AN APOLOGY FOR A YOVNGER BROTHER OR A DISCOVRSE PROVING that PARENTS may dispose of their Estates to which of their Children they please By I. A. Written for the generall good of this Kingdome OXFORD Printed by LEONARD LICHFIELD for Edward Forrest 1641. TO ALL FATHERS AND SONNES OF WORTHY FAMILIES Whom Vertue Birth and Learning have iustly stiled GENTLEMEN Health Hapinesse and Encrease of the best Knowledge AS in the Front of this brefe Discourse there is Right Worthy Gentlemen already delivered vnto you some light of that which concernes the Qualitie Reason and Scope thereof so doe I here sincerely professe that J did not privatly write it at First but for privat satisfaction neither doe I now make it publike but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking and paradoxicall age Not vpon the least presumption of a selfe-sufficiency to confront thereby any receaved custone if any such be nor to diminish the naturall reverence due by Younger brothers to to theire Elder not to enkindle Emulations in Families nor to innovate any thing to the prejudice of publike or privat quiet which none I hope will be soe ill affected as to suppose neither mine in offensive zeale for Younger Brothers amongst whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Lawes which J haveing a litle studied doe not a litle respect nor the particular honor I beare to the vsages in this poynt of our ancient Brittaines from whom J am decended nor desire to maintaine and justifie an act in this kinde done by a friend whome I must ever reverence nor yet the hope of bettering my private fortunes which moves men much in these our times hath drawne me to this Vndertaking but principally as before is somewhat touched the singular respect which as a Patriot I beare to the glory and good of Gentlemens houses whose best originall surest meanes of maintenance and principall Ornament is Vertue or force of Minde The want whereof is a common cause of Ruine The free power therefore of You who are Fathers is here in some speciall cases argued and defended to giue you occasion thereby to consider with the clearer Eye-sight for the establishment and continuance of Families Here also the naturall Rights of vs that are Children be soe discoursed and discussed as that We younger Brothers may have caues and courage to endeavour by vertuous meanes to make our selves without the least wrong to any capable if need shall be of the chiefest vses And Both and All are so handled as that no offence can reasonably arise in any respect much lesse for that the whole is conceaved and written in nature onely of an Essay or Probleme to which I binde no man to afford more beleefe then himselfe hath liking of being free to refute the whole or any part at his pleasure as he feeles himselfe able and disposed If I may seeme to some to have handled this Subject with more earnestnesse and Acrimony then they thinke expedient let them be plealed to weigh the Decorum of Disputes which is principally herein observed their nature absolutely requiring quicknesse and vehemency on whether side soever As for the remedies of Evils by way of enacting Lawes that is the proper office of Magistrates and Courts of publike Counsell neverthelesse to speake and treat of them vnder the favour and correction of Superiours to whome I doe alwaies very dutifully submit is a thing which may well belong to every man But for those graue and Learned Censors to home I may seeme to have bestowed my paines in very needlesse Arguments because no lesse then I my selfe they hold the case as here it is put to be most cleere and out of controversie to such I answer that I writ it not for them vnlesse perhaps to confirme their judgements but for others who are not altogether so principled or perswaded Nor to any as to prescribe or bind further then their owne consciences shall think good For that were farre too peremptory Finally nothing being here defended but by Authority Reason and Example nor any person taxed nor particular personall Vices if neverthelsse I have not perform'd my part in the work so well as J desire or as the Cause deserves which I feare I have not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good Intntentions sake you will ever conceave well of and take in your speciall Protection Your vnfained Well-wisher J. A. THE CONTENTS CHAP. 1. The occasions and scope of this Appoligie to prove that Fathers may in some cases dispose their Estates to which of their Sonnes shall reasonably please c. and that to be lawfull by the law of God of Nature and of Nations CHAP. 2. That the grounds of good Constitutions being in Nature yet she neither before nor after the law of Propriety established did command that all should I le left to any one more then to another CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without siinne that therefore ther can be no such Right in primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not CHAP. 4. That Nations beginning to devise sundry Formes of setling Inheritances the Romans especially therein respected the free power of Fathers the right of Children to their Fathers estates beginning onely at their Fathers death CHAP. 5. That the present custom in our Country of giuing All or almost All to the Eldest was never so begunne that it meant to exclude iust Remedies for such Evills as should grow out of the abuse of that Custome when it may make Fathers guilty of their Sonnes faults and of their Families ruines CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure CHAP. 8. That Vnthriftinesse is one knowne name of many hidden sinnes and is alone a sufficient cause of disinherison proved by the Law of God and Man CHAP. 9. The main points of the Premises exemplified indiuers particular Facts as well of Princes as of private persons CHAP. 10. That the Law of Naturall Equity Reason confirme Disinherison and that the riotous liues of Elder Brothers deserue that vehement Increpation with which the Author closeth vp this Treatise THE YOVNGER BROTHER HIS APOLOGIE CHAP. 1. The occasion of writing this Apologie is to proue that Fathers may in some cases dispose
and seuerall Accidents yet all are agreeable to the old and ancient Grounds of Reason in Nature the Grand-Mother of all Law Wherefore hauing before specified what the Law of Nature is touching the Point in Question I shall now declare what Temper or Forme hath thereto beene added by the Civill Lawyer After that Man-kinde was inforced yet by Natures Warrant to make as I haue said a partition of the Blessings of God and Nature and that Men were possest by the same Right of Goods Lands which they desir'd to leaue to Posterity Law-makers and in particular the Civilian devised by little and little certaine Formes of Inheritance and ordination of Heires at first somewhat rigorous giving to Parents power of Life Death ouer their Children and a free disposition of all their Fortunes to any one of them in his life but dying intestate then all which was the Fathers to be equally divided among the Children as well daughters as sonnes Which Constitution was afterward vpon good grounds altered the Father being bound to leaue every child a Portiō which the Civilian cals a Legitimate Others a Patrimony which at first was the eight part of the Fathers substance equally to be divided as hath beene said which after a while seeming litle the Law commanded that the Fourth part should be left without Controll except vpon just cause the Testator did disinherite him or them who by course of Law were to succeed him stil vpholding the former Lawes that as well daughters as sonnes should equally succeed their Parents dying intestate Herein assigning fourteene causes why an Heire might lawfully be disinherited Many hundred yeares passed frō the establishing of the Civill Law before it was ordained by force of Law that Parents should leaue a Childs part as it is now called or that they could not disinherit without expressing the cause thereof in their last Will yet in all this Time nor till this present Day the Privilege of engrossing all by Primogeniture was not once heard of or at lestwise not admitted but rather excluded as by many Text in the same Law it well appeares The End of the Imperiall or Roman Civill Law being only to maintaine Morall Iustice in three short Precepts Liue honestly Hurt no Man Giue every one his owne So that hee who obserues these three fulfills this Law yea the Law of Nature whence this Law is deriued Now if any Brother can proue that his Father either in his life by Deed or by Will at his Death disposing of his Goods and Lands no otherwise then I haue declar'd doth no act against these three why should he not content himselfe either with the Fruits of his Fathers loue or his owne Deserts what ever they bee True it is that in Naturall Iustice children during their Fathers life haue Ius ad rem not Ius in re to a Fathers Goods Wherevpon the Law calleth them quasi bonorum Patris Dominos Which their Right only takes effect after their Fathers Death For during life he hath power to alter alien sell giue as it shall please him according to forme of Law but being dead without Will or disposition thereof they fall vpon his children according to the Law of Nations This Law embraceth a twofold Iustice the one in Exchange the other in Distribution The first hath not to doe with our cause The other * This warrants not the injurious Abdication of vnnatural Parents irremediable by the common Law as is also the oppression of Orphans by lewd Step-fathers and sharking Executors See D. Ridleys View republisht by a learned Student of the Royall College of Christ Church Oxon part 4. Sect. 1. 2. rather commends then condemnes a Father who vpon good Occasion that is for the bad Demerits of his Eldest Sonne and for the preservation of his Family shall giue or convey his Lands or Goods to the Younger For the Nature of distributiue Iustice is not only to giue proportionally to the well-deseruing but also to forbeare to place Benefits vpon any one who shall abuse them or vse thē to any other end then to that good for which they were lent and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his Goods to an evill end or to any one who he assures himselfe will vse them to the Dishonour of God or the Wrong of those who shall liue with him or by him whereof I will treat more in the seventh Chapter being then to handle what a Father may in Conscience doe or not doe in our present Question with sinne without sin And thus much of the Civill and Canon Lawyers Averment of an Elder Brothers Right to his Fathers Fortunes CHAP. 5. That the present custom in our Country of giuing All or almost All to the Eldest was never so begunne that it meant to exclude iust Remedies for such Evills as should grow out of the abuse of that Custome when it may make Fathers guilty of their Sonnes faults and of their Families ruines I Haue purposely reserued to treat of the Lawes of our Country in the last place because I assure my selfe they are of most force to sway the Point in question For many things may be permitted by the Lawes of God and Nature and yet contrarily prohibited or practised by course of Law in severall States of the World as the Law-makers and Customes of Countries allow or command I confesse the generall practise of our Time among Parents is to leaue either All or most part of their Lands to their Eldest Sonne This questionlesse as hath beene said was first devised in former Ages for the preservation of a Family and to raise One who might bee a Comfort to his Brothers Sisters and Family and in whom his Progenitors Vertues might liue to the World And I wil not deny but the Partition of Lands may reduce in the end a goodly Estate to Nothing or to so litle as it may be like an Atome in the Sun yet I finde in Naturall Reason that ex nihilo nihil fit or at lest that Haud facilè emergunt quorum virtutibus obstat Res angusta domi But if Men faile of those happy Ends Cessante ratione cessat Lex to which this generall Custome should guid then could I wish that they would not vse That for their Destruction which was meant for their Preservation For who sees not in these our Times many vnbridled youths so violently carried away with the humour of spending that they neglect Brother and Sister yea bring to extreame misery their Naturall Mothers after their Fathers Death by their vnthriftinesse What help for this hath Law left vnto vs No meanes to bridle these vnruly Colts if they become Heires according to the custome of our Time No truly For some starting-hole will bee found to vnty the Knot which a Fathers care once tied How then Must many a hopefull and well-deseruing Brother and Sister bee left to
the Mercy of this Whirlewinde There is no Necessity For our Law hath giuen Power to a Father and Free-will to dispose of his Owne according as Reason shall guid his Will without all obligation to his Heire Besides this Custome takes place only after a Fathers Death if hee dispose not what is his by Deed in life or by Will at his Death But lest my Words bee more generally taken then they are meant I meane those Fathers who are possest of their Lands in Fee or Fee-taile that is are absolute of themselues and haue not vpon good Consideration convaied their Lands from themselues For all our Lawyers agree that such Parents may alien sell and giue by power of our Law their Lands to whom they will without respect of Person or Eldership But may some say the Custome is otherwise this Custome is a Law True it is the Custome But let vs see whether it binde sub peccato or as a Custome which rather invites then commands There was never any Command to tye a Father vnder a Penalty which admits no limitation but it was euer left indifferent and then only to take place where former Provision according to course of Law is not made Then surely a Parent is free from this devouring Custome and may considerately prevent what Evill it may bring to his posterity yea Reason commands it should be so For Interest Reip. vt quilibet re suâ benè vtatur It concernes the publike State that Men be Good Husbands saith the Ciuill Law For if a Man can neither sell nor set much lesse can hee giue any thing to another which he thinkes in his Conscience will vse it to the Dishonour of God and the Ruine of himselfe or others Divines hold that it is not lawfull to sell or let a house to any that hee thinkes assuredly will make thereof a Stewes or to sell giue or lend a Weapon to a man who intends therewith to doe murther Excommunications are imposed on them who sell Armes Offensiue or Defensiue to Turks though they bee not assured they will vse them against Christians Thus we see the Rule of Conscience not onely commands a man to vse wel those Fortunes which God hath bestowed on him but forbids him either vpon Affection or Gaine to part with them to others who will abuse them lest hee partake of others sinne which a Parent may doe after death who leaues his Lands to a desperate Vnthrift But what Religion and Conscience commands shall be declared in the following Chapter In which vpon Principles drawne from the former Conclusions shall be argued what sinne may bee contracted by the parting an Estate among Sonnes or by disinheriting an Eldest son vpon just Cause to whom the Father is onely tied by the Custome of the the Countrey without Obligation of Promise or Contract in Marriage which may alter the Case CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion THE Right of these insociable Inheritors of which wee now treat may grow as I conceaue from three Titles or Claimes which they may pretend to a Fathers Inheritance and whereby it may be deemed as they thinke sinne in a Father vpon what Desert soeuer to barre them of the said Right These three Titles are Purchase Custome and Entaile Of each seuerally And of the first which is Purchase Surely in the Iudgement of the Good Learned there is no question in Law or Conscience but that a sonne joyned Purchaser with his Father hath Ius in re and by Equity must surviuing his Father inherite such Lands as were purchased in their Names Now of the other two though it be as cleere as Noone-light that a Lord in Fee-simple or Tenent in Taile may sel or giue by course of our common Law at his pleasure all such Lands held by him in that kind according to those formes of Law which the learned in our Lawes haue and can set downe yet there seems to arise a great Difficulty how such an Act or Acts may in Conscience be executed I haue heard some say in this our Case summum Ius summa injuria Of these Points therefore I will speake Salvo meliori judicio what may in Conscience vpoÌ„ good and just Occasion giuen by the Sonne to his Father bee put in Execution It is well knowne to all Divines as I haue said that Holy Writ hath not prescribed any direct or precise Forme to the Children of God whereby they are bound in Conscience to dispose of their Lands and Goods but hath absolutely left them to the Customes of their Country where any Act of that kinde shall be executed only as confirming all Formes of Devises which by publike Consent and Authority either haue or shall in rightfull manner bee devised or ordained Out of this Ground and others prementioned let vs examine whether a Father parting his Fortunes by Power of Law and on just Cause shall do a wrongfull and sinfull Act as some would make it I confesse that every Act in it selfe or by circumstance evill and which vpon no occasion can be justified is both before God and Man sinne and by no meanes to be executed by a Christian But that the parting of an Inheritance or Disinheriting of an Eldest Sonne vpon just and evident cause of incapacity according to Course of Law is an Act of that Nature doth not appeare For I finde not that either the Law of Nature or Grace nor yet the Lawes of Man Common Civill or Canon ever for bad such Acts whereby sinne may bee imputed to those who doe them on good Considerations Sure I am that the Canon and Civill Law are so farre from forbidding them that they command as a Thing in Equity the Father either to divide his Inheritance or allow him according to his Affection to giue to one more then to another yet with this Proviso that hee who hath the lest haue his * Or lawfull Portion See pag. 61. of Dr Ridleys View illustrated by the judiciously â—eâ—â—ined Mr Gregory Childs part which the Law doth also assigne except on just desert he disinherit any one which at this day may yea must bee by Will with the cause of Disinherison therein specified Of which Causes the Imperiall Lawes haue set downe foureteene as may well appeare to them who are desirous to vnderstand more thereof So it is evident that by these two Lawes no sinne can grow vpon such Acts being done vpon their Warrant and vpon on such Consideration as is formerly deliuered As for the Common Lawes of our Realme sure it is they allow no lesse and with a greater Privilege For a Man may by this Law giue his Lands held in Fee either by Deed in his life
Floruit Ao 480. as the World knows vpon good Consideration just Causes not vpon spleene or false suppositions persuaded to leaue their Fortunes to Strangers or to a lustfull Issue as some haue done CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure HAving treated largely and as I presume proued sufficiently that Lands held in Fee-simple may either bee parted or vpon just Cause wholly given away to a younger Sonne I intend now to speake of the lawfull Freedome of a Father in like sort and on the same causes moued to dispose of his Lands entailed of which there seemes more Doubt then of the former Every humane Act which of it selfe is not forbidden by the Law of God or Nature is to bee judged Good or Evill Lawfull or Vnlawfull either by the Lawes of the place where the Act is done or by Intention of him who shall doe the Act. For as the Divine Law cōmands somethings to be done and other things to bee avoided vnder paine of sinne so the third sort of Actions are left free by the said Authority from sinne except the Law of Man prohibite thē so make them sin or else evill Intention make them being of themselues lawfull to be a sinne and vnlawfull according to that Principle of Morall Philosophy Finis specificat āctum For as an Act of it selfe lawfull done against Law is Sinne so a good Act commanded by Law yet done with an evill intention may be sinne From these Grounds let vs see whether the Common Law of our Country and the Intention of a Father which are to bee the Iudges of our Cause can allow the cutting off an Entaile the parting of an Inheritance or vpon proportionable cause the disinheriting of a Son First it is cleere that the Act of it selfe by Law may be done But whether such an Act bee summum Ius which may be summa injuria that is the Doubt What shall be the Triall By other Lawes it is either made lawfull or left indifferent Our Law which makes this Tye giues leaue to vndoe it without any exception Ergo to a good End and vpon just Cause it may be done It will bee replied that the Eldest sonne during this Entaile is quasi Dominus Yet hauing neither Dominium directum nor indirectum he during his Fathers life hath onely Ius ad Rem and not in Re Whereby no change is forbidden to be made by the Father according to the Forme of the Law vnder which he liueth and by which the sonne is to make claime if the Father create no new Estate in his life For it is lawfull for every Man to dispose of his Owne as far as the Law shall permit him if it bee not forbidden by some other Law but such an Act is not forbidden by any other Law Ergo 'tis lawfull and no sinne But it may bee said that the Intention of him who entaild the Land was that it should not be vntied or the state changed I answer No Act done by law can be free from Change further or longer then the Law that made it a binding Act shall allow And it is well knowne to the learned in our Lawes that every Mans Intention is to be construed according to Law by which his Act and Intentions are directed Wherevpon Civilians say in like Cases Valeat quantum valere potest Neither is it thought that any man who convaieth his Lands by Entaile can intend an Act beyond Law or desire that his sonne whom he makes Tenent entaile as our Lawyers terme him shall in no Case no not for the preservation of his Family or Releefe of many other of his Children haue power to cut of this Entaile and to be able to alien sell or giue his Lands as Reason Law and Religion shall permit For it may be judged that hee who doth an Act to a good End as namely to preserue his Family will alwaies assent to another Act which shall with better assurance then his owne strengthen his Intendment To the former Considerations wee may adde what Inconveniences may follow this Generall Position For if in conscience the whole Inheritance of the Father is to come without controle to the Eldest sonne then must it of necessity bee inferred that the Father without his Consent * Agens per medium est minus efficax in agendo cannot giue to pious * Da quae nō potes retinere vt consequaris ca quae non potes amittere Vses or set out for the Advancemēt of his other Children any thing after his Death So that if God should blesse a Father with many children and crosse him with as many Misfortunes his other Children and all other his charitable Intentions should be provided for only at his Sonne 's or Heire's curtesy Which how * Pedissequa enim plerumque novi honoris est Arrogantia Salv. Ep. 2. absurd it is all men know For herevpon all Donations to pious Vses and to younger Brothers for their preferment may be called in Question It is an ordinary thing in these our Times when the Land is left to the Heire Generall to alter the Estate if the Land so cōvaied shal come to Daughters and to leaue it to a Brothers †Hebrewes call a Male-Child Zacar a memoriall because the Fathers memory is preseru'd in the Sonne See 2. Sam. 18.18 Sonne or some other of the same Name though peradventure many Degrees remoued for preservation of the Name and Family If this may bee deemed lawfull and no sinne being done against a well deseruing Child for whom Nature and her Deserts plead her worthy to be her Fathers Heire then without all compare if the preservation of a Name and Family may justly be labour'd for according to Power giuen by Law of God and Man the same may be lawfully acted against a debauched Heire who in any reasonable Mans Iudgement is likely in his shrowd to bury the Memory of all his Ancestors Vertues which should liue in him and his Progeny as his Progenitors did in theirs It is neither new nor strange in the Practise of our Times in Causes of this Nature to overthrow intended Perpetuities and by Act of Parliament to giue leaue vpon some good considerations to sell lands which otherwise by no Lawes can bee sold from the Heire the Father being but Tenent onely for terme of life Which surely by no Power vnder God could be done were the Thing in it selfe vnlawfull and sinne for * See Salvian ad Ecc. Cath. l. 4. Omne peccatum est Divinitatis injuria Whence may bee argued à Fortiori If power may be giuen to a Father being Tenent for Terme of life to sell his Sonnes lands only to pay his owne Debts peradventure idly made though it be to the Overthrow or extreame Diminution of his Family because Naturall Equity doth will that every one