case Wortley against watkinson Trinity term car roll the spiritual court may  proceed to dissolve a marriage between a man and his wife sister daughter for  it be within the levitical degree SC keb SC lev SC Jones prohibition upon a  demurrer to the declaration the question be whether the marriage of a man with  his wife sister daughter be incestuous Mr sander against the marriage and for  the consultation the only ground of scruple be parson case a which say a  prohibition be grant but in that case there be rule for consultation in Hilary  term two year after that and certain it be within the statute Henry c and in  man case b it be only say that a prohibition go but in croak c the same case  be report and there indeed a prohibition go but afterward a consultation be  award on strong debate and so be the case of Remington cite in the case  Bartlett v Howard d and this be after parson case e Lord coke f say a woman  may not marry with her ant husband and that case of parson my Lord coke report  it not as his own opinion for it be otherwise in the second institute Mr  Wallop the marriage of a man own niece be not within the express word of the  levitical law nor be there any express case in our law that make shower KB a  man marriage with his own niece to be incestuous in sir John Allingtons case  in the reign of Charles the first he be fine one thousand two hundred pound by  the high commissioner but a prohibition go g it must therefore be parity of  reason that must govern this case for it be not express within the levitical  degree now for parity of reason I do not whole disallow it but offer these  thing concern it it be very difficult if not impossible to assign the true  reason of the levitical prohibition now parity of reason be a relative thing  therefore certain we can give a account of that which be not express h those  who think they have find out the true reason do not agree I they argue from  Leviticus king that they be in equal degree they take non causan pro causan  they make propinquity the only formal ratio of all those prohibition l but  this can never be maintain for if we consider the first marriage we shall find  that eve be to Adam as his daughter m now if in some case marriage be unlawful  and other more unlawful and both alike near and other that be near and yet  lawful then there must be some other cause for the prohibition beside  propinquity of blood now cousingerman be not probibited then they go upon  another error in that they argue from the right line to the collateral line  and that be apparent in harrison case n it be true that case be only about the  degree that the custom be for the inhabitant to remove at pleasure and that he  be remove pursuant to such custom Cowp see also king v Fawcett burr king v  mayor of Canterbury stram king v mayor of Coventry salk a   light b Hobart c  cro Elizabeth d hob e roll Abr f Inst g Lord Vaughan say in the case of sir  Giles Allington he be deep fine and a sentence of divorce give for marry his  brother or sister daughter which I hear at Lambeth house and no prohibition be  grant Vaugh h Grotius de jure Belli et peace book ch par Selden de jure  physical scientist et gentleman lib p I see dr Hammond in his six quaere  concern marriage page king Leviticus xviii l Selden wife hebraica m Selden de  jure physical scientist et a king of Illyria juxta disciplinan Ebraeoreum n  Harrison v Burwell Vaugh shower KB er p of consanguinity but yet affinity also  work more strong in the lineal than in the collateral line and that which be  strong in the case of the right line oh will not work at all in the collateral  line there be no express absolute prohibition with the wife kindred but in the  right line another reason they draw from those word in Leviticus for she be  your near kinswoman p that therefore propinquity must be the formal cause now  shower KB by propinquity they must either mean the immediate next of kin which  can be accord to they for then we shall not be at all prohibit or else it must  be in the large degree and sense and then all kindred whatsoever will be  prohibit it must be therefore kinswoman relative in the right line I e such as  may come to be your mother or guardian the right formal reason of those  prohibition be because the order of nature will be invert and there be a great  diversity always take between marry a aunt and a niece and between the marry  of a wife aunt and her niece Q and the talmudist do not hold a marriage  between the uncle and his niece to be incestuous r as to the dilemma in the  case between wood v hill S I answer that though it be not utter unlawful yet  because it be next to it and look like it on that account the church may  prohibit such to be priest t and for this reason do the apostle prohibit widow  that have two husband c this diversity between a niece and a aunt do well  answer dr Hammond u superior relation and viceparents may not marry because  they can both command and be command so that one that may be a mother can  marry a nephew son but yet a viceparent may marry a niece daughter because he  may command both way in the collateral line only the superior relation can  decent make wife but in the lineal they may for authority it be observable  that the Roman who be most strict about marriage and therefore not only forbid  the marry one niece ten but the marriage of cousingerman and so they go  further than we yet do not prohibit the marriage of a wife sister daughter  beza Franciscus Connenus that give a instance of Sicilia and Misylus he also  cite the case of parson z and though as Lord Vaughan say a there be a  consultation grant yet that be for a defect in the declaration and so be that  of man be case the shower KB case in Hobart be very dark the word be though  there be cause it be nothing but a supposition word speak obiter there be  against I the Ninetyninth canon but I must submit to you whether a canon pass  in the convocation and confirm by the king only and not by Act of parliament  bind all the king subject b No canon can oh as Selden de jure physical  scientist et a king of Illyria c ut above cap page p levit xviii Q bishop  theolog Inst r Selden S hill v good Vaugh t who two sister to lead or first  cousin clergyman be non to be able can apost u page ten see pale yellow Rep  that Valerius maxim cap de man see dr tailor be element of civil law z   light  a Vaugh Rep b by Henry c the clergy shall not presume to claim or put in use  any canon except make by the royal assent in convocation assemble by the king  writ nor shall any canon repugnant to the king prerogative the law the custom  or the statute of the realm be allow and upon this statute the authority of  the canon law of England be say entire to depend law Gram the canon of be make  in a convocation of the province of Canterbury be ratify by king James the  first and afterward adopt by the province of York but be never confirm in  parliament pref vol burn Ecc law XV these canon it be say have always be  receive ld ray and no doubt ever make of they salk with respect to their bind  the clergy in matter of ecclesiastical cognizance though only confirm by the  king bishop of saint David v Lucy Carth but that the laity not be represent in  convocation be not bind by they they not have shower KB er p prescribe against  a statute and therefore can make any thing within the degree there prohibit  that be not so before for all marriage not within the levitical degree c be by  that statute of Henry c allow good Scroggs chief justice say that he be apt to  think real those prohibition be partly for avoid confusion which will ensue by  have person both command and command and have it not be for those how can any  law have determine the course of descent and who shall be heir and inherit  Jones justice I think that propinquity be the reason of prohibition and to I  it seem clear that we ought to reverence and follow the judgement of the  church of England and all along since the make of the statute of Henry c the  ecclesiastical court have put this up in their table among the incestuous  marriage and have always reckon it such and all our doctor and divine do  account it such dolben justice it be of great weight deserve to be speak to  again but I wonder our clergyman do not get a Act of parliament for the settle  those marriage since doubtless they may so easy have it I know several  marriage of the like kind that be not yet in question Pemberton justice it be  fit I think to be speak to before all the judge and Mr Wallop your cause  depend whole on this that the consultation be grant for defect of or in the  declaration for those precedent will be our guide however I shall be cautious  in the matter for there be three or four child in this marriage which must be  all bastardize if this marriage be incestuous but this be not of record and  this be not a single case but a general question of great consequence and  shower KB fit to be argue again Adjornatur c