other Considerations mentioned afterwards, pag. 68, 69, 70. The First is of a Privilege allowed by Act of Parliament to a Knight's eldest Son, which shall not extend to the eldest Son of a Baronet. The Second is a Matrimonial Custom, concerning the Marriage of two Brothers to two Sisters, or of Brother and Sister to Sister and Brother; or of the Son-in-law to the Mothers-in-law Daughter, or Fathers-in-law Daughter, which are not so much as pretended to be disallowed by our Law, notwithstanding they are all of them so great and manifest violations of the great and fundamental Reason; if all these Prohibitions, which was to spread Friendships, and propagate  and Charity amongst Men, by not restraining the Matrimonial Affinities within too narrow a a compass. The Third is taken from the express words of the Statute, 25 H. 8. c. 22. wherein the particular prohibited Degrees which are there enumerated and set down are ushered in with a, that is to say; and afterwards there is reference made to the said Degrees by the words Afore rehearsed, and above expressed; by which it is manifest, that this Act sticks closely to its own Letter, without admitting Parities or probable Interpretations, it being absurd to suppose the words that is to say, to refer to those particulars, of which no mention afterwards is made; or that the words afore rehearsed, or above expressed, can refer to such pretended Instances of Prohibition as are not where rehearsed or expressed; for certainly it is one thing to rehearse or to express, and another to intimate, to infer, to argue by Parities, Consequences, or Deductions, how natural, easy, and genuine soever they be: And this is still farther made out against the exception of my Lord Chief Justice Vaughan, pag. 13, 14, 15, 16. of the Addenda & Mutanda.  
Fourthly, Learned Men are divided in their Opinions concerning the Nature of these Laws, whether they be Natural or merely positive: Among the latter sort are Paulus Burgensis, Cajetanus, C. à Lapide, Sanchez, and the Authors by him cited, Tirinus, Lorinus, Menochius, and Magalianus. And among the Reformed, three great Authorities, Drusius, Episcopius, and our Learned Bishop Tailor; and they that with these Gentlemen are of this Opinion, that the obligation of these Laws is positive and no more, they have no pretence for a dissolution of this Marriage; because, in Laws 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.  
Fifthly, Though we should allow the prohibitions of Leviticus, to proceed all of them upon the Measures of Nature, yet though the Laws are Natural, the Sanction of them is positive, and no more; for God might have assigned other punishments if he had pleased, as Servitude, hard Labour, Ignominy, Fine, Confiscation, Imprisonment, the loss of any Limb, or Member, or any other Punishment short of life itself, 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 itself hath not assigned any?  
Adultery by the Law of Moses, was punished with Death in both parties, but by ours it is not so, which is a plain Argument, whatever may be said of unlawful Marriages, or 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 expressly determined by our Law, or at least expressly left to the Discretion of the Judge, or Court, or of any other Person or Persons to whom the Cognizance of the Matter shall appertain; in this Case no Punishment can lawfully be inflicted: How then can we with Justice proceed to a Divorce in case of such a Marriage as to which the Levitical Law is silent as well as ours?  
So likewise in the Case of Buggery or Bestiality, it was Death without Mercy by the Law of Moses; and so it is by ours made Felony without benefit of Clergy; but this was not till the 25 H. 8. and if by that or some other Statute, provision had not been made, we must either say, that that Act of Parliament was altogether fruitless, or else, that it would not have been Capital to this Moment. Wherefore there being no Punishment expressly assigned, or expressly left to the Judgement and Discretion of any Ecclesiastical or other Judge by our Law, though it had been expressly prohibited, and more than that expressly punishable by the Law of Moses, for a Man to Marry his Niece; yet▪ notwithstanding it could not have been so by ours.  
Sixthly, If Cousin Germane in the common practice and usage of our Laws are not prohibited to Marry with each other, notwithstanding the Dispensation granted to the Daughters of Zelophehad, which Dispensation shows it undeniably to have been prohibited in all ordinary Cases, and, as it was, it concerned only the particular Oeconomy of the Jewish State, and the preservation of the Mosaic Platform of Inheritances among that People, I say, if they are notwithstanding allowed to Intermarry, merely for this Reason, because they are not expressly mentioned in that Act of Parliament, wherein the prohibited Degrees are specified and set down, how shall not then the same privilege be extended for the same, and for a greater Reason to the Uncle and the Niece, who are not only not expressly mentioned as Persons prohibited and disallowed by our Law, but are not so much as mentioned in the Law of Moses itself, where Cousin Germane are undeniably forbidden?  
Seventhly, In the Eighteenth of those Canons which are called Apostolical, and are without question of great Antiquity and Authority in the Church, A Man that Marries his Brother's Daughter is not by virtue of the said Canon divorced from his said Marriage, or excluded from the Communion of the Church, or debarred any other Privilege, or Immunity of a Christian Man, or of a Member of the Body Politic, or Ecclesiastic whatsoever; only for Examples sake, he is not permitted to enter into Holy Orders; which though it show sufficiently, that the Compilers of these Canons were against all Marriages in this Degree, and therefore the Clergy were prohibited for an Example to others; yet it is plain, that at the same time they did not look upon it as a Marriage prohibited or detested by the Law of God, and such as Christianity, which hath a more tender regard to the propagation of Friendship and , than the Law of Moses had, lays an absolute and indispensable obligation upon us to avoid: And this being, as it is, such a plain testimony of the Opinion of the Ancient Church concerning Marriages of this Nature, carries great Weight and Authority along with it, for the deciding this particular Case in favour of the parties that are concerned in it.  
Eighthly, Though this Marriage should be granted to be antecedently prohibited and unlawful; yet it doth not presently follow, that being actually Solemnised and Consummated by fruition, it shall be made null and void.  
Mr. T. in his First Paper hath given several 
From. p. 2. ●o 18. Pag. 42, 43, 44, ib. & in addend. pag. ●.  instances of unlawful Acts, which yet notwithstanding, were valid ex post facto; but what he saith as to the Case of Polygamy comes still more home to our purpose, which though it was forbidden by the Law of Moses, yet a Divorce was not to ensue upon it; neither was the Christian Law less tender of a Divorce in the Case of Polygamy with respect to such Parties as had engaged in it, before they became Disciples and Converts to Christianity, than the Jewish was, though after our having once embraced that holy Profession; it is now not only unlawful ex Antecedenti, but a Divorce ought to ensue at least, besides what other Punishments the Civil Laws shall think reasonable to inflict after such Polygamy is actually engaged in, not only because of the general design of Christianity, which aims much more earnestly at all the highest instances of Charity and  than the Jewish Dispensation did: And therefore the state of Polygamy, which is a natural occasion of strife, can never be a lawful Christian State; but also because this Union of the Husband to one Wife, as one and the same Flesh is declared to be a Symbol of the inseparable Union of Christ and his Church, and of the entire and incommunicable Love of the one to the other: And on the other hand, Polygamy, by the Rule of Contraries, is a Symbol of Polytheism, or of the Worship of many and false Gods, which is the most directly opposite to Christianity that any thing can possibly be conceived to be: Wherefore, if the Law of Moses, and if the Christian Dispensation itself 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 aught it to be in ours, where there is not only no Punishment assigned (which we acknowledge to be true of Polygamy itself) but also no express Prohibition to be found; and where the Breach of Charity, the Honour of Christianity, and the incommunicable respect and service due to the True and Only God, are the two first of them not so much, and the latter not at all concerned.  
Ninthly, 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, Levit. 18. Verse 12, 13, 14. by which the Nephew is forbidden to Marry with his Fathers or Mother's Sister, or Uncle's Wife, which is all the possibility of Auntship that can be supposed: And that all these Cases should be so expressly and so severely punished as they are Levit. 20. vers. 19, 20. and yet no mention in the least made of the Uncle's Marriage with the Niece, whither of half or whole Blood, or whether by Consanguity or Affinity in any wise whatsoever; so great solicitude on the one hand seems utterly inconsistent with so great carelessness and silence on the other, if the Law of Moses had intended to prohibit both these sorts of Marriages alike.  
Tenthly, What Opinion our best Lawyers have had of Marriages of this kind, may be seen by these following Precedents, and Reports to be met with in their Books.  
Richard Pearson in the time of King 
Vaughan ' s Reports, pag. 248.  James the First, Married his Wife's Sisters Daughter, for which a Process was commenced against him in the Spiritual Court, and upon the Suit of the said Richard Pearson a Prohibition was granted out of the Common-Pleas; And it was resolved by that Court, upon consideration of the Statute 32 Hen. 8. Cap. 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; and since Consanguinities and Affinities, as well by the Levitical as the Civil Law are the same, and prohibited to the same Degrees; it follows, that this Marriage must be valid also, if this determination of those Reverend Judges be good, it being a Consanguinity at the same remove with the allowed and ratified Affinity of this Instance. Much the same with this was the Case of Harrison versus Burwell: Harrison had Married his great Aunt, the Widow of Abbot his Grandfather's Brother, and my Lord Vaughan declares this Marriage to be valid, pag. 207. And not only so, but this Case by the Kings Command being referred to the Opinion of all the Judges of England, the Chief Justice 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 of Moses assigns, S●e i● thine Aunt, thy Senior, thy Superior, and in Construction of Law, Parentis loco, which holds as well, though not so immediately, and indeed the two first much more strongly in the great Aunt, than in the Aunt at the first remove; but yet in the Judgement of these Learned Gentlemen, the Law of England proceeding only by the Letter without any regard, or at least, very little to Parity of Reason, would not disannul the Marriage of the great Aunt, though the immediate were so expressly forbidden. Besides this, my Lord Vaughan gives it in general terms, as his Opinion, pag. 216. The Marriages particularly declared by the Acts to be against 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 in Statu quo prius, as to Dispensations with them, that is, so far as concerns the Levitical Degrees, they may be, and are actually dispensed with, as many as are not particularly and actually forbidden; not by the Pope, whose Power of Dispensation was now 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 nul and void; but by the Law itself, which by not prohibiting such Marriages hath made them lawful, which is exactly our Case, and therefore it must be lawful if my Lord Vaughan's Judgement be of any value. It is true indeed, in Hill and Good's Case, he seems to vary one while from this determination, but within a very little while, he returns to his former mind, and confirms this Opinion by a fiction of a Case of a Man that had Married his Wife's Sisters Daughter, before the third of November, 26 Hen. 8. by dispensation from Rome; and notwithstanding, that all dispensations from Rome were afterwards made void, yet he declares this Marriage, being not prohibited by God's Law, limited and declared in the Act of 28. Hen. 8. Cap. 7. to be by the express words of the revived Act, 28 H. 8. Cap. 16. a Marriage to continue good without separation, as having a validity of its own to stand upon, extrinsic to any thing of Dispensation from Rome.  
Lastly, When in the Act of 32 Hen. 8. Cap. 38. it is enacted, that, No Prohibition, God's Law excepted, shall trouble or impeach any Marriage without the Levitical Degrees. My Lord Cook declares it, as his Judgement, that if it had not been for those words (Gods Law except) this Act had excluded the Impeaching Marriages for plurality of Wives and Husbands at a time, for Impotency, and for Adultery, because if the Levitical Degrees by our Law had been made the sole and only measure of Prohibition, and if no Marriage could have been vacated but for offending against these, our Law which keeps itself strictly to the Letter in these Cases, would have taken no Cognizance of any such impediment or obstruction, as did not properly belong to one of these, which cannot be pretended in any of these three Cases.  
Eleventhly, The Law of Moses in the Twentieth of Leviticus hath 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. The Law knew no other Punishment for illegitimate Marriages, but Death; and therefore the Marriage which was not Capital was no offence at all against it, but was as Legitimate to all intents and purposes as any other Marriage in the World could be; and not only by the Law of Moses, but by the Theodosian Rescript concerning Cousin Germane, the next Degree to that which was Capital, was no Crime at all: For it does not appear, that he forbade Second Cousins to Marry. If then this Marriage of the Uncle to his Niece be so far from being expressly punished 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 in Nature to put a Man and Woman to Death for a Consequence, a real or pretended Parity of Reason, which either he, or she, or both of them might very well not foresee or understand; and if, at last, there be no Consequence, no Parity in the Case, as will be undeniably manifested by and by; than it follows plainly, that the Marriage of the Uncle to the Niece, is so far at least Legitimate, that it was not at all punishable by the Levitical Law, and that it cannot be 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.  
Twelfthly, As there was no legal violent separation among the Jews, but by Death, unless, when an Husband for Reasons of his own had written a Bill of Divorce against his Wife; so the reason why Death was inflicted, seems to have been to prevent any Issue from such Incestuous Conjunctions; or in the Language of the Law itself, 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 peculiar and particular marks of Ignominy and Detestation, 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 Whoredom (for such sort of Marriages were esteemed no better) in a most execrable Conjunction and Combination together.  
But now it is certainly a very hard Case to make any Man a Bastard by Parity of Reason, because his Father and Mother happened to do some thing which it was impossible for him to hinder, which is like another thing which is forbidden, much less is there any Bastardy in such a Case, where the Parity of Reason does not hold; and wherever the Offspring is not Spurious the Marriage is Legitimate: For a Legitimate Son or Daughter cannot possibly be descended but of Legitimate Parents. And the better to remove all obstacles as to this matter, out of the way, it is to be observed, that, as to the Phrase of Dying Childless, the Interpretation just now given, 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 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 poenâ mortis ex aliquâ causa legislatorem movente, ut esus Sanguinis.  
Thirteenthly, 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 indispensible Obligation, till after the giving of the Law by Moses; and that if it had not been for the giving of that Law, it would have 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 in many repects a more favourable Case, as shall be hereafter declared; 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 forbid the Marriage of an Aunt with her Nephew, a sort of Marriage of which he himself and his Brother Aaron were descended, bringing by that means a sort of Aspersion, and something that is, at least, very like a Reproach, upon himself and his Family, upon his Brother Aaron and the Family of Priests that were for ever after descended from his 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.  
Fourteen, There is also the Case of Achsah and Othniel, in the Books of Josuah and Judges; in which if we understand the Text so as that Othniel, who was the Son of Kenaz, shall be the Half-brother of Caleb by the Mohters' Side, for Caleb was not the Son of Kenaz, but Jephunneh) then here is another Instance, after the Law, of the 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 Wise. And again, Judges 1. 13. Othniel the Son of Kenaz, Caleb's younger Brother, took it (Kirjath-sepher): Which words in both places may either be so interpreted, that Othniel had this double Relation, he was the Son of Kenaz, and he was likewise Caleb's younger Brother by the Mother's Side; and than 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-germen. Both of these Interpretations, if there were nothing else but these words to be considered, are very natural and easy; but when we consider, that after the Death of Caleb and Josuah the Children of Israel were made Captive by Cushan-rishathaim for the space of Eight years, Judg. 3. 8. that God raised up this Othniel to be their Saviour and Deliverer out of the Hands of their Oppressor, ver. 9, 10. and that the Land had rest afterwards under the Government of this Othniel for the space of Forty years; no Man will ever think, that Caleb and Othniel in that Age of the World could probably be the Sons of the same Mother, when it is so plainly demonstrable, that there was at least Forty nine or Fifty years' difference between their Ages; for to this Forty eight we must add One or Two more, because before this Period began they were both Cotemporary, and Caleb, if he were Brother to Othniel, was then the Elder by a Year or two at the least.  
But this is not all: Chap. 2. 8. we have an Account that Josuah died, and ver. 10. that all that Generation, of which Caleb was one, were 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-germen, 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 South-land, 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 Josuah 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 Josuah, who seems to have been much of the same Age with Caleb, soon after his entrance upon the Land of Canaan died, being at his death of the Age of an hundred and ten years, Jos. 24. 29. Judg. 2. 8. And if we allow Ten or Twenty years, by which Josuah, without any Reason that appears, shall be supposed to be older than Caleb, the Age of Caleb at the Marriage of his Daughter Achsah will be an Hundred, or Ninety at least: Wherefore being so old, and unfit in Person to be at the Head of a vigorous Assault, he propounds the taking of Kirjath-sepher to some other, with a Reward: He that smiteth Kirjath-sepher, and taketh it, saith he, to him will I give Achsah my Daughter to Wife. Not that any One Man could take a City or Town by himself, or that every Man was fit to command a Party, or that the Inheritance which was to go along with Achsah could be legally diverted from Othniel, who was the next Heir-male of that Family; only by these general Words he propounds the Conduct of the Expedition to Othniel, with promise upon Success that he should be immediately married to his Daughter, which the Old Man during his Life-time was not obliged to permit, and have part of the Inheritance beforehand. And this is the true State of this Case; which tho' 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 prohibit the Marriage of an Uncle with his Niece, with that 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-germen 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 Assertors of the merely positive Obligation of the Mosaic Law.  
Fifteenthly, As to the Pretence of Parity of Reason by which a Niece and her Uncle are debarred from Marriage, because the Aunt and her Nephew are expressly forbidden, there are these following things to be said in answer to it.  
First, That the Rabbinical or Talmudical Jews did allow of the Marriage of an Uncle with his Niece; which tho' the Karraites or Scripturary Jews did not, yet this is so far from doing any prejudice to this Cause, that, on the contrary, it is a manifest advantage to it; because this is a plain Sign, that the Talmudists, who could not be ignorant of this disagreement of the Karraitish Faction, did not err through Inadvertency, as too frequently they do; but their Opinion was partly founded upon the Tradition of their Church, and partly upon one of these two Reasons, either that Parity of Reason was not to be admitted in any of these Matrimonial Affairs, or that indeed there was no such Parity as is pretended, as will be shown immediately that there is not. And tho' the Traditions of the Jewish Masters are in many Cases very uncertain, and in others plainly false; yet where Tradition and Reason do conspire together, they give a mutual Strength and Reputation to each other.  
For, in the second place, it is plain, that this Parity will not hold, and that upon these several accounts.  
First, In the Marriage of an Aunt with her Nephew, the natural Subordination of Relations is destroyed, and the true Dependence of Things upon one another. A Superior, as the Aunt unquestionably was, and one that was loco Parentis, as well by the Jewish as the Civil Law, as Mr. T. hath proved in his Resolutiou 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 Uncle marrying with his Niece, the natural Dependence was preserved, she being already his Inferior and his Servant. The Impiety of this sort of Marriage of a Man to his Superior, and to her that in Legal Construction was Parentis loco, is thus detested by Papinius Statius:  
— illum illum sacris adhibete Nefastis,  
Qui laeto dedit ense patrem, qui semet in ortus  
Vertit & indignae regerit sua pignora Matri.  
And by Lucan,  
— Cui fas implere Parentem,  
Quid rear esse Nefas—  
Which Places tho' they be indeed meant of the Mother in the most proper sense, yet they may be extended without immoderate straining to all that are Parentum loco. And to this purpose the manner of Expression is remarkable, Leu. 18. 14. Thou shalt not uncover the nakedness of thy Father's 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 Father's 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 enamoured of her Son-in-Law Hippolytus, and yet knowing the Disgrace and Infamy of a Mother-in-Law lying down to her Son, tho' this were only a Relation of Affinity, and not really so near a kin as the Aunt by the Father or Mother's Side, was desirous to forget that Name for good and all: For thus she says;  
Matris superbum est nomen & nimium potens,  
Nostros humilius nomen affectus decet,  
Me vel Sororem, Hippolyte, vel famulam voca.  
Secondly, In the Marriage of the Uncle to the Niece there is greater fitness for Propagation, which is the great and declared end of Marriage, than in that of the Aunt to the Nephew. And this Argument is never the less cogent, because Albericus Gentilis knew three or four Bonny, Brisk Aunts, that were younger than their Nephews, and his own Aunt, it seems, was one of the number: For a Law is a general Rule, which regards only the generality of Instances, without regard to those that are so rare, and so seldom to be met with; besides that there are other Reasons upon which the Marriage of an Aunt with her Nephew is prohibited; and where this 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, tho' the Aunt at the time of Marriage may not in many Instances be effaete and barren, yet she will not continue Prolific so long as a Niece: So that there is a double natural Obstruction against the Marriage of an Aunt with her Nephew, which does not hold in that of an Uncle with his Niece.  
Thirdly, If we consider the same Man as an Uncle with respect to his Niece, and as a Nephew with respect to his Aunt, here are three Terms at a distance from each other, and the two Extremes are probably very far asunder: There is, in all probability, Youth, Beauty, and Virginity, on the one hand; and on the other, Old Age, Widowhood, and an imparturient Estate. So that, generally speaking, there is manifestly a greater Temptation to the Marriage of the Uncle with the Niece, than to that of the Nephew with his Aunt; therefore if the Law of Moses had intended to forbid the former, as well as the latter, this is that which ought to have been prohibited in the first place, because there is the greater Temptation to it; and therefore the Instances of Transgression must of necessity be more frequent. Neither can any thing be a greater disparagement to the Wisdom of God, than to say, that he intended both of these sorts of Marriages should be equally void; and yet at the same time to inculcate that with so much seeming industry and solicitude, of which there was scarce any danger; and to omit that wholly, without the least word of notice, whose Danger was so apparent, whose Temptation is so strong, and whose Instances, without a very severe and peremptory Prohibition, could not, in all probability, be unfrequent.  
Fourthly, When it is said, Levit. 18. 6. None of you shall approach to any that is near of kin to him to uncover their nakedness; it is to be 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, ver. 12. Thou shalt not uncover the Nakedness of thy Father's Sister, she is thy Father's near Kinswoman: And again, ver. 13. of the Aunt by the 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 tho' my Niece be at the same distance from me in the descending Line, that mine Aunt is in the ascending; yet when the express Reason assigned in the Law, why I may not marry mine Aunt, is not because she is mine, but my Fathers or Mothers near Kinswoman, this is so far from darting any Prohibition upon my Niece, that it is, on 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 will be seen hereafter. 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, ver. 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 Consangninities 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 Father's Brothers 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, that is, they has as it were aliquid divini juris in liberos liberasque fratrum & sororum, they had a Right of Reverence, and a natural Claim of Duty and Respect from their Nephews and Nieces, which were accounted but a Remove from Children, and laid so great a weight upon all their Advices, Admonitions, and Commands, that to disobey them in any thing not very unreasonable, was accounted an heinous Crime, altho' their Power of Coercion were not all out so great as that of their natural and proper Parents.  
And now from what hath been just now said it is plain, that the Reason of that Law by which the Nephew is prohibited to marry his Aunt, being founded in these two things; First, in Nearness of Kin, which is greater to the Father in his Sister than in his Grandchild: Secondly, in the Superiority and Preeminence of the Aunt over the Nephew; I say, it is plain, that it cannot from either of these Considerations be 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 Contraries, there can be no Inference from the Prohibition of an Aunt, which shall debar or obstruct the Marriage of a Niece.  
Wherefore it being so clear as it is, that there is no Parity of Reason between the Marriage of an Uncle 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 Uncle from his Niece is not only indefesible after they are once married, 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 avoidable, that what is left indifferent in the Law of Moses, preserves the same Liberty and Indifference in ours.  
In the sixteenth place, it is still further to be considered, That Cohabitation itself, if it have been of long continuance, is in Law a powerful Remedy against other Defects; for so we have it upon the Authority of Servius, Tribus modis apud veteres nuptiae fiebant, (usu Fare & Coemptione) usu si verbi gratia Mulier anno uno cum viro licet sine legibus fuisset, etc. So that if the Parties married together, and standing in this Relation, have cohabited for any considerable time, this is one great Argument, and hath been all along so taken in the Civil Law against a Divorce, notwithstanding there be a Fault admitted in their first coming together.  
Seventeenthly, This Case being only the Niece by the Half Blood on the Father's Side, which is the more weak and imperfect, this is still a farther Circumstance very much conducing to favour, and defends it, as appears by the Case of Abraham, who married his Half Sister by the Father's Side: For had she been his Whole Sister, she could not have been his Wife. And this is that which he urges in his own Defence to Abimelech the King of Gerar, She is the Daughter of my Father, but not the Daughter of my Mother; and she became my Wife. And Deut. 13. 6. it is provided in Case of Idolatry, If thy Brother, the Son of thy Mother, or thy Son, or thy Daughter, or the Wife of thy Bosom, or thy Friend which is as thine own Soul, entice thee secretly, saying, Let us go and serve other Gods, etc. ver. 8. Thou shalt not consent unto him, nor hearken unto him, neither shall thine Eye pity him, neither shalt thou spare, neither shalt thou conceal him: ver. 9 But thou shalt surely kill him: thine hand shall be first upon him to put him to death, and afterwards the hand of all the People.  
The meaning of which Law is, That Idolatry should certainly be 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 the Law of Moses, which did oblige them not to conceal even their nearest Relations: And in this Prohibition the Brother being the Son or supposed Son of the Father, is included à fortiori.  
Lastly, The whole stress of our Adversaries Cause is grounded upon Archbishop Parker's Matrimonial Table; and tho' we are far from presuming to dispute the King's Power in dispensing with a Statute in Cases of Necessity, of which He is the Judge; yet in all Ordinary Cases He is never supposed to intent it: And it is certain, that when, among other Articles presented to Him by the Convocation, he gave the Royal Assent to the Matrimonial Table, in which the 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.