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A20768 The yonger brother his apology by it selfe. Or A fathers free power disputed for the disposition of his lands, or other his fortunes to his sonne, sonnes, or any one of them: as right reason, the laws of God and nature, the ciuill, canon, and municipall lawes of this kingdome do command. By I. Ap-Robert Gent. J. A. (John Ap Robert) 1618 (1618) STC 715; ESTC S115725 30,207 72

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heritance should be left to any one particuler person and namely to the elder Brother yet in some Cases it would not bynd the Father to obserue it For as in the former Cōmandements vpon some considerations the Cōmandement may be dispensed withall so in this For it is not sufficient to be the elder Brother or the nearest in bloud 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 bloud may iustly be reiected and he that is second third fourth fifth or last may lwafully be preferred before the first and this by al law diuyne and humane and by all Reason Conscience and Custome of nations Christian For if it should fall out that the next in bloud should be a Naturall foole or a madman or being taken by the Turkes or Mores in his infancy and brought vp 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 talk that would haue that it was his birthright or that God and Nature had made him heire since that neither God nor Nature doth imediately make heires as I haue sayd before True it is that God and Nature makes men who by the mediation of the lawes and customes of nations may come to be heires Vpon which ground our cómon Lawyers say that no heyres are borne but men and law make them True it is that in holy Writ great respect is had of the first begotten a blessing is held to come to parents thereby But this blessing I presuppose to be that therby the feare of sterility was taken away which in the old Law was held to be a great punishment of God and in respect thereof parents had of themselues and by the nationall lawes and customs a great regard of their first begotten and preferred them to the better part of their possessions yet not by any commaund from God as a precept to bind his elect people vnder paine of sinne For had any such Law bound them vnder such a penalty then should it bynd all Christians now on the same conditions For we see it by generall practise of all countryes to be otherwise Therefore it followes directly that it was not Gods Comaundement but a Nationall Law For God both is and ever was one without chaunge to all his people and so euer were and wil be his Lawes positiue made for them that truely worship him The clayme which Esau made to his Birthright was not by the law of God as some ignorantly affirme but by the lawes of his country For should the law of God haue commaunded it it had bene sinne in his Mother and brother by cunning to haue gotten it from him Neither could the Father or the State wherin they liued vpon no iust cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme by allowance from God and as it may be iudged by the sucesse 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 be committed God doth neuer do Neither did the Nationall law or custome of the Iewes as it is said absolutly commaund the Father to leaue vnto his first begotten all or the greatest part of his goods and fortunes But if in case he died not disposing therof by act in his life or will at his death then the custome of the Nation layd a double portion on the eldest or first begotten prouiding for the rest proportionably By all which you may gather that neither the law of God or man in this case commaunded that Esau should haue the inheritance but power to do the contrary was giuen to the Father in his life tyme euen by the law it selfe For many Deuines hold that Esau selling his Birthright as it is termed sould not goods or lands but his clayme of being high Preist after his Father which by custome was to come to him being his Fathers eldest sonne Of which dignity God seing him vnfit permitted him to passeaway his right in his Fathers life as we read in holy writ and which God seemed to approue And thus I hope this objection is answered Further if it were true that the effect of Eldership were such by the law of God as some passionately defend that is that the whole inheritance should of right pertaine to the eldest thē sure it followeth by good consequēce that there should nor euer could haue bene but one temporall Lord of all the world For of necessity Adams inheritance should haue gone still to the next in bloud which how absurd it is let all men iudge Moreouer we read that Nöe hauing three sonnes and the whole world to leaue vnto them gaue it not all to the Eldest but equally deuided it among them and their posterity as all authenticall histories do witnes God requiring obedience of children to parents promised a reward saying Honour thy Father Mother that thy dayes may be long in the land which the Lord shall giue thee This surely was not spoken to one but to all the children of men For with God there is no exception of persons but as a iust and pions Father he giues euery one according to his deserts Terram autem dedit filijs hominum We read also in holy writ how the prodigall child being weary or his Fathers house came vnto him and boldly sayd Pater da mihi portionem substantiae meae quae me contingit This child of which the Gospell speaks was the yoūger brother yet you see how boldly he sayd giue vnto me that portion of goods which belongs to me By which words it is euident that a diuision or partition of a Fathers fortunes was then in vse and that any child as well yoūger as elder had power by law to demaund his legitimate or childes part according to the Nature of the Ciuill and Canon Law as you haue heard For the words following in the text are these Et diuisit substantiam illis Thus we see that the priuiledge of Eldership was thē excluded which now in our countrey by custome onely is gotten to be of such force But it may be obiected that this was a parable onely as indeed it was and cannot be alledged as law True it is yet it cannot be denied but that all similies parables or examples which euer were alledged by the wise and learned to represent the truth haue euer bene deriued from the customes and nature of things according to the knowne truth in that tyme place and to those to whome the speach or discourse is directed And shall we think that our Sauiour Christ being wisdom and truth it selfe treating of so important an affaire
of a Fathers soueraigne power ouer the life of his child giuē to him by the lawes of the twelue Tables where it is written that * Leg. 12. Tabular cap. 3. Dionys Halicarnass Lib 2. Antiquitat Paterfamilias haberetius vitae yea more terque filium venundandi potestatem I will briefly and effectually proue what I affirme herein out of the sacred Text it selfe There thē it plainely appeares that Fathers had power among the Iewes to cause their children for riot disorder or vnthriftines to be stoned to death Ergo power to disinherit Deuter. 21. For the greater doth euer include the lesse And not to seeme to speake without booke it shall not be amisse to set downe Moyses words which are as follow If a man shall beget a stubborne and vnruely sonne who shall not heare the commaundement of his Father and Mother and being chastised shall contemne to obay they shall apprehend and bring him to the seniours of that Citty and to the gate of iudgment And they shall say to them This our sonne is headstrong and disobedient contemns to heare our admonishments giues himselfe ouer to rioutous excesse and is a drunkard The people of that Citty shall ouerwhelme hini with stones and he shall dye that yee may take euill from among you and that all Israell bearing it may feare Out of which place in Gods word wee may gather how odious a vice vnthriftines was among the people of God what ample power a Father had to punish the same in his child For if wee do well obserue the manner of the processe betweene the Father and the child in this case we shall fynd that the Father was accuser witnesse and as it were iudge of his owne cause For we fynd not that the Seniours of the Citty did giue sentence or further examyned 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 inquiry stone to death so euil a deseruing child Which being by my reader well considered my hope is that it will neuer heerafter seeme vnlawfull though somwhat straung that a Father should disinherit his eldest or any other sonne of his for the cause only of vnthriftines And although the world of men is grown●●● to that greatnes that it is necessary that one generall Father or politique head should be in a Kingdome or State which may iustly abridge some of those priuiledges and abate a Fathers power all Fathers being become children to the Father of all Fathers their Lord and King vnder God yet the power to raise and maintaine a family by good and lawfull means is still both allowable and commendable in a Parent Who may from tyme to tyme reward according to distributiue iustice al those who 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 he may still disinherit according to the power of that law vnder which he liues For no other tye is ouer him God and Nature allowing that at this day and for euer which once they gaue vnto him Which authority he not only may but ought also to execute as far as the law of man shall permit otherwise he shal 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 prouide to his power that they liue both in his life after his death to the honour of God the seruice of their Country and Comfort of their family which were the only ends for which God created man a ciuill a reasonable Creature All which if it shall assuredly be thought by a Father that any Child of his will wholy neglect or rather execute the cōtrary thē no question a Father is not bound to leaue him any more then shall honestly suffice the necessities of Nature For as I haue said before no man may giue or lend his goods to any one who will in all mens iudgments assuredly abuse them But let vs see whether a desperate vnthrift may be arraigned and adiuged guilty of these accusations Surely it is cleere that all vnthrifty courses are displeasing to God and contrary to his honour And how can he be able to serue his Countrey who in short tyme will not be able to serue himselfe with necessaries wherewith to liue but must of force be mainteyned like a Droane in a Common wealth out of others labours As for his family what greater discomfort can it haue then an absolute ouerthrow whereby the Noble acts and honour gotten to it by their Predecessors vertues are buried in obliuion and the present and future hopes of all worldly and lawfull honour vertues temporall rewards are taken away And shall not all this deserue disinherison Can there be a greater sinne committed against the honour and essence of a family as it is a family then to be spoyled of her honour life it self For in these our tymes welgotten goods and vsed as they ought are the only soule by which a family and all the vertuous acts which it hath done may liue Since therefore the highest is sought and aymed 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 ●us suum vnicuique tribuere Nature teartheth the silly Bees in their Common wealth to do to death their Droanes who liue of others labours and shall it then be thought vnlawfull for a Father so to punish an incorrigible vnthrift who will not only liue of others labours but also subuert the honorable endeauours of his Noble Ancestors Thus if sonnes may be deemed domed by the offended hauing power to do 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 do as I haue formerly set downe But because example in all doubtfull questions do make their side the stronger it shal not be amisse for the cleering of all the premises to add some few to the former drawne as well from Kinges by whose patterns totus componitur orbis as from inferiour persons whose qualities best fit the condition of our present subiect And if kingdomes and Cōmon wealths haue fauored it then certainly by all arguments à maioriad minus it may much rather be done and ought to be suffered in priuate families CHAP. IX The maine points of the Premisses exemplified in diuers particuler Facts aswell of Princes as of priuate Men. It is not fit perhaps to vrge the better acceptance with God of Abels offering aboue Cayns the elder Brother but of that estate which Abel had in Adams Patrimony Abel Nor will I reinforce the memory of Iaphets share in his Fathers right to the whole