tum a Luth. de Capt. Babyl. viz. Rectius noviffe Deum quæ perfonæ ad conjugium aptæ fint, et quoufque fe extendant cognationis gradus, quam ullus homo. Deus vero non prohibuit conjugia nifi ufque ad fecundum gradum in linea inæquali, Leviticus 18. et 20 Quocirca conjugia in reliquis gradibus a Deo non probibitis inita, non possunt nec debent cenferi conjugia incefta. Brochmand de conjugia, quæftio 53.

They that have given their judgment in this cafe against J. B. have laboured under another remarkable mistake in confounding the unequal or oblique line, as it is commonly called, with the direct line, and in overlooking this, viz. that the line is as direct from the common parent to his posterity, by one of his children as by the other.

The Levitical law, though it fpeaks nothing of these lines, makes a very clear diftinction betwixt what we call the direct line, and the unequal or oblique, and that clearly founded in the nature of the thing. The Lord forbids the grandfather to marry the grand-daughter, or the grandson to marry the grandmother, because of their own nakedness, or because there is a communication and derivation of blood betwixt them, and one of them is a part of the other's flesh, and fo makes it unlawful for all them to marry together, among whom this takes place, or where this may be faid, as where the Lord fays it, "Theirs is thine own nakedness;" and this is perhaps infinuated in the general prohibition, 6. if we look to the import of the original word: but this does not take place in the cafe of fifter and brother, betwixt whom there is no fuch communication or derivation of blood, nor is there any fuch communication of blood from the fifter to them that are defcended of her brother; and therefore there can be no way of reckoning the nearnefs of kin in that cafe, but by the generations or degrees, while all that are on the direct line are unto one another as in the fame degree, and so near of kin, that the nakedness of any one of them is the other's own nakedness, which is the highest degree of nearness of kin. This plain distinction is much overlooked, and a loose way of arguing is gone upon, making an inference from the mother to the grandmother, as from the aunt to the grandaunt; though it be most evident the nature of the relation in the cafes of grandmother and grandaunt is vaftly different, and the reafon of the prohibition in God's law as to the grandmother, viz. "their own "nakedness," will never apply either to the aunt or grandaunt. Though the relation be the fame, as to the matter of inceft,

inceft, in the cafe of the grandchild or greatgrandchild, yet it will never follow from this, that the relation is the fame in the cafe of niece and grandniece: and though the grandfather, and the afcendants on the direct line, be confidered as one with the defcendants on that line; yet this is only with refpect to one another, and not with refpect to any of them on another line, whofe nakedness is not their own, otherwise it were most easy to demonstrate every marriage inceftuous: and therefore this reafon for prohibiting a man to marry his aunt, "She is thy father's near kinfwoman," will never apply to the grandaunt, the grandfather's near kinf woman, as has been with fome confidence afferted, under the influence of the forefaid mistake.

The reafonings upon the 14th verfe of the 18th chapter of Leviticus against J. B. look liker the forming of the word of God according to mens judgments, than the forming of their judgment, according to that word. The reason given in that 14th verfe, with refpect to the uncle's wife," he is "thine aunt," does indeed fhew, that the Lord carries the prohibition as far in affinity as he does in confanguinity, but cannot extend to the grandaunt, whether we confider the fense and scope of the text, or the nature of the relation.

The text declares, as it is unlawful for a man to uncover the nakedness of his father's fifter, his father's near kinfwoman, or the nakednefs of his mother's fifter, his mother's near kinfwoman; fo it is unlawful for a man to uncover the nakedness of his father's or mother's brother, who is in the fame nearness of kin with the father or mother's fifter; and then fhews how a man in this cafe uncovers the nakedness of his father's brother, which is by approaching unto his wife, whose nakednefs is thus declared to be her husband's nakedness; and fo fays the Lord, "Thy father's brother's wife is thine aunt, "thy father's fifter." Thus it is plain, that as in the other cafes of this law, the Lord carries the affinity along with the confanguinity, fo he does in this cafe. And this is the only thing we have in the 14th verfe beyond what is contained in the 12th and 13th; so that if an inference cannot be drawn from the father's fifter to the grandfather's fifter, y 12.; neither can an inference be from the father's brother's wife unto the grandfather's brother's wife: but from the father's fifter his near kinfwoman, unto the grandfather's fifter his near kinfwoman, there is not an inference, because the grandnephew is at a farther distance of kin from the grandaunt than the nephew is from the aunt; and fo the relation is not

the

the fame for though the father's posterity be not set at a diftance from him in this cafe by generations, feeing their nakedness is still his own, and thus they ftand in the greatest nearness of kin to him, yet every generation fets them at a farther distance from his fifter, whose nakedness theirs is not, otherwise the aunt's daughter, and daughter's daughter, &c. would be as near of kin to the nephew, and at no greater di ftance from him than is his aunt, whofe nakedness theirs is. And it is certain, that they who defcend from a common parent by the fifter his daughter, are in a direct line from him and his daughter, as well as they that defcend from him by the brother his fon, are in a direct line from him, and from that fon, and to thousands of generations, they stand every one of them with the common parent, and the brother or fi fter of whom they are defcended, upon the direct line; fo that none of them can be fet at fuch a distance from the common parent, or from these by whom they are defcended from him but that still their nakedness is their own: but these that descend from the common parent upon the one line, are set at a distance from them that defcend from him upon the other line, and that by every generation; for even in the first the brother is at a greater distance from the fifter than he is from his father. And now let it be determined by them that can tell whether two and three make five, let it be determined whether they that defcend from a common parent upon one line be fet at a greater distance of relation from them that defcend from him upon another line, by two generations upon one line, or by one upon each line; and then the great question will be determined, whether the uncle and grandniece be nearer of kin to one another than are coufin-germans. Thus, neither by the aforefaid text, nor by the nature of the relation as stated in the law of God, can any inference be drawn against the lawfulness of marrying the grandaunt, from the unlawfulness of marrying the aunt: and more must be said upon the law of God for making out this inference than lawyers or divines have yet produced, before they can fatisfy any impartial judge of the juftness of it. It is owned, that the general ftatute upon the fubject of inceft is contained in y 6. "None of you fhall approach to any that is near of kin to "him." And if this nearness of kin be not ftated to us in the following verfes by the Lord himself, what is the defign of these following verfes? And, if we be not to stand on the utmost uncertainty, must we not reft in the Popish law, where only we find a pretence of infallibility? But if we

be

be to take this nearness of kin as the Lord himself has ftated it, then let any lawyer or divine point out fomething in the law of God whereby it may be seen, that he hath stated this nearness of kin fo as to take in the grandaunt with the aunt, and it will give fatisfaction.

But the ftrength of the fynod's cause against J. B. lies in the judgment of lawyers and divines, which is very confi. dently affirmed to be against the lawfulness of his marriage; and though this were univerfally true, as it is not, yet this their judgment must have the lefs weight, when it is confi dered, that it took its rife, not from the law of God, but from the law of the empire, as it stood in the fixth century, where they find those who are accounted to be in the place of parents forbidden to marry with them unto whom they are in the place of parents; and by this rule it is made unlawful for the uncle to marry the grandniece; but there is not the leaft appearance of this fancy in the law of God, or in the law of Scotland. And if they had not had any other rule of judgment in this cafe, but the law of God, which is the fame thing with the Scottish law in this matter, it is much to be queftioned, if this cafe would have been judged inceftuous by any lawyer or divine. And J. B. cannot but think it hard, that Juftinian's law, and the judgment of lawyers and divines influenced thereby, should now bind the men of this nation over to the highest cenfures of the church, and to death, when the law of God and of Scotland hath left them free. Lawyers have been defired to give fome inftances of statutes or decifions in Scotland, touching J. B.'s cafe; and inftances have been given of foreign laws or decifions in countries where the punishment in this cafe is arbitrary; but there is no Scot tish law nor decifion yet produced that hits this cafe. And when it has been declared, that all incest whatsoever is capital by special statute in our law, it fhould have also been told, that all the inceft whatsoever in our law is "the abusing of "the body with fik perfons in degree as God in his law has "expressly forbidden," Lev. xviii. As to the inftance of a man tried and condemned at Perth by the court of jufticiary, for having carnal dealing with his wife's niece, it no wife touches this cafe, and it was exactly according to the law of God and of Scotland; for that man was guilty of abusing his body with fuch a perfon in degree as God in his word bath expressly forbidden, and fo was clearly guilty of incest by the law of Scotland; but having carnal dealing with the wife's grandniece is not inceft by that law, because she is

not

not fik a perfon in degree as God in his word hath expreffly forbidden; and a decifion niaking this to be incest by the law of Scotland, will be a new decifion in Scotland. The cafe is very different where the punishment is arbitrary, and where it is capital; and lawyers will be less excuseable in going beyond the law of God and of their country in the one cafe than in the other. But it is altogether unaccountable to take the help of the laws of other countries, where the punishment is arbitrary, to bring a person to death, where the law of God and of his country would fuffer him to live.

Much stress is laid in the unanimity of lawyers and divines in their verdict upon this point. And when that is narrowly inquired into, the ground of boafting upon this head will evanish. For are there not as eminent lawyers as have written, that have not carried inceft further than the niece? And it is well known what Grotius fays even as to the niece. And for the Civil law commentators that carry the prohibition down to the grandniece in confanguinity, how many are there of them that carry it that length in affinity? Yea, have not fome lawyers queftioned the carrying down of the affinity to the very niece; fo that take it either way, J. B.'s cafe is far from being unanimously judged incestuous by law. yers. And further, there is fuch a question among them, If laws forbidding marriages beyond God's prohibition can annul a marriage, when made, unless that certification be contained in the law?

As for the judgment of divines, it labours under the fame defect in point of unanimity with that of the lawyers. In the writings of feveral foreign divines, we do not find the prohibition carried beyond the niece; and all they that, following the Civil laws, and the laws of their countries, have carried it down to the grandniece, have not ventured to car. ry it beyond the niece in affinity. As for British divines, perhaps there will not be found many among them, who, in their writings, have carried the prohibition beyond the

niece.

[This caufe was not decided by the affembly, but was annually called and poftponed till the death of the defendant put an end to it.]

The end of the FIRST VOLUM E.

VOL. I.

3 S