the Mercy of this Whirlewinde There is no Necessity For our Law hath giuen Power to a Father and Free-will to dispose of his Owne according as Reason shall guid his Will without all obligation to his Heire Besides this Custome takes place only after a Fathers Death if hee dispose not what is his by Deed in life or by Will at his Death But lest my Words bee more generally taken then they are meant I meane those Fathers who are possest of their Lands in Fee or Fee-taile that is are absolute of themselues and haue not vpon good Consideration convaied their Lands from themselues For all our Lawyers agree that such Parents may alien sell and giue by power of our Law their Lands to whom they will without respect of Person or Eldership But may some say the Custome is otherwise this Custome is a Law True it is the Custome But let vs see whether it binde sub peccato or as a Custome which rather invites then commands There was never any Command to tye a Father vnder a Penalty which admits no limitation but it was euer left indifferent and then only to take place where former Provision according to course of Law is not made Then surely a Parent is free from this devouring Custome and may considerately prevent what Evill it may bring to his posterity yea Reason commands it should be so For Interest Reip. vt quilibet re suâ benè vtatur It concernes the publike State that Men be Good Husbands saith the Ciuill Law For if a Man can neither sell nor set much lesse can hee giue any thing to another which he thinkes in his Conscience will vse it to the Dishonour of God and the Ruine of himselfe or others Divines hold that it is not lawfull to sell or let a house to any that hee thinkes assuredly will make thereof a Stewes or to sell giue or lend a Weapon to a man who intends therewith to doe murther Excommunications are imposed on them who sell Armes Offensiue or Defensiue to Turks though they bee not assured they will vse them against Christians Thus we see the Rule of Conscience not onely commands a man to vse wel those Fortunes which God hath bestowed on him but forbids him either vpon Affection or Gaine to part with them to others who will abuse them lest hee partake of others sinne which a Parent may doe after death who leaues his Lands to a desperate Vnthrift But what Religion and Conscience commands shall be declared in the following Chapter In which vpon Principles drawne from the former Conclusions shall be argued what sinne may bee contracted by the parting an Estate among Sonnes or by disinheriting an Eldest son vpon just Cause to whom the Father is onely tied by the Custome of the the Countrey without Obligation of Promise or Contract in Marriage which may alter the Case CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion THE Right of these insociable Inheritors of which wee now treat may grow as I conceaue from three Titles or Claimes which they may pretend to a Fathers Inheritance and whereby it may be deemed as they thinke sinne in a Father vpon what Desert soeuer to barre them of the said Right These three Titles are Purchase Custome and Entaile Of each seuerally And of the first which is Purchase Surely in the Iudgement of the Good Learned there is no question in Law or Conscience but that a sonne joyned Purchaser with his Father hath Ius in re and by Equity must surviuing his Father inherite such Lands as were purchased in their Names Now of the other two though it be as cleere as Noone-light that a Lord in Fee-simple or Tenent in Taile may sel or giue by course of our common Law at his pleasure all such Lands held by him in that kind according to those formes of Law which the learned in our Lawes haue and can set downe yet there seems to arise a great Difficulty how such an Act or Acts may in Conscience be executed I haue heard some say in this our Case summum Ius summa injuria Of these Points therefore I will speake Salvo meliori judicio what may in Conscience vpoÌ„ good and just Occasion giuen by the Sonne to his Father bee put in Execution It is well knowne to all Divines as I haue said that Holy Writ hath not prescribed any direct or precise Forme to the Children of God whereby they are bound in Conscience to dispose of their Lands and Goods but hath absolutely left them to the Customes of their Country where any Act of that kinde shall be executed only as confirming all Formes of Devises which by publike Consent and Authority either haue or shall in rightfull manner bee devised or ordained Out of this Ground and others prementioned let vs examine whether a Father parting his Fortunes by Power of Law and on just Cause shall do a wrongfull and sinfull Act as some would make it I confesse that every Act in it selfe or by circumstance evill and which vpon no occasion can be justified is both before God and Man sinne and by no meanes to be executed by a Christian But that the parting of an Inheritance or Disinheriting of an Eldest Sonne vpon just and evident cause of incapacity according to Course of Law is an Act of that Nature doth not appeare For I finde not that either the Law of Nature or Grace nor yet the Lawes of Man Common Civill or Canon ever for bad such Acts whereby sinne may bee imputed to those who doe them on good Considerations Sure I am that the Canon and Civill Law are so farre from forbidding them that they command as a Thing in Equity the Father either to divide his Inheritance or allow him according to his Affection to giue to one more then to another yet with this Proviso that hee who hath the lest haue his * Or lawfull Portion See pag. 61. of Dr Ridleys View illustrated by the judiciously â—eâ—â—ined Mr Gregory Childs part which the Law doth also assigne except on just desert he disinherit any one which at this day may yea must bee by Will with the cause of Disinherison therein specified Of which Causes the Imperiall Lawes haue set downe foureteene as may well appeare to them who are desirous to vnderstand more thereof So it is evident that by these two Lawes no sinne can grow vpon such Acts being done vpon their Warrant and vpon on such Consideration as is formerly deliuered As for the Common Lawes of our Realme sure it is they allow no lesse and with a greater Privilege For a Man may by this Law giue his Lands held in Fee either by Deed in his life
Floruit Ao 480. as the World knows vpon good Consideration just Causes not vpon spleene or false suppositions persuaded to leaue their Fortunes to Strangers or to a lustfull Issue as some haue done CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure HAving treated largely and as I presume proued sufficiently that Lands held in Fee-simple may either bee parted or vpon just Cause wholly given away to a younger Sonne I intend now to speake of the lawfull Freedome of a Father in like sort and on the same causes moued to dispose of his Lands entailed of which there seemes more Doubt then of the former Every humane Act which of it selfe is not forbidden by the Law of God or Nature is to bee judged Good or Evill Lawfull or Vnlawfull either by the Lawes of the place where the Act is done or by Intention of him who shall doe the Act. For as the Divine Law cōmands somethings to be done and other things to bee avoided vnder paine of sinne so the third sort of Actions are left free by the said Authority from sinne except the Law of Man prohibite thē so make them sin or else evill Intention make them being of themselues lawfull to be a sinne and vnlawfull according to that Principle of Morall Philosophy Finis specificat āctum For as an Act of it selfe lawfull done against Law is Sinne so a good Act commanded by Law yet done with an evill intention may be sinne From these Grounds let vs see whether the Common Law of our Country and the Intention of a Father which are to bee the Iudges of our Cause can allow the cutting off an Entaile the parting of an Inheritance or vpon proportionable cause the disinheriting of a Son First it is cleere that the Act of it selfe by Law may be done But whether such an Act bee summum Ius which may be summa injuria that is the Doubt What shall be the Triall By other Lawes it is either made lawfull or left indifferent Our Law which makes this Tye giues leaue to vndoe it without any exception Ergo to a good End and vpon just Cause it may be done It will bee replied that the Eldest sonne during this Entaile is quasi Dominus Yet hauing neither Dominium directum nor indirectum he during his Fathers life hath onely Ius ad Rem and not in Re Whereby no change is forbidden to be made by the Father according to the Forme of the Law vnder which he liueth and by which the sonne is to make claime if the Father create no new Estate in his life For it is lawfull for every Man to dispose of his Owne as far as the Law shall permit him if it bee not forbidden by some other Law but such an Act is not forbidden by any other Law Ergo 'tis lawfull and no sinne But it may bee said that the Intention of him who entaild the Land was that it should not be vntied or the state changed I answer No Act done by law can be free from Change further or longer then the Law that made it a binding Act shall allow And it is well knowne to the learned in our Lawes that every Mans Intention is to be construed according to Law by which his Act and Intentions are directed Wherevpon Civilians say in like Cases Valeat quantum valere potest Neither is it thought that any man who convaieth his Lands by Entaile can intend an Act beyond Law or desire that his sonne whom he makes Tenent entaile as our Lawyers terme him shall in no Case no not for the preservation of his Family or Releefe of many other of his Children haue power to cut of this Entaile and to be able to alien sell or giue his Lands as Reason Law and Religion shall permit For it may be judged that hee who doth an Act to a good End as namely to preserue his Family will alwaies assent to another Act which shall with better assurance then his owne strengthen his Intendment To the former Considerations wee may adde what Inconveniences may follow this Generall Position For if in conscience the whole Inheritance of the Father is to come without controle to the Eldest sonne then must it of necessity bee inferred that the Father without his Consent * Agens per medium est minus efficax in agendo cannot giue to pious * Da quae nō potes retinere vt consequaris ca quae non potes amittere Vses or set out for the Advancemēt of his other Children any thing after his Death So that if God should blesse a Father with many children and crosse him with as many Misfortunes his other Children and all other his charitable Intentions should be provided for only at his Sonne 's or Heire's curtesy Which how * Pedissequa enim plerumque novi honoris est Arrogantia Salv. Ep. 2. absurd it is all men know For herevpon all Donations to pious Vses and to younger Brothers for their preferment may be called in Question It is an ordinary thing in these our Times when the Land is left to the Heire Generall to alter the Estate if the Land so cōvaied shal come to Daughters and to leaue it to a Brothers †Hebrewes call a Male-Child Zacar a memoriall because the Fathers memory is preseru'd in the Sonne See 2. Sam. 18.18 Sonne or some other of the same Name though peradventure many Degrees remoued for preservation of the Name and Family If this may bee deemed lawfull and no sinne being done against a well deseruing Child for whom Nature and her Deserts plead her worthy to be her Fathers Heire then without all compare if the preservation of a Name and Family may justly be labour'd for according to Power giuen by Law of God and Man the same may be lawfully acted against a debauched Heire who in any reasonable Mans Iudgement is likely in his shrowd to bury the Memory of all his Ancestors Vertues which should liue in him and his Progeny as his Progenitors did in theirs It is neither new nor strange in the Practise of our Times in Causes of this Nature to overthrow intended Perpetuities and by Act of Parliament to giue leaue vpon some good considerations to sell lands which otherwise by no Lawes can bee sold from the Heire the Father being but Tenent onely for terme of life Which surely by no Power vnder God could be done were the Thing in it selfe vnlawfull and sinne for * See Salvian ad Ecc. Cath. l. 4. Omne peccatum est Divinitatis injuria Whence may bee argued à Fortiori If power may be giuen to a Father being Tenent for Terme of life to sell his Sonnes lands only to pay his owne Debts peradventure idly made though it be to the Overthrow or extreame Diminution of his Family because Naturall Equity doth will that every one
AN APOLOGY FOR A YOVNGER BROTHER OR A DISCOVRSE PROVING that PARENTS may dispose of their Estates to which of their Children they please By I. A. Written for the generall good of this Kingdome OXFORD Printed by LEONARD LICHFIELD for Edward Forrest 1641. TO ALL FATHERS AND SONNES OF WORTHY FAMILIES Whom Vertue Birth and Learning have iustly stiled GENTLEMEN Health Hapinesse and Encrease of the best Knowledge AS in the Front of this brefe Discourse there is Right Worthy Gentlemen already delivered vnto you some light of that which concernes the Qualitie Reason and Scope thereof so doe I here sincerely professe that J did not privatly write it at First but for privat satisfaction neither doe I now make it publike but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking and paradoxicall age Not vpon the least presumption of a selfe-sufficiency to confront thereby any receaved custone if any such be nor to diminish the naturall reverence due by Younger brothers to to theire Elder not to enkindle Emulations in Families nor to innovate any thing to the prejudice of publike or privat quiet which none I hope will be soe ill affected as to suppose neither mine in offensive zeale for Younger Brothers amongst whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Lawes which J haveing a litle studied doe not a litle respect nor the particular honor I beare to the vsages in this poynt of our ancient Brittaines from whom J am decended nor desire to maintaine and justifie an act in this kinde done by a friend whome I must ever reverence nor yet the hope of bettering my private fortunes which moves men much in these our times hath drawne me to this Vndertaking but principally as before is somewhat touched the singular respect which as a Patriot I beare to the glory and good of Gentlemens houses whose best originall surest meanes of maintenance and principall Ornament is Vertue or force of Minde The want whereof is a common cause of Ruine The free power therefore of You who are Fathers is here in some speciall cases argued and defended to giue you occasion thereby to consider with the clearer Eye-sight for the establishment and continuance of Families Here also the naturall Rights of vs that are Children be soe discoursed and discussed as that We younger Brothers may have caues and courage to endeavour by vertuous meanes to make our selves without the least wrong to any capable if need shall be of the chiefest vses And Both and All are so handled as that no offence can reasonably arise in any respect much lesse for that the whole is conceaved and written in nature onely of an Essay or Probleme to which I binde no man to afford more beleefe then himselfe hath liking of being free to refute the whole or any part at his pleasure as he feeles himselfe able and disposed If I may seeme to some to have handled this Subject with more earnestnesse and Acrimony then they thinke expedient let them be plealed to weigh the Decorum of Disputes which is principally herein observed their nature absolutely requiring quicknesse and vehemency on whether side soever As for the remedies of Evils by way of enacting Lawes that is the proper office of Magistrates and Courts of publike Counsell neverthelesse to speake and treat of them vnder the favour and correction of Superiours to whome I doe alwaies very dutifully submit is a thing which may well belong to every man But for those graue and Learned Censors to home I may seeme to have bestowed my paines in very needlesse Arguments because no lesse then I my selfe they hold the case as here it is put to be most cleere and out of controversie to such I answer that I writ it not for them vnlesse perhaps to confirme their judgements but for others who are not altogether so principled or perswaded Nor to any as to prescribe or bind further then their owne consciences shall think good For that were farre too peremptory Finally nothing being here defended but by Authority Reason and Example nor any person taxed nor particular personall Vices if neverthelsse I have not perform'd my part in the work so well as J desire or as the Cause deserves which I feare I have not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good Intntentions sake you will ever conceave well of and take in your speciall Protection Your vnfained Well-wisher J. A. THE CONTENTS CHAP. 1. The occasions and scope of this Appoligie to prove that Fathers may in some cases dispose their Estates to which of their Sonnes shall reasonably please c. and that to be lawfull by the law of God of Nature and of Nations CHAP. 2. That the grounds of good Constitutions being in Nature yet she neither before nor after the law of Propriety established did command that all should I le left to any one more then to another CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without siinne that therefore ther can be no such Right in primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not CHAP. 4. That Nations beginning to devise sundry Formes of setling Inheritances the Romans especially therein respected the free power of Fathers the right of Children to their Fathers estates beginning onely at their Fathers death CHAP. 5. That the present custom in our Country of giuing All or almost All to the Eldest was never so begunne that it meant to exclude iust Remedies for such Evills as should grow out of the abuse of that Custome when it may make Fathers guilty of their Sonnes faults and of their Families ruines CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure CHAP. 8. That Vnthriftinesse is one knowne name of many hidden sinnes and is alone a sufficient cause of disinherison proved by the Law of God and Man CHAP. 9. The main points of the Premises exemplified indiuers particular Facts as well of Princes as of private persons CHAP. 10. That the Law of Naturall Equity Reason confirme Disinherison and that the riotous liues of Elder Brothers deserue that vehement Increpation with which the Author closeth vp this Treatise THE YOVNGER BROTHER HIS APOLOGIE CHAP. 1. The occasion of writing this Apologie is to proue that Fathers may in some cases dispose
that Forme and Power of Law where such an Act should bee done And this is I presume without controll what the Law of Nature commanded touching the Matter in Question Next let vs see what the Lawes of God doe command CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without sinne that therefore there can be no such Right in Primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not IF Nature being taken for the principal all-producing Cause of the whole Frame of the Vniverse with all Creatures therein being nothing else but the working Will of the Highest and first Mover as Divines Philosophers hold then surely must Natures Law bee his Will which hee cannot contradict or counter-mand except hee should bee contrary to Himselfe which he cannot For what is in God is God therefore Constant and Immutable Out of which Principle it is easily proued that if the Law of God teach that which the Law of Nature hath ordained the Right of Inheritance cannot be tied to any other person or persons then to those which the Fathers Will approues according to the Power giuen him by the Lawes of Nations where he liues Which Power deriued from Natures Law cannot erre from the Law of God For whosoever shall consider but of Gods Commandements giuen to Man shall well find that God thereby hath still seconded his former Ordinances giuen by Nature For so long as Man-kinde liued in a sort after the Innocence which Gods Grace in his first Creation had wrought in him God gaue him no other Law But when as by sinne those sparks which remained after his Fall were quite extinguished he gaue him New Lawes yet agreeable to Nature As for example in our present Affaires When Man had made by Natures privilege partition of Gods and Natures Blessings then God said to his People by the mouth of Moses Thou shalt not steal Thou shalt not covet thy Neighbours house his Wife his Ox his Asse or any thing that is his As also Thou shalt not kill Which with all other his Commandements teaching what sinne is are agreeable to the Law of Nature yet are dispensed withall as farre as the Lawes of Nature euer permitted For though that the expresse Command of God bee thou shalt not couet any thing that is thy Neighbours nor kill yet in some Cases Both may lawfully be done The one in extreame Want of present Food the other in defence of Life Goods In which the Law of God is good by the Originall Law of Nature which made All for the sustenance of Man and gaue leaue to defend Life with with the losse of anothers Blood yea Life if otherwise it cannot be Vpon which Ground I argue thus Suppose the Law of God did at this present command which indeed it doth not that the Inheritance should be left to any one particular Person and namely to the Elder-Brother yet in some Cases it would not binde the Father to obserue it For as in the former Commandements vpon some considerations the Commandement may bee dispens'd withall so in this For it is not sufficient to be the Elder-Brother or the neerest in Blood 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 Blood may iustly be rejected he that is second third fourth fift or last may lawfully be preferred before the First and this by all Law Divine and Humane and by all Reason Conscience and Custome of Nations Christian For if it should happen that the next in Blood should be a Naturall Foole or a Mad-man or being taken by the Turkes or Moores in his Infancy and educated 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 talke that would haue it to bee his Birth-right or that God Nature had made him Heire since neither God nor Nature doth immediatly make Heires as before is declared Vpon which Ground our Common Lawyers say that No Heires are borne but Men and Law make them I confesse that in Holy Writ great * In allusion hereto the Church Triumphant is stiled The Church of the First-borne Heb. 12.23 Respect is had of the first-begotten and a Blessing is held to come to Parents thereby But this Blessing I presuppose to bee that thereby the Feare of sterility was taken away which in the Old Law was held to be a great Punishment of God in respect thereof Parents had of themselues and by the Nationall Lawes Customes a great Regard of their First-begotten and preferd them to the better part of their Possessions yet not by any Command from God as a Precept to binde his Elect people vnder paine of sinne For had any such Law bound them vnder such a Penalty then should it binde all Christians now on the same Conditions But we see it by Generall Practise of all Countries to be otherwise Therefore it followes directly that it was not Gods Command but a Nationall Law For God both is and ever was One without change to all his People so ever were will be his Laws Positiue made for them that truly worship him The Claime which Esau made to his Birth-right was not by the Law of God as some ignorantly affirme but by the Lawes of his Country For should the Divine Law haue commanded it it had been sinne in his Mother and Brother by Cunning to haue got it from him Neither could the Father or the State wherein they liued vpon no just cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme Iacob praelatione divinâ primogenituram benedictionem promeruit Ita Eximius Praesul D. Episc Cicestr Apparat I. by allowance from God and as it may bee judged by the successe 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 bee committed God never doth Neither did the Nationall Law or Custome of the Iewes as it is said absolutely command the Father to leaue to his first begotten all or the greatest part of his Goods and Fortunes But in case he died not disposing thereof by Act in his Life or Will at his death then the Custome †Viz. Grounded on the Right of Primogeniture See Deut. 21.17 and the Geneva note there of the Nation laid a double Portion on the Eldest or First-begot providing for the rest proportionally By all which you may collect that neither the Law of God or Man in this case commanded that Esau should haue the Inheritance
yee may take Evill from among you and that all Israel hearing it may feare Whence we may collect how odious a Crime Vnthriftinesse was among the People of God and what ample Power the Father had to punish the same in his Child For if we obserue well the Manner of the Processe betweene the Father and the Child in this Case wee shall finde that the Father was Accuser Witnesse and as it were Iudge of his owne Cause For we read not that the Senators of the City did giue sentence or further examined the Proofes of the Fathers Accusation but their Presence giuing as it were Allowance to a Fathers Power and Intention to punish his Sonne the People might without more Enquiry stone to Death so evill a deseruing Child Which being well consider'd my Hope is that it will never hereafter seeme vnlawfull though somewhat strange that a Father should disinherit his Eldest or any other sonne of his for the Cause only of Unthriftines And although the World of Men is growne to that Greatnesse that it is necessary One Generall Father or Politike Head should be in a Kingdome or State which may justly abridge some of these Privileges and abate a Fathers Power all Fathers being Children to the Father of their Countrey their Lord and King vnder God yet the Power to advance and maintaine a Family by good and lawfull Meanes is still both allowable and commendable in a Parent who may from time to time reward according to distributiue Iustice all those which liue vnder him by leauing his Fortunes to them as in Iustice they shall deserue and Law shall allow So that there is no Question but hee may still disinherit according to the power of that Law vnder which he liues For no other Ty is ouer him God and Nature * The Law of Nature or as Civilians stile A of Nations on which a Fathers Plenary Power is founded is by S Paul expresly termed The Law of God Rom. 1.31 allowing that at this day for ever which once they gaue vnto him Which Authority he not only may but ought also to execute as farre as the Law of Man shall permit otherwise he shall erre in his Paternall Iustice For a Father is not only to beget and nourish his Children in his life but by Natures law must provide to his Power that they liue both in his life 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 Civill and rationall Creature All which if it shall assuredly bee thought by a Father that any Child of his will wholly neglect or rather execute the contrary then no questiō a Father is not bound to leaue him any more then shall honestly suffice the Necessities of Nature For as before is said no Man may giue or lend his Goods to any one who will in all Mens Iudgements assuredly abuse them But let vs see whether a desperate Vnthrift may be arraigned and adjudged Guilty of these Accusations Surely it is cleere that all vnthrifty * To play away our Praedecessors labours is a greater dishonour then to pisse on our parents ashes 〈◊〉 raze their monuments Carp Achitoph p. 3. courses are displeasing to God and contrary to to his Honour And how can hee bee able to serue his Country who in short time will not bee able to serue himselfe with Necessaries wherewith to liue but must of force bee maintained like a Drone in a Common Wealth out of others Labours As for his Family what greater Discomfort can it haue then an absolute Overthrow Whereby the Noble Acts and Honour gotten to it by vertuous Predecessors are buried in Oblivion and the present future Hopes of all worldly and lawfull Honours Vertues temporall Reward are quite taken away And shall not ALL THIS deserue Disinherison Can there bee a greater sinne committed against the Honour and Essence of a Family as it is a Family The life and soule of a Family then to be spoil'd of its Honour and Life it selfe For in these our Times well gotten Goods and vsed as they ought are the onely Soule by which a Family and all the vertuous Acts which it hath done may liue Since therefore so great a mischiefe is sought aim'd at in this sinne surely according to the proportion of distributiue Iustice the greatest punishment is in Equity due to the same according to the reason of the Precept Ius summum vnicuique tribuere Nature teacheth the silly Bees in their Common Wealth to doe to death their Drones who liue of others Labours and shall it bee thought vnlawfull for a Father so to punish an incorrigible Unthrift who will not only liue of others Labours but also subvert the honourable Endeavours of his Noble Ancestors Thus if Sonnes may be deemed and doomed by the offended hauing power to doe both according as the Offence done against them shall by circumstance be of Quality as we haue proued they may and ought then certainely it is lawfull for a Father so to doe as I haue formerly demonstrated But because Examples in all Controversies of Fact are the best Fortifications I will in illustration of the Premisses adde some few to the former drawne as well from Royall Precedents by whose Patternes totus componitur Orbis as from inferiour Persons whose Qualities best fit the condition of our present subject And if Kingdomes Common Weales haue fauour'd it then certainely by all Arguments à majori ad minus it may much rather be done and ought to bee suffered in private Families CHAP. 9. The main points of the Premises exemplified in diuers particular Facts as well of Princes as of private Persons IT is not fit perhaps to vrge the better Acceptance with God of Abels Offering aboue Cain's the Elder Brother Temporis praelationem tulit improbitas Dignitatis praerogativā Virtus Philo. de Caino Abele Abel Iaphet but that Estate which Abel had in Adams Patrimony Nor will I reinforce Iaphets share in his Fathers Right to the whole World though hee being the youngest Son of three had Europe for his Inheritance which in all Arts and Vses of Life farre excells Africk Asia and all the rest of the Earth Whereas according to the pretenses of those customary challenges Sem should either haue had all or beene Soveraigne Lord of all and Cham and Iaphet with their Posterity but Farmers or Free-holders vnder him I will not also as if there were penury of Resemblances produce againe Esau's Disinherison though that * In this case God said expresly The Elder shall serue the yoūger See Gen. 25.23 and Mal 1.3 with the Geneva Note there were enough for our present purpose For had it beene Sinne which neither Scripture nor Iosephus in his Antiquities saith the Mother could not haue procured it God would not haue prosper'd it nor Iacob himselfe being a good man haue accepted it