butler versus GASTRILL N B this case seem to be before the delegate  prohibition to the spiritual court in the case of a incestuous marriage c a  marriage with the first wife be mother sister be incestuous where a  prohibition lie and why John butler and Elizabeth his wife obtain a  prohibition to Pereqrine Gastrill judge of the ecclesiastical court at Chester  where they libel against the plaintiff for a incestuous marriage for that the  say John butler have marry the plaintiff Elizabeth former Elizabeth Lowndes  who be sister to the mother of Hannah Lowndes his first wife and upon this  prohibition the defendant put in a demurrer and the defendant now argue for a  consultation and here the only question be whether the marriage with the wife  be mother sister be incestuous or not and it be resolve by the whole court  that this marriage be incestuous and here in the first place this position be  agree to be plain that by the statute of the Henry cap if a spiritual court  proceed to impeach or dissolve a marriage out of the levitical degree that  then the temporal court be to prohibit they for by that statute all marriage  that be out of those degree be declare to be good and lawful and therefore if  the spiritual court molest person in do that which be declare lawful to be do  by the statute of the realm they be by the temporal court to be prohibit  because they exceed their jurisdiction thus bind by the temporal law but where  the law have not bind they their jurisdiction still continue and therefore  within the levitical degree they be still judge of incest Gilbert the incest  within the levitical degree be twofold videlicet either such as be contrary to  the law of nature or such as be forbid by the divine positive law first the  incest against the law of nature and that be any marriage between the ascend  and descend line in infinitum this be contrary to the law of nature because it  tend to the destruction of the natural will of the creator which design the  preservation and continuance of such inhabitant of the world as he original  create and all act of man that tend to the destruction of such species as  murder of a innocent person be say to be against the law of nature and  therefore incest between the ascend and descend line be contrary to the law of  nature for the mother will never have preserve and educate the female issue if  it have be admit to the father to have have access to they and father will  never have educate and preserve their male issue if they may have ascend the  bed of the mother and therefore this horror of incest have be propagate not  only in all civil society where nature be train up and cultivate but also in  the clan of the scythian and nomad and all the wile people of the earth where  man have live in troop by spoil and rapine without any regular or settle  government there be another reason likewise why this be call unnatural and  that be because it destroy the natural duty between parent and child for the  parent can never preserve or maintain that authority that be necessary for the  education and government of his child nor the child that reverence that be due  to the parent in order to be educate and govern if such indecent familiarity  be admit or set up upon a foot of equality one with the other second of incest  among collateral and this be not strict speak contrary to the law of nature  for then mankind can not have be propagate from one common stock without a  breach of the law of nature beside that this very usage of marry sister be  practice by the patriarch and good man of old without any note of blame as  Jacob marry rakehell and Leah nay there be one case wherein it be express  command and that be where the elder brother die without issue that the young  brother must marry the decease brother wife to raise up seed unto his brother  the meaning of which be that the child beget by such second marriage be to  bear the brother name and take his inheritance but though incest among  collateral be not contrary to the law of nature yet it be contrary to the  positive law of God which be likewise establish upon very strong reason for if  a concourse Gilbert report er p between brother and sister may be allow or  their marriage be tolerate the necessity that there be that they shall be  educate together and the frequent suitable they have with each other will fill  every family with lewdness and create heartburnings and unextinguishable  jealousy between brother and sister where the family be numerous and it will  confine every family to itself and hinder the propagate of common love and  charity among mankind because there will be a danger of take a wife out of any  family Gilbert if woman be liable to be corrupt by such vicious freedom they  have likewise find among bruit creature that it be necessary to cross the  strain in order to continue the species it may be that there be the same tone  and figure in the blood and a similar conformation of vessel the circulation  of it become torpid and unactive whereas a new mixture of other of the same  kind where there be a different figure and motion of the blood and spirit may  add a new vigour and ability to the animal economy which may be likewise a  natural reason against such sort of incest this prohibition be likewise carry  into the three degree in the collateral line and be to uncle and ant nephew  and niece because upon the death of the father and mother they come into the  education of the child loco parent and by consequence it be necessary to  propagate the same reverence of blood in such near degree that the uncle may  have the same regard and command as a father and a niece the same duty as a  daughter it be also necessary in order to perfect the union of marriage that  the husband shall take the wife be relation in the same degree to be the same  as his own without distinction and so vice line for if they be to be the same  person as be intend by the law of God they can have no difference in relation  and by consequence the prohibition touch affinity must be carry as far as the  prohibition touch consanguinity for what be find convenient to extinguish  jealousy among near relation and to govern family and educate child among  people of the same consanguinity will likewise have the same operation among  those of the same affinity and when we consider who be prohibit to marry by  the levitical law we must not only consider the mere word of the law itself  but what from a just and fair interpretation may be deduce from it for the law  in Leviticus Chap xviii verse begin that none of you shall approach to any  that be near of kin to uncover their nakedness now who be next of kin must be  understand by the example from the that to the that verse and there be example  of many prohibition to collateral in the three degree both in affinity and  consanguinity but there be no example of collateral in the four degree either  in affinity or consanguinity and therefore the law of marriage open to  relation in the four degree and the Jewish lawyer in compute their degree  compute they accord to the natural order of thing that be from the propositus  up to the common stock and so down to the other relation which be the fair and  natural order of compute proximity and in this manner of computation all  marriage of collateral in the three degree be unlawful and all marriage in the  four degree be lawful this perfect agree with the resolution of our own law  thus the marriage with the wife be sister be daughter be incestuous which be  the same degree with this marriage more cro Elizabeth Leon man case so the  marriage with the sister be daughter be declare incestuous which be likewise  in the three degree the case of Watkins and Margatron raym and it likewise  resolve in the case of Wortley against watkinson that the marriage Gilbert  with the wife be sister be daughter be incestuous lev so Kebl so resolve in  the case of sir Edward Whitpool quote in hob so the marriage of the wife be  sister be daughter be resolve to be incestuous in the case of Snowling versus  Nursey Lutw so the marriage of two sister one after the other be hold  incestuous in the case of hill and good be in the second degree Vaugh but the  marriage with the wife of the plaintiff great uncle be allow to be good  because that be in the four degree and by the word of the statute h cap cousin  germane be declare of the four degree to have liberty to marry vent c Vaugh  this likewise be the ancient sense of the Christian church and even of the  church of Rome in the time of pope Gregory for in write to Austin bishop of  Canterbury he say in quartan generation shrinking wedlock too little to loosen  and this Gilbert report er p appear in the decretal can quest cap but  afterward when they find that dispensation for incestuous marriage bring great  profit to the church of Rome and know it have obtain universal in the  Christian church that it be lawful to marry in the four degree pope Alexander  two begin a new computation of degree and he say that the secular computation  which be the computation of the civil law be not proper adapt to the decision  touch incestuous marriage but they ought to compute up to the common stock  where the relation join because there the blood be connect and therefore they  compute the degree accord to the distance of the person remote from the common  stock for accord as the remote be distant from the common stock so they  compute the relation between the party this plain appear by the decretal law  No and in the that the whole arbour consanguinitatis be set forth so that the  first cousin that be in the four degree by this former computation of degree  which be the receive computation in the mosaic law and in the Roman government  be now by the canonical computation throw into the second degree and by this  alteration of computation of degree they for bad not only first cousin but  second cousin and three cousin to marry unless they obtain dispensation the  intention of our statute be to restore every thing accord to the prohibition  express in the law of God and plain the levitical computation of degree be in  the manner they compute in the civil law which be from the propositus up to  the common stock and so down again to the other relation and by the canon  confirm by James in the that canon express say thus No person shall marry  within the degree prohibit by the law of God and express in a table set forth  by authority in the year of our Lord and all marriage so make and contract  shall be adjudge incestuous and unlawful and consequent shall be dissolve as  void from the beginning and the party so marry shall by the course of law be  separate and the aforesaid table shall be in every church public set up and  fix at the charge of the parish and it appear by that table that to marry the  wife be mother sister be incestuous indeed it have be duly object to this  manner of argumentation that Gilbert the canon bind only ecclesiastical person  and do it bind the laity because they be make only by the clergy in  convocation and so they only be bind by these rule and layman be not bind  because such canon have not the assent of the Commons and temporal lord and so  such canon can bind the laity as a law but to this I answer that these table  do show the sense of the church of England and so be a proper exposition of  the law of God and by consequence ought to have great weight with the judge  when they expound the levitical law and they be plain the decision of this  reform church touch the crime of incest and they do retrench the exorbitant  and unwarrantable construction of the church of Rome who make the law of God  of none effect by their tradition and yet they expound the law of God in its  full latitude and forbid marriage only to such person as be in equal degree to  those mention in the xviii of Leviticus and so a consultation be award