shall make most for the good of the Common-wealth And can there be a worse prodigal then a prodigal father for he falsifies the trust which the Commonwealth our general Parent doth repose in him by wasting those his lands and goods wherewith he should relieve and provide for his children which was the greatest if not the only cause for which lands were at first given and are now permitted to be enjoy'd for only upon children dependeth the whole frame and propagation of mankind and upon the care and love of Parents in the good instructing of their children and in the relieving and providing for their children dependeth the civil order and Society of mankind And children have a native and as we may well call it a divine right to their fathers lands and goods in his life time for sayes the Apologer the prodigal son being weary of his fathers house came to his father and boldly said Pater dae mihi portionem Give me that portion of goods which belongs to me and the words following are pater divisit and the father gave him his portion and he sayes also that fathers are bound by the Civil Law to leave every one of their children a legitimate or childs part and if they be bound how can they be said to be free But should I here recount the many and great obligations wherewith we are bound in our Christian duty or charity towards our neighbours or Christian brother Qui habet duas turnīcas det non habenti qui habet escas similiter faciat Luke 6. He that hath two coats let him give one of them to him that hath none and he that hath meat to spare let him do the same And especially the infinite obligations wherewith we are bound to our children for sayes an Apostle 1 Tim. 5. Whosoever provides not for his family then much more he that provides not for his children doth deny the faith and is worse then an Infidel These things well considered it will easily appear to any pious understanding that the private or self-interest which any man hath in his estate is so small a thing that it may be compared unto an attome in the Sun for indeed we have no estates all which we can properly call our own that which we call an estate we hold it but at the courtesie and permission of others and should imploy it to the benefit of others and we are at the most but stewards of it for a while and like stewards must account unto a farthing Matth. 5. And concerning the large Soveraignty of Parents over their children there is no question but that fathers are as far from being absolute Lords and masters of their children as they are from being absolute Lords and masters of their estates of which I will only give two reasons The first reason is that children are the tender plants of the Commonwealth and that Parents are intrusted by the Common-wealth with the good education of their children which is a thing of that high and necessary consequence that it is in effect the cyment or bond which ties and holds together the whole frame and body of mankind The consideration whereof moved the wise Lacedemonians to make this brave and pious answer to Antipater who demanded many of their children in hostage for they said as Plutarch relates it that they would first chuse to die before they would yield him their children fearing their children would be corrupted and spoiled in their education nay they had Laws to punish such Parents whose children were ill condition'd or wicked supposing it proceeded for want of good care in their education and they had cause for sayes the wise Charron there cannot come so much evil to a Commonwealth by the ingratitude of children towards their Parents as by the carelesnesse of Parents in the instruction of their children So that upon the matter children are but the Pupils of the Commonwealth and Parents their Tutours and this the Apologer acknowledges though it be as much against his pretended free power as can be saying that all fathers are children to the father of their countrey and that a father is not only bound to nourish his children in his life but by Natures Law must provide to his power that they live in his life and after his death to the honour of God the service of their Countrey and comfort of their family which were the only ends for which God created man a civil or rational creature But there is another reason and that transcends this as far as heaven doth earth for our children are not only our children but the children also and creatures of God adorned by him with the same faculties of Soul and Body as their Parents are and so become both our brothers and children for we have all one father which is in heaven Matth. 6. Luke 11. Certainly there cannot any thing be more consolable unto a truly religious heart then seriously to contemplate the infinite goodnesse of God as also to consider in what a sweet manner it hath pleased even God himself to treat with his dear creature Man All his wayes saith the royal Psalmist Psal 24. are mercy and truth and saith the Divine Majesty himself Deut. 8. I will be a father unto you and you shall be my sons and daughters and how often are we called children throughout the whole current of the Divine Word nay we are called 1 Cor. 6. the temples of the holy Ghost that is the Pallace or Court-Royal of God himself for such indeed is every pious soul and can it be supposed that God who only giveth children and calleth them his children and the temples of his holy Spirit would give any other power to Parents over their children but as governours under him to instruct and if need be gently to correct them for we had no sooner a Law from the Omnipotent hand but Parents were commanded Deut. 6.2 to teach that Law diligently to their children and so diligently that they were to speak of it as they sat in their house as they walked by the way when they lay down and when they rose up that is at all times and upon all occasions and if they are any way negligent herein or in the due relieving or providing for their children an Apostle tells them 1. Tim. 5. That they have denied the faith and are worse then Infidels So that if we either consider the great duties which we ow unto our general father the Commonwealth unto whom we are but Feoffees in trust of our estates and children or chiefly those infinite duties which we ow unto our heavenly father we shall find our selves so much inferiour to the Apologers pretended free power that no man of any common understanding unless he will accuse himself for an Atheist or most grosse Ideot can think himself an absolute Lord or master either of himself his estate or children The Rights of eldest Sons THe Apologer hath done what he
Christian and good subject to conform himself to the Laws he lives under and not to wretch and stretch them to wicked ends by their false constructions nor yet too curiously to search into them which is alwayes an argument of a proud and rebellious spirit So that in all this fair flourish the Apologer hath proved nothing to purpose but only shewed the antiquity of Cicero who lived he sayes many hundred years ago Proof 14. That by the Civil Law Parents had at first a power of life and death given them over their children and a free disposition of all their fortunes to any of them in his life but if he died intestate then the estate was to be divided among the children egually as well sons as daughters Answ I might here answer him with his own two sayings Cessante ratione cessat lex summuÌ„ jus est summa injuria and he also sayes that it is no Law but tyranny which wholly disagrees with the Law of Nature what can be more against Nature and natural equity then that Parents should have a power to destroy their own flesh and blood which are their children and he sayes that these Laws were first invented and practis'd by the Romanes when they were heathens and he needs no other answer then this that it was very heathenishly done of them but why should the Apologer urge this himself saying that this Law was rigorous and afterwards altered upon good grounds And concerning the division of the estate equally amongst the children for so sayes he the Civil Laws ordain It is well known that the practise is much otherwise where the Civil Laws are in most force as in Spain France Germany Italy c. for there the chief house and the greatest part of the inheritance is usually conferred upon the eldest son and it is a Maxime amongst them Seniores honores juniores labores the Arts Arms A munities and the more noble trades as Merchandize and the like and not lands of inheritance are the more proper portions for younger brothers Proof 15. That in natural justice children during their fathers lives have jus ad rem not jus in re to their fathers goods Whereupon 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 and give as it shall please him according to form of Law but being dead without will or disposition thereof they fall upon his children according to the Law of Nations hat the Cannon and Civil Laws command it as a thing in equity the father either to divide his inheritance amongst his children or allow his children according to his affection by giving to one more then unto another as it shall please him Answ The Apologer speeks generally and cites neither authority nor Authour and so deserues to be neither credited nor answered but I will not deal so unkindly with him There is no question but that children have not only jus ad rem but jus in re to their fathers goods in his life time as plainly appears by the claim which Esau made and by the parable of the prodigal for the prodigal came to his father and boldly said Pater da mihi portionem substantiae meae give me that portion of goods which belongs to me pater divisit and the father gave him his portion and Esau came as boldly to his father and demanded the due of his Birthright because he was the eldest son And for all the large soveraignty which as the Apologer sayes the Civil Laws give Parents over the children the Apologer confesseth that fathers unless they can give a just cause to the contrary are bound by the Civil Laws to leave every child a portion called a Legitimate or Patrimony which makes clearly against his so absolute a power of Parents for if they are bound how can they be said to be free Proof 16. That even to this present day the engrossing all by primogeniture hath not been so much as heard of or at leastwise never admitted in the Civil Law as by many Text in the same Law it well appears Answ The Apologer is still upon his generalities and gives neither reasons nor authority but the best is we may believe him as we list I confess that no good Law either Civil or Cannon or any other Law whatsoever allows the engrossing all by Primogeniture as that the eldest son should have all the estate the other children nothing but it is false that there is no mention at all in the Civil Law of the rights of Primogeniture for the great Lawyer Baldus in his Book De justitia jure faith semper fuit semper erit it alwayes hath been and alwayes shall be that the first-born doth succeed and inherit And the arcient Historian Herodotus in his Polihim thus saith it is the general custome amongst all men that the first born doth succeed and inherit And if we will believe Sir John Heywood a late and learned Doctour of the same Laws he tells us that all the best and most approved interpreters of the Civil and Cannon Laws do jointly hold that Parents have no lawful power to invert or pervert the due course of inheritance unless there be some such great cause as was in the case of Ruben and the word Senior say they which signifies priority of birth is often times taken for Lord and not without cause for sayes on Apostle 1 Timoth. 5. Seniorem ne increpaveris sed obsâ—cra ut patrem Do not disrespect thy elder but honour him and treat with him as if he were thy father and indeed the Senior or eldest of our sons as is manifest Gen. 27.49 Gal. 4. c. is to be as a Lord over the rest of his brethren But the Apologer it may be being himself a Divine cannot rellish any other authority but from Divines I will therefore for his better instruction and satisfaction if it can be present him with the opinions of two very authentique Divines and of great antiquity S. Chrysostome and S. Jerom S. Chrysostome in his fift Sermon against Iulian saith that the first-born is is to be esteemed more honourable then the other children and S. Jerom in his Epistle to Onogron and upon the 49. Gen. saith that the right of inheritance is only due to the first begotten or eldest son living Proof out of the Common Law THat our Common Laws give power to a father and free will to dispose of his own as far as reason shall guide his will without all obligation to his heir all Lawyers agree that such Parents who have estates in Fee simple may alien sell and give by power of our Law their lands to whom they will without respect of person or Eldership for it is lawful for every man to dispose his own as far as the Law shall permit him Answ You see here how the Apologer layes down the
want of due means from their fathers and elder brothers are forced to shift which as these times shape is either to live lewdly or miserable That the trade of Merchandize the Military profession the Courtiers life the service of Noble men and the like have advanced more in former times then now they do and this kind of life is not so grateful to our English Gentlemens natures as anciently it hath been Ergo fathers are to allow and leave more largely to their younger children Answ The Apologer having used the Laws at his pleasure begins to tax the times for sayes he younger brothers for want of means are forced to live either lewdly or miserable as the times shape He next falls upon the Camp Court and City for sayes he neither Merchandize Souldiery nor service of the King will serve now adayes to prefer and help younger brothers and he gives this reason and very wisely because such courses of life are not so grateful to our English Gentlemens natures as anciently they have been and younger brothers being careless to encrease their small Patrimonies by thrift and honest industry do by his own reasons deserve no Patrimony at all for sayes he interest Reipublicae ut quilibet re sua bene utatur it concerns the Common-wealth that men be good husbands and imploy their goods in such a manner as shall make most for the good of the Commonwealth Yet I deny not but that it is a great errour in Parents who have great estates to leave so little as they usually do to younger sons for such younger sons who have small Amunities and have never been inured to labour nor have any other means to get their living by when their necessities make them say with the Steward in Matth. I cannot dig and I am ashamed to beg it doth often force them to dishonest courses and is a cause of numberlesse mischiefs and no marvel for it is a hell to the minds of most men to decline to more inferiour courses then those have been bred up with and therefore it were much better that Parents themselves would have a better respect to their younger children and not leave them as too many do to the courtesie of their eldest son whom they endeavour to advance by making the rest of their children beggers or by leaving them so little that they are not able to maintain the place and credit of their Birth I heartily wish it were otherwise and that Parents would be better advised But Mr. Apologer you are clean beside the matter in question for you undertook to prove a fathers free power in disposing of the estate at his pleasure and that eldest sons have no superiour right to inherit above other sons Proof 21. That the custome of eldest sons to inherit hath rather been the overthrow then the preservation of Families for when such custome was not in use we find in Livy that three hundred of the Fabii all of one name and Family issued out of Rome gates at one time on their own cost for the defence of their City who were all slain In Scotland also three hundred of the name and Family of the Frazers all Gentlemen were at one time slain in fight by their enemies and no lesse then an hundred and fourty Gentlemen of one name in Yorkshire waited on the chief or principal man of their house at that time high Sheriff Answ It is true indeed that the Fabii issue out of Rome gates on their cost and to their cost for it cost them their lives Vna dies Fabios ad bellum miserat omnes sayes Ovid And if the Apologer would have it thought that the custome was then to divide the estate amongst the sons equally for the enlarging and preservation of Families the best he can make of it is that it was but a heathenish custome for the Romans were then heathens And concerning his story of the Frazers I know why he should make any mention of it unlesse he would have his Reader to consider how much the Fabii and the Frazers did sympathize because their names began both with a letter as also because they were both of a number and both of a fortune for they were all slain by their enemies and the Yorkshire Sheriff as himself sayes was the chiefest or principal man of that House that is that he was of the eldest or noblest House and therefore by his own saying there was no such custome then in use as he speaks of Proof 22. That the custome of eldest sons to inherit hath been in use but of late times for how else could it come to passe that in this Kingdome there were at one time so many great and honourable Families of one blood disjoyned in their seats and distinguished in their Armories by different arguments or who is so meanly seen in our Antiquities and Stories as not to know it was so and that many renowned Houses to speak as de magis notis Plantaginates Mortimers Beaufords Beauâ—hamps De la Poles Nevils Grays and the like have grown and flourished from one common Ancestour it cannot be refelled But in these our times we find so great a decay of ancient families that if there be one Family in a shire of three hundred years continuance very many others are scarce five descents in blood Answ The Apologer needs not think it so strange that there should be so great a decay of Families for being so well vers'd in History as he would seem to be he must needs know that many great Nations and Peoples are not only decayed but have utterly lost their names what I pray you is become of the twelve Tribes of Israel who were a thousand times more glorious then then the Families he recites and our very next neighbours the French do not know where their Germane Ancestours called Franci did inhabit only our Cambro-Britanni can derive their descent from the Moon but other Nations are not so happy And concerning those honourable names mentioned by the Apologer as Plantaginets Mortimers Beaufords c. it cannot be thought as the Apologer would have it that the custome was then to divide the estate amongst the sons equally for when a Family is gotten to an eminent height and power it is an easie matter to advance younger sons by making some of them Bishops as the use then was who should help the rest or by preferring them to offices and imployments of state or by marrying them to heirs general and we see at this â—… day that the honourable name of Howard is as largely spred into as many several branches as any of the rest were then and yet I never heard of any disinheritance practis'd by them or that they used to make an equal division of the estate amongst their children It is true I think that there are not many Families in one shire of three hundred years descent though doubtless some are of much greater continuance but the cause is not as the Apologer
Jus Fratrum THE Law of Brethren Touching the power of Parents to dispose of their Estates to their Children or to others The Prerogative of the Eldest and the Rights and Priviledges of the younger Brothers Shewing the variety of Customes in several Counties and the preservation of Families collected out of the Common Cannon Civil and Statute Laws of England By John Page late Master in Chancery and Dr. of the Civil Law LONDON Printed by I. M. for Henry Fletcher at the three gilt Cups near to the West end of S. Pauls 1658. To the Reader DIscordia fratrum inter se Amarissima wofull and long continued experience tells us with what bitterness enmity amongst brethren is carried on if we cast the least glance of our eye amongst the many violent Law-suits daily prosecuted by brother against brother so that we see the saying of the Poet complaining of the Iron age near two thousand years ago verified in the superlative degree in our age Concordia fratrum Rara est Filius ante diem patris inquirit in annos Love amongst brethren saith he is rare to be found and the son goes to the Oracle to enquire how long his father shall live that he may inherit his estate The eldest would have all to be his and the younger thinks the elder hath too much and while they strive who gets most use of his fathers estate commonly a third person carrles all from them both This Treatise will discover the Rights of both Elder and Younger if they will be contented with their portion fully answering the Apologer for the younger brother or the younger brothers Plea This book called the Apology or Plea for the younger brother being a Treatise so intituled was Printed at Oxford in the year 1636. Hereby brethren may learn to know their Right and that being known and obtained I could wish them to be therewith content and observe the Apostles divine command Let brotherly love continue The fathers power and Prerogative in disposing his estate A Fathers free power disputed as that he may dispose of his Lands or other his Fortunes to his son sons or any of them as right reason the Laws of God and man the civil cannon and municipal Laws of this kingdome do command 2 I will prove by the Laws of God and man that a fathers freedome is such that he may lawfully and religiously give his lands or goods or other his fortunes to any of his children for the preservation of his name and comfort of his posterity as right reason or the better deserts of a son shall perswade him 3. Nature never set it down as a Law that the estate should be left to the elder brother or younger or to any one in particular or to all but to whom the father being true and free Lord thereof should best devise by will guided by reason 4. Neither is there in Scripture nor in any other written Law under heaven any command to restrain the fathers power but rather the contrary for such is the Law of Nature that they who are ex aequo one mans children should if not ex aequo yet not ex iniquo be provided for 5. Children during their fathers lives have only jus ad rem not jus in re to a fathers goods whereupon 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 and give as it shall please him 6. The Cannon and civil Laws give no precedency or superiority of right to eldest sons but command it as a thing in equity the father either to divide his inheritance amongst his sons or to give to one more then to another as it shall please him yet with this proviso that he who hath the least hath his childs part except on just cause he disinherit him 7. The Common Laws of our Realm allow every father to give his land in fee either by deed in his life or will at his death to any of his children yea to a stranger without rendring a reason why he doth so 8. The Imperial or Civil Laws gave Parents at the first a power of life and death over their children and the Jews had the same power given them by the divine Laws An Advertisement to the Reader YOu may see here with what a merciless immanity this wild Apologer falls upon elder Brothers for no Laws either divine or humane allow them as he sayes any right of inheritance at all above other sons nor any other sons can claim any thing of their Parents as of right but what is their Parents pleasure to bestow of them and daughters are in the same or in a worse taking for he insers that they may lawfully be disinherited and the estate conferred by the father if he hath no sons to any one of the same name because the name of the family is extinct in the daughter and the Hebrew word Zacar which signifies a male child doth signifie also a memoriall because the fathers memory is preserved in the son But this is not all for it is not enought that Parents have a free power to make their children beggers unless they have also a free power over their childrens lives It is strange that the Apologer who pretends so much learning and honesty should be so fair in his Epistle and so fowl in his Treatise which thanks be to God is no Gospel for there he protests that it was not upon any the least presumption of a self-sufficiency to confront thereby any received custome nor to diminish the natural reverence due by younger brothers to their eider nor to enkindle emulation in families nor to innovate any thing to the prejudice of publick or private quiet that he made publick his Treatise but his principal motive or aim was the singular respect which as a Patriot he bears to the glory of Gentlemens houses and to the general good of great Brittain which how well he hath performed or whether he had any such intention or no let any man judge who shall read his Treatise And though he seems in some places a little to confine the parental power by saying that Fathers are to dispose of their estates as right reason and the better deserts of a son shall perswade them or chiefly for the preservation of their families which every wise and good man must and will have a care of yet this is but a seeming restriction for all is left to the fathers ther 's affection and will and the eldest son hath no more right to inherit then the youngest and either of them none at all but at the courtesie of the Parental Monarch As for his vain suppositions that if the eldest son be a natural fool or madman or turns Turk or be extreamly and desperately vitious they shall have no serious part of my Answer because they are no material parts of the charge of his Tratise The questions
Law against elder brothers and indeed against all children for fathers may as he sayes do what they will with their own for so the Laws permit I might here answer him with his own two sayings that Laws without reason are no Laws at all and that extream Law is extream injury but he shall have a fair answer and I hope a full one It is well known that it is impossible for any Law though there were a thousand Solons to compose it and the wisdome of a Solomon to assist them that could prevent all inconveniencies and those are the best Laws politick that prevent most And I am so far from thinking the Laws to be faulty herein that I must ever approve the goodness and wisdome of them in allowing Parents so absolute a soveraignty over their estates and children for it is most necessary and just that Parents should have this free power permitted them because it is a great means to keep their sons in a due obedience and make them strive by a noble emulation who should best deserve their fathers love And the Apologer knows that usury is permitted by the Laws and usury as himself sayes is as grievous a sin in the eye of Heaven as theft is and he may as soon prove that usury or theft is lawful as he can prove that an eldest son who is wise and dutiful may lawfully and religiously be disinherited for he cannot deny but that the intention justice and equity of the Law is that eldest sons should inherit so that upon the matter fathers are but Feoffees in trust of their estates and children and this great power is only lent them to prevent inconveniences Proof 18. That the Common Laws are of most force to sway the point in question which I have therefore purposely reserved to treat on in the last place That by the Common Laws a man may give his lands in Fee either by deed in his life or will at his death to any of his sons yea to a stranger without rendring a reason why he doth so That it is no offence to part an inheritance amongst children or to disinherit an eldest son upon just and evident cause of incapacity if it be done according to course of Law Answ If the Apologer supposes by his just and evident cause of incapacity that the eldest son be a natural fool or madman we will not much dispute the matter but if he means as he every where pretends that the want of the fathers affection and will is a just and evident cause of incapacity he is in a gross and shameful errour and I cannot but marvel why the Apologer should so much urge the authority and force of our Laws on the behalf of his younger Brothers for there is nothing so sacred in our Laws as are the rights and priviledges of Primogeniture or eldership old Bracton and divers others of our greatest Lawyers do plainly aver and prove that our Laws are herein divinely grounded and they give their Text Numb 27. A perpetual Law as the Lord commanded Moses And though the eldest son should be a natural fool or madman yet if the father do not otherwise dispose of the estate in his life time and it may be a question whether he may lawfully and religiously so do for it would be a wrong to all the succeeding posterity yet this natural fool or madman and his eldest son after him or the next in blood who should succed him is by the power and ordinance of our Laws to inherit And such is the indulgence of our Laws towards eldest sons and their rights that the Law takes even natural fools and mad-men if eldest sons into its bosome and protection and the estates are preserved that they may run in the right course of inheritance which is to the next in blood or from one eldest son unto another And surely Mr. Apologer I know not why you should be much commended for your integrity in perswading Parents that all is well done which is done by the power and permission of the Laws if you had aimed as you say in your Epistle at the general good of great Brittain you would have told Parents what they might lawfully do and not what they could do but suppose there were so absolute a power in Parents as you would have them believe what would your younger brothers get thereby for whom you apologize why forsooth nothing at all but what pleases the Parental Monarch for fathers may give their lands and goods to a stranger or to whom they will with rendring a reason why they do so I would fain know whether any thing can be more inhumane and monstrous and whether there was ever such a desperate John an oaks as this wild man for though he would a little hide himself under the words of a just and evident cause of incapacity yet he confidently avers or seems to infer it that it is a sufficient warrant for any mans conscience to do as the Laws shall enable him currat lex valeat quantum valere potest Proof 29. That though the use and custome be that eldest sons inherit yet the breach of this custome is no sin for it is such a customs which rather invites then commands or binds that customes against Law are void by the Civil Law and that it was never yet heard that custome was of such force that it should be deem'd a sin not to follow a custome especially when the Law is more pious and natural then the custome is Answ It is true that no good Christian ought to observe any bad custome and no custome is to be kept which is against the Laws if the Law be more pious and natural then the custome is but that it is against Law and Christian piety for eldest sons who are wise and honest to inherit the greatest part of their fathers estates or that a father may lawfully and religiously disinherit such a son I cannot think him a wise or honest man who can believe it And whereas the Apologer sayes that it is but by way of custome that eldest sons inherit he cannot but know that next to the Divine commands there is not any thing can more bind the conscience or more satisfie and settle the judgement then a general practise or custome if the custome be good and just as it is in this case of inheritance And he knows also that our Laws are divided into three parts Statute Law Common Law and Custome Law and Custome is a second Nature the Apologer sayes that it is the more general practise or custome for eldest sons to inherit and how can we better repose our consciences and judgements then in a general practise or custome and how can any man think otherwise but that Parents do thus and have done thus even from all antiquity moved only by right reason and out of conscience in obedience to to the Laws Proof Of the Law of Nature THat many younger brothers and sifters for
strangers and what can be a greater affront to God then that a father should disaffect and reject his children whom God hath not only given him but given them for his honour for it is said Eccl. 3. and Prov. 17. that fathers are honoured in their children and that the Crown or glory of old men are their childrens children The Apologer sayes that it is a monstrous immanity in any man not to have care to preserve his Species that is not to have care to preserve and provide for his children and can it be a monstrous immanity and not a sin he also sayes that every act in it self or by circumstance evil is before God and man a sin and no way to be executed by a Christian That an act of it self lawful done against Law is sin and that no Law is valid where the thing it self is unlawful and a sin and is it not then a sin to disinherit an eldest son unto whom the Laws both Divine and humane give the right of inheritance and which we also see confirmed by the general practise of all good Parents Proof 26. That we cannot in conscience sell or give a weapon to one whom we know intends to murder Excommunications are imposed on them who sell armours or weapons to Turks The rule of conscience not only commands a man to use well those fortunes which God hath bestowed on him but forbids him either for affection or gain to part with them to others who will abuse them lest he partake of others sin which a Parent may do after his death who parts from his estate to a desperate unthrift Answ It is true that if we can assuredly know that our goods will be spent to the dishonour of God the harm of the Commonwealth or to the hurt or wrong of any man we are neither to sell nor give them to such persons as will so use them and if an heir be desperately vitious there is no question but his father may lawfully and religiously disinherit him but how can a desperate sinner or unthrift be known We are divinely commanded not to judge any man Rom. 14. which is so to judge him but by Gods grace he may be otherwise and be hereafter a glorious Saint in heaven when he that judgeth him for ought as he knows or can know may himself be an abhorred reprobate qui stat videat ne cadat he who presumes most of his sure footing is in most danger of falling And though a son be vitious and an unthrift doth it necessarily follow that he that is once an unthrift musty alwayes be so We have daily experience to the contrary many unthrifts prove the best husbands for such men commonly run out of one extream into another and from prodigallity fall to penury But if the eldest son be a natural fool or mad man he is not capable to mannage the estate or if according to the Apologer he turns Turk and tramples upon all Laws divine and humane I will say with the Apologer that he is so unfit to inherit that he is not worthy to live but I cannot conceive how in conscience an eldest son can be disinherited meerly for his unthriftinesse for we may so estate our land and yet suffer him and his heirs to inherit that it shall not be in his power to hurt or to overthrow his family Proof 27. That if in conscience the whole inheritance of the father is to come without controul to the eldest son then must it of necessity be inferred that the father without his consent cannot give to pious uses or set out for his other children 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 his other charitable intentions should be provided for only at his sons or heirs courtesie for thereupon all donations to pious uses and to younger brothers for their portions may be called in question Answ Eldest sons are not to inherit all the estate but only the greatest part of it fathers being to provide for all their children And I deny not but that every man is bound in his Christian duty to do what good he well can to his neighbour or Christian brother for sayes an Apostle Rom. 14. No man is born to himself and the Apologer hath a good saying Da quae non potes retinere ut consequaris ea quae non potes amittere Give of those things which thou canst not keep that thou maist gain such things as cannot be taken from thee But Mr. Apologer I must tell you charity begins at home Proximus quisque sibi we must first look upon our selves and children and then upon our neighbour or Christian brother but I 'le come nearer to you put the case that a father were to make the Church or Commonwealth or children his heir which of all these may he the more lawfully do The Apologer it may be would be on the Commonwealths side for then the estate would be divided and he might chance to have a share amongst the rest but I must ever be on the childrens part and will give a plain Text for it S. Paul in his fifth Epistle to Timothy saith that he who hath not care to provide for his family doth deny the faith and is worse then an Infidel but it is no where said that he who hath not care to build Churches Colledges and Hospitals doth deny the faith and is worse then an Infidel Proof 28. That it plainly appears out of the sacred Text it self that fathers had a power amongst the Jews to cause their children for riot disorder and unthriftinesse to be stoned to death Ergo they had power to disinherit for the greater ever includes the lesse and that I may not seem to speak without book I will set down Moses words which are as follow If a man have a stubborn and rebellious son that will not obey the command of his father and being chastised shall be unreclaimable they shall apprehend and bring him to the Seniors of the city and to the place of justice and shall say to them This our son is incorrigible and disobedient contemns or monitions abandons himself to riotous excess and is a drunkard The citizens shall then overwhelm him with stones and he shall die That you may take evil from among you and that all Israel hearing it may fear Deut. 21. Whence we may collect how odious a crime unthriftinesse riot was among the people of God and what ample power the father had to punish the same in his child for if we observe well the manner of the processe between the father and the child in this case we shall find that the father was witnesse accuser and judge of his own cause for we read not that the Senators of the city did give sentence or further examined the proofs of the fathers accusation but their presence giving as it were allowance to a
fathers power and intention to punish his son the people might without more inquiry stone to death so evil a deserving child which being well considered my hope is that it will never hereafter seem unlawful or against conscience that a father should disinherit his eldest or any of his sons for the cause only of unthriftinesse and riot Answ It is they say a shame to bely the devil then much more to bely Gods chosen people for had the Israelites been so much merciless as the Apologer would make them would Moses himself and from the immediate mouth of God himself would he have said Deut. 8. that as a father disciplineth his children so doth God discipline his people and would the royal Prophet who was a man according to Gods own heart would he have said Psal 102. and 118. that the mercies of God are infinite and far above all his works and that as a father hath compassion of his children so hath God compassion of them that fear him And would he have done so to his traiterous and inhumane son Absolon whose villanies were so transcendent that they have out gone all example Would he have pardoned and compassionated such a son and wished he could have died for him if the Law and practise of the Israelites had been put to death their riotous and unthrifty children which are offences so mean that in respect of Absalons inhumanities they deserve no mention It is true the Jews had a power permitted them to bring their riotous and rebellious sons to the Seniors of the city and to the place of judgement but these Senators were not to take the bare word of the father and so to proceed to judgement for what can be more unnatural and impious then that a person accused should not be heard speak and that Judges upon a bare allegation without and examination or proof should immediately give sentence of death And surely we may well believe that this Law was only permitted the Jews as was their Law of divorce Matth. 19. or rather that it was made in terrorem for terrour and not for execution for the words are that all Israel hearing it might be afraid and we find not that any son meerly for his riot and obstinacy to his father and by the procurement of his father did ever yet suffer death And we may piously believe that our blessed Saviour had himself some reference to this stoning Law when he said speaking to the Jews Matth. 7. Luke 11. Which of you is it of whom if his child shall ask bread will he reach him a stone Which of you is it as if that Divine mouth should say is there any such man amongst you or if there be such a man what man is he or is he or may he be called a man who can find in his heart to reach stones wherewith to kill his own children And concerning his inference that fathers have a free power to disinherit their eldest sons for unthriftiness and riot because by this Law Deut. 21. the Jews had a free power over their childrens lives and the greater includes the lesse his reason is to as much purpose as his was who being asked whether great heads or little heads had the more wit made answer little heads because omne majus continet in se minus meaning Omne majus caput continet in se minus ingenim For the Apologer cannot but know that disinheriting and putting to death are two distinct things and if they be unjustly done it is hard to say whether is the greater injustice or wrong for it is said Ecccl. 34. He that taketh away his neighbours living killeth him And surely it is much more foul and sinful for a father to disinherit and undo his children then for one neighbour to defraud and undo another and especially to disinherit his eldest son whom the Laws both divine and humane have made the heir or the chief Lord and Governour of the family Proof 29. That because examples in all controversies of fact are the best fortifications I will therefore in illustration of the premises add some few to the former drawn as well from royal presidents by whose patterns totus componitur orbis as from inferiour persons whose qualities best fit the condition of our present subject and if Kingdomes and Commonwealths have favour'd it then certainly by all arguments à majori ad minus it may much rather be done and ought to be suffered in private Families The offering of Abel was better accepted of God then the offering of Cain Japhet the youngest son of Noah had Europe allotted to him for his inheritance which in all arts and uses of life far excels Affrick and Asia and all the rest of the earth Answ Examples are indeed the light and life of natural reason experientia docet hath ever been and will ever be the most sure rule of rational judgement And surely Mr. Apologer your examples will want both in weight and number if you will go that way to work for your younger brothers we shall be able to out-vy you at a thousand to one The sacrifice of Abel sayes he was better accepted of God then the sacrifice of Cain he confesses that it is not fit to urge this and I confesse it is to no purpose for it concerns neither inheriting nor disinheriting there being then and for many ages after as himself sayes no ptoprieties or estates in the world at all And concerning Japhets large portion which was no lesse then Europe for so sayes he all authentique Histories do witness he will have much ado to get any man of authentique reason to believe him for he must first prove whether Europe were then known by that name or no and whethet it was then so divided and bounded as now it is as also which of his sons had America It may be he will say the eldest son which if he had having a third part of the world beside whereof Europe is the least and therefore the fittest for the youngest son he had no reason to find fault with his father for next to Adam and Noah he was the greatest Monarch for territory and one of the least for dominion or people that the world ever had Proof 30. That the disinheritance of Ismael the eldest son of Abraham and of Reuben the eldest son of Jacob are invincible arguments of a Fathers free power Answ It is true that Ismael who was the eldest son did not inherit and the reason was because he was begotten on a handmaid and not on a wife and if the Apologer would make this an invincible argument as he calls it of a fathers free power he must get new Laws made and remove lawful issues to make room for bastards though Ismael as the Law then was is not to be reputed illegitimate Reuben did deservedly forfeit his birth-right for he dishonoured his fathers bed which had he not done he had not been disinherited for his father termed him