or by Will at his death to any of his Children yea to a stranger without rendring a Reason why he doth so True it is that a Father not disposing thereof in such sort Custome giues the whole Estate to the Eldest yet in some part of our Countrey the youngest Brother by custome is to haue the Land held by some kind of Tenure if the Father in his life-time dispose not thereof As yet therefore I cannot see how any sinne is committed or contracted by the former Acts being neither done against the Law of God or Man as we haue proued vnlesse it should be said to bee sin not to leaue it to the Power of a Custome which cannot be except the former Law shall bee proued not to be of Force and not to be executed which can no way be done Though I must confesse that the Custome of leauing the Child-estate to the Eldest sonne hath of latter Times beene much imbraced by our Gentry for the preservation of their Families for which it was invented For the Times haue so ruled that Men of sort being either idle or not possest with a couetous Humour haue contented themselues with their Fathers Fortunes and prefer'd their younger sonnes by those meanes which the Times did afford namely by many commendable Courses as either by service of Spirituall and Ecclesiasticall Persons whereby many were raised or by professing a spirituall Life wherby the younger Brother hath oft-times in Honour stept before the Elder But this manner of Life is not so gratefull to our English Gentlemens Natures as anciently it hath beene The Trade of the Merchant the Military profession the Courtiers life advanced many more then now they doe and lastly Elder Brothers in former Ages were generally of better Temper in spending and if they had no humour to get yet had they a care to keepe what was left them and ever held themselues bound by Religion to provide for their younger Brothers and Sisters left to their Dispose which now is far otherwise For some Elder Brothers are found to spend more in a yeare idly then would prefer or maintaine a whole Family Nobly and to suffer their Brothers Sisters to shift which as these Times shape is often-times to liue either lewdly or most miserably * Strenue esurire being forced either to forget their good Education or to lay aside all Badges of Gentry who otherwise with some reasonable helpes might doe God their Country and Family much Honour Since we haue gone so farre let vs see on what Ground this Custome first hath risen Surely for the maintenance of a Family yet led with an Ambitiō at the Example of Princes who finding some difficulties in the admitting of many to a Gouernment and feeling what Inconveniences the parting of an Estate brought devised that One should governe sometime the Worthiest sometime the Eldest was Elected according as the Order was agreed vpon and yet the other Brothers were maintained like Princes And this Custome also among them hath beene broken without Imputation of sinne For to goe no further then our late Times 't is well knowne that Ferdinand Charles the fift his Brother being setled in the Empire divided his Estate To Maximilian his Eldest sonne he left the Empire with Austria Hungary and Bohemia To Charles his second sonne Stiria Carinthia and other Dominions And to Ferdinand the youngest he gaue the Earledome of Tyroll All which if in his life-time hee had not disposed had come to the Eldest Also Philip the second late King of Spaine gaue to his Daughter the 17 Provinces which were of Right to haue descended to his sonne after his Death if otherwise he had not disposed in his life And this was adjudged lawfull by Graue Divines otherwise surely they would never haue done it But doth this Custome in meaner Degrees work that Effect which it hath done in them No truly For as we haue proued it is rather the Overthrow then the Preservation of many Families Let vs see withall whether Families flourished not as much and more then now they doe before this Custome was receaued Livy saith that three hundred of the Fabij Vna dies Fabios ad bellum miserat omnes Ovid. Fast all of one Name and Family issued out of Rome Gates at one time on their owne Cost for Defense of their City which was done before this Custome was dream'd of In Scotland three hundred of the Name and Family of Frasers Gentlemen were at one Time slaine in Fight by their Enemies Neighbours and 140 Gentlemen of one Name in Yorkshiere waited on their chiefe or principal Man of their House at that time High Sheriffe In other Countries many Noble Families from the Romans downeward haue continued where this Custome hath beene deemed vnjust as by their Laws is manifest wheras in our Country in these our Times if there bee one Family in a Shire which is of three hundred yeares continuance very many others are scarse of fiue Descents in a Blood Why should our Age then seeing the Fruit of this Custome to be so small embrace it with such Zeale as to deeme the Breach thereof being warranted for Good and Iust by the Law of God Nature and Man to be a sinne Is it held both lawfull and expedient in some Countries for the preservation of a Family that Degrees of Kindred should be dispensed with to marry contrary to Ecclesiasticall Canons and the Generall Practise and can it be lawfull before God and Man for the preservation of our Goods to venture our Liues and to kill a Theefe who shall assault vs and that perhaps for a Trifle and yet that for preservation of our whole Estate and perpetuity of a Family it shall bee reputed sinne to breake a bare Custome vnder no Penalty Obligatory yea alwaies allowed by Law Never was it heard that a Custome * Customes against Lawes are void by the Civill Law was of such force to abrogate a Law so farre that it should bee deem'd a sinne to follow the said Law though it haue Power to dispense with the Law which otherwise to infringe were sinne especially when as the the Law is both more pious and more naturall then the Custome is For how farre is it from the Law of Nature and from the Practise of Paternall Piety the Father dying intestate the Eldest sonne to become Lord Paramount of all his Fathers Lands not to be bound by Law to provide for Brother or Sister but at his owne good liking Aliud Tempus alios mores postulat Men of Vertue Men of Learning Vertue both now and in former Ages in this our Countrey haue brok this Custome * This Custome is contrary to the iudgement practise of the Primitiue Church as is cleare in Salvianus who intimateth that aequa haereditatis portio was vsually left by Christian Parents to their Children and that to doe otherwise were Grosse Iniquity Ad Eccles Cath pag 422. 425. Edit Oxon
and seuerall Accidents yet all are agreeable to the old and ancient Grounds of Reason in Nature the Grand-Mother of all Law Wherefore hauing before specified what the Law of Nature is touching the Point in Question I shall now declare what Temper or Forme hath thereto beene added by the Civill Lawyer After that Man-kinde was inforced yet by Natures Warrant to make as I haue said a partition of the Blessings of God and Nature and that Men were possest by the same Right of Goods Lands which they desir'd to leaue to Posterity Law-makers and in particular the Civilian devised by little and little certaine Formes of Inheritance and ordination of Heires at first somewhat rigorous giving to Parents power of Life Death ouer their Children and a free disposition of all their Fortunes to any one of them in his life but dying intestate then all which was the Fathers to be equally divided among the Children as well daughters as sonnes Which Constitution was afterward vpon good grounds altered the Father being bound to leaue every child a Portiō which the Civilian cals a Legitimate Others a Patrimony which at first was the eight part of the Fathers substance equally to be divided as hath beene said which after a while seeming litle the Law commanded that the Fourth part should be left without Controll except vpon just cause the Testator did disinherite him or them who by course of Law were to succeed him stil vpholding the former Lawes that as well daughters as sonnes should equally succeed their Parents dying intestate Herein assigning fourteene causes why an Heire might lawfully be disinherited Many hundred yeares passed frō the establishing of the Civill Law before it was ordained by force of Law that Parents should leaue a Childs part as it is now called or that they could not disinherit without expressing the cause thereof in their last Will yet in all this Time nor till this present Day the Privilege of engrossing all by Primogeniture was not once heard of or at lestwise not admitted but rather excluded as by many Text in the same Law it well appeares The End of the Imperiall or Roman Civill Law being only to maintaine Morall Iustice in three short Precepts Liue honestly Hurt no Man Giue every one his owne So that hee who obserues these three fulfills this Law yea the Law of Nature whence this Law is deriued Now if any Brother can proue that his Father either in his life by Deed or by Will at his Death disposing of his Goods and Lands no otherwise then I haue declar'd doth no act against these three why should he not content himselfe either with the Fruits of his Fathers loue or his owne Deserts what ever they bee True it is that in Naturall Iustice children during their Fathers life haue Ius ad rem not Ius in re to a Fathers Goods Wherevpon 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 giue as it shall please him according to forme of Law but being dead without Will or disposition thereof they fall vpon his children according to the Law of Nations This Law embraceth a twofold Iustice the one in Exchange the other in Distribution The first hath not to doe with our cause The other * This warrants not the injurious Abdication of vnnatural Parents irremediable by the common Law as is also the oppression of Orphans by lewd Step-fathers and sharking Executors See D. Ridleys View republisht by a learned Student of the Royall College of Christ Church Oxon part 4. Sect. 1. 2. rather commends then condemnes a Father who vpon good Occasion that is for the bad Demerits of his Eldest Sonne and for the preservation of his Family shall giue or convey his Lands or Goods to the Younger For the Nature of distributiue Iustice is not only to giue proportionally to the well-deseruing but also to forbeare to place Benefits vpon any one who shall abuse them or vse thē to any other end then to that good for which they were lent and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his Goods to an evill end or to any one who he assures himselfe will vse them to the Dishonour of God or the Wrong of those who shall liue with him or by him whereof I will treat more in the seventh Chapter being then to handle what a Father may in Conscience doe or not doe in our present Question with sinne without sin And thus much of the Civill and Canon Lawyers Averment of an Elder Brothers Right to his Fathers Fortunes CHAP. 5. That the present custom in our Country of giuing All or almost All to the Eldest was never so begunne that it meant to exclude iust Remedies for such Evills as should grow out of the abuse of that Custome when it may make Fathers guilty of their Sonnes faults and of their Families ruines I Haue purposely reserued to treat of the Lawes of our Country in the last place because I assure my selfe they are of most force to sway the Point in question For many things may be permitted by the Lawes of God and Nature and yet contrarily prohibited or practised by course of Law in severall States of the World as the Law-makers and Customes of Countries allow or command I confesse the generall practise of our Time among Parents is to leaue either All or most part of their Lands to their Eldest Sonne This questionlesse as hath beene said was first devised in former Ages for the preservation of a Family and to raise One who might bee a Comfort to his Brothers Sisters and Family and in whom his Progenitors Vertues might liue to the World And I wil not deny but the Partition of Lands may reduce in the end a goodly Estate to Nothing or to so litle as it may be like an Atome in the Sun yet I finde in Naturall Reason that ex nihilo nihil fit or at lest that Haud facilè emergunt quorum virtutibus obstat Res angusta domi But if Men faile of those happy Ends Cessante ratione cessat Lex to which this generall Custome should guid then could I wish that they would not vse That for their Destruction which was meant for their Preservation For who sees not in these our Times many vnbridled youths so violently carried away with the humour of spending that they neglect Brother and Sister yea bring to extreame misery their Naturall Mothers after their Fathers Death by their vnthriftinesse What help for this hath Law left vnto vs No meanes to bridle these vnruly Colts if they become Heires according to the custome of our Time No truly For some starting-hole will bee found to vnty the Knot which a Fathers care once tied How then Must many a hopefull and well-deseruing Brother and Sister bee left to
the Mercy of this Whirlewinde There is no Necessity For our Law hath giuen Power to a Father and Free-will to dispose of his Owne according as Reason shall guid his Will without all obligation to his Heire Besides this Custome takes place only after a Fathers Death if hee dispose not what is his by Deed in life or by Will at his Death But lest my Words bee more generally taken then they are meant I meane those Fathers who are possest of their Lands in Fee or Fee-taile that is are absolute of themselues and haue not vpon good Consideration convaied their Lands from themselues For all our Lawyers agree that such Parents may alien sell and giue by power of our Law their Lands to whom they will without respect of Person or Eldership But may some say the Custome is otherwise this Custome is a Law True it is the Custome But let vs see whether it binde sub peccato or as a Custome which rather invites then commands There was never any Command to tye a Father vnder a Penalty which admits no limitation but it was euer left indifferent and then only to take place where former Provision according to course of Law is not made Then surely a Parent is free from this devouring Custome and may considerately prevent what Evill it may bring to his posterity yea Reason commands it should be so For Interest Reip. vt quilibet re suâ benè vtatur It concernes the publike State that Men be Good Husbands saith the Ciuill Law For if a Man can neither sell nor set much lesse can hee giue any thing to another which he thinkes in his Conscience will vse it to the Dishonour of God and the Ruine of himselfe or others Divines hold that it is not lawfull to sell or let a house to any that hee thinkes assuredly will make thereof a Stewes or to sell giue or lend a Weapon to a man who intends therewith to doe murther Excommunications are imposed on them who sell Armes Offensiue or Defensiue to Turks though they bee not assured they will vse them against Christians Thus we see the Rule of Conscience not onely commands a man to vse wel those Fortunes which God hath bestowed on him but forbids him either vpon Affection or Gaine to part with them to others who will abuse them lest hee partake of others sinne which a Parent may doe after death who leaues his Lands to a desperate Vnthrift But what Religion and Conscience commands shall be declared in the following Chapter In which vpon Principles drawne from the former Conclusions shall be argued what sinne may bee contracted by the parting an Estate among Sonnes or by disinheriting an Eldest son vpon just Cause to whom the Father is onely tied by the Custome of the the Countrey without Obligation of Promise or Contract in Marriage which may alter the Case CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion THE Right of these insociable Inheritors of which wee now treat may grow as I conceaue from three Titles or Claimes which they may pretend to a Fathers Inheritance and whereby it may be deemed as they thinke sinne in a Father vpon what Desert soeuer to barre them of the said Right These three Titles are Purchase Custome and Entaile Of each seuerally And of the first which is Purchase Surely in the Iudgement of the Good Learned there is no question in Law or Conscience but that a sonne joyned Purchaser with his Father hath Ius in re and by Equity must surviuing his Father inherite such Lands as were purchased in their Names Now of the other two though it be as cleere as Noone-light that a Lord in Fee-simple or Tenent in Taile may sel or giue by course of our common Law at his pleasure all such Lands held by him in that kind according to those formes of Law which the learned in our Lawes haue and can set downe yet there seems to arise a great Difficulty how such an Act or Acts may in Conscience be executed I haue heard some say in this our Case summum Ius summa injuria Of these Points therefore I will speake Salvo meliori judicio what may in Conscience vpoÌ„ good and just Occasion giuen by the Sonne to his Father bee put in Execution It is well knowne to all Divines as I haue said that Holy Writ hath not prescribed any direct or precise Forme to the Children of God whereby they are bound in Conscience to dispose of their Lands and Goods but hath absolutely left them to the Customes of their Country where any Act of that kinde shall be executed only as confirming all Formes of Devises which by publike Consent and Authority either haue or shall in rightfull manner bee devised or ordained Out of this Ground and others prementioned let vs examine whether a Father parting his Fortunes by Power of Law and on just Cause shall do a wrongfull and sinfull Act as some would make it I confesse that every Act in it selfe or by circumstance evill and which vpon no occasion can be justified is both before God and Man sinne and by no meanes to be executed by a Christian But that the parting of an Inheritance or Disinheriting of an Eldest Sonne vpon just and evident cause of incapacity according to Course of Law is an Act of that Nature doth not appeare For I finde not that either the Law of Nature or Grace nor yet the Lawes of Man Common Civill or Canon ever for bad such Acts whereby sinne may bee imputed to those who doe them on good Considerations Sure I am that the Canon and Civill Law are so farre from forbidding them that they command as a Thing in Equity the Father either to divide his Inheritance or allow him according to his Affection to giue to one more then to another yet with this Proviso that hee who hath the lest haue his * Or lawfull Portion See pag. 61. of Dr Ridleys View illustrated by the judiciously â—eâ—â—ined Mr Gregory Childs part which the Law doth also assigne except on just desert he disinherit any one which at this day may yea must bee by Will with the cause of Disinherison therein specified Of which Causes the Imperiall Lawes haue set downe foureteene as may well appeare to them who are desirous to vnderstand more thereof So it is evident that by these two Lawes no sinne can grow vpon such Acts being done vpon their Warrant and vpon on such Consideration as is formerly deliuered As for the Common Lawes of our Realme sure it is they allow no lesse and with a greater Privilege For a Man may by this Law giue his Lands held in Fee either by Deed in his life
Floruit Ao 480. as the World knows vpon good Consideration just Causes not vpon spleene or false suppositions persuaded to leaue their Fortunes to Strangers or to a lustfull Issue as some haue done CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure HAving treated largely and as I presume proued sufficiently that Lands held in Fee-simple may either bee parted or vpon just Cause wholly given away to a younger Sonne I intend now to speake of the lawfull Freedome of a Father in like sort and on the same causes moued to dispose of his Lands entailed of which there seemes more Doubt then of the former Every humane Act which of it selfe is not forbidden by the Law of God or Nature is to bee judged Good or Evill Lawfull or Vnlawfull either by the Lawes of the place where the Act is done or by Intention of him who shall doe the Act. For as the Divine Law cōmands somethings to be done and other things to bee avoided vnder paine of sinne so the third sort of Actions are left free by the said Authority from sinne except the Law of Man prohibite thē so make them sin or else evill Intention make them being of themselues lawfull to be a sinne and vnlawfull according to that Principle of Morall Philosophy Finis specificat āctum For as an Act of it selfe lawfull done against Law is Sinne so a good Act commanded by Law yet done with an evill intention may be sinne From these Grounds let vs see whether the Common Law of our Country and the Intention of a Father which are to bee the Iudges of our Cause can allow the cutting off an Entaile the parting of an Inheritance or vpon proportionable cause the disinheriting of a Son First it is cleere that the Act of it selfe by Law may be done But whether such an Act bee summum Ius which may be summa injuria that is the Doubt What shall be the Triall By other Lawes it is either made lawfull or left indifferent Our Law which makes this Tye giues leaue to vndoe it without any exception Ergo to a good End and vpon just Cause it may be done It will bee replied that the Eldest sonne during this Entaile is quasi Dominus Yet hauing neither Dominium directum nor indirectum he during his Fathers life hath onely Ius ad Rem and not in Re Whereby no change is forbidden to be made by the Father according to the Forme of the Law vnder which he liueth and by which the sonne is to make claime if the Father create no new Estate in his life For it is lawfull for every Man to dispose of his Owne as far as the Law shall permit him if it bee not forbidden by some other Law but such an Act is not forbidden by any other Law Ergo 'tis lawfull and no sinne But it may bee said that the Intention of him who entaild the Land was that it should not be vntied or the state changed I answer No Act done by law can be free from Change further or longer then the Law that made it a binding Act shall allow And it is well knowne to the learned in our Lawes that every Mans Intention is to be construed according to Law by which his Act and Intentions are directed Wherevpon Civilians say in like Cases Valeat quantum valere potest Neither is it thought that any man who convaieth his Lands by Entaile can intend an Act beyond Law or desire that his sonne whom he makes Tenent entaile as our Lawyers terme him shall in no Case no not for the preservation of his Family or Releefe of many other of his Children haue power to cut of this Entaile and to be able to alien sell or giue his Lands as Reason Law and Religion shall permit For it may be judged that hee who doth an Act to a good End as namely to preserue his Family will alwaies assent to another Act which shall with better assurance then his owne strengthen his Intendment To the former Considerations wee may adde what Inconveniences may follow this Generall Position For if in conscience the whole Inheritance of the Father is to come without controle to the Eldest sonne then must it of necessity bee inferred that the Father without his Consent * Agens per medium est minus efficax in agendo cannot giue to pious * Da quae nō potes retinere vt consequaris ca quae non potes amittere Vses or set out for the Advancemēt of his other Children any thing after his Death So that if God should blesse a Father with many children and crosse him with as many Misfortunes his other Children and all other his charitable Intentions should be provided for only at his Sonne 's or Heire's curtesy Which how * Pedissequa enim plerumque novi honoris est Arrogantia Salv. Ep. 2. absurd it is all men know For herevpon all Donations to pious Vses and to younger Brothers for their preferment may be called in Question It is an ordinary thing in these our Times when the Land is left to the Heire Generall to alter the Estate if the Land so cōvaied shal come to Daughters and to leaue it to a Brothers †Hebrewes call a Male-Child Zacar a memoriall because the Fathers memory is preseru'd in the Sonne See 2. Sam. 18.18 Sonne or some other of the same Name though peradventure many Degrees remoued for preservation of the Name and Family If this may bee deemed lawfull and no sinne being done against a well deseruing Child for whom Nature and her Deserts plead her worthy to be her Fathers Heire then without all compare if the preservation of a Name and Family may justly be labour'd for according to Power giuen by Law of God and Man the same may be lawfully acted against a debauched Heire who in any reasonable Mans Iudgement is likely in his shrowd to bury the Memory of all his Ancestors Vertues which should liue in him and his Progeny as his Progenitors did in theirs It is neither new nor strange in the Practise of our Times in Causes of this Nature to overthrow intended Perpetuities and by Act of Parliament to giue leaue vpon some good considerations to sell lands which otherwise by no Lawes can bee sold from the Heire the Father being but Tenent onely for terme of life Which surely by no Power vnder God could be done were the Thing in it selfe vnlawfull and sinne for * See Salvian ad Ecc. Cath. l. 4. Omne peccatum est Divinitatis injuria Whence may bee argued à Fortiori If power may be giuen to a Father being Tenent for Terme of life to sell his Sonnes lands only to pay his owne Debts peradventure idly made though it be to the Overthrow or extreame Diminution of his Family because Naturall Equity doth will that every one
should be relieued with his Owne for so it may bee deemed though in loue to his Child he hath passed the Estate yet ought hee to be therewith preserued from Thraldome in his Necessity Which if it be so as confessedly it is how reasonable a thing yea how commendable and far †So Salvianus Non iniustè testator sapiens non relinquit quod haeres impius non meretur Ad Ecc. Cath. l. 3. from sinne is it for a Father truely Lord of his owne without all Tie of Law Divine or Humane as I haue proued to dispose his Lands to the Honour of God and Comfort of his Family to a Younger Sonne when in all probability the Elder will neither vse it to the One nor the Other but rather to wallow in Riot and Sensuality CHAP. 8. That Vnthriftinesse is one knowne name of many hidden sinnes and is alone a sufficient cause of disinherison proved by the Law of God and Man HAuing vpon good Consideration enlarged my selfe beyond my first intention I haue resolu'd vnder my Readers Favour on the precedent Principles to Argue one Question more for the accomplishment of this Discourse viz Whether a Father may disinherit his Eldest Son or Heire at Common Law for such an Vnthriftinesse as in most mens * Viz Grounded on the concurrence of great and violent Presumptions Iudgements is like to bee the Ruine of his Family Though many foule sinnes besides the Abuse of Gods Blessings bee concomitant to vnthriftinesse yet because they are not apparent to the World de absconditis non judicat Praetor I will briefly argue Whether in Reason or Conscience a desperate Vnthrift may be disinherited It is well knowne to all the Wise Temperate whose Iudgements Passion doth not ouer-sway how great an Enemy Prodigality or Vnthriftinesse is to all manner of Goodnesse and how cunningly she not only hinders the Increase of all Vertues in those in whom she raignes but also vnjustly oft-times cuts off the vertuous reward of many a worthy Predecessour yea giues occasion to the Evill to detract to the Good to suspect their Deserts All which how great a Wrong it is to a Noble Family I leaue to the indifferent Reader to censure I will not deny but there may bee many sinnes in a Man which in the sight of God and iudgement of Men of themselues are more haynous and deserue a farre greater Damnation then Prodigality doth Those sinnes more punishable which are more offensiue to common Society though lesse heinous in their parâ—â—â—ular nature yet are sinnes in this World to bee punisht not as they are in themselues but as by CircuÌ„stances they are offensiue to the Society Peace and Honour of Man-kind which God and Nature ever as the Reward to all Morall Vertues and as the cheefe End of Mans Life intended For otherwise Vsury Detraction Forgery Adultery Fornication Swearing and Drunkennesse with many more which are as greevous offences in the Eye of Heaven as Theft should be punisht with Death as Theft is But since they offend not so much the Peace of a publike Weale at which the Civill Magistrate aymes as Theft doth they are not censur'd with such seuere Punishment as it is All which shewes directly that Offences by Circumstance are made in a Civill Society against which they are committed either greater or lesser and are accordingly to be punisht and no lesse doth the Reason right Rule of State command Out of which Grounds it is evident that all Formes of Goverment doe most punish that Offender who directly or indirectly seekes to disturbe the Peace or overthrow the Liberty or disgrace the Dignity of the State where he liues yet many greater Offences then these may be committed as Incest and Apostasy which are not so sharply punisht by the Civill Magistrate For every one to whom God hath giuen power on Earth doth chiefly seeke the End for which his Power from aboue is giuen to him and doth censure and punish in the highest Degree those Offenses which tend to the Overthrow of a well-setled State by good lawfull Power confirmed Now to descend from these Premisses to the Point in Controversy and to apply what hath been said to our purpose It is well knowne to the World that a Family is a Civill Society yea the only Common-Weale which God Nature first ordained from which all Societies Republikes Species of Regiment tooke their Originall For the maintenance of which Society there is no Question but God hath giuen many * Fathers of Families had power to blesse curse disinherit and punish with death as appeares by the Examples of of Noë towards Cham Abraham towards Hagar and Ismael Iacob towards Simeon 〈◊〉 Levi and of Iuda towards Thamar Gen. 38.24 See Mr. Godwin vbi supra Privileges to a Father as well to reward the well-deseruing as to punish an evill child or member of his Body not only by depriuing them of their expected Fortunes but by cutting them off from his Body either by Abdication or Exile or Death it selfe For it is cleere by the Civll Law that a Father had for many yeares not only free Power to disinherit but also Power of Life and Death over his Children who should greivously offend him or his liuing vnder his Civill Government But since that Things vnknowne are growne out of Vse and may seeme as well incredible as strange I cannot in prudence passe ouer the Matter in Question so lightly as that it may bee worthily subiect to sharp Censure or rashly branded with the Marke of Vntruth Therefore laying aside the Testimony of the old Romane Lawes in the case of a Fathers Soveraigne Power over the life of his child given to him by the * Cap. 3. Dio. Halicar l. 2. Antiq. Twelue Tables where it is written Pater familiâs habeat jus vitae yea terque filium venundandi potestatem I will breefly and effectually proue out of the Sacred Text it selfe what I affirme There then it plainely appeares that Fathers had Power among the Iewes to cause their children for Riot Disorder or Vnthriftinesse to be ston'd to Death Ergo power to disinherit For the Greater ever includes the Lesse Not to seeme to speake without Booke it shall not bee amisse to set downe Moses words which are as follow If a Man haue a stubborne and rebellious sonne that will not obey the Command of his Father or Mother Deut. 21.18 and being chastised shall be vnreclaimable they shall apprehend and bring him to the Seniors of that City and to the place of Iustice and they shall say to them This our sonne is incorrigible and disobedient contemnes our Monitions abandons himselfe to riotous Excesse and is a Drunkard The Citizens shall then overwhelme him * Stoning was appointed a Death for Blasphemy Idolatry which by coÌ„currence in this case argues how execrable a Crime Disobedience to Parents is in Gods sight with Stones and he shall dye that
yee may take Evill from among you and that all Israel hearing it may feare Whence we may collect how odious a Crime Vnthriftinesse was among the People of God and what ample Power the Father had to punish the same in his Child For if we obserue well the Manner of the Processe betweene the Father and the Child in this Case wee shall finde that the Father was Accuser Witnesse and as it were Iudge of his owne Cause For we read not that the Senators of the City did giue sentence or further examined the Proofes of the Fathers Accusation but their Presence giuing as it were Allowance to a Fathers Power and Intention to punish his Sonne the People might without more Enquiry stone to Death so evill a deseruing Child Which being well consider'd my Hope is that it will never hereafter seeme vnlawfull though somewhat strange that a Father should disinherit his Eldest or any other sonne of his for the Cause only of Unthriftines And although the World of Men is growne to that Greatnesse that it is necessary One Generall Father or Politike Head should be in a Kingdome or State which may justly abridge some of these Privileges and abate a Fathers Power all Fathers being Children to the Father of their Countrey their Lord and King vnder God yet the Power to advance and maintaine a Family by good and lawfull Meanes is still both allowable and commendable in a Parent who may from time to time reward according to distributiue Iustice all those which liue vnder him by leauing his Fortunes to them as in Iustice they shall deserue and Law shall allow So that there is no Question but hee may still disinherit according to the power of that Law vnder which he liues For no other Ty is ouer him God and Nature * The Law of Nature or as Civilians stile A of Nations on which a Fathers Plenary Power is founded is by S Paul expresly termed The Law of God Rom. 1.31 allowing that at this day for ever which once they gaue vnto him Which Authority he not only may but ought also to execute as farre as the Law of Man shall permit otherwise he shall erre in his Paternall Iustice For a Father is not only to beget and nourish his Children in his life but by Natures law must provide to his Power that they liue both in his life after his death to the honour of God the service of their Countrey and comfort of their Family which were the only Ends for which God created Man a Civill and rationall Creature All which if it shall assuredly bee thought by a Father that any Child of his will wholly neglect or rather execute the contrary then no questiō a Father is not bound to leaue him any more then shall honestly suffice the Necessities of Nature For as before is said no Man may giue or lend his Goods to any one who will in all Mens Iudgements assuredly abuse them But let vs see whether a desperate Vnthrift may be arraigned and adjudged Guilty of these Accusations Surely it is cleere that all vnthrifty * To play away our Praedecessors labours is a greater dishonour then to pisse on our parents ashes 〈◊〉 raze their monuments Carp Achitoph p. 3. courses are displeasing to God and contrary to to his Honour And how can hee bee able to serue his Country who in short time will not bee able to serue himselfe with Necessaries wherewith to liue but must of force bee maintained like a Drone in a Common Wealth out of others Labours As for his Family what greater Discomfort can it haue then an absolute Overthrow Whereby the Noble Acts and Honour gotten to it by vertuous Predecessors are buried in Oblivion and the present future Hopes of all worldly and lawfull Honours Vertues temporall Reward are quite taken away And shall not ALL THIS deserue Disinherison Can there bee a greater sinne committed against the Honour and Essence of a Family as it is a Family The life and soule of a Family then to be spoil'd of its Honour and Life it selfe For in these our Times well gotten Goods and vsed as they ought are the onely Soule by which a Family and all the vertuous Acts which it hath done may liue Since therefore so great a mischiefe is sought aim'd at in this sinne surely according to the proportion of distributiue Iustice the greatest punishment is in Equity due to the same according to the reason of the Precept Ius summum vnicuique tribuere Nature teacheth the silly Bees in their Common Wealth to doe to death their Drones who liue of others Labours and shall it bee thought vnlawfull for a Father so to punish an incorrigible Unthrift who will not only liue of others Labours but also subvert the honourable Endeavours of his Noble Ancestors Thus if Sonnes may be deemed and doomed by the offended hauing power to doe both according as the Offence done against them shall by circumstance be of Quality as we haue proued they may and ought then certainely it is lawfull for a Father so to doe as I haue formerly demonstrated But because Examples in all Controversies of Fact are the best Fortifications I will in illustration of the Premisses adde some few to the former drawne as well from Royall Precedents by whose Patternes totus componitur Orbis as from inferiour Persons whose Qualities best fit the condition of our present subject And if Kingdomes Common Weales haue fauour'd it then certainely by all Arguments à majori ad minus it may much rather be done and ought to bee suffered in private Families CHAP. 9. The main points of the Premises exemplified in diuers particular Facts as well of Princes as of private Persons IT is not fit perhaps to vrge the better Acceptance with God of Abels Offering aboue Cain's the Elder Brother Temporis praelationem tulit improbitas Dignitatis praerogativā Virtus Philo. de Caino Abele Abel Iaphet but that Estate which Abel had in Adams Patrimony Nor will I reinforce Iaphets share in his Fathers Right to the whole World though hee being the youngest Son of three had Europe for his Inheritance which in all Arts and Vses of Life farre excells Africk Asia and all the rest of the Earth Whereas according to the pretenses of those customary challenges Sem should either haue had all or beene Soveraigne Lord of all and Cham and Iaphet with their Posterity but Farmers or Free-holders vnder him I will not also as if there were penury of Resemblances produce againe Esau's Disinherison though that * In this case God said expresly The Elder shall serue the yoūger See Gen. 25.23 and Mal 1.3 with the Geneva Note there were enough for our present purpose For had it beene Sinne which neither Scripture nor Iosephus in his Antiquities saith the Mother could not haue procured it God would not haue prosper'd it nor Iacob himselfe being a good man haue accepted it
nor Esau whose anger Iacob feared haue left it vnrevenged Neither is there in Scripture nor in any written Law vnder Heaven any Command to restraine 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 bee prouided for Against which Partiality the Imperiall Lawes admit so forcible a Remedy vnder the Title of an inofficious Testament as it shall inable the younger Child to a certaine proportion of estate whether the deceased Father would or no if hee had no just reason for omission or disavowment in his last Will. Ruben See Gen. 49.4 1. Chro. 5.1 Ephraim The Example certainely of the same holy Patriark Iacob in depriving his eldest son Ruben of the dignity of Birth-right for his enormous offence and in preferring Ephraim before Manasses the younger sonne before the Elder being his Grand-children against the set * Gen. 48.18 Purpose of Ioseph their Father seemes vnanswerable on behalfe of * Grandfathers are vsually called Fathers in Scripture specially in respect of such as inherit after them Parents Power for transferring or distributing their Blessings Of which it may be verified Qui prior in Benedictione est potior in Iure Of Solomon I haue spoken before who was not Davids Eldest but Adonias after Absalon was slaine as David himselfe was not the Eldest sonne of Iesse his Father but the yongest and yet * See 1. Chro 28.4 chosen by God who sees not as Man doth for with him is no respect of Persons to gouerne Israel though he was not set before his Brothers in the private Inheritance of the Family And in the Gospell it is apparent by the Parable of the Workmen who came at vnequall houres into the Vine-yard and yet had equall Wages that First and Last are to him alike who though he created Things in number Weight and Measure yet hee squares not his Favours by priority of Being * Witnesse Ismael disinherited and Isaak the younger preferr'd by Gods Award See Gen. 21.12 where ver 10. 11. it is cleare that Abraham had otherwise divided his inheritance betwixt them Can the World yeeld a better Precedent N.B. but of well-deseruing Augustus Caesar the most Illustrious of all the first Emperours setled the Imperiall succession not vpon his only Grand-child Agrippa Posthumus the sonne of his daughter and sole Heire the Lady Iulia though Tacitus saith he was nullius flagitij compertus then what if he had indeed beene a notorious Vnthrift but vpon Tiberius Tiberius a stranger in Blood and his sonne by no other but by a Civill Title of Adoption because he reputed him farre the fitter to governe Chosroes King of Persia Medarses made Medarses his yonger sonne Consort in his Empire leauing out his Eldest Sinochius But to omit forraine Examples for Brevity sake wherewith of all Times and Places Books are full In our Country we might alleage the Fact of Brutus the Protoparent of our Nation Brutus who divided Albion afterward call'd Britaine to his three sonnes leauing only the best * England Portion to Locrinus anciently called Loegria Albania now Scotland to Albanact and Cambria or Wales to Camber Leir long after knewe he had so much Power in himselfe as a Father even against the Evidence of his owne Act of Partition by the Originall Law of Nature as for the Ingratitude of his owne Children Cordeilla to conferre the Kingdome wholly vpon his younger Child Cordeilla in prejudice of his Grand-sonnes Morgan and Cunedage borne of his Eldest daughters I know some will giue no credence to Brutus Story which in this case they might with the more Reason doe if the ancient Weale or British Custome were not responsible in the Practise thereof to that Act of Brutus Roderik For not only King Roderik divided his Kingdome of Wales to his three sonnes according to that distinction of the Country into North-Wales South-Wales and Powisland but Others since haue done the like among them As for Brutus History as it hath some Enemies so also hath it many Friends and those of Eminent Worth and Esteeme Henry Archdeacon of Huntington Matthew of Westminster others among the Ancient Of latter Times Sr Iohn Price William Lambert Humfrey Lloyd Dr White of Basingstoke Count Palatine in right of the Civill Law Chaire an Honour due to the just Number of yeares by him passed and innumerable others Aboue all the rest Edward the first King of England with all the Earles and Barons of this Realme by their Authentike Deed or Instrument confirmed in Parliament But to proceed They who knowe the old Fashions of Ireland either by Tradition or by printed Statutes of that Nation can testify of their most ancient Tenure or Fundamentall Custome which there is called Tanistry By which Irish Tanistry the Land and Cheefty of a Name after the Predecessors Death is not awarded to the Eldest sonne but to the Worthiest if I mis-remember not the Iudgement whereof is left to the People and such Tenents as haue Interest Right of Suffrage as Alexander the Great though as 't is apparent in the Maccabees 1. Macc. 1.7 very falsely is said to haue left his Empire And the Custome of equall shares may be in other places also which never borrowed their equall Partitions from Gavel-kinde A Custome I grant which some haue lately alter'd in their private Families by Parliament To omit a Number of vnexceptionable Precedents and forraine Examples If All must necessarily haue gone to One how came it then to passe that in this Kingdome there were at one time so many Great and Honourable Families of one Blood disjoyn'd in their seats and distinguished in their Armories by different Arguments Or who is so meanely seene in our Antiquities and Stories as not to knowe it was so And that many renowned Houses to speake as de magis notis Plantagenets Sundry great Families of one Blood at a Time Mortimers Beaufords Beauchamps Dela-Poles Nevils Graies and the like haue growne and flourisht out of one common common Ancestor It can never be refelled Of Disinherisons in Worthy Families Mr William Camden Clarenceaux King of Armes the singular Ornament of England giues vs two Eminent Examples And who is he that remembers not one or other in his owne Knowledge or Acquaintance Carew◠Iane Daughter of Hugh Courtney and Heire to her Mother wife of Nicolas Lord Carew disinherited her Eldest sonne Thomas cùm minùs reverenter matrem haberet for his irreverent Demeanour and parted her Lands which were goodly among her three younger sonnes of whom are sprung three severall Worshipfull Houses of the Carewes called Haccombe Anthony and Bury So that God by the successe crowned the Fact and confirm'd the Lawfulnesse of Partage And this is the first of Mr Camdens Examples The other is this Bryand Lyle or Fitz-Earle Lord of Abergevenny