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 [Page 2] 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 lye with his Ʋn­cles Wife, he hath uncovered his Ʋncles 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, then it is likewise unlawful for a Woman to Marry her Uncle, the Husband of her Mothers 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 then 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 Ʋxor 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 Mosaick, that is, a Typical, Umbra­tick and alterable Nature, but that they were built upon the reason of things, and [Page 4] 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 Law-giver proceeding upon this reason, (and there can be no other tolerable reason of these Prohibitions assigned) did intend 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 [Page 5] 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 Mosaick 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 color of Equity indulged; so that there being not only in both instances the very [Page 6] self same reason, but it being likewise necessary to the due effect of the Prohi­bition exprest, that it should be extended to the Prohibition imply'd 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, [Page 7] and therefore she is called her Daughter, by which it is implyed and supposed that she was not his; and the same prohibition is exprest in other words, Lev. 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, Lev. 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 joyned in Marriage to the Daughter. And this Prohibition is as it were the reverse and counterpart of that other which hath been mention'd 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 [Page 8] 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 no where to extend the intention and obliga­tion of the law of Moses beyond the letter of it, then it will be Levitically lawful for a Man to Marry his own Daughter, because this is no where expresly forbid­den, but consequentially it is, for if it be unlawful for a Man to lie with his Daughter in Law, that is, his Wives Daughter, it is much more unlawful for him to do it with his own. If it be forbidden, as it is, Lev. 18. 10. for a Man to uncover the nakedness of his Sons Daugh­ter, [Page 9] or his Daughter's Daughter, that is, of his Grand-child, 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 Mothers side, Lev. 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 it self, 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 publick manner, in the face and open view of the whole Congregation; this ought 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 then 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 [Page 11] 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 Mothers 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 justifie 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 then 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, then 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 [Page 12] 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 priviledge 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 [Page 13] 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, Lev. 18. v. 8. The nakedness of thy Fathers Wife shalt thou not uncover, it is thy Fathers 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 Sons 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 Brothers Wife, it is thy Brothers naked­ness; that is, it is the same thing as if [Page 14] 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 intend to make the most particular application of it, Thou shalt not uncover the nakedness of thy Fathers Brother, thou shalt not approach to his Wife, she is thine Aunt; that is, by having been joyned in Marriage to your Fathers 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 Mosaick 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 [Page 15] 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 Ʋterine, by Father or Mothers 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 her self, 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 Mothers side, it had not been Lawful for him according to the [Page 16] opinion and usage of those times to take her to Wife; but without any elaborate canvassing 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 Mans 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 Mans Grand-child be forbidden him in Marriage by the Le­vitical Law it self, upon this reason which must be acknowledged to be im­plyed [Page 17] in the Prohibition, because he can­not Marry his Daughter, then 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 Marryed his Fathers Wife.

Secondly, In all ordinary Cases our Saviour's rule holds good, and shews withall how extreamly 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. [Page 18] 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 publick 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 ought to be favour shewn in Matrimoni­al Cases, notwithstanding that the letter of the Law hath been sometimes violated [Page 20] and affronted by them, I will instance in the business of Poligamy, which was for­bidden by the Law of Moses in these words, Lev. 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 Brothers Wife after the decease of his Brother, unless when he dyed Childless, to redeem the Inheri­tance, by the very same reason it must be unlawful for the Sister to Marry the Sisters 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 [Page 21] the Family troublesome and uneasie, 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 Ʋriah, 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 enjoyns 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 [Page 22] whereas several Converts to Christianity were at the same time Marryed to more Wives then 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 then 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, ought 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 dishonor and despite to the Christian Religion, which is so very [Page 23] favourable and tender, ex post facto, in matters of this nature, and I desire them both to reflect very seriously upon our Saviours general Rule, that except it be in very extraodinary Cases, such as that of the Incestuous Corinthian, or of Herods Marrying his Brother Philips Wife, no­thing but Fornication can justifie a Di­vorce, or secure the Parties separating from each other, from the crime or dan­ger of Adultery.