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more without God, than without honesty or credit. Their opinions are fabulous: their judgment frivolous : and their practice not worth our knowledge or regard.
I rather descend to the Resolution of our own Church. That our ever honoured mother hath passed her condemnatory sentence upon this marriage, in her ratification of that orthodox and just table of forbidden degrees, set forth by authority under Archbishop Parker, what doubt we now? Do we acknowledge the oracular voice of our dear and holy mother, the Church of England, and yet question whether we should obey it ? Certainly, in a case of conscience, a dutiful son, methinks, should rather hold fit to follow the sacred determination of the Church, than the municipal acts of the civil state. It is an ill office of those, that would set Church and State, Canons and Statutes together by the ears, even in these points, wherein they are perfect friends.
The Statute of 32 of Hen. VIII. c. 38. intending to mar the Romish market of gainful dispensations and injurious prohibitions, professeth to allow all marriages that are not prohibited by God's Law. Such is this in hand ; prohibited, though not in the letter, yet in necessary inference and interpretation. The Canon 99, of 1603, hath thus : “ No person shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority in the year 1563; and all marriages so made and contracted shall be adjudged incestuous and unlawful.” What scruple can arise bence? here is a perfect harmony betwixt Statute and Canon. It is a mere cavil, no better, to take “ and” for “or;" as if the meaning were, that all degrees, whether prohibited by the Law of God or expressed in that table, are forbidden. This is a foul strain, both to grammar, and to the sense and scope of the Canon; which plainly intends to aver, that all those degrees prohibited in that table are also forbidden by the laws of God: a truth so certain, that if either self love, or love of gain did not betray the eye, it is a wonder how it should abide a contradiction. It is observable, that neither Statute nor Canon speaks of an express prohibition in God's Law: and the Canon purposely distinguisheth the terms prohibited by God's Law, and expressed in the table; as justly supposing there may be as strong a prohibition in a sense implied, as verbally expressed : else, if our laws, as is pretended, should give allowance, which God forbid, to any marriages not expressly, in terminis, for. bidden, we should have strange and uncouth mixtures.
God, by Moses, expressly forbade the uncovering of the nakedness of father and mother: he expressed not the nakedness of son and daughter. He expressly names the nakedness of the father's wife : he expresseth not the nakedness of the mother's husband. He expressly names the nakedness of thy sister : he expresseth not the nakedness of thy brother. He expresseth the nakedness of thy son's daughter : he expresseth not the nakedness of thy daughter's som. He expresseth the nakedness of thy father's wife's daughter : he expresseth not the mother's husband's son. He expresseth the father's sister ; not the mother's brother. He expresses the daughter-in-law; not the son-in-law. So as, by this rule, if it should be carried only by mere verbal expressions, a woman might marry her son-in-law; the nephew might marry his great-aunt ; the niece, her great-uncle; the daughter might marry her mother's husband's son, the grandmother might marry her daughter's son; the daughter might marry with her mother's husband. Were these things to be allowed, the world would be all Sodom. These things, therefore, are, of necessity, included in the law, by a clear analogy; no less than if they had been expressed: 6 But have there been," as he saith, “precedents of this match?" I am sorry to hear it. Surely, the more, the worse ; and the more need to redress it. The addition of this, if neglected, would help to strengthen an ill claim.
“ Cousins-german,” he saith, “ have been allowed to marry :"What is that to the present case? The difference is as much, as betwixt a nephew and an uncle. The uncle hath too much of the parent's, both right and blood, to challenge an equal claim with a cousin.
In the shutting up, it pities me to see your worthy friend driven to this plea; and, like a drowning man, to snatch at so small a twig. “ Being done,” he saith, “it ought not to be undone:"'-Alas! the Canon is peremptory. It is incestuous and unlawful. What plea is there for continuance? Speak not, therefore, of either connivance or dispensation. This match is only capable of a late, but much-wished repentance, on the offender's part; and a just diremption, on the part of the judges.
Whether it be lawful, for a man to marry his wife's brother's widow.
AMONGST all the heads of Case-Divinity, there is no one, that yieldeth more scruples, than this of marriage; whether we regard the qualification of the persons, or the emergency of actions and events.
It is the lawfulness of this match, that you enquire after; not the expedience: and I must shape my answer accordingly.
It hath been the wisdom and care of our godly and prudent predecessors, to ordain a table of all the prohibited degrees to be publicly hanged up in all the several churches of this nation; to which all comers might have recourse for satisfaction. This catalogue you have perused, and find no exception of the case specified. I know no reason, therefore, why you may not conclude it not unlawful.
The question of the expedience would require another debate. Doubtless, in all cases of this nature, it must needs be yielded, that it were more meet and safe, since the world yields so large a latitude of choice, to look further off. A wise and good man will not willingly trespass against the rules of just expedience; and will be as careful to consider what is fit to be done, as what is lawful. But that comes not, at this time, within your enquiry.
While, therefore, I give my opinion for the lawfulness of this marriage with the relict of the wife's brother, I do no whit clash, as you suggest, with the judgment of Beza and Mr. Perkins, who profess their dislike of such copulations. I shall as readily cry them down for unmeet and inconvenient, as those, that, with too much boldness, come over-near to the verge of a sinful conjunction: but, for the not-unlawfulness of this match, I did, upon the first hearing, give my affirmative answer; and, the more I consider of it, I am the more confirmed in that resolution.
That universal rule mentioned by you, as laid down by those two worthy authors, must endure a limitation; Cujus non licet inire nuptias, ejus nec conjugis licet ; That there is the same degree and force of relation of a third person, in the case of marriage, to the husband and to the wife; so as, proximity of blood in the one, should not be a greater bar than the same proximity of alliance in the other : otherwise, many more copulations will fall under censure, than common practice will condescend unto. And that ground of, uxor purs quædam viri, “ the wife is as a part of the husband," as it holds not in natural relation at all, so not in all conjugal; as might be too easily instanced in divers particulars.
And, if there were not some difference in these relations, those second persons, which are interested in the husband or wife, might not come near to the next in affinity to them. For example: my brother may not marry my sister : therefore, by this rule, he might not marry my wife's sister; and so it should be unlawful for two brothers to marry two sisters; than which, nothing is more ordinary, or less obnoxious to disallowance.
That general rule, therefore, must be restrained necessarily to the first rank of affinity. If we descend lower, it holds not.
· For further explanation, our Civilians and Canonists are wont to make two kinds or degrees of affinity: the one, primary; the other, secondary.
In the first, is the affinity between the husband and the cousins of blood to his wife, or è converso ; which, indeed, is justly held no less for a bar of marriage, than his own natural consanguinity; for that is an affinity contracted upon interest of blood, by virtue of that entire union between man and wife, whereby they both be. come one flesh.
The secondary affinity is that, wherein there is another person added moreover to that first kind now mentioned; the affinity arising only from the interest of an affinity formerly contracted, not from consanguinity : and this is not so binding, as either to hinder a marriage to be contracted; or, being contracted, to dissolve it.
In this rank, are the brother's wife, and sister's husband; and, therefore, upon the decease of the brother and sister, the husband of the sister deceased, and the wife of the deceased brother, may marry together; as Dr. Nicholaus Everhardus, out of Richardus de Media Villa and Panormitan, hath clearly determined *.
* Consil. Matrimonial. Germanor. Consil. 5.
Of this kind, is the marriage now questioned; which, therefore, doth not fall within the compass of the prohibition. Secundum genus affinitatis, &c: “ The second kind of affinity, which is by a person added unto the first kind, is no bar to matrimony." And with this judgment I find no reason why I should not concur: but, if any man think that he sees just ground to entertain a contrary opinion, I prejudge him not; but modestly leave him to the freedom of his own thoughts.
Whether an incestuous marriage, contracted in simplicity of heart,
betwixt two persons ignorant of such a defilement, and so far consummate, as that children are born in that wedlock ; ought to be made known and prosecuted to a dissolution.
It is a question, as it may be put, full of doubt and intricacy.
Parallel whereunto, and eminent in this kind, was that case, which I had long since from the relation of Mr. Perkins; and, since that, have met with it in the report of two several German authors.
The case thus. A gentlewoman, of great note in those parts, being left a widow, had her son trained up in her house : who, now having passed the age of his puberty, grew up, as in stature, so in wanton desires ; earnestly soliciting her chambermaid to his lust, She had the grace, not only to repel his offers; but, being wearied with his wicked importunity, to complain to her mistress of his impetuous motions. The mother, out of a purpose to repress this wild humour in her son, bids the majd, in a seeming yieldance, to make appointment the night following with him ; at which time, she would change beds with the maid, and school the young man to purpose. This being accordingly done, the Devil so far prevailed with the mother, that, instead of chastising, she yielded to the lust of her son; and, by him, conceived a daughter. And now, finding herself to grow big, for the hiding of her shame, she retired secretly to a remote part of the country; where she, unknown, left the burden of her womb, and took order for all care and secrecy of education. After some years, the mother thinks fit to call home her concealed issue, under the pretence of a kinswoman; and gives her such breeding in her house, as might become the child of a friend. The maid grew up to such comeliness, both of person and behaviour, that the son, now grown a man, fell into passionate love with her; and, in short, married her: little thinking, that he was now matched with his own daughter, begotten by him of his own mother. They lived lovingly and comfortably together, and had divers children betwixt them. Only the mother, who was alone conscious of this monstrous copulation, began to find a hell in her bosom: and, in a deep remorse, made the case at last known to
some learned divines of that time; who bestowed many serious thoughts upon so uncouth a business, and finally agreed upon this determination :-That, all circumstances thoroughly weighed, the penitent mother should, after a sound humiliation, secretly make her peace with God, for so foul and prodigious a sin: but, that the knowledge of the horrible incestuousness of this match should still and ever be concealed from the young couple, wbo thought of nothing, but a fair and honest legality in this their conjunction.
The decision of this point comes somewhat home to yours.
To spend my opinion therefore in this case, I find no reason, all things considered, to vary from their judgment.
I say then, that the mother's sin was not more heinous, in yielding to so abominable an act of incest with her son ; than in smothering the seasonable notice of it, for the preventing of a worse incest with her daughter : for that first act of her incest was transient; but this incest, which was occasioned by her silence, was permanent, and derivable to her posterity. She ought, therefore, though to her perpetual shame, when she saw an inclination in her son, to so foully unnatural a match, to have forestalled it by a free confession; and to have made him sensible of so odious a procreation : which not being done, it must needs be said, that, as the first act of the son was a voluntary fornication, but an involuntary incest; so this incestuous copulation of the son with the daughter, was involuntary in them both; and there cannot be an actual sin, wherein there is not a consent of the will.
On the one side, it is shameful to think that so grievous a sin should pass without some exemplary censure; and that so foul blood should be propagated to succeeding ages, for want of the timely intervention of a vindicative authority : but, on the other side, it should be well considered, what miserable inconveniences, yea mischiefs would follow upon so late a discovery.
First, all honest hearts are put into a just, but unprofitable horror; to think that such a flagitious wickedness could be committed. Then the mother, who had rinsed her soul with a fountain of tears, for so hateful a miscarriage; and reconciled herself to that God, who was the only witness of her sin; should be so late exposed to the unseasonable shame of that world, which never was privy to her of fence. As for the young couple thus prodigiously conjoined, how could they chuse, upon the too late notice of their so deplorable condition, but run mad for anguish of soul; and wear out the rest of their days, in shame and sorrow? And, for the children born to them in so detestable a wedlock, whom they had formerly beheld with complacence and comfort, as the sweet pledges of their conjugal love, how must they now needs look upon them as the living monuments of their ignominy; and loath them, as the most basely begotten imps of a worse than bestial copulation ? And, when riper age should bring that unhappy offspring forth into the world, how should they be every where pointed at, and hooted after, as some strange aberrations of nature ! All which are aroided by this secresy.