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be to take this nearness of kin as the Lord himself has Itated it, then let any lawyer or divine point out something in the law of God whereby it may be seen, that he hath stated this nearness of kin so as to take in the grandaunt with the aunt, and it will give satisfaction.
But the strength of the synod'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 universally true, as it is not, yet this their judgment must have the less weight, when it is confi. dered, that it took its rise, not from the law of God, but from the law of the empire, as it stood in the sixth 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 least 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 case, but the law of God, which is the same thing with the Scottish law in this matter, it is much to be questioned, if this case would have been judged incestuous by any lawyer or divine.
And J. B. cannot but think it bard, that Justinian's law, and the judgment of lawyers and divines influenced thereby, should now bind the men of this nation over to the highest censures of the church, and to death, when the law of God and of Scotland hath left them free. Lawyers have been desired to give some instances of statutes or decisions in Scotland, touching J. B.'s case; and instances have been given of foreign laws or decisions in countries where the punishment in this case is arbitrary; but there is no Scot. tish law nor decision yet produced that hits this case. And when it has been declared, that all incest whatsoever is capital by special statute in our law, it should have also been told, that all the incest whatsoever in our law is “the abusing of " the body with lik persons in degree as God in his law
has “ expressly forbidden,” Lev. xviii. As to the instance of a man tried and condemned at Perth by the court of justiciary, for having carnal dealing with his wife's niece, it no wise touches this case, and it was exactly according to the law of God and of Scotland; for that man was guilty of abusing his body with such a person in degree as God in his word bath expressly forbidden, and so was clearly guilty of incest by the law of Scotland; but ha ing carnal dealing with the wife's grandpiece is not incest by that law, because she is
not fik a person in degree as God in his word hath express. ly forbidden; and a decision niaking this to be incest by the law of Scotland, will be a new decision in Scotland. The case 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 case 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 suffer him to live.
Much stress is laid in the unanimity of lawyers and di. vines in their verdict upon this point. And when that is narrowly inquired into, the ground of boasting upon this head will evanish. For are there not as eminent lawyers as have written, that have not carried inceft further than the piece? And it is well known what Grotius fays even as to the niece. And for the Civil law commentators ihat carry the prohibi. tion down to the grandniece in confanguinity, how many are there of them that carry it that length in affinity ? Yea, have not some lawyers questioned the carrying down of the affinity to the very niece; so that take it either way, J.B.'s case is far from being unanimously judged incestuous by lawyers. And further, there is such 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 same defect in point of unanimity with that of the lawyers. In the writings of several foreign divines, we do not find the prohibition carried beyond the niece; and all they that, fol. lowing 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 cause was not decided by the assembly, but was annually called and postponed till the death of the defendant put an end to it.]
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