A RESOLUTION OF THREE Matrimonial CASES; VIZ. I. Whether it be Lawful for a Man to Marry his deceased Wife's Sister's Daughter? II. Whether the half-blood make Kindred? III. Whether such a Marriage being made, it ought to be dissolved or no? By John Turner, late Fellow of Christ's College in Cambridge. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Be ready always to give an answer to every Man that asketh you a reason. LONDON, Printed by H. Hills Jun. for Walter Kettilby at the Bishop's Head in St. Paul's Church Yard. 1684. THE Preface. THE Three Queries here resolved were sent to me upon the Thirtieth of Jan. last, I know not well from whom they came, and it seems he that sent them did not think it worth his while to call for an answer. However because the resolution proceeds upon such Principles, as may be applied to any other Case of this nature, so that every Man may easily discern hereafter for himself, what is lawful or unlawful in these Cases, therefore I thought it convenient to make it public. Farewell. A RESOLUTION OF THREE Matrimonial CASES. Quest. I. Whether it be a lawful Marriage for a Man to Marry his deceased Wife's Sister's Daughter, or no? Quest. II. Whether being but of the half blood do not make Kindred? Quest. III. If such a Marriage be made already, whether it be better that they part, or not? FOR the First of these Queries, it appears by the Third, which is concerning Divorce in Case of an unlawful Marriage, that it is to be understood of a Marriage, ex Antecedenti lawful or unlawful, that is to say, whether it be lawful for a Man to endeavour a Marriage, or to enter into a Matrimonial Contract in order to it, with one who stands related to him in the degree mentioned in the said Query. And to this I Answer, That it is not lawful, and I conceive its unlawfulness to be demonstrable from that prohibition in the Eighteenth of Leviticus, v. 14. Thou shalt not uncover the nakedness of thy Father's Brother, thou shalt not approach to his Wife, she is thine Aunt, which is again repeated, c. 20. v. 20. If a Man shall lie with his Uncle's Wife, he hath uncovered his Uncle's nakedness: they shall bear their sin, they shall die Childless. For if it be unlawful for a Man to Marry his Aunt, the Wife of his Father's Brother, than it is likewise unlawful for a Woman to Marry her Uncle, the Husband of her Mother's Sister, because these two Relations are, as to nearness of Kin, exactly the same, so that all the Question is, whether in Matrimonial Cases we are to stick to the letter of the Levitical Law, or whether parity of reason be of necessity to be admitted? And I do humbly conceive the latter of these to be true, and I offer these following reasons for my opinion. First, The fundamental reason of all these Prohibitory Laws is nearness of Kin. Levit. 18. 6. None of you shall approach to any that is near of Kin to him, to uncover their nakedness, from whence it follows, that if in two Cases given, the nearness of Kin be in both exactly the same, the reason of the Law, and by consequence its Obligation, is in both Cases equally concerned. Secondly, I appeal to the constant and universally received opinion of the Jewish Rabbins, and to the practice of that Nation which is founded upon it, for in the Matrimonial Tables of the Jews, which are much more particular than that of Moses, the additional Prohibitions that are to be met with in them, are altogether grounded upon parity of reason, as may be seen in Mr. Selden in his Vxor Hebraica, and in his De jure naturali & gentium juxta disciplinam Hebraeorum, where he hath given an account of all those Prohibitions out of Maimonides, and the Jewish Talmud. Thirdly, It is to be considered, that these Prohibitions, were not of a purely Mosaic, that is, a Typical, Umbratick and alterable Nature, but that they were built upon the reason of things, and the unchangeable Interest of Mankind, for the propagation of Interests and Dependencies, and for the spreading and continuance of Friendship among Men, which reason being altogether equal and the same, equally violated on the one hand, or gratified on the other, in the Marriage of an Aunt to the Nephew, or of an Uncle to the Niece, it is manifest, that the Lawgiver proceeding upon this reason, (and there can be no other tolerable reason of these Prohibitions assigned) did intent equally to prohibit both, if he have prohibited either of them; otherwise we must suppose one of these two things: Either that Moses, that is, in effect, God himself did not sufficiently understand and comprehend the full Extent and Latitude of that reason upon which the Prohibitions were founded, or else that the reason of those laws may be violated from time to time, and from age to age, in a thousand myriads of instances, with the consent of the Lawgiver himself, by which means it would come to pass, if it were lawful for an Uncle to marry the Niece, though the Marriage of an Aunt with her Nephew were forbidden, that whatever the advantage was, which was intended by the prohibition of the latter to be procured to the World, that advantage by the licence of the former would be but half obtained; and on the other side, whatever the disadvantage or detriment was, which was designed to be avoided or prevented, that disadvantage would be but half redressed; now both of these things being equally absurd and impious to suppose, it follows likewise upon this Third consideration, as well as the two former, that in the Mosaic Prohibitions a parity of reason, and a Parallelism or Sympathy of Cases is of necessity to be admitted. Fourthly, If there had been liberty still allowed, after it was prohibited for an Aunt and her Nephew to intermarry together, yet notwithstanding for an Uncle and his Niece to do it, and so in other parallel instances that might be given, this would have been a very great and a very plausible pretence for disobedience, it would have been an occasion of frequent murmuring, and repining in the Parties that were prohibited to Marry, when others, as to nearness of blood, exactly in the same circumstances with themselves, were to the scandal of all Law and Justice, and without the least colour of Equity indulged; so that there being not only in both instances the very self same reason, but it being likewise necessary to the due effect of the Prohibition expressed, that it should be extended to the Prohibition employed by parity of reason, it follows that it was actually extended so far, and to say otherwise, is to accuse the Divine Justice and Wisdom together. It would be to accuse the Divine Wisdom, as if God wanted foresight, and did not pry sufficiently into the natural issue and result of things, by making a Law to a stubborn and refractory people, which even the most obedient might very justly complain of, and by consequence had a plausible pretence to disobey, and it would be at the same time to tax him with want of Justice, which is every whit as essential and congenerous to his nature, for what can be more unjust, then to make it death for a Man to lie with the Mother of his Wife, and yet to leave it perfectly at liberty, for a Man to lie with his own Daughter? And yet this is no where forbidden, unless it be by parity of reason, except it be Levit. 18. 17. Thou shalt not uncover the nakedness of a Woman, and her Daughter, but that is manifestly to be understood of such a Daughter, as was born to that Woman by another Husband, and therefore she is called her Daughter, by which it is employed and supposed that she was not his; and the same prohibition is expressed in other words, Leu. 20. 12. If a Man lie with his Daughter in Law, (that is, his Wife's Daughter) both of them shall surely be put to death, or except it be pretended to be forbidden, Leu. 20. 14. If a Man take a Wife and her Mother, it is wickedness, they shall be burnt with fire, both he and they. For in this Case if a Man commit Incest with his own Daughter, or if he should Marry her, so as to make her his Wife, he must of necessity have lain both with Mother and Daughter. But this place is also to be understood of the Mother of that Wife by some other Husband, therefore Moses calls the Daughter his Wife, that is, his lawful Wife, and the fault was not in lying with the Daughter, but the Mother, after he had been joined in Marriage to the Daughter. And this Prohibition is as it were the reverse and counterpart of that other which hath been mentioned out of Levit. 18. 7. and c. 20. 12. For in the two former places it is forbidden, for a Man to Marry the Mother and lie with the Daughter, and in the latter it is forbidden, for a Man to Marry the Daughter and commit Incest with the Mother. And by these two places compared together, it is still further evident, that the Law of Moses is in these cases to be explained and interpreted by parity of reason, for this was the reason of prohibiting, first the enjoyment of the Mother and the Daughter in the descending line, and then of the Daughter and Mother in the ascending, because the Relation is exactly the same in both Cases, and by consequence it is in both Cases equally unlawful, which is to argue by parity of reason, which if it be admitted as a measure of procedure in one Case, the equity and justice of proceeding after the same manner is the same in all. But on the contrary, if we are not where to extend the intention and obligation of the law of Moses beyond the letter of it, than it will be Levitically lawful for a Man to Marry his own Daughter, because this is no where expressly forbidden, but consequentially it is, for if it be unlawful for a Man to lie with his Daughter in Law, that is, his Wife's Daughter, it is much more unlawful for him to do it with his own. If it be forbidden, as it is, Leu. 18. 10. for a Man to uncover the nakedness of his Son's Daughter, or his Daughter's Daughter, that is, of his Grandchild, it is supposed much more that it is by that very Prohibition intentionally forbidden, for him to uncover the nakedness of his own. So likewise it is forbidden for a Man to Marry his half-Sister either by Fathers or Mother's side, Leu. 18. 9 The nakedness of thy Sister, the Daughter of thy Father, or Daughter of thy Mother, whether she be born at home or born abroad, even their nakedness thou shalt not uncover. But yet it is no where in express terms forbidden for a Man to Marry his own Sister, born of the same Father and Mother, which yet notwithstanding hath been looked upon by Jews and Christians, as well the one as the other, and both of them universally, without any one exception, to be Levitically prohibited and unlawful, because the same reason, whatsoever it is, which forbids the Marriage of the half-Sister, is much more strong and powerful against an incestuous conjunction with the whole; so that it appears plainly not only that it is necessary in itself, that the argument à pari, or à potiori, should be admitted in these Cases, but that in some of them it is universally done, and there is the same reason why it should be so in all. Which may render my Fifth and Last consideration in a manner useless, which is, that God being so highly displeased with the Amorites and other Nations, as utterly to extirpate them from off the face of the Earth, and give their Land for an Inheritance to Israel his People, and being so displeased at the Abominations themselves, for which these Nations were extirpated and rooted out, that the sanction of several of the Levitical Prohibitions was certain and unavoidable death, in the most public manner, in the face and open view of the whole Congregation; this aught to teach us not only to admit a parity or potiority of reason, when they lie so naturally and so fairly in our way, that we cannot without blushing pretend to shun or avoid them, but rather than restrain our obligation to the Divine Law, within too narrow bounds, to exceed on the other hand by a pious mistake, instead of falling short out of a spirit of presumption, which is an offence to God, when it hath not modestly, dutifully and impartially considered things, though it should happen to determine rightly as to the matter or the instances of obedience. And this is my first answer to the Question proposed, concerning the Marriage of an Uncle with his Niece, which is drawn from the parity or similitude of the Case to the Marriage of an Aunt with her Nephew. But Secondly, It is, I presume, agreed on all hands, that it is unlawful for a Nephew to intermarry with his Fathers or Mothers own Sister, the Amita or Matertera, the Consanguineous Aunt by the Fathers or Mother's side, and it is, I think, as universally determined, that it is unlawful for an Uncle to Intermarry with his Niece, the Daughter of his own Brother or Sister; and this was certainly the Old Roman Law till Claudius procured it to be abrogated by the Senate, to excuse and justify an incestuous Passion for his beloved Agrippina, but yet this was looked upon by all to be so foul and abominable a thing, that the example was not followed in that age by any more than one, as Tacitus informs us, or two at the most, as Suetonius would have it, and they also did it rather out of Complaisance and Flattery to Agrippina, at whose instance it was done, than out of any natural inclination in the Contracting parties; and for the same reason, because of its Turpitude and Incestuous nature, it was repealed by Nerva, and though it were afterwards restored by Adrian, and encouraged after that, by the example of L. Antoninus Caesar, who Married his Niece Lucilla the Daughter of his Brother M. Aurelius Antoninus the Philosopher, yet it always remained incestuous, and prohibited by the Laws of the Empire, for a man to Marry his Sister's Daughter, though he were allowed to Marry the Daughter of his Brother; the reason of which was, that though in Laws well constituted, for a bar to concupiscence, and for the spreading of Friendships, a parity of Cases ought to be allowed, yet the violation of a law in one Case, ought not by any means to be drawn into Precedent or Example to the violation of it in another, so that it being naturally or politically unlawful or inconvenient for a Man to Marry the Daughter of his Brother, it was still more reasonable to confine the Interpretation of the S. C. Claudianum, by which it was provided de futuro that such Marriages should be deemed lawful, to the letter of the law itself, so as the privilege should not be extended to the Niece descending from the Sister. Now it is to be noted that both by the Jewish and the Roman Law, Affinities and Consanguinities were equally forbidden and to the same degrees; as for the Roman Law, it is so plain, so frequently inculcated, and so universally acknowledged by all the Ancient Civilians that it is to no purpose to go about to prove it; and that it was so in the Jewish, I prove by these following Texts, Leu. 18. v. 8. The nakedness of thy Father's Wife shalt thou not uncover, it is thy Father's nakedness; that is, it is same thing in the Interpretation of Law, as if a Man had uncovered the nakedness of his own Mother, his Father and his Mother in Law being united, as it were, into the same person, in the same manner as his own Mother and his Father were. Again, v. 15. Thou shalt not uncover the nakedness of thy Daughter in Law, she is thy Son's Wife; that is, she is to be reputed as standing in the same nearness of relation to you, with your Son himself, and by consequence it is, in the eye of the Law, the same thing, as if you had uncovered the nakedness of your own Daughter, for a Son and a Daughter are the same as to nearness of blood, or distance from their common Parent. So also v. 16. Thou shalt not uncover the nakedness of thy Brother's Wife, it is thy Brother's nakedness; that is, it is the same thing as if you had been guilty of uncleanness with your own Sister, for a Brother and a Sister are in relation the same. Lastly, v. 14. which I mention last, because I intent to make the most particular application of it, Thou shalt not uncover the nakedness of thy Father's Brother, thou shalt not approach to his Wife, she is thine Aunt; that is, by having been joined in Marriage to your Father's Brother, it is the same thing as if she had been your Fathers own Sister, so that the reason why a Man might not approach to his Aunt in Affinity or by Marriage, was, because the Aunt in consanguinity or by blood was forbidden, and because of the legal analogy and resemblance of the one to the other; but now by the same reason that an Aunt by consanguinity may not Marry her Nephew, an Uncle in the same nature may not Marry his Niece, because the distance in both Cases is exactly the same, and if Affinities and Consanguinities go hand in hand, as well by the Mosaic as the Roman Law, and if they are forbidden to the same degrees, and by reason of their resemblance and analogy to the alliances by blood, by reason of Man and Wife's being the same Flesh, and legally united into the same person, then is a Man forbidden by the Levitical Law to Marry his Niece by Affinity, which is the Case proposed. The Second Query is, Whether being but of the half-blood do not make kindred? To which my Answer is affirmative that it does, because though the legal Nearness of a Sister-in-Law, and a Sister by both Parents be the same, so far as the Matrimonial Prohibition is concerned, yet the natural Nearness is greater in an half Sister, then in a Sister by Affinity, and therefore it seems reasonable if the one be forbidden, that is to say, the Sister by Affinity, the Sister German, or Vterine, by Father or Mother's side, is much more; and to this it is to be added, that all along before the giving of the Law, the half Sister, descended of the same Mother, was always accounted as sacred, and as indispensably prohibited in Marriage as the whole Sister herself, that is, she was in the interpretation of Law looked upon as an whole Sister, as Abraham said concerning Sarah his Wife, in his Apology to Abimelech the King of Gerar, She is the Daughter of my Father, but not the Daughter of my Mother, implying thereby, as I conceive, that if she had been his Sister by the Mother's side, it had not been Lawful for him according to the opinion and usage of those times to take her to Wife; but without any elaborate canvasing the business, this query is sufficiently answered by comparing these two places together, Levit 18. 6. it is said, None of you shall approach to any that is near of Kin to him, to uncover their nakedness, and v. 9 The nakedness of thy Sister, the Daughter of thy Father, or the Daughter of thy Mother, whether she be born at home, or born abroad, even their nakedness thou shalt not uncover. From whence it is manifest, from comparing the latter place with the former, that the half-Sister is near of Kin, and consequently that the half-blood makes Kindred, therefore a Man's Wife's half-Sister is to be looked upon as his Wife's Sister; and because Affinities and Consanguinities in the Practice and Interpretation of Law are the same, therefore his Wife's Sister is to be looked upon as his Sister, and her Daughter is the same thing as his Niece, the Daughter of his own Sister, to whom he is in the language of the Civil Law, parentis loco, and therefore ought not to Marry her, and if a Man's Grandchild be forbidden him in Marriage by the Levitical Law itself, upon this reason which must be acknowledged to be employed in the Prohibition, because he cannot Marry his Daughter, than it seems reasonable in this Case also, that if a Man cannot Marry the Mother, his Wife's half-Sister, he cannot Marry the Daughter neither, who is immediately descended from her, and it is certain in the Civil Law, that in the collateral as well as the direct line the ascendentes and descendentes are prohibited in infinitum. It remains now only, that I consider the Third Query, which is this, Whether the Marriage proposed being made, it be better for them to part, or no? To which I Answer First, That in some Cases it is necessary according to the Christian Doctrine, which is very tender of Divorces, and with a great deal of reason, that a Divorce be made, or a worse punishment inflicted, as is manifest from the Case of the incestuous Corinthian, who had Married his Father's Wife. Secondly, In all ordinary Cases our Saviour's rule holds good, and shows withal how extremely tender the Gospel is of divorces, Matth. 5. 32. Whosoever putteth away his Wife, saving only for the cause of Fornication, causeth her to commit Adultery: and whosoever shall marry her that is divorced, committeth Adultery. From whence it follows, that if it be a doubtful Case, whether the Marriage now under consideration be ex post Facto, lawful or no, though it be granted to be unlawful ex Antecedenti that the doubt ought to be resolved in favour of the Marriage, and in confirmation of it. Thirdly, If the Parties concerned in the above written Queries, have not yet consummated their Marriage by the copula carnalis, I am humbly of opinion that they ought to separate for the prevention of scandal to themselves, and of example to others. Fourthly, That it being but a single instance, in which many Families are not concerned, this may seem to incline to a divorce, because the public can receive no prejudice by the separation, though by the evil precedent and example it may. But yet Fifthly, If there be any such thing to be admitted as a casus favorabilis, I am of opinion this is it, because it is placed in confinio liciti, it being at the farthest distance in which it is practically possible for a Man to Marry from himself, in his own descending collateral Affinity, though the Civil Laws to make the matter more sure, have forbidden such Marriages in infinitum. Sixthly, That if the Marriage be consummated as aforesaid, it is still more favourable in the behalf of the Parties, especially if any Issue have been brought forth or conceived, and in both these Cases, especially the latter, the scandal and inconvenience is greater if they part then if they continue together. Seventhly, If any Issue should follow upon this Marriage, it is certain that the Act of Parliament hath not in express words declared such Issue to be Spurious or Illegitimate, and it seems somewhat strange for two persons to separate upon account of an unlawful Marriage, who having consummated the said Marriage by mutual enjoyment, either have at present, or may have hereafter lawful Issue descended from them. Eightly, Albeit Affinity and Consanguinity be in the Interpretation of the Law the same, and the half and whole Sister equally Prohibited, yet in truth and reality the affinis is not so near of Kin as the consanguineus, nor the half Sister as the whole. Ninthly, That there hath been and aught to be favour shown in Matrimonial Cases, notwithstanding that the letter of the Law hath been sometimes violated and affronted by them, I will instance in the business of Polygamy, which was forbidden by the Law of Moses in these words, Leu. 18. 18. Neither shalt thou take a Wife to her Sister to vex her, to uncover her nakedness, besides the other in her life time, for this cannot be understood of a Sister properly so called, for it was certainly Prohibited by the Levitical Law, for a Man to Marry two Sisters, either both together, or one after the other; for by the same reason that it was unlawful for a Man to Marry his Brother's Wife after the decease of his Brother, unless when he died Childless, to redeem the Inheritance, by the very same reason it must be unlawful for the Sister to Marry the Sister's Husband after her decease, because the Relation is exactly the same in both Cases. But the meaning was, that though the Jews were allowed to keep Concubines as Abraham did, and from thence the Concubinage among the Romans was derived, yet it was unlawful to Marry more Wives that should be aequo jure, with one another, that should have an equal power in the Family, and should all of them be the Mothers of Heritable Issue, because this would be the occasion of strife and contention betwixt them, and render the Family troublesome and uneasy, but yet we know that notwithstanding this, such Marriages were practised under the Law, and yet no Divorce ensued. David was one example of it, and Elkanah the Father of Samuel another; the one a Man after Gods own Heart, to whose charge nothing is laid but the matter of Vriah, and the other a just Man, and of a clear reputation. And God foreseeing in his wisdom, how difficult it would be to wean the Jews of this liberty of taking more Wives then in strictness of Law it was permitted them to do, did therefore make an express provision as to the Inheritance, in the Case of Polygamy, Deut. 21. v. 15, 16, 17. by which it was enacted, that the double portion was always to fall to the share of the Eldest Son, upon which soever of the Wives he was begotten, and when the Gospel enjoins that a Bishop and a Deacon should be the Husband of one Wife, it is not to be understood as the Canon Law interprets it of Bigamy, that is, of Marrying a second Wife after the death of the first, for here there is no Question but the rule holds good, it is better to Marry then to burn, as well after the Death of the first Wife as before it; but the thing was that whereas several Converts to Christianity were at the same time Married to more Wives than one, though it was not thought convenient to divorce any that had been actually Married before their conversion, yet it was designed to introduce Monogamy or the Marriage of one Wife only at one time, for the future, and therefore for examples sake none were admitted to Offices in the Church, who had at the same time been Husbands to more Wives than one, and I do really believe this Case of being Married to the deceased Wife's half-Sisters Daughter to be after enjoyment a more favourable Case and less liable to Divorce then that of Polygamy naturally seems to be, by reason of the great strifes and jealousies that usually attend it. So that upon the whole matter my opinion is, that the parties concerned in the Cases that have been mentioned, upon supposition that the Marriage have received its final Consummation in the Bed, aught by no means to be separated and divorced from one another, and that such separation cannot be admitted without great scandal and reproach to them both, and without dishonour and despite to the Christian Religion, which is so very favourable and tender, ex post facto, in matters of this nature, and I desire them both to reflect very seriously upon our Saviour's general Rule, that except it be in very extraordinary Cases, such as that of the Incestuous Corinthian, or of Herod's Marrying his Brother Philip's Wife, nothing but Fornication can justify a Divorce, or secure the Parties separating from each other, from the crime or danger of Adultery. Jan. 31. 1683/ 4. John Turner. ERRATA. PAge 5. Line 25. for Blood read Kin. p. 11. l. 26. for natural r. mutual. POSTSCRIPT. FOR the Second Query, the resolution of it seems to lie so plain that I do almost wonder to find it proposed, for in the Case of an whole Sister, that is, a Sister by Father and Mother's side, it is certain that both Parents do equally contribute to the Consanguinity, and therefore in the half-Sister, there must be an half Consanguinity, that is, an half Kindred, a Kindred as real as the whole, though not so perfect, and by the same reason that the Consanguinity of the Wife to the half-Sister, is less perfect, the Affinity of the Husband to the said half-Sister and the Niece descending from her is proportionally imperfect also, upon which accounts it is, as I have said, ex post facto, a favourable Case, especially if both, or either of the Parties were ignorant when they Married, of its antecedent unlawfulness, and both by reason of the distance of the Relation and the defect of it, the Marriage after fruition ought not to be dissolved. J. T. FINIS. Books Written by the same Author, and Printed for Walter Kettilby. ANimadversions upon the Doctrine of Transubstantiation. A Sermon Preached before the Right Honourable the Lord Mayor and Court of Aldermen. Octob. 19 1679. Two Discourses Introductory to a disquisition, demonstrating the Unlawfulness of the Marriage of Cousin Germans, from Law, Reason, Scripture, and Antiquity, A Letter of Resolution to a Friend, concerning the Marriage of Cousin Germane. A Sermon Preached before Sir Patience Ward, upon the last Sunday of his Mayoralty, with Additions. An exercitation concerning the true time of our Saviour's Passover or Last Supper with his Disciples, being part of a Digression in the Additions to the Sermon before Sir P. W. A Discourse of the Divine Omnipresence and its consequences; A Sermon before the Honourable Society of Lincolns-Inn, upon the First Sunday of last Michaelmass Term. All Printed for Walter Kettilby, at the Bishops'-Head in S. Paul's Churchyard. The Middle-way betwixt Necessity and Freedom, in Two Parts. Printed for Samuel Simpson, Bookseller in Cambridg, and to be Sold by Booksellers in London. ADVERTISEMENT. THere are now just coming out Two exercitations being the remainder of the Digressions in the Additions to the Sermon before Sir P. W. The First attempting to demonstrate that the Jews till after the return from the Captivity of Babylon were never publicly and promiscuously allowed the reading of the Law of Moses or other Canonical Books of the Old Testament. The Second concerning the true Reading and Pronunciation of the Tetragrammaton, or four Lettered name of God in Hebrew, as also concerning the Pythagorick Tetractys and other Philological matters, that have a connexion with it.