very instant of the dissolution of Marriage pass to the Children of the first bed leaving no manner of pretence to those that shall be born of the second b Consuetudine generali Brabantiae proprietas bonorum seudallum devolvitur ad prolem dissoluto eo Matrimonio quo stante bons ejusmodi suere unius vel alterius conjugum five sint patrimonialia five acquisits its ut proles secundi Matrimonii in successione Parentis qui Superstes fuit nihilex talibus bonis consequatur Resp 65. Nu. 1. Christineus a famous Doctor of that Nation affirms that a devolution made by the death of one of the married persons doth as it were anticipate the succession in favour of the Children by the first Venter absolutely excluding those of the second c Notandum hic est quod devolutio bonorum quae sit per mortem alterius conjugum fieri censetur quasi per anticipationem successionis quoad proprietatem tantum In Concil Meklin tit 16. Art 4. in addit Frederick de Saude in a Chapter which he expressely made upon the chief Customs of Brabant tells us that in respect to the first Marriage and in favour to the Children begotten in it this Right of Devolution hath been introduced and observed in that Dutchy with more than ordinary Religion and exactness d Ob honorem primarum Nuptiarum favorem priorum liberorum Brabantiae moribus introductum esse ut matrimonio post morcem alterius Conjugum soluto tam Superstitis quam defuncti feuda deferantur communibus liberis salvo tamen Superstiti usu fruct feudorum ab ipso profectorum sive ex haereditate sibi obvenerint sive ex industriâ quaesiverit In Cons Feud Gueldriae Zutphanioe tit 1. Numb 1. Sect. 9. The Judgment lately given at the great Council of Malines in the Count de Bergues case and that latter one concerning the Marquisate of Berg. of som adjudg'd to the Countess D'Auvergn upon the death of her Father though the Marquisate came by her Mother are unquestionable proofes of the practise of this Right of Devolution And his most Christian Majesty putting this Case to one of the most famous persons of your Brethren but under borrowed names he gave his Judgment in favour of the Daughter of the first Bed against the Son and all the Children of the second Germ. It being so where lies the difficulty since that custom is conformable to Law and the 't is manifest His Catholick Majesty was in possession of Brabant at the time of the Dissolution of his first Marriage Flem. The difficulty lies in 4 principal points which it will concerns us to clear before we proceed further to the business of the Title French What Sir are these 4. Difficulties Flem. The first is that the Local Customs cannot be a rule to the Inheritances of Soveraignties The second that the Devolution being not an actual and effective right but only a bare expectancy which could not be compleated till the death of the Survivor the Infanta might make a good Renunciation The third that the Estates of the Low Countries were re-united into one body by the Pragmatick or solemn Constitution of Charles the 5th in the year 1549. and cannot be enjoy'd but by one person and he a Soveraign The 4th is that the Catholick King leaving behind him a Son though by a second Venter he excludes the Daughter of the first from the inheritance in question Germ. I confess I did not foresee these Objections which notwithstanding appear to be very Solid and Essential French I must give you satisfaction in them but I believe in truth they are rather proposed to try my skill in their solution then that there is really any difficulty in them For I am perswaded that this Gentleman is better versed in the Histories of his Country and a person of greater judgement then to propose them seriously The very Records of Brabant inform me that the right of Devolution establish'd by the Custom of Brabant is so exactly observed in the succession of the Soveraign and even in regard of the Soveraignty it self that about the year 1230. a dispute arising between the Duke on one side and his Son on the other and the question being put whether the Duke possessing that Dutchy in his own right had not lost the property of it upon the Decease of the Dutchess his Wife by Vertue of the Devolution The Emperour Henry assembled all the Princes of his Court and after a charge given in as ample a manner as a cause so famous could require at length by the advice of his Council gave sentence that the property belonged to the Son upon the decease of his Mother although she had no manner of right whatsoever upon her own account prohibiting the Duke from proceeding further in it to the prejudice of his Children a Henricus Dei Gratia Rom. Rex semper Augustus omnibus ad quos praesens scriptum pervenerit gratiam suam omne bonum Notum facimus quod cum Henricus majot filius Illustris principis Ducis Lother matram habuerit illa sit mortua per sententiam principum in Curia nostra est judicatum quod si idem Dux de bonis quae possider aliquid alienaret vel in manus vellet transferre alienas dictus Henricus se de iisdem bonis posset intromittere occupare licenter ad usus suos tenere Datum Fridbergae an gratiae 1230. ptox Dom. post Festum Paschae 4. Cal. Maii. Indict 3. Bukenheph de Brahant I have read also in the same Records a letter of 1273 written by the Emperour Rodolph I. to John Duke of Brabant in which he strongly confirms the Vertue of this right of Devolution in the succession of the Dukes and it cannot be denyed but that the Emperour Charles the Fifth after the death of the Empress his Wife so fully acknowledged that the property of Brabant was passed into the person of Philip his Son by this right of Devolution that he publickly protested he could neither confirm the Customs nor meddle with the Priviledges of the Country but jointly with his Son But if from examples we proceed to argument in the examination of the power of Local Customs in relation to the inheritance of Soveraignties nothing can be more easily proved for there are only three sorts of Laws that can be of use to regulate Soveraignties That of a Soveraignty it self if it have any particular Law to guide it The Laws of the Neighbouring Kingdoms or those of the Country As to the particular Laws of each Crown 't is certain that where any such are they are necessarily obliged to follow them as in France the Salique Law in Poland and several States in the Northern parts their form of Election But where no particular Law can be found I affirm that 't is the worst of errors to pretend that the succession to a Soveraignty ought not to be regulated by the custom
point of Argument it is of all others the most unjust that in the order of Succession in Brabant it is impossible And lastly that the Custom contradicts and condemns it by most expresse Articles Flem. If you prove all these things I shall willingly come over to your side but I very much doubt you cannot do it French You will not deny but that the Right of Devolution is a Favour which the Customs bestow upon the first Marriage against the second Doctor Sandeus hath wrote that this Law was made in respect to the first Marriages and in favour to the Children issuing from them a In Consuetud Feud Gueldriae Zulphan tr 1. tit 1. Sect. 9. Christineus b In Consuetud Meklin tit 16. art 4. in addit says that second Marriages do so much change and lessen the advantages and affections of the former that Custom thought it justice to allow them a Compensation by introducing the Right of Devolution And Kinscot affirms that this Compensation is a thing so sacred and so carefully reserved for the Children by the first Bed that thereby the second can have no pretentions to it so long as there remains any one person of the first c Resp 65. Num. 1. This then being so can it be thought that a Right only established in favour to the first Marriages in opposition to the second may be forced away from the Children of the first Bed who are seized by Custom to be bestowed upon those of the second against whom it was founded You must not by your Favour take the advantage here of the Prerogative of Sex for in matter of Devolution there is no comparing of Sexes so as to give the advantages to the more Noble of them but the Order of Marriages is there considered where the Prerogative is given to the first against the latter pray tell me to what purpose would it have been to grant the Children by the first bed a right to defend themselves from any prejudice they might receive from a second if they should be obliged to render and give it up to the Children by the second In fine take this one reason for all that Devolution being a kind of penalty and a fence against the second Marriages in favour to the first it can never be that the first should be deprived of it in favour of the second because that would contrary to Nature turn reward into punishment and punishment into reward I say then that your preference upon debate is very unjust But to go on I adde that 't is morally impossible in the Order of Succession in Brabant my reason is because the Children by the first bed being seised at the very instant of the Dissolution of Marriage of the property of all the Fiefs of the Survivor the Father is not in possession of the property at his second Marriage nor of the Succession at his death and consequently 't is impossible that a Child by the second bed should succeed him in it For if we would prefer the Son by the second bed before the Daughter by the first 't would be necessary that the Fief were at the Fathers disposal at the time of his death because none can succeed to that which belonged not to the deceased so that being stript of the whole property and becoming only Tenant for life 't is absolutely impossible that he should leave that to the Children by the second Marriage which he was out of the possession of at the time when he contracted the Marriage from which they issue But for the better clearing of this Argument let us say if you please that the Custom having by the right of Devolution seised the Children of the first Marriage of the property of the Fiefs which were the Survivors if we would have the Son by the second bed succeed 't were necessary that the property should again revert to the Father and that the Child by the first bed should be disseised which can only be done these three ways Either by the rule of Custom or by the will of the Survivor or by Common Right But you will not say that the Custom which has given this Right to the first bed does deprive it of it to bestow it on the second Marriage from which its only meaning and intent was to take it away It cannot also be said that the Survivor who was disseised of it had a power to recall it from the first bed and to pass it over to the second and as to Common Right we know that all its inclination as well as all its rules and ordinances tend to the favour of first Marriage against the second Conclude we then that your preference is impossible in the order of Succession in Brabant and give me leave for a close to shew you that 't is condemned by an express Ordinance of the Custom of the Country This Custom distinguishing between Fiefs which belonged to the Survivor at the instant of the dissolution of the first Marriage and those which fell to him or were acquired by him since his second Marriage declares by its second and third Articles that the Children by the first bed shall leave the property of all Fiefs possessed by the Survivor at the time of the decease of the other person that was joyned in Marriage and expressely orders that the Brethren and Sisters of this Marriage succeed one another therein This being pre-supposed is not your preference directly contrary to this Law since by it the Son by the second bed against the very words of this Text would hinder the Sister from succeeding her Brother by the first bed and you say Kinscot that Great Chancellour of Brabant hath very precisely said that never any Children by the second bed could make any demand of the Fiefs whilst any one of the first was living which is also confirmed by Christineus and Sandeus when they tell us that this right of Devolution is not to be applyed but to such Children as were in common between the Deceased and the Survivor But you have the less reason to deny these truths since being of that Country you know that 't is the General rule of all these Customs to prefer the Daughter of the first bed before the Son of the second and that indeed that of Haynault Malines Namur and divers others have made several express Articles of it Flem. It will follow then that against the order of Nature as well as against that of the General Polity of all the world the Brother must obey the Sister French Pardon me for the Catholick King will command in his own Estates and the most Christian Queen in hers and neither of them have Dominion over the other I adde too that by your own acknowledgement this is always the practice in Brabant for the Daughter of the first bed by vertue of the right of Devolution carrying the Fiefs of the Survivor from the Son of the second it often happens that
of the Country because in such a case they would be obliged to regulate themselves by the Law and Customs of their Neighbours which were to offer a great injury to the Soveraignty or to affirm that it ought not to have either Rules or Principles to determine to whom it of right belongs which would be the most strange absurdity in the World For never yet did any Doctors either of Spain or any other Nation whatsoever make a doubt of the force and power of Custom in regulating the succession of such Soveraignties as have no particular Law to direct them Witness Molina Gatieres and Couvaruvias who unanimously assure us that the Crown of Spain being the chiefest Majorasque of the Kingdom it ought indispensably to conform to the Laws introduced by the Customs of the County for the Majorasques a Ipsum Hispaniarum regnum verissimum Majoratum esse ad praecisum ordinem primogeniturae hoc autem adeo verum est ut secure confidenter dici possit non solùm Hispaniarum regnum verum majoratum esse imo regnum ipsum esse caput omnium Hispaniorum primogeniorum ab eoque caetera primogenia tanquam à capite derivari succedendique rationem accipere adeo ut si de succedendi ordine in Hispaniae majoratibus contendatur ea lis fit secundum leges ad regni successionem institutas decidenda L. 16. cap. 20. Nu. 10. Joan. Gat. cap. 4. lib. 10. cap. 14. Nu. 58. 59. â—ouuar Var. resol lib. 3. cap 5. Nu. 8. But that which may deceive the common people in things of this nature is the confounding the person of the Soveraign with the Laws of his Soveraignty though they are two things infinitely different For as to the Soveraign himself so long as he lives his Reason is the very Soul of the Customs but as to the Laws belonging to the Soveraignty vacated by the death of the Prince the Custom is then the soul and lise and that which gives it motion by which it passes into the hands of him that is legally to receive it at a time when there is no particular Law that can convey it In a word you are to consider that we treat not here of a Soveraignty as such but as an inheritance not of a Royalty living but of one dead and without life which is not in this case an active power to make Laws but a Fief an Inheritance a Right a Succession which ought to have its certain Rules but cannot have any other then the general Custom of the Country where it hath no particular Law of its own Germ. They have the same practice in the Estates of Germany French You may say Sir if you please in all the Nations of the world that are governed by reason To go on I doubt not but you were as much surprized as I was to hear it objected that the Queen might make a firm Renunciation of that which was fallen to her by right of Devolution it being as 't was said but a bare expectancy and not a real right fallen to her For besides that the Renunciation which she was made to make cannot be justify'd as appears by all the reasons formerly examined you know that according to the 2d Article of this Custom which introduces Devolution the Children that issue from the Marriage are seized of the property in the very instant of the decease of either Man or Wife and from that very moment the Survivor becomes only a Tenant for life so that he cannot have any thing to do with the property as was decided by that famous judgement of the Emperour and all the Princes of his Court in the case above-mentioned And you know too that all the Doctors that have writ of it call this Title a succession anticipated which is very opposite to a simple and bare expectancy Flem. 'T is a strange thing that you should dispute this point with me for it is a certain truth that Children cannot thus dispose of an Estate nor enjoy it unless they survive their Father and Mother and consequently all the right they have is only a bare expectancy of the thing in case they are heirs to the survivour of man or wife French Sir if you please let us use less partiality and more freedom your Custom says that after the decease of one of the Married persons their common Children are made proprietors of the Fiefs of the survivor It orders further that if the Children themselves dye before such survivor the property of the Fiefs that was before lost by right of Devolution reverts to the said survivor All your Doctors agree that by vertue of this Right the Children are so effectually seized of the inheritance that the surviving Parent cannot in any manner dispose of it no not so much as alter or lessen it To conclude it hath been judged in the Imperial Chamber at Spire that a Father who gave no other Portion to his Daughter but out of an Estate that was devolved by the death of his Wife should not be held to have given her a Portion because the Estate did not belong to him but to the Daughter and yet in despight of all these Authorities you would make us believe that this right of devolution transfers neither the property of the Fiefs or any thing at all that is real to the Children by such Marriage If it be so you ought to abolish your Customs condemn your Doctors and overthrow all Usage For though the Children cannot dispose of nor enjoy the Estate during the life of the survivor this does not make them to be the less proprietors As 't is in matter of Dower or Donation made in case the Donee survive The Children of the Wife endowed and the Donees are the true proprietors although they cannot enjoy nor dispose of what is given them till after the death of the Father or Donor Flem. I deny not but Custom the Doctors and Decree of the Imperial Chamber of Spire give the property to the Children of the Survivor But have you not seen a Treatise of the Right of Devolution printed not long since at Brussels Fren. Is it not that which was composed by an Officer of his Catholick Majesty in the Council of Brabant Flem. The very same Fren. I have read it Flem. You have seen then how he proves that the Custom is ill expounded that the Doctors are deceived and that the Imperial Chamber of Spire understood not the nature and the effects of the Right of Devolution Do ye not allow him to be an able man Fren. Not only that he is very able but I add that he appears to be a very honest man for one may discover throughout his work a kind of sincerity which is better than all the Learning in the world Have you observed with what Ingenuity this Author who hath no small Talent in avoiding and putting by difficulties hath spoken of the Devoltuion He grant 't is a Priviledge of the first Marriage