or principall man of their house being at that time high Sheriffe In other countreys many Noble families from the Romans downward haue cōtinued where this custōe hath beene deemed vniust as by their lawes it is manifest whereas in our contrey in these our tymes if there be one familie in a Shire which is of three hundred yeares continuance verie many others are scarce of fiue descents in a bloud Why should our age then seing the fruit of this custome to be so small imbrace it with such zeale as to deeme the breach thereof being warranted for good and iust by the Law of God of Nature and of man to be a sinne Is it possible that it is held both lawfull and expedient for the preseruation of a family that degrees of kindred should be dispensed with to mary being knowne contrary to the general practise of gods Church and can it be lawfull before God and man for preseruation of our goods to venture our liues and to kill a Theife who shall assault vs and that perhaps for a trifle and yet that for preseruation of our whole estate and maintainance of a family it shal be held sinne to break a bare custome vnder no penalty obligatory yea alwaies allowed by law I haue neuer heard that a custome was of force to abiogate a law so far that it should be deemed a sinne to follow the said law though it haue power to dispense with the law which other wise to break were sinne especially when as the law is both more pious and more naturall then the custom is For how far is it from the law of Nature and from the practise of Fatherlie piety the Father dying intestate the eldest sonne to become absolute Lord of all his Fathers lands and not to be bound by law to prouide for brother or sister but at his owne good liking Aliud tempus alios mores postutat Men of vertue men of learning vertue both now and in former ages in this our countrey haue broken this custome as the world knowes vpon good consideration and iust causes not vpon spleene or false suppositions perswaded to leaue their fortunes to strangers or to a lustsuil issue as some haue done CHAP. VII That Fathers being tenants in Fee-tayle may likewise without scruple of Conscience discontinue the state-taile vpon cause and deuise the same at their reasonable pleasure HAVING treated largely and as I presume proued sufficiently that lands held in fee-simple may either be parted or vpon iust cause wholy giuē away to a younger sonne I intend now to speak of the lawfull freedome of a Father in like sort and on the same causes moued to dispose of his lands intailed of which there seemes more doubt then of the former Euery humane act which of it self is not forbidden by the law of God or Nature is to be iudged good or euill lawfull or vnlawfull either by the lawe of the place where the act is done or by intention of him who shall do the act For as the law of God commaunds somethings to be done other things to be auoided vnder paine of sinne so the third sort of actions are left free by the said authority from sinne except the law of man shall forbid them and so make them sinne or els euill intention make thē being of themselues lawfull to be a sinne and vnlawful according to that principle of Moral Philosophy Finis specifical actum For as an act of it self lawful being done against law is sinne so a good act comaunded by law yet done with an euill intention may be sinne Out of these grounds let vs see whether the Common law of our Countrey and the intention of a Father which are to be the Iudges of our Cause can allow the cutting offan entaile the parting of an inheritance or vpon proportionable cause the disinheriting of a sonne First it is cleere that the act of it self by law may be done but whether such an act be summū ius which may be summa iniuria that is the doubt What shal be the triall By other lawes it is either made lawfull or left indifferent Our law which makes this tye giues leaue to vndo it without any exception Ergo to a good end and vpon iust cause it may be done But it may be said that the eldest sonne during this entaile is quasi Dominus yet hauing neither Dominium directum nor indirectum he during his Fathers life hath only ius ad rem and not in re Wherby no chaunge 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 clayme if the Father shall create no new estate in his life For it is lawfull for euery man to dispose of his owne as far as the law shall permit him if it be not forbidden by some other law but such an act is not forbidden by any other law Ergo it is lawfull and no sinne But it may be said that the intention of him who entailed the land was that it should not be vntyed or the state changed To which I answere That no act done by law can be free from chaung further or longer thē the law that made it a bynding act shall allow And it is well knowne to the learned in our lawes that euery mans intention is to be construed according to law by which his act and intentions are directed Whereupon the Ciuilian saith in like Cases valeat quantum valire potest Neither is it thought that any man who conuayeth his lands by entaile can intend an act beyond law or desyre that his sonne whom he makes tēnant entaile as our lawyers tearme him shall in no case no not for the preseruation of his family or relief of many others of his Children haue power to cut off this entaile and to be able to alien sell or giue his lands as reason law and religion shall permit For it may be iudged that he who doth an act to a good end as namely to preserue his family wil alwaies assent to another act which shall with better assurance then his owne strengthen his intention To the former considerations we may add what incoueniences may follow of this generall position For if in Conscience the whole inheritance of the Father is to come without comtroule to the eldest sonne then must it of necessity be inferied that the Father without this consent cannot giue to pious vses or set out for the aduancement of his other Children any other 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 pious intentions should be prouided for only at his sonnes or heyres courtesy Which how absurd it is all men know For hereupon 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
his Father be put in execution It is well knowne to all diuines 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 goods but hath absolutely left them to the customes of their Country where any act of that kind shal be executed only as confirming all formes of deuises which by publick consent and authority either haue or shall in rightfull manner be deuised or ordained Out of this ground and others before mentioned let vs examyne whether a Father parting his fortunes by power of law and on iust cause shall do a wrongfull and a sinfull act as some pretend to make it I confesse that euery act in it self or by Circumstance euill and which vpon no occasion can be iustified is both before God and man sinne and is by no means to be executed by a Christian But that the parting of an inheritāce or the disinheriting of an eldest sonne vpon iust cause and according to course of Law is an act of that nature doth not appeare For I do not fynd that either the Law of Nature or grace nor yet the Lawes of man common ciuil or Canon euer forbad such acts whereby sinne may be imputed to those who do them on good considerations Sure I am that the Cannon and Ciuill Law are so far from forbidding them that they commaund as a thing in equity the Father either to deuide his inheritance or allow him according to his affection to giue to one more then to another yet with this prouiso that he who hath the least haue his childes part which the Law doth also assigne except on iust desert he do disinherit any one which at this day may yea must be by will with the cause of disinherision named therein Of which causes the Imperiall Lawes haue set downe fourteene as it shall well appeare to them who are desyrous to vnderstand more thereof So it is euident that by these two Lawes no sinne can grow vpon such acts being done vpon their warrant and vpon such consideration as hath bene before often by me set downe As for the cōmon Lawes of our Realme sure it is that they allow no lesse and with a greater preuiledge For a man may by this law giue his landes held in Fee either by deed in his life or by will at his death to any of his Children yea to a stranger without rendring a reason why he doth so True it is that a Father not disposing thereof in such sort the Custome giues the whole estate to the eldest yet in some parts of our Country the youngest Brother by Custome is to haue the land held by some kind of tenure if the Father in his life tyme do not dispose thereof As yet therefore I cannot see how any sinne is commited or contracted by the former acts being neither done against the law of God or man as we haue proued except it should be said to be sinne not to leaue it to the power of a custome which cannot be except the former law shal be proued not to be of force and no way to be executed which can no way bee done For though I must confesse that the custome of leauing the child-estate to the eldest sonne hath of later times bene much imbraced by our Gentry for the preseruation of their families for which it was inuented For the tymes haue so ruled that men of sort being either idle or not possessed with a couetous humor haue contended themselues with their Fathers fortunes and haue preferred their younger sonns by those means which the tymes did affoard which preferments were thē better then now they are namely by many cōmendable courses as either by seruice of spirituall men whereby many were raised or by professing a spirituall life whereby the younger brother hath oftentimes in hōnor stept before the elder But this manner of life is not so gratefull to our English gentlemens Natures as it hath bene The trade of the Merchant the Military profession the Courtyers life aduanced many more then now they do and lastly the elder brothers were the of better temper in spending and if they had no humour to get yet had they a care to keep what was left vnto them and euer held themselues bound by religion to prouide for their younger brothers and sisters left to their dispose which now is far otherwise For an elder brother is found to spend more in a yeare idlie then would prefer or maintaine a whose familie noblie and to suffer their brothers and sisters to shift which as these times shape is oftentymes to liue either lewdly or most miserably being forced either to forget their good education or to lay aside all badges of gentrie who otherwise with some reasonable helps might do God their Countrey and Family much honour Since wee haue gone so far let vs see on what grounds this custome first hath risen Surely for the maintenance of a family yet led with an ambition at the example of princes who finding some difficulties in the admitting of many to a gouernement and feling what inconueniences the parting of an estate brought deuised that one should gouerne sometimes the worthiest sometimes the eldest was elected according as the order was agreed vpon and yet the other brothers were mainteyned like Princes And thus custome also among them hath bene broken without imputation of sinne For to go no further then our later times it is well knowne that Ferdinand Charles the fifth his brother being setled in the Empyre deuided his estate To Maximilian his eldest sonn he left the Empyre with Austria Hungaria and Bohemia To Charles his second sonne Styria Carinthia and other dominions And to Ferdinand the youngest he gaue the Earldome of Tyrol All which if in his life tyme he had not disposed of had come to the eldest Philip the second late king of Spaine gaue to his Daughters the 17. Prouinces which were of right to haue descended to his sonne after his death if he had not disposed thereof in his life tyme. This is and was deemed lawfull by the Diuines of this age otherwise surely they would neuer haue done it But doth this custome in meaner degrees work that effect which it hath done in them No truely For as wee haue proued it is rather the ouerthrow then the preseruation of many families And let vs see withall whether families florithed not as much and more then now they do before this custome was receiued Liuic saith that three hundred of the Faby being all of one name and family issued out of Rome gates at one tyme on their owne cost to the defence of their citty which was done before this custome was dreamed of In Scotland 300. of the name and family of the Frasers gentlemen were at one tyme slaine in a fight by their enemies neighbors and 140. gentlemen of one name in Yorkshire waited vpon their chiefe
THE YONGER BROTHER HIS APOLOGY BY IT SELFE OR A Fathers free power disputed for the disposition of his lands or other his fortunes to his Sonne Sonnes or any one of them as right reason the Laws of God and Nature the Ciuill Canon and Municipall lawes of this Kingdome do command By I. Ap-Robert Gent. Nisi Dominus aedificauerit domum in vanum laborauerunt qui aedificant eam Psal 126. Vnlesse our Lord build the house they haue laboured in vayne that build it ¶ Imprinted Anno M. DC XVIII TO ALL FATHERS AND SONNES OF WORTHY FAMILIES VVhome Vertue Birth and Learning haue iustly stiled Gentlemen Health Happinesse and Increase of the best Knowledge AS in the front of this briefe Discourse there is Right Worthy Gentlemen already deliuered vnto you some light of that which concerneth the Quality Reason and Scope of the same so do I heere sincerely professe that I did not priuately write it at first but for priuate satisfaction neither do I now make it publique but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking Paradoxicall Age. Not vpon the least presumption of a self-sufficiency to confront thereby any receiued Custome if any such bee nor to diminish the naturall Reuerence due by Younger Brothers to their Elder not to enkindle emulatiōs in families nor to innouate any thing to the preuidice of publique or priuate quiet which none I hope wil be so ill affected as to suppose neither myne inoffensiue zeale for younger brothers among whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Laws which I hauing a little studied do not a little respect nor the particuler honour I beare to the vsages in this point of our anciēt Britans from whom I am descended nor disire to maintaine and iustify an act in this Kind done by a Friend whom I must euer reuerence nor yet the hope of bettering my priuate fortunes which mooues men much in these our tymes hath drawne me to this vndertaking but principally as before is sōwhat touched the singuler Respect which as a Patriote I beare to the glory and good of Gentlemens Houses whose best Originalls surest means of Maintenance and principal Ornaments are Vertue or Force of mynd The want whereof is a comon cause of ruine The free Power therefore of You who are Fathers is heere in some special cases argued and defended to giue you occasion therby to consider with the cleerer eye-sight for the establishment and continuance of families Heere also the Naturall rights of vs that are children be so discoursed and discussed as that we younger Brothers may haue cause and courage to endeauour by vertuous means to make our selues without the least wrong to any capable if need shal 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 conceiued and written in Nature only of an Essay or Probleme to which I bynd no man to affoard more beliefe then himselfe hath liking of is free to refute the whole or any part at his pleasure as he feeles himself able and disposed If I may seeme among some to haue handled this subiect with more earnestnesse and acrimony then they think expedient let them be pleased to weigh the Decorum of Disputes which is principally herein obserued their Nature absolutly requiring quicknes and vehemency on whether syde soeuer Neither let this length of Epistle seeme vnto you like the gates of Myndus which were so great and the Citty so little that they ministred occasion to the Cynick to scoffe at the disproportion bidding the Townsemen shut their Gates for feare the Citty should run out through them seeing that in a new Matter a necessity lyeth vpon me to vse so large a Preparation As for the remedies of Euils by way of enacting Lawes that is the proper office of Magistrates and Courts of publick Counsell neuerthelesse to speak and treat of them vnder the fauour and correction of Superiours to whome I do alwaies very dutifully submit is a thing which may well belong to euery man But as for those graue and learned Censors vnto whom I may seeme to haue bestowed my paynes in very needlesse arguments because no lesse then I my self they hould the case as heere it is put to be most cleere and out of Controuersy to such I answere that I wrote it not for them vnlesse perhaps to confirme their iudgments but for others who are not altogeather so perswaded Nor to any as to prescribe or bynd further then their owne Consciences shall thinke good For that were far too peremtory Finally nothing being heer defended but by Authority Reason and Exāple nor any person taxed nor particuler personall vices if neuerthelesse I haue not performed my part in the worke so well as I desyre or as the Cause deserues which I feare I haue not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good intentions sake your will euer conceiue well of and taken into your speciall protection Your vnfayned vvel-vvisher I. Ap-Robert THE YOVNGER BROTHERS APOLOGIE CHAP. I. The Occasion of writing this Apology is to proue that Fathers may in some cases dispose of their worldly Estates to which of their Sonnes shal reasonably please c. for so much therof as they will and that to be Lawfull by the Law of God of Nature and of Nations NOT many moneths since being inuited by a deare friend of myne to a solemne Feast made by him to many of his well-deseruing friends it was my fortune at that Meeting to acquaint myselfe with many gentlemen of no meane discourse Whereby I feasted as well my vnderstanding with their pleasant society as my taste with the variety of most excellent meates With what our Senses were delighted I let passe to recoumpt since neither profit pleasure nor praise can arise thereof either to the writer or reader Only my intent is to make my Reader acquainted what accident caused me to write this small Treatise and imbouldned me to publish the same to the cōmon view of this al-reprehending age In which neuertheles I do rather hope for allowance then in any sort to feare displeasure For though my subiect be new yet I hope it shal want at the first rather age strēgth which growes by yeares then probable arguments yea forcible reasons to defend it selfe As for friends I hope it will fynd some and peraduenture more then enemyes if it deserue well For as younger Brothers be more in number then elder so are they generallie more free in bestowing their deserued loue For want breeding vnderstanding makes them knowe prize their friends according to their worth Whereas the elder either seated in their Fathers wealth and possessions with more then hopes to enioy their Fortunes do somtynes neyther
as he did then in the Ghospell would vse an vnknowne discourse or striue to make the truth appeare to our weake vnderstandings by a Parable which in equity could not be true Noe surely For it appeares by Salomon his succeding to his Father Dauid that Dauid had power by the lawes of god and man to giue his Kingdome to the worthiest which hedeeming to be Salomon gaue vnto him his Kingdome though he was the yongest sonne Neither was there any iust exception made against Adonias his eldest Brother or against some other of his Brethren why they should be disinherited by their Father Dauid contrary to the common practise of those tymes in setling inheritances But the only knowne reason of this act in Scripture was Dauid promise made to Salomons Mother togeather with her great intreaty made to Dauid to performe the same Which surely he would not haue done except hee had found a lawfull power in himselfe to haue executed the same And thus much concerning what may be said out of Scripture or law of God in our present question CHAP. IIII. That nations begining to denise sundry formes of setling Inheritâ—nces the Romanes especially therin respected the free power of Fathers the right of Children to their Fathers estates begining only at their Fathers Death HAVING now declared in the former chapter what the lawes of God and Nature doe determyne of our present question we inted to examine in breif what is comaunded by the law of Man aswell ciuill of other Nations as common of our owne Gontry And first touching the ciuill Law thus Though that all Law which euer had but the name or credit of Law doth surely deriue her originall from the Law of Nature whereupon Cicero many hundreth yeares synce said that the ground of all law making is to be taken from the chief law which was borne before any law was written or Citty builded yet do they differ much in forme For as it is no law but tyranny which wholy disagrees with the law of Nature as Aristotle saith so if it agree in al with the law of Nature without limitation or difference it must of force be the very law of Nature it self and not the law of man Which surely is nothing els then a temper or forme of equity drawne by right reason from the grounds of Natures lawes according as tyme place and the Natures of men either gaue or shall giue the occasion For though new lawes be dayly made of new seuerall accidents yet all are agreable to the old and ancient grounds of reason in Nature the iust Mother of all law Wherefore hauing set downe before what the law of Nature is touching the matter in question I shall need only now to shew what temper or forme hath thereunto bene added by the Ciuill Lawyer After that mankind was inforced yet by Natures warrant as I haue said to make a partition of the Blessings of God and Nature and that men were possessed by the same right of goods and lands which they desyred to leaue to posterity law-makers and in particuler the Ciuilian deuised by little and little certayne formes of inheritance and ordination of heyres at the first somwhat rigorous giuing to Parents power of life and death ouer their Children 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 deuided among the Children as wel daughters as sonns Which Constitution was afterward vpon good grounds altered The Father being bound to leaue euery Child a portion which the Ciuill Lawyer calleth a legitimate others a Patrimony which at the first was the eight part of the Fathers substance equally to be deuided as I haue said which after a while seeming little the law commaunded that the fourth part should be left without controule except that vpon iust cause the Testator did disinherite him or them who by course of law were to succeed him still vpholding the former lawes that aswel daughters as sonnes should equally succeed to their Parents dying intestate herein assigning fourteene Causes why an heyre might lawfully be disinherited Many hundred yeares passed from the establishing of the Ciuill law and before that it was ordayned by force of law that Parents should leaue a Childes part as it is now called or that he could not disinherit without expressing the cause thereof in his last Will yet in all this tyme nor vntill this present day the priuiledg of engrossing all by Primogeniture was not once heard of or at least wise not admitted but rather excluded as by many texts in the same Law it well appeares The end of the Imperiall or Roman Ciuill law being only to maintaine morall Iustice inthree short precepts Liue honestly Hurt no Man Gine vnto euery one his owne So he who obserues these three fulfills this law yea the law of Nature from whence this law is sprung Now if any Brother can proue that his Father either in life by deed or by will at his death disposing of his goods lands no otherwise then I haue set downe doth none act against these three then why should he not content himself either with the fruits of his Fathers loue or his owne deserts whatsoeuer they be True it is that in Naturall iustice children during their Fathers life haue Ius ad rem and not Ius in re to a Fathers goods Whereupon the Law calleth them Quasibonorum patris Dominos Which their right onely takes effect after their Fathers death For during life hee hath power to alter alien sel and giue as it shal please him according to forme of law but being dead without will or disposition therof they fall vpon his children as I haue said according to the law of nations This law imbraceth a two fold iustice the one in exchange the other in distribution The first hath not to do with our cause the other surely rather commends then condemns a Father who vpon good occasion that is for the bad demerits of his eldest sonne and for the preseruation only of his family shall giue or conuey his lands goods to the yonger For the Nature of distributiue iustice is not only to giue proportionably to the well deferuing but also to forbeare to place benefits vpon any one who shall abuse them or vse them to any other end then to that good for which they were lent him and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his goods to an euill end or to any one whom he assures himselfe will vse them to the dishonour of God or the wrong of those who shall liue with him or by him of which I will speak more in the last chapter being there to handle what a Father may in conscience do or not do in our present question with sinne and without sinne And thus much of the Ciuill and Canon Lawyers auerment of an elder
tymes when the land is let to the Heyre generall to alter the estate if the land so conueyed shall come to Daughters and to leaue it to a Brothers sonne or to some other of the same name though peraduenture many degrees remoued for preseruation of the name and family If this may be deemed lawful and no sinne being done against a well deseruing child for whom Nature and her deserts plead her worthy to be her Fathers heyre then without all compare if the preseruation of a name and family might not iustly be laboured for according to power giuen by the law of God and man what may be lawfully acted against an vnthrifty heyre who in any reasonable mans iudgment is likly in his shrowd to bury the memory of all his Ancestors vertues which should liue in him and his ofspring as his forefathers haue done in theirs It is neyther new nor straung in the practise of our tymes in causes of this Nature to ouerthrow in tended perpetuities and by act of parliament to giue leaue vpon som good considerations to sell lands which otherwise by no lawes can be sold from the heyre the Father being but tennant only for tearme of his life Which surely by no power vnder God could be done if the thing in it self be vnlawful sinne Out of which it may be argued a fortiori If power may be giuen to a Father being tennant for tearme of life to sell his sonnes lands onely to pay his owne debts peraduenture idly made though it be to the ouerthrowe of his Familie because naturall equity say they doth wil that euery one should be relieued with his owne for so it may be deemed though in loue to his child hee hath passed the estate yet that he ought to be preserued from thraldome therewith in his necessity which if it be so as all men do confesse it how reasonable a thing yea how comendable and farre from sinne is it for a Father truely Lord of his owne without all tye of law either deuine or humane as I haue proued to dispose of his lands to the honour of God and comfort of his family to a yonger sonne when as it is most probable that the elder will neither vse it to the one nor the other but rather to nourish sinne and sensuality CHAP. VIII That vnthriftines is one knowne name of many hidden sinns and is alone a sufficient cause of disinherison proued by the Law of God and Man HAVING thus vpon good consideration beyond my first intention as it appeareth by my Preface enlardged this my discourse with the precedent Chapter I haue resolued my selfe vpon my Readers fauour and on the former grounds to argue one question more which I hold verie necessary for the perfecting of this small work which is whether a Father may disinherite his eldest sonne or heire at common law for such an vnthriftines as in most mens iudgements is like to be the ruine of his family Though many foule sinnes besydes the abusing of gods blessings be concomitant to vnthriftynes yet because they are not apparant to the world and de abscondit is non iudicat Praetor I will only breifly argue whether in reason or conscience a desperate vnthrift may be disinherited It is well knowne to all the wise and temperate whose iudgments passion doth not ouersway how great an enemy prodigality or vnthriftynes is to all manner of goodnes and how cunningly she not onely hinders the increase of all vertues in those in whome she reigneth but also vniustly oftentymes cuts off the vertuous reward of many a worthy predecessor yea giues occasion to the euill to detract to the good to suspect their deserts All which how great a wrong it is to a Noble family I leaue to the indifferent reader to censure I will not deny but there may be many sinns in a man which in the sight of God and iudgment of men of themselues are more heynous and deserue afar greater damnation then Prodigality doth yet since that sins in this world are to be punished Those sinnes more punishable which are more offensiue to common society though lesse heinous in their particuler Nature not as they are in themselues but as they by circumstance are offensiue to the society peace and honour of mankind which God and Nature euer as the reward to all morall vertues and as the chief end of mans life intended For otherwise vsury detraction forgery adultery fornication swearing and drunkennesse all which and many more which are as greiuous offences in the eye of heauen as theft should be punished with death as theft is But since they do not offend so much the peace of a publique weale at which the Ciuill magistrate aymes as theft doth they are not censured with such seuere punishment at it is All which shewes directly that offences by circumstance are made in a Ciuill society against which they are committed either great error lesser and are accordingly to be punished and no lesse doth the reason and righ rule of state commaund Out of which grounds it is euident that all formes of gouernement do most punish that offender who directly or indirectly seeks to disturbe the peace or ouerthrow the liberty or disgrace the state wherin he liues yet many greater offences then these may be committed as Incest and Apostasy which are not so sharpely punished by the Ciuill Magistrate For euery one to whome God hath giuen power on earth doth chiefly seek the end for which his power from aboue is giuen vnto him and doth censure and punish in the highest degree those offences which tend to the ouerthrowe of a well setled state and by good and lawfull power confirmed Now to come vpon these premisses to the matter in question to apply that which hath beene sayd to our purpose It is well knowne to the world that a family is a ciuill society yea the only common weale which God and Nature first ordayned and from which all societyes Common-wealths species of Gouernement first tooke their originall For the mantainance of which society there is no question but God hath giuen many priuiledges to a Father as well to reward the well-deseruing as to punish an euill child or member of his body not onely by depriuing them of their expected fortunes but by cutting them of from his body either by banishment or by death it selfe For it is euident by the Ciuill law that a Father had for many yeares not onely free power to disinherit but also power of life and death our his children who should greiuously offend him or his liuing vnder his Ciuill gouernement But since that things vnknowne are growne out of vse and may seeme as well incredible as straunge I cannot in discretion passe ouer the matter in question so lightly as that it may worthily be subiect to sharpe censure or rashly be branded with the mark of vntruth Therefore laying aside the testimony of the old Roman lawes in the case
Henry the first was surrogated to Rufus his Brother VVilliam Rufus and still kept Robert out The title of more sufficiency not of more propinquity made Stephen K. Stephen as being then a man growne to step in before Matildes the Empresse and her Infant sonne Henry Plantagenet I will not speake of King Iohns succession before his nephew Arthur the sonne of Geffrâ—y the elder brother to Iohn Henry the 4. K. Iohn King of England did in open Parliament pretend a descent from Edmund Earle of Lancaster Edmund Earle of Lancaster soÌ„ne of Henry the third king of England in preiudice of king Richard 2. auering that Edmund was disinherited for deformity and his brother Edward afterward by the name of king Edward 1. preferred Which though it were not so yet is it sufficient to shew that Henry 4. did hould that his ancestour king Henry 3. might haue done such an act if the cause had bene sufficient And what interest had Henry of Riâ—hmoud to his Diademe being neyther of the right bloud nor of the Royall Name when neuerthelesse of the true Plantagenets sundry Males were aliue and one of them at that very tyme king of England also in possession But to leane Kings affaires If all must necessufily haue gone to one how came it then to passe that in this kingdome there were at one tyme so many great and honorable families of one bloud disinyned in their seats and distinguished in their Annories by different arguments Our whous to meanly seeme in our antiquities and stories as not to knowe it was so And that many renowned houses to speake as de magis notisâ— Plantagâ—nets Sundry grint Families of one 〈◊〉 at a tyme. Mortiniers Beaufords Bâ—â—â—champâ— 1 Disla-Poles Neuill Grayes and the like haue growne and flourished out of one common Ancestour It can neuer be refelled Of disinherisions in worthy Families M. William Camden â—â— Lâ—renceaux King of Arnies giues vs two eminent examples And who is he that remembers not one or other in this owne knowledge or acquaintance Ianc Daughter of Hugh Courtney and heyre to her Mother Carewes wife of Nirold Lord Carew disinaerited her eldest sonne Thomas cùm mirùs reuerenter matrem haberet and parted her lands which were goodly among her three younger sonnes of whom are sprung three seuerall worshipfull bouses of the Carewes called Haccombe Anthony and Bury So that God hath by the successe confirmed the lawfulnes of the fact And this is the first of Maister Caindens examples The other is this Bryand Lile or Fitz-Earle Lord of Abergeuenny hauing two sonnes Brientius de insula both leprous built for them a Lazaretto or spittall gaue to Miles Earle of Heresord far the greatest part of his patrimony from his Children The one of these exaÌ„ples is in the descriptioÌ„ of Deuonshire and this other in Monmouthshire And this Chapter may suffice for the illustration and clearing the former Doctrine and the subiect of this whole discourse by examples CHAP. X. That the Law of Naturall Equity Reason confirme iust Disinherision that the riotous liues of Elder Brothers deserue that vehement reproofe with which the Author closeth vp this Treatise LET vs now looke into the Nature of equity and examine whether in Naturall reason which is the law of all lawes the temperate ought to be subiect to intemperate Fooles Madmen to whom no law imputes sinne are not punished for theft or murther or for any other offence which they do being mad or vnreasonable For though humanely they cannot offend yet in this sort according to equity they many be punished The reason is That all law being grounded on Naturall equity for otherwise it is no law doth not only punish offences coÌ„mitted but also preuents offeÌ„ces which may be done by reasonable or vnreasonable creatures And since that Fooles and Madmen cannot offend to be punished or by punishment can be reformed and yet they with whom they shall liue shall surely be offended if not ouerthrowne by them hauing power as Namely Brothers Sisters and all their whole family put in daunger of misery and ruine the law according to all Natural equity takes al power from them I haue inserted this clause according to Naturall equity for that it is against Nature that men should be subiect to beasts or insensible creatures Heerupon Aristotle disputing the nature of rule and subiection saith That none are borne slaues but such as Nature hath abridged of the vse of reason who being truly slaues are altogether vnfit to gouerne VpoÌ„ which ground also the same great Philosopher disputing whether a Monarchy or Comonweale is the better forme of Policy he saith a Comonweale Because the wisest best meÌ„ are admitted to sway therein But it may be said What is all this to our purpose Yes thus far it may be well applied If Nature intent to make al mankind reasonable according to their species being hindered by some ineuitable accident shall so blemish and maime those in whom such want and Natural weaknes shal be found that they according to diuine and humane law may and ought to be depriued of all right and clayme to any thing more then to sustaine Nature as other creatures may do and not to giue vnto them any soueraignty rule or gouernement which by law or custome might otherwise haue falne on them Because according to naturall diuine equity neither man nor yet the creature made for mans vse ought to be gouerned by Beastes and such do fooles and madmen seeme If this be so as according to Natures rule it cannot be otherwise what punishment shall we think due to that reasonable creature borne in a ciuill society of men vnto whom Nature hath not bene a Stepdame in bestowing of her blessings whose name and Family hath bene ennobled and enriched by the industry and vertue of many worthy Predecessors who shall through disorder and inordinate desires habituated in him by custome euill conuersation become vnreasonable yea a sinfull-creature a wilfull and most punishable madman and a thing vnworthy the name of man a Prodigall who contrary to all rule law or order of the most barbarous society of men takes away the soule as I haue said before of all his Ancestors who being dead yet long might liue in their posterity and consumes the womb his family I meane wherein he was borne and without all remembrance of his obligation to the dead whom as hauing his being from them he ought to honour or respect to the huing to whome he should be a comfort deuoures in some sort them of his owne species society and bloud All which the Anthropophages do not For though they feed on their species which are men like to themselues yet they hunt after straungers and nourish then nearest bloud with others flesh obseruing still some law of society among themselues which our ciuill monster doth not For he contrary to all course of Nature sucks out oftentimes the bâ—oud of his nearest and dearest friends namely his children brothers and sisters Ariotous heyre is a ciuill Monster yea some haue brought their all-tender-harted parents to the greatest of all woes â—bâ—â—â—ary in their old age And all this to maintaine by force of fraud a damned crew of Diuells in the shapes of men Nature hath giuen yea she so strongly hath inhabituated a laudable desire in all creatures to preserue them species that directly or in directly to vndergo the contrary wore not onely vnnatural and moâ—â—â—rous bâ—â—â—worthy also of seuerest punishment Families let them be Princely Noble Gentle or Vulgar are in a manner particuler kindes or species allowed of by Natures law to be raised or maintaine of vnder or in their cheife genus mankind vniuersall which to ouerthrow either directly or indirectly let the Philosopher either Naturall or Morall the Lawier either Ciull or Caâ—â—â—â— the Diuine Scholeman or Casuist iudge how punishable Morall Law-makers for many ages pretermitted to make lawes against this sort of oftenders being asked why they answeared That no man could be so ingratefull or inhumane By which wee see how grieuous the offence was deemed by them and how seuere punishment were they to make lawes in these our corrupted times they would prescribe for such offenders Thus much for our present matter in question In the arguing whereof if what I write in defence of younger Brothers as here the case is put I seem to haue taken vpon trust rather then vpon knowledge or reading the wiser sort will I hope not blame me For my intent was nor but onely as at first I promised to set downe a Table-discourse and not a Controuersy discussed in Schooles If I haue spoken according to dialecticall reason as I belieue then may I safely think that my discourse is armed with strong Authority For what hath bene spoken heretofore truely which reason hath not dictated to all Authors pens If therefore I were able to cite a thousand great Writers for what I haue said yet should they be no more but that which Naturall reason hath or may teach daily All which with my self I intrust to the gentle and equall Censure of my Courtuous Reader FINIS