would have it suppos'd because eldest sons inherit but it is rather the meer act and ordinance of God for it is only God who gives children and if there be no children the Family must needs extinguish and we find in Mr. Camden and in our ancient records and deeds of conveyance that many hundreds of names of noble and ancient Gentry are either lost for want of children or by marrying of the heirs general and the Apologer knows that the Civil wars treasons manslaughters felonies and the like have been the ruine of many noble houses which could not have been prevented with all the Apologers natural reason or by any free power or care of fathers Proof 23. That it is far from the Law of Nature or Paternal piety the father dying intestate the eldest son to become Lord Paramount of the estate and not to be bound by Law to provide for brother or sister but at his own good liking aliud tempus alios mores postulat when we have a wiser age we shall have better customes and men both of learning and virtue have broke this custome upon good considerations and just causes not upon spleen by leaving their fortunes to strangers or to a lustful issue as some have done Answ The Apologer cannot be ignorant that if the father dies intestate which the Laws suppose he will not do being so much bound in conscience to provide for all his children our Courts of equity do rectifie and regulate the Laws in such cases and the Civil Laws as sayes he ordain that every son and daughter shall have a legitimate or childs part whether the father dies intestate or no. And surely I cannot think but the Law does well in leaving such a large and absolute right in eldest sons for were the estate as the Apologer would have it to be equally divided amongst all the children and the Lawyers and Neighbours should be called upon to make the division every of the children would think his own part least and trouble the Courts for a new and better division until they had divided and brought the estate to nothing But I pray you mark the uprightnesse of the man it is he sayes against natural reason and paternal piety that eldest sons should inherit the estate but he no where sayes that it is against natural reason and paternal piety for fathers to disinherit their lawful children and give their estates to strangers and Bastards Nay he seems to incourage them what he can for they shall sayes he not want presidents nor do any more then others have done before them and will do after them Proof 24. That it is against natural reason which is the grandmother of all Laws that the temperate should be subject to the intemperate the sober and wise to fools and franticks That servitude proceeds not from the Law of Nature but from Nature corrupted That it is against natural equity and against Nature her self that men should be subject to beasts or insensible creatures whereupon Aristotle disputing the nature of rule and subjection saith that none are born slaves but such as Nature hath abridged of the use of reason who being truly slaves are utterly unfit to govern upon which ground the same great Philosopher prefers that form of policy where the wisest and best are admitted to the mannage of state affairs and therefore if it be Natures intent as it is to make all mankind reasonable how reasonable is it that they who are unreasonable ought to be deprived of all right and claim to any thing more then to sustain nature and debarred all superiority or seniority which by Law or custome might otherwise have faln on them because according to divine ahd humane Laws man ought not to be govern'd by beast such as Idiots and Franticks seem to be Answ Here is a note beyond Elah but he cannot want his answer for he hath it already the effect of all this fair flourish being but this that such eldest sons or any sons who are natural fools and mad-men or extreamly and desperately vitious are not fit nor worthy to inherit But I know not what the Apologer should mean by his alledging Aristotle that none are born slaves but such as nature hath abridged of the use of reason and that servitude proceeds not from the Law of Nature but from Nature corrupted if by the word servitude he means subjection he grosly errs for it as natural for a son to obey his father as it is natural and pious for a father to relieve to instruct and govern his son but the words slave and slavery are of so ill a sound and bad a sence that as no man is born a slave so no man methinks should either be or be made a slave Natural subjection does well both in son and subject but slavery is unnatural and monstrous both in him that forcibly and undeservedly inflicts it and in him that suffers it unlesse it be for the cause of religion and then it is an honour But sayes he it is against natural reason which is the grandmother of all Laws that the temperate should be subject to the intemperate the wise to the foolish and therefore in natural reason that son who is the wisest and worthiest ought to be heir if it so please the father for he is Lord paramount and he must be the Oracle But Mr. Apologer what if this your Oracle the father which is no very strange thing should be foolish for fools can get children as well as wise men there is little difference betwixt either of them that way Suppose I say that the father himself be foolish why what if he be may the Apologer answer fools are Christians as well as other folks and he may by chance for all that make as good a choice of an heir as a wiser man and this answer of his would be as solid and as much weighty as any other authority or reason he hath yet alledged for his pretended free power of Parents or against the rights of eldest sons Proof 25. That it is no sin nor offence for a father who hath estate in Fee simple to disinherit his eldest son or any of his sons for he hath a lawful power so to do Ergo fathers may with a good conscience Answ It is a hard matter to perswade some men what is sin our precise Separatists and new Anglians will acknowledge no sin but infidelity and some others there are of the Diabolical Sect of ede bibe lude who think there is no sin at all but the Apologer is none of these for he honestly sayes Natura Divinitatis fulgor that Nature is a bright beam or shining lamp of the Divinity and he sayes also Omne peccatum est Divinitati injuria that every sin is a wrong or an affront to God himself And what can be more against Nature then that a father should disinherit his own flesh and blood which are his children and give his estate to
may see how unnatural and unreasonable his pretended free power of Parents is I pray you consider a little tell me whether any thing can be more unprobable then that a father should be more free and absolute then Adam was when he was in Paradise and in the state of Innocency for Adam was under a command or Law but the Apologer would make fathers lawless Stat pro ratione voluntas And what I pray you can be more reasonable and necessary then that there should be a chief son or heir amongst our children for there must necessarily be an order and subordination in all things otherwise there will be a confusion in all things and what follows confusion may easily be conceived in any understanding for it is indeed the mark of hell or rather hell it self where no good order but an everlasting horrour doth inhabitate Job 10. And it is no less necessary for the preservation of peace and concord amongst Brethren that this cbief son or heir should be generally known by a native natural and undoubted right for otherwise all the other sons would malign and envy that son who should be preferred to the inheritance unless the son so preferred had an undoubted and native right thereunto and had his right also confirmed as is now in the case of eldest sons by the generall practise of all good Parents which general consent and practice can proceed from no other cause or ground then from the instinct of nature and consequently from the will providence and ordinance of Almighty God Proof out of the Common Law and Civil Law for the younger brothers right THat divine precepts are not so absolutely binding but that they may in some cases lawfully be broken for though the commandement is Thou shalt not steal nor Thou shalt not kill yet one may in extream want of food steal or violently take from another man and may lawfully kill any man in defence of his own life and goods so though there were a divine precept as there is none that eldest sons should inherit it could not intend that such eldest sons who are natural fools or madmen should inherit Answ It is true that natural fools and madmen though eldest sons do not deserve to inherit but what doth this make against the rights of eldest sons who are no fools or madmen Surely it concerns the pretended free power of Parents as much as the disinheritance of eldest sons for if the father according to the Apologer turn idiot or madman the Apologer will not deny but that he is made thereby incapable of the management and disposure of his estate Proof 7. That if the effect of eldership were such by the Law of God as some passionately defend that is that the whole inheritance should of right pertain to the eldest son then it followeth by good consequence that there should nor ever could have been but one temporal Lord of all the world for of necessity Adams inheritance should have gone still to the next in blood Answ It is absurd and no consequence at all that there should be any such temporal Lord for the eldest son is not to inherit all the estate but only the greatest part of it fathers being to provide for all their children and the Apologer knows though Adam had the whole world to himself before he had his wife and children who were partners with him by a coequal right though he had a kind of superiority and soveraignty over them yet he had it not by way of inheritance Proof 8. That it was never yet averred by any sound divine Philosopher or Lawyer that nature makes immediately heirs but men They talk idlely who say that God and nature make heirs upon which ground our Common Lawyers say that no heirs are born but men and Law make them Answ It is more then the Apologer or any man can prove that eldest sons are not born heirs eldest sons as soon as born are heirs apparent by the laws King James was born a King and crowned in his cradle and is there a native and natural right in Kings and not in others howsoever it cannot be denied but that Esau had a native and therefore a natural right as appears by the word Birthright and the Apologer cannot but know that it is God only who gives and makes heirs which heirs are the eldest sons as plainly appears by his divine precepts Deuternom 21. c. Proof 9. That God requiring obedience of children to Parents promised a reward saying Honour thy father and mother that thy dayes may be long in the land which the Lord shall give thee which surely was not spoken to one but to all the sons of men for with God there is no exception of persons but as a just and pious father he gives to every one according to his deserts terram autem dedit filiis hominum Answ I know not what the Apologer should intend hereby unless he would have it thought that as all children are equally commanded to honour their Parents so all children who equally honour their Parents should be equally rewarded by their Parents though the Laws both divine and humane give a superiour right of inheritance to eldest sons and concerning his terram dedit I know what he should mean thereby unless he would have every man to be thought an unnatural tyrant and an usurper who hath a particular and proper estate unto himself because the words are terram dedit filiis hominum God gave the whole earth to the sons of men that is not to any one in particular but to all in general You may see here how bold he is with the Laws for he strikes at the very root of them and you may see what a boundless and liberal mind he hath for he would have every man a freeholder and no less then the whole world his inheritance But Mr. Apologer if this should be so what would become of your pretended free power of Parents for they would have nothing to dispose of Proof 10. That there is no divine precept that eldest sons should inherit that it is well known to all Divines that holy Writ hath not prescribed any direct form 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 countrey where any act of that kind shall be executed that there is neither in Scripture nor in any other written Law under Heaven any command to restrain the fathers power but rather the contrary Answ The Apologer cannot but know that there are diverse plain and divine precepts concerning the inheritance of eldest sons one of which he himself doth often cite but never fully relate and these are the divine words if a man have two wives one beloved and the other hated and they have born him children both the beloved and hated and if the first born be hers that was hated then shall it be when he maketh
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
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
upon which I shall chiefly ground my Answer are these two The first is Whether eldest sons have a superiour right above other sons to inherit the greatest part of the fathers estate The second is Whether fathers may lawfully and religiously give their lands and goods to which of their children they please or to whom they will But I will now take a view of his proofs and be so bold as to examine his invincible reasons and arguments for so he calls them The younger brothers Prerogative Proof I. Out of the Law of Nature for the younger brother THat all communicable things were common amongst men for many ages after the Creation in all which time no man laid proper claim to any thing as due to himself alone whereby it well appears that hereditary succession or title to a fathers lands or goods could not be then in use or so much as thought of Answer It ir more then the Apologer or any man can prove that all things were enjoyed in common for so many ages as he surmises But the contrary is manifest for we find that immediately after the Creation and for many ages together the generations of Seth and Cain did neither communicate nor so much as marry the one with the other and it is not unprobable to think that Cain and Abel the first Sons of our first Parents as they had several vocation so they had as a curse for sin a several propriety in their goods because they agreed no better But admit all things were enjoyed in common for many ages after the Creation what is this to purpose for if there were no proprieties or estates there could be no inheritance then in use though questionless the right of inheritance was then in eldest sons as now it is unto whom as the Apologer sayes there is a natural reverence due from his younger brothers and if there be a natural reverence due there ought also to be a natural right to inherit the greatest part of the fathers estate for how else should that natural reverence be maintained with such a due respect as it ought to be Proof 2. That all sorts of people as well Christians as others who have perfection in natural society or a perfect and religious life in a natural or wordly conversation of men have and do daily imbrace this natural and blessed community Answ This blessedness of community which the Apologer so much contemplates takes away his pretended free power of Parents for if there were no estates they would have nothing to dispose And it is the Anabaptists and Eamelists so much admire and prophanely practice for they enjoy all things in common even as much as their wives and in that are more beasts then many of the unreasonable creatures for amongst many of them there is a kind of conjugal contract and a constancy observed between the males and females It is true that all good Christians should so live and love and help one another as though they enjoy'd all things in common But I would fain know what other people besides Christians the Apologer means who have and do as he sayes daily imbrace this blessed community and in the way of a perfect and religious life Proof 3. That the Law of God is never contrary to the Law of Nature and that fathers have by the Law of Nature a free power to dispose of their estates and children Answ It is true that there is no Law of God against the Law of undepraved Nature or as Nature was in her first purity yet as our nature now is there are many things in the Law of God which are seemingly against Nature or meerly preternatural as is the loving of our enemies the doing of good to them that hate and hurt us Matth. 5. Luke 6. 1 Pet. 2. But as there is no Law of God contrary to the Law of Nature so there can be no good or warrantable Law of Nature which doth not agree with all the divine admonitions and precepts both of the Old and New Testament and therefore the pretended free power of Parents cannot be grounded upon the Law of Nature for it is directly against the divine precepts as appears Numb 27. Deut. 21. Proof 4. That the happy Law of Nature which indured so many ages and without doubt had longer continued had not sin which breaks all union and depraves all natural perfection gotten such dominion in the minds of men that in natural equity all things could not longer be used in common for as some men being possest with an insatiate desire to get rule and raign sought the oppression of others by taking from them that freedom which Nature had given them so others given to sensuality and idleness sought to live of other mens labours whereas by Natures Law every one ought to live by his proper industry within the rules of justice and honesty whereupon Natural reason perswaded that all things being divided every man should know his own otherwise no peace or concord could be maintained in humane society Answ The Apologer is so transported with the imagination of the happiness of community that he flutters up and down and even loses himself in impertinent discourses to what he undertook to treat on But admit sin were the cause of dividing lands and making laws he will not say I hope though he seems to infer it that it is a sin to observe the laws because sin was a cause of making laws Proof 5. That 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 Answ Neither the Apologer nor any man whosoever can prove or so much as make it probable that Parents have that free and absolute power by the Law of Nature as is pretended neither can they prove that the right of inheritance in eldest sons is not grounded upon the Law of Nature But if the Apologer would have fathers to have that free power by the Law of Nature as is pretended he must first prove how fathers are become the true and absolute Lords and masters of their estates by the Laws of Nature for it is absurd to say that Nature gives a power to dispose of that which the her self gives not and this is more I believe then the Apologer or any man else can prove It is true that every man hath his several way of understanding which is unto him his natural reason though the thing conceived be never so absurd and foolish The Apologer sayes that fathers have such a free power by the Law of Nature and that eldest sons have no right of inheritance by the Law of Nature and this is the dictamen of his nature or his natural reason for which he gives no reason nor can alledge any convincing or satisfying authority to prove it And that you
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
who should be preferred to the inheritance unlesse the son so preferred had a native natural and undoubted right thereunto and that there were also a general practise of all good Parents concurring as it is in the case of eldest sons to confirm it and and this appears by dayly and infinite presidents some whereof the Apologer himself recites as that of Chosroes King of Persia Leir King of Brittain and that great example so much urged by him of the disinherited Esau For Esau though he sold his brother the Birthright and volenti non fit injuria yet being disinherited he purposed to kill his said brother and doubtless had done it if Jacob had not fled and banished himself for many years from his own father and countrey or rather indeed if God himself had not relented and mollified the obdurate and resolved heart of this fierce and offended brother And if Esau would for this have killed his own brother and a good brother who never wronged him in this or any thing else for Esau had before freely and willingly sold him the birthright how much more willingly and readily would he have revenged himself upon others nothing ally'd unto him who should have procured his disinheritance which is indeed the greatest injury that can be done to man in this world for our estate and birthright is as our life and whosoever takes away the one doth endeavour as much as in him lies to kill the other nay he doth kill and more then kill the other for it is said Eccl. 34. and 40. He that taketh away his neighbours living killeth him and that it is better to dy then to want You may see here how much the Apologer doth err in his zealous care which as a Patriot he bears to the glory and good of Gentlemens houses by alledging that that for a reason or cause of their preservation which would be their undoubted overthrow That indeed which doth most preserve a Family are these two things The first is children and chiefly good children and if there be no children the other collateral heirs who are the next in blood whom the divine and all good humane Laws have ordained to inherit The second is lands and goods well gotten or honestly descended and as honestly imploy'd during the possessours life and so to descend again in that right way of inheritance which God hath commanded and all good Laws establish'd and it cannot be doubted but that the blessing of God will accompany so good endeavours for it is promised Psal 1.24.91.101.127 c. that the just shall be as an everlasting foundation and shall not be removed That he shall spring as a green leaf and his house be permanent whereas after a while the sinner shall not be and thou maist look his place but thou shalt not find it The free power of Parents FAthers are so far from being such such absolute Lords and masters of their estates and children as the Apologer pretends that they are not so much as quarter masters of themselves for sayes an Apostle Rom. 14. No man is born to himself and the very Heathens say Cic. de offic Partem patria partem parentes our Parents and our countrey which is also our Parent do claim a great part of us and can we think there is nothing due to our children are we commanded Matth. 2. and 5. Luke 6.1 Pet. 2. To love our neighbours as our selves nay even to love our enemies and to do good to them that hate and hurt us and hath a father such free and absolute power over his estate and children that he may lawfully disinherit his children and give his estate to strangers or to whom he will and if a father be so far from being master of himself that his countrey Parents kinred friends neighbours nay every man who is a member with him of the same Commonwealth hath some right unto him or a part in him how can any man be so shameless to say or so foolish to think that a father or any man whosoever can be an absolute master of his estate when he is not so much as quarter master of himself And concerning that absolute and monstrous power of Parents in disposing of the estate at their pleasure The Apologer sayes that many ages were numbred from the worlds beginning before any man laid any proper claim to any thing as due to himself alone and he sayes also that with God there is no exception of persons and that God gave the whole earth to the sons of men terram autem dedit filiis hominum that is not to any one in particular but to all in general by which reasons and grounds there is not any man can absolutely say this is mine or that is mine by the Laws of God and Nature But have men therefore no right at all to their lands and goods Yes doubtless but it is a conditional not an absolute right for sayes the Apologer a Family is a civil society yea the only Commonwealth which God and Nature first ordained from which all Societies Republiques and Species of Regiment took their Original and it is true for there can be no doubt but that the first Commonwealths were at the first but so many great Families and that all Commonwealths sprung first from Families and when there was a Common-wealth establish'd or rather begun and a proportion of lands allotted to every one in particular they then bound themselves by Laws which Laws they enacted by an unanimous consent amongst themselves for the quiet enjoying and well ordering of such their particular estates for their peaceable and amicable living one with another for punishment of transgressors or repelling unjust violence amongst themselves and for their general defence against forraign invasion or for what else soever that shall make most for the general good alwayes including an inviolable right and power in the Republique or General state according to necessity of times and occasions to alter some of the said Laws as also to dispose and command as they found cause every mans person and every mans particular estate And this the Apologer acknowledges though it be against his free power saying the world of men is grown to that greatnesse that it is necessary one general father or politick head should be in a kingdom or state which may justly abate a fathers free power all fathers being children to the father of their countrey their Lord and King under God And the Apologer knows that fathers are so far from being such absolute Lords and masters of their estates that if a father or any man else do wilfully fling away some of his money or other his goods into the Sea or into any place where it cannot be had again he shall be begg'd for an Ideot and have his estate taken from him and he gives this reason and as good a reason as can be given interest Reipublicae it belongs to the Commonwealth that men so dispose of their estates as
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
only the first begotten or eldest son living for he calleth Esau a prophane person because for a dish of meat he sold his first birth-rights and in his dreadful denouncement against unnatural and neglectful Parents 1 Tim. 5. which is that they are worse then Infidels He sayes in the same chapter Seniorem ne increpaveris Do not disrespect thy elder c. giving a fine and full instruction thereby who it is that should be the right heir or chief Lord and master of the Family But here it may be some will object that this Law was only spoken to the Jews and therefore did only concern the Jews they may as well say that the holy Tables of the Law did only concern the Jews for they also were deliver'd to the Jews and surely I cannot conceive what can be more moral and necessary then that there should be a chief son or heir amongst our children and generally known by a native and undoubted right for there must necessarily be an order and subordination in all things and what can be more natural and just then that Parents should be bound to relieve and provide for their children And had this Law only concerned the Jews wouâ—d S. Paul have commended Seniority and condemned Esau for selling his birthright and would the ancient Fathers who are the best of humane testimony as S. Chrysostome in his fift Sermon against Julian and S. Jerom in his Epistle to Onogron and upon the 49. Gen. with divers others would they have averred that the first born or eldest sons are more honourable then other children and that the right of inheritance is only due to the first begotten or eldest son living and had this Law only bound the Jews would it have been denounced from the immediate mouth of God himself and delivered in these words a perpetual Law as the Lord commanded Moses But there is a plainer Precept Deut. 21 and these are the divine words If a man have two wives one beloved and the other hated and they have both children by him If the first son be hers that was hated he may not make the son of the beloved the first born and prefer him before the son of the hated but he shall acknowledge the son of the hated for the first born by giving him a double portion of all that he hath for he is the beginning of his strength the right of the first born is his Now though the litteral expression be that eldest sons are to have a double part of the estate and the other part to be divided amongst the children equally as well sons as daughters we are to consider that the son here mentioned is an unbeloved son or the son of a wife not beloved which doth utterly exclude the affection and free will of Parents in disposing of the estate at their pleasure and it is not here said nor any where else through the Divine Writ that we are to give but a double part or portion to our eldest sons for the practise of the Israelites was much otherwise the fathers and their eldest sons after them being as Kings and Priests in their own houses Neither are we to believe that we may lawfully and religiously so do for so we shall condemn the justice of the Cannon and Civil Laws and our Common Laws and all other good Laws which as I have already showed do all concur with the Divine Laws to erect an impregnable right of inheritance in eldest sons And we shall condemn the general practise of all good Parents who usually leave the greatest part of their estates to their eldest sons which general consent and custome can proceed from no other cause or ground then from the instinct of nature and consequently from the Will Providence and Ordinance of God himself but that which is most observable and considerable is that God giveth no long blessing to any other course of inheritance Whence we may collect how odious a crime and how great an injury it is to disinherit a rightful heir and it is no lesse for he that would dispalce the right heir from the due of his birthright and such a right as is enacted by God himself establish'd by all good Laws and generally practis'd by all good Parents he is no pidler for he strikes at the root and doth what he can to overthrow all Laws and order and bring into the world a Chaos of confusion Mistake me not I do not conceive nor dare not say that the rights of eldest sons are so absolute as that they will brook no exception for the great Law or Precept Matth. Upon which all the rest have their main dependance which is to love and honour God above all things doth abrogate and disanul as we piously believe all the other Precepts which do not concur with the love and honour of God And whereas we are commanded to honour our Parents and the words are absolute yet if Parents should be Idolators or Blasphemers or Atheists or Infidels or which as bad as any of these unnatural I cannot conceive but that children are freely discharged from their obligation of honouring such Parents for how can we love and honour God if we love and honour Gods greatest enemies So on the contrary side if eldest sons be Atheists or Infidels or extreamly and desperately vicious there is no question but that their fathers may lawfully and religiously disinherit them for they are so unworthy to inherit that they are not worthy to live To conclude good Reader if what I have here delivered may redound to thy benefit and better instruction for which it was intended I shall rejoyce in my labours I will give God the praise FINIS