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
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
heritance should be left to any one particuler person and namely to the elder Brother yet in some Cases it would not bynd the Father to obserue it For as in the former Cōmandements vpon some considerations the Cōmandement may be dispensed withall so in this For it is not sufficient to be the elder Brother or the nearest in bloud to gaine an inheritance in the Case which I haue now proposed for other circumstances must concurre which if they be wanting bare propinquity or ancienty of bloud may iustly be reiected and he that is second third fourth fifth or last may lwafully be preferred before the first and this by al law diuyne and humane and by all Reason Conscience and Custome of nations Christian For if it should fall out that the next in bloud should be a Naturall foole or a madman or being taken by the Turkes or Mores in his infancy and brought vp in their religion would maintaine the same or if any other such accident ministring cause of iust exception should fall out is it likely that any law would allow that such a man should be admitted to the inheritance Wherefore how idly should they talk that would haue that it was his birthright or that God and Nature had made him heire since that neither God nor Nature doth imediately make heires as I haue sayd before True it is that God and Nature makes men who by the mediation of the lawes and customes of nations may come to be heires Vpon which ground our cómon Lawyers say that no heyres are borne but men and law make them True it is that in holy Writ great respect is had of the first begotten a blessing is held to come to parents thereby But this blessing I presuppose to be that therby the feare of sterility was taken away which in the old Law was held to be a great punishment of God and in respect thereof parents had of themselues and by the nationall lawes and customs a great regard of their first begotten and preferred them to the better part of their possessions yet not by any commaund from God as a precept to bind his elect people vnder paine of sinne For had any such Law bound them vnder such a penalty then should it bynd all Christians now on the same conditions For we see it by generall practise of all countryes to be otherwise Therefore it followes directly that it was not Gods Comaundement but a Nationall Law For God both is and ever was one without chaunge to all his people and so euer were and wil be his Lawes positiue made for them that truely worship him The clayme which Esau made to his Birthright was not by the law of God as some ignorantly affirme but by the lawes of his country For should the law of God haue commaunded it it had bene sinne in his Mother and brother by cunning to haue gotten it from him Neither could the Father or the State wherin they liued vpon no iust cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme by allowance from God and as it may be iudged by the sucesse Whereby it is thought that God ordained it as a punishment of the one and blessing of the other which by the permission of sinne to be committed God doth neuer do Neither did the Nationall law or custome of the Iewes as it is said absolutly commaund the Father to leaue vnto his first begotten all or the greatest part of his goods and fortunes But if in case he died not disposing therof by act in his life or will at his death then the custome of the Nation layd a double portion on the eldest or first begotten prouiding for the rest proportionably By all which you may gather that neither the law of God or man in this case commaunded that Esau should haue the inheritance but power to do the contrary was giuen to the Father in his life tyme euen by the law it selfe For many Deuines hold that Esau selling his Birthright as it is termed sould not goods or lands but his clayme of being high Preist after his Father which by custome was to come to him being his Fathers eldest sonne Of which dignity God seing him vnfit permitted him to passeaway his right in his Fathers life as we read in holy writ and which God seemed to approue And thus I hope this objection is answered Further if it were true that the effect of Eldership were such by the law of God as some passionately defend that is that the whole inheritance should of right pertaine to the eldest thē sure it followeth by good consequēce that there should nor euer could haue bene but one temporall Lord of all the world For of necessity Adams inheritance should haue gone still to the next in bloud which how absurd it is let all men iudge Moreouer we read that Nöe hauing three sonnes and the whole world to leaue vnto them gaue it not all to the Eldest but equally deuided it among them and their posterity as all authenticall histories do witnes God requiring obedience of children to parents promised a reward saying Honour thy Father Mother that thy dayes may be long in the land which the Lord shall giue thee This surely was not spoken to one but to all the children of men For with God there is no exception of persons but as a iust and pions Father he giues euery one according to his deserts Terram autem dedit filijs hominum We read also in holy writ how the prodigall child being weary or his Fathers house came vnto him and boldly sayd Pater da mihi portionem substantiae meae quae me contingit This child of which the Gospell speaks was the yoūger brother yet you see how boldly he sayd giue vnto me that portion of goods which belongs to me By which words it is euident that a diuision or partition of a Fathers fortunes was then in vse and that any child as well yoūger as elder had power by law to demaund his legitimate or childes part according to the Nature of the Ciuill and Canon Law as you haue heard For the words following in the text are these Et diuisit substantiam illis Thus we see that the priuiledge of Eldership was thē excluded which now in our countrey by custome onely is gotten to be of such force But it may be obiected that this was a parable onely as indeed it was and cannot be alledged as law True it is yet it cannot be denied but that all similies parables or examples which euer were alledged by the wise and learned to represent the truth haue euer bene deriued from the customes and nature of things according to the knowne truth in that tyme place and to those to whome the speach or discourse is directed And shall we think that our Sauiour Christ being wisdom and truth it selfe treating of so important an affaire
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