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A29948
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Jus primogeniti, or, The dignity, right, and priviledge of the first-born inquisited and defended against the impious practice of some fathers in disinheriting their first-begotten son in a letter to a friend in the country / by B.J., Esq.
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Brydall, John, b. 1635?
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1699
(1699)
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Wing B5262; ESTC R2489
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7,745
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8
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Woman Surviving her Husband neither the Man Surviving his Wife having Issue between them during the Matrimony have the property of those Goods which either of them brought one to the other and are left behind by the Defunct but the property is the Childrens of the Deceased and the Use or Benefit his or hers only which doth Survive during his or her Natural Life and for the return thereof to the Children that are the right Owners the Civil-Law is so scrupulous that if the Husband or Wife do Marry it will have him that is to Marry the Widow bound with good Sureties for due Restitution of the Defuncts part unto the Children of the former Marriage In the Authenticks there are several Constitutions made for the preservation of Childrens Properties and Portions whereof take these Novella Constit 2. de non eligendo secundo nubentes mulieres alienatione lucro ante Nuptialis donationis de successionibus earum filiis suis following Examples That it shall not be lawful for a Widow coming to a Second Marriage after her first Husband is Dead to Sequester one of her Children from the rest upon whom she will bestow such things as her first Husband gave her before Marriage but that the Benefit thereof shall be common to them all Neither that she convey it over to her Second Husband or his Children and so defraud her first Husbands Children And that a Man in like sort Surviving his Wife shall do the like towards his first Wifes Children as concerning such Dowry as the first Wife brought to her Husband Novella constit 92. de immensis donationibus in filios factis If Parents give profusely to one of their Children the other notwithstanding shall have their lawful Portions unless they be proved unkind towards their Parents A man shall not have the property of his Wifes Dowry neither the Woman the property of that which is given her before Marriage Novella Constitutio 98. but the property of either of them shall come unto their Children yea though they Marry not again From the Civil Law of the Romans let us come to other Foreign Laws and Customs Grotius de jure belli pacis lib. 2. c. 7. Sect. 8. It was a Law among the Mexicans to give all the Antient Inheritance to the Eldest Son and nothing to the rest but Sustenance only And not much better are second Marriages in Brabant where the Children by the second Venter have no propriety in the Estate which the Father held at the Death of his former Wife The like Law we find among the Antient Burgundians Hammond in his Annotation on Gal. 4. v. 30. There is saith a Learned Divine Doctor Hammond I mean a Custom of Matrimonium Morgengabicum in some Countries as Denmark c. at this day where the second Wife and her Children that come from her are not taken into a right of the Husbands Estate she to have any part of it for her Iointure or they for their Inheritance but only some Gifts or Portions Assigned them by Compact which are called Morgengab or Marriage-Gift with which they are to content themselves without any part of the Inheritance Hitherto of the Impiety and Unnaturalness of such Parents as shall deny their Children Aliment as also of the Provision Foreign Laws have made for the Maintaining Clothing and Feeding Children during the Lives of their Parents and for preserving after their Death 's the property of either of them for the benefit of their Children I come now Sir to vindicate the Dignity Right and Priviledge of Primogeniture against that Impious and Unnatural Practice of Disinheriting First-born Sons and that the practice of your Neighbour can be no other than such appears in this that he has not Exhaeredated his Son by the former Venter upon the account of any horrid Crime the Son has committed but only to serve his own Foolish Fantacies private Passions and indirect Fondness And therefore let him hear what Philo and others say to the point of Exhaeredation a Patres Abdicationis tristia verba pronuntiant filiosque a domo sua et omni cognatione abrumpunt ita demum ubi amorem illum quem ingentem ac super omnia eximium natura parentibus indidit foliorum improbitas vicit Fathers saith he do sometimes pass Sentence of Exhaeredation on their own Sons thereby cutting them off from their own Families and Kindred but never until they grow Shameless and Incorrigibly Wicked and that their Hatred of their Childrens Vices have quite overcome that great and unparallel'd Love which Nature had at first imprinted in them Not much different is that of Phinehas in Diodorus no Father doth willingly Punish his Sons unless the measure of their Wickedness do very much exceed the measure of his Natural Affection Nor that of Andronicus Rhodius no Father can be so unnatural as to cast off his Son if he be not extreamly Wicked I cannot here pass over in Silence the Famous and Heroical Behaviour of two Heathen Fathers towards their Wicked Sons but propound it to all Christian Parents as a Pattern for their Imitation lib. 5. v. 9. Sanguini honorem reliquit Valerius Maximus saith thus of Quintus Hortentius His Honour he bequeathed to his Blood for though he detested the Wicked Life of his Son yet Dying To preserve the Order of Nature be made his Son Ne ordinem Naturae confunderet non nepotes sed filium haeredem scripsit and not his Nephews Heir to his Estate thinking it enough that he had declared his dislike of his Sons Ill Manners whilst he Lived And therefore Dying he left him the Honor due to his Blood The like he records of Fulvius who causing his own Son to be Apprehended for Conspiring his Death did not only forbear to Prosecute him whilst he Lived but-Dying made him Heir of all he had regarding his Birth Dominum omnium esse voluit quem genuerat haeredem instituens non quem fuerat expertus and Blood and not his Crimes Besides what has been by me Cited in favour of the First Born from the Pious Practice of meer Heathen Parents towards their Wicked Sons I shall endeavour for the Confutation of all Exhaeredators to demonstrate unto you that the Preference and Prerogative of Primogeniture in point of Dignity Right and Possessions which the First-born Son Claims to himself is derived from the Law of Nature Instituted by God and highly approved very much Regarded and Countenanced by our most Eminent Divines I. The Right and Priviledge of Primogeniture is derived from the Law of Nature That this Precedency both in Honor and Right appertains to the First-born by the Law of Nature appears in this That Primogeniture is not only preferred where Gods Revelation of himself in the Scriptures are received but where they are not received the Right therefore of Primogeniture is from the Law of Nature Again If Primogeniture
JVS PRIMOGENITI OR THE Dignity Right and Priviledge OF THE FIRST-BORN Inquisited and Defended against the Impious Practice of some Fathers in Disinheriting their First-Begotten Sons In a LETTER to a Friend in the Country BY B. J. Esq Most Worthy SIR I Have Received and Read your Letter wherein you are pleased to tell me that there is a Person a Neighbour of yours of good Quality and of a very plentiful Estate in Lands who is a Bigamist or one that has had two Wives By the former Wife he had a Son now Living and by the latter another Son And that he has been so profuse in his Love towards this last Wife and her Son that he has settled all his Estate of Inheritance after his own Decease on this Younger Son to the absolute Exclusion and Exhaeredation of his Grotius tells us that if a Person Disinherited did not by his Crime deserve to be put to Death he was to be allowed sufficient to sustain Nature Lib. 2. 1. 7. Sect. 7. First Begotten Son that has been in his Life and Conversation no way guilty of any Filthy and Dishonest Acts as to forfeit his Birth-Right and Inheritance yea he has not only you say deprived the Eldest Son of the Inheritance but also denies to allow him any present Sustenance to preserve that Life which his Father hath given him which kind of Behaviour in a Father you look upon as Prodigious and Unnatural and so indeed do I as well in respect of the Abdication or Exhaeredation as of the Father's Denial of allowing the Son a present Subsistance As for Aliment or Sustenance you must know all Divines Lawyers and Casuists do hold that Parents do owe it to their Children by the Law of Nature and do pronounce it to be a Debt though not strictly taken for that which by Commutative Justice we are obliged to do Parentes nos aleâ—do nepotum nutriendorum debito alligarunt Liberi haereditatem ut Sibi debitam exspectant Lib. 2. de vita Cler. Ser. 52. adfrat in Eremo 〈◊〉 largely and in a looser Sense for that which cannot with Honour and Honesty be left undone in which looser Sense it is conceived that of Val. Maximus is to be understood Our Parents by Nourishing us have laid this Obligation upon us to Nourish our Children And that also of Plutarch in his Elegant Oration concerning the Love of Parents towards their Children Our Children look for our Estates as due unto them after our Death So great was the Equity of this That St. Augustine would not admit that the Goods of such as had Exhaeredated their own Children should be received by the Church And as Procopius in his Persian Wars observes Though Humane Laws do in other things extremely differ one from another yet all Nations as well Romans as Barbarians in this agree That Children should succeed to their Parents as the right Owners of what they leave Qui dat formam dat quae ad formam sunt necessaria Aristotle But farther yet Sir It is an Established Maxime among Philosophers He that gives the Form gives things necessary to that Form Therefore he that gives Man his Existence ought as much as in him lies to provide for him all things necessary for a Natural and Sociable Life for hereunto he was Born There needs no Law to bind us to this Duty for all other Creatures even by Natures Instinct do Instit 1. 2. in princ D. 1. 1. 3. Bracton L. 1. c. 5. num 7. feed their Young Hence it is that the Ancient Civilians do refer the Education of Children to the Law of Nature And Euripides comprehends all Creatures under one and the same Law Which saith he is common as well to Men among themselves as to them with all other Sensible Creatures For that which Natural Instinct commends to them Ipse Naturalis Stimulus parentes ad Liberorum Educationem hortatur c. 5. 13. Sileat the same doth Reason unto us Of such force is Natural Affection that it easily perswades us to Nourish our Children saith the Emperor Justinian These two Things saith Cicero cannot agree together to wit that Nature would have Procreation and it would not have the Creature when it is Born to be Beloved and Conserved the which appeareth quoth he evidently in Brute Beasts whose Labour and Care in the Conservation of Cicero Lib. 3. de Finibus that which is Born of them is such that we may acknowledge the force and voice of Nature therein Wherefore it is manifest saith he that as we Naturally shun and abhor all kind of Grief so also we are Naturally moved to Love the Issue of our Bodies The same Cicero other where expresses Cicero Offic. Lib. 1. himself thus Whereas it is common to all Living Creatures to have a Care of those things which they have brought forth Nature has given especially to Man a Love to his Children and a Care to provide them things necessary To be short Salust Condemns that Testament as Impious and Unnatural by which the Son is excluded from his part of the Inheritance And because this is a Debt that we owe to Nature therefore D. 25. 35. 4. the Mother is bound to Nourish the Child that hath no certain Father These forementioned Authorities being sufficient to prove That Parents owe a part of their Goods to their Children by the Law of Nature I shall here subjoin what Foreign Legislators have enacted for the enforcing the Piety of Fathers towards their Children and I will begin with those Texts that I have met withal in Justinians Digests Code and Authenticks D. 25. 3. de Agnoscendis alendis Liber c. C. 5. 25. de Alendis Liberis ac parentibus D. 25. 4. de inspiciendo ventre custodiendoque partu Ridley's View of the Civil and Ecclesiastical Law Part 4. cap. 2. sect 1 pag. 376. edit 1675. In the Digests there is a Purveyance made whereby both the Father is compelled to acknowledge his Child if there be any Variance between the Husband and the Wife upon any Jealousy or Suspicion of Adultery if the same cannot be proved by the Womans own Confession by Witnesses by the Act it self or some other violent Presumption and to Nourish and Maintain the same but if the Fault appear against her and it be so Sentenced by the Judge then may he as well refuse the one as the other but for other Children upon whom there is no such doubt the Parents may be constrained to Maintain Cloath and Feed them and to set them out a Portion of their Goods so that either the State and Faculty of the Parents will bear it or the Children have not deserved to the contrary wherefore they should not in that sort be provided for L. 3. c. de secundis nuptijs In the Code of Justinian there is an Ancient Law extant made by Gratianus Valentin and Theodosius to this purpose That neither the