or principall man of their house being at that time high Sheriffe In other countreys many Noble families from the Romans downward haue cōtinued where this custōe hath beene deemed vniust as by their lawes it is manifest whereas in our contrey in these our tymes if there be one familie in a Shire which is of three hundred yeares continuance verie many others are scarce of fiue descents in a bloud Why should our age then seing the fruit of this custome to be so small imbrace it with such zeale as to deeme the breach thereof being warranted for good and iust by the Law of God of Nature and of man to be a sinne Is it possible that it is held both lawfull and expedient for the preseruation of a family that degrees of kindred should be dispensed with to mary being knowne contrary to the general practise of gods Church and can it be lawfull before God and man for preseruation of our goods to venture our liues and to kill a Theife who shall assault vs and that perhaps for a trifle and yet that for preseruation of our whole estate and maintainance of a family it shal be held sinne to break a bare custome vnder no penalty obligatory yea alwaies allowed by law I haue neuer heard that a custome was of force to abiogate a law so far that it should be deemed a sinne to follow the said law though it haue power to dispense with the law which other wise to break were sinne especially when as the law is both more pious and more naturall then the custom is For how far is it from the law of Nature and from the practise of Fatherlie piety the Father dying intestate the eldest sonne to become absolute Lord of all his Fathers lands and not to be bound by law to prouide for brother or sister but at his owne good liking Aliud tempus alios mores postutat Men of vertue men of learning vertue both now and in former ages in this our countrey haue broken this custome as the world knowes vpon good consideration and iust causes not vpon spleene or false suppositions perswaded to leaue their fortunes to strangers or to a lustsuil issue as some haue done CHAP. VII That Fathers being tenants in Fee-tayle may likewise without scruple of Conscience discontinue the state-taile vpon cause and deuise the same at their reasonable pleasure HAVING treated largely and as I presume proued sufficiently that lands held in fee-simple may either be parted or vpon iust cause wholy giuē away to a younger sonne I intend now to speak of the lawfull freedome of a Father in like sort and on the same causes moued to dispose of his lands intailed of which there seemes more doubt then of the former Euery humane act which of it self is not forbidden by the law of God or Nature is to be iudged good or euill lawfull or vnlawfull either by the lawe of the place where the act is done or by intention of him who shall do the act For as the law of God commaunds somethings to be done other things to be auoided vnder paine of sinne so the third sort of actions are left free by the said authority from sinne except the law of man shall forbid them and so make them sinne or els euill intention make thē being of themselues lawfull to be a sinne and vnlawful according to that principle of Moral Philosophy Finis specifical actum For as an act of it self lawful being done against law is sinne so a good act comaunded by law yet done with an euill intention may be sinne Out of these grounds let vs see whether the Common law of our Countrey and the intention of a Father which are to be the Iudges of our Cause can allow the cutting offan entaile the parting of an inheritance or vpon proportionable cause the disinheriting of a sonne First it is cleere that the act of it self by law may be done but whether such an act be summū ius which may be summa iniuria that is the doubt What shal be the triall By other lawes it is either made lawfull or left indifferent Our law which makes this tye giues leaue to vndo it without any exception Ergo to a good end and vpon iust cause it may be done But it may be said that the eldest sonne during this entaile is quasi Dominus yet hauing neither Dominium directum nor indirectum he during his Fathers life hath only ius ad rem and not in re Wherby no chaunge 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 clayme if the Father shall create no new estate in his life For it is lawfull for euery man to dispose of his owne as far as the law shall permit him if it be not forbidden by some other law but such an act is not forbidden by any other law Ergo it is lawfull and no sinne But it may be said that the intention of him who entailed the land was that it should not be vntyed or the state changed To which I answere That no act done by law can be free from chaung further or longer thē the law that made it a bynding act shall allow And it is well knowne to the learned in our lawes that euery mans intention is to be construed according to law by which his act and intentions are directed Whereupon the Ciuilian saith in like Cases valeat quantum valire potest Neither is it thought that any man who conuayeth his lands by entaile can intend an act beyond law or desyre that his sonne whom he makes tēnant entaile as our lawyers tearme him shall in no case no not for the preseruation of his family or relief of many others of his Children haue power to cut off this entaile and to be able to alien sell or giue his lands as reason law and religion shall permit For it may be iudged that he who doth an act to a good end as namely to preserue his family wil alwaies assent to another act which shall with better assurance then his owne strengthen his intention To the former considerations we may add what incoueniences may follow of this generall position For if in Conscience the whole inheritance of the Father is to come without comtroule to the eldest sonne then must it of necessity be inferied that the Father without this consent cannot giue to pious vses or set out for the aduancement of his other Children any other 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 pious intentions should be prouided for only at his sonnes or heyres courtesy Which how absurd it is all men know For hereupon 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
tymes when the land is let to the Heyre generall to alter the estate if the land so conueyed shall come to Daughters and to leaue it to a Brothers sonne or to some other of the same name though peraduenture many degrees remoued for preseruation of the name and family If this may be deemed lawful and no sinne being done against a well deseruing child for whom Nature and her deserts plead her worthy to be her Fathers heyre then without all compare if the preseruation of a name and family might not iustly be laboured for according to power giuen by the law of God and man what may be lawfully acted against an vnthrifty heyre who in any reasonable mans iudgment is likly in his shrowd to bury the memory of all his Ancestors vertues which should liue in him and his ofspring as his forefathers haue done in theirs It is neyther new nor straung in the practise of our tymes in causes of this Nature to ouerthrow in tended perpetuities and by act of parliament to giue leaue vpon som good considerations to sell lands which otherwise by no lawes can be sold from the heyre the Father being but tennant only for tearme of his life Which surely by no power vnder God could be done if the thing in it self be vnlawful sinne Out of which it may be argued a fortiori If power may be giuen to a Father being tennant for tearme of life to sell his sonnes lands onely to pay his owne debts peraduenture idly made though it be to the ouerthrowe of his Familie because naturall equity say they doth wil that euery one should be relieued with his owne for so it may be deemed though in loue to his child hee hath passed the estate yet that he ought to be preserued from thraldome therewith in his necessity which if it be so as all men do confesse it how reasonable a thing yea how comendable and farre from sinne is it for a Father truely Lord of his owne without all tye of law either deuine or humane as I haue proued to dispose of his lands to the honour of God and comfort of his family to a yonger sonne when as it is most probable that the elder will neither vse it to the one nor the other but rather to nourish sinne and sensuality CHAP. VIII That vnthriftines is one knowne name of many hidden sinns and is alone a sufficient cause of disinherison proued by the Law of God and Man HAVING thus vpon good consideration beyond my first intention as it appeareth by my Preface enlardged this my discourse with the precedent Chapter I haue resolued my selfe vpon my Readers fauour and on the former grounds to argue one question more which I hold verie necessary for the perfecting of this small work which is whether a Father may disinherite his eldest sonne or heire at common law for such an vnthriftines as in most mens iudgements is like to be the ruine of his family Though many foule sinnes besydes the abusing of gods blessings be concomitant to vnthriftynes yet because they are not apparant to the world and de abscondit is non iudicat Praetor I will only breifly argue whether in reason or conscience a desperate vnthrift may be disinherited It is well knowne to all the wise and temperate whose iudgments passion doth not ouersway how great an enemy prodigality or vnthriftynes is to all manner of goodnes and how cunningly she not onely hinders the increase of all vertues in those in whome she reigneth but also vniustly oftentymes cuts off the vertuous reward of many a worthy predecessor yea giues occasion to the euill 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 be many sinns in a man which in the sight of God and iudgment of men of themselues are more heynous and deserue afar greater damnation then Prodigality doth yet since that sins in this world are to be punished Those sinnes more punishable which are more offensiue to common society though lesse heinous in their particuler Nature not as they are in themselues but as they by circumstance are offensiue to the society peace and honour of mankind which God and Nature euer as the reward to all morall vertues and as the chief end of mans life intended For otherwise vsury detraction forgery adultery fornication swearing and drunkennesse all which and many more which are as greiuous offences in the eye of heauen as theft should be punished with death as theft is But since they do not offend so much the peace of a publique weale at which the Ciuill magistrate aymes as theft doth they are not censured with such seuere punishment at it is All which shewes directly that offences by circumstance are made in a Ciuill society against which they are committed either great error lesser and are accordingly to be punished and no lesse doth the reason and righ rule of state commaund Out of which grounds it is euident that all formes of gouernement do most punish that offender who directly or indirectly seeks to disturbe the peace or ouerthrow the liberty or disgrace the state wherin he liues yet many greater offences then these may be committed as Incest and Apostasy which are not so sharpely punished by the Ciuill Magistrate For euery one to whome God hath giuen power on earth doth chiefly seek the end for which his power from aboue is giuen vnto him and doth censure and punish in the highest degree those offences which tend to the ouerthrowe of a well setled state and by good and lawfull power confirmed Now to come vpon these premisses to the matter in question to apply that which hath beene sayd to our purpose It is well knowne to the world that a family is a ciuill society yea the only common weale which God and Nature first ordayned and from which all societyes Common-wealths species of Gouernement first tooke their originall For the mantainance of which society there is no question but God hath giuen many priuiledges to a Father as well to reward the well-deseruing as to punish an euill child or member of his body not onely by depriuing them of their expected fortunes but by cutting them of from his body either by banishment or by death it selfe For it is euident by the Ciuill law that a Father had for many yeares not onely free power to disinherit but also power of life and death our his children who should greiuously offend him or his liuing vnder his Ciuill gouernement But since that things vnknowne are growne out of vse and may seeme as well incredible as straunge I cannot in discretion passe ouer the matter in question so lightly as that it may worthily be subiect to sharpe censure or rashly be branded with the mark of vntruth Therefore laying aside the testimony of the old Roman lawes in the case
of a Fathers soueraigne power ouer the life of his child giueÌ„ 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 theÌ„ 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 grownâ—â—â— 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 coÌ„trary theÌ„ 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 â—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 CoÌ„mon 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
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
as he did then in the Ghospell would vse an vnknowne discourse or striue to make the truth appeare to our weake vnderstandings by a Parable which in equity could not be true Noe surely For it appeares by Salomon his succeding to his Father Dauid that Dauid had power by the lawes of god and man to giue his Kingdome to the worthiest which hedeeming to be Salomon gaue vnto him his Kingdome though he was the yongest sonne Neither was there any iust exception made against Adonias his eldest Brother or against some other of his Brethren why they should be disinherited by their Father Dauid contrary to the common practise of those tymes in setling inheritances But the only knowne reason of this act in Scripture was Dauid promise made to Salomons Mother togeather with her great intreaty made to Dauid to performe the same Which surely he would not haue done except hee had found a lawfull power in himselfe to haue executed the same And thus much concerning what may be said out of Scripture or law of God in our present question CHAP. IIII. That nations begining to denise sundry formes of setling Inheritâ—nces the Romanes especially therin respected the free power of Fathers the right of Children to their Fathers estates begining only at their Fathers Death HAVING now declared in the former chapter what the lawes of God and Nature doe determyne of our present question we inted to examine in breif what is comaunded by the law of Man aswell ciuill of other Nations as common of our owne Gontry And first touching the ciuill Law thus Though that all Law which euer had but the name or credit of Law doth surely deriue her originall from the Law of Nature whereupon Cicero many hundreth yeares synce said that the ground of all law making is to be taken from the chief law which was borne before any law was written or Citty builded yet do they differ much in forme For as it is no law but tyranny which wholy disagrees with the law of Nature as Aristotle saith so if it agree in al with the law of Nature without limitation or difference it must of force be the very law of Nature it self and not the law of man Which surely is nothing els then a temper or forme of equity drawne by right reason from the grounds of Natures lawes according as tyme place and the Natures of men either gaue or shall giue the occasion For though new lawes be dayly made of new seuerall accidents yet all are agreable to the old and ancient grounds of reason in Nature the iust Mother of all law Wherefore hauing set downe before what the law of Nature is touching the matter in question I shall need only now to shew what temper or forme hath thereunto bene added by the Ciuill Lawyer After that mankind was inforced yet by Natures warrant as I haue said to make a partition of the Blessings of God and Nature and that men were possessed by the same right of goods and lands which they desyred to leaue to posterity law-makers and in particuler the Ciuilian deuised by little and little certayne formes of inheritance and ordination of heyres at the first somwhat rigorous giuing to Parents power of life and death ouer their Children 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 deuided among the Children as wel daughters as sonns Which Constitution was afterward vpon good grounds altered The Father being bound to leaue euery Child a portion which the Ciuill Lawyer calleth a legitimate others a Patrimony which at the first was the eight part of the Fathers substance equally to be deuided as I haue said which after a while seeming little the law commaunded that the fourth part should be left without controule except that vpon iust cause the Testator did disinherite him or them who by course of law were to succeed him still vpholding the former lawes that aswel daughters as sonnes should equally succeed to their Parents dying intestate herein assigning fourteene Causes why an heyre might lawfully be disinherited Many hundred yeares passed from the establishing of the Ciuill law and before that it was ordayned by force of law that Parents should leaue a Childes part as it is now called or that he could not disinherit without expressing the cause thereof in his last Will yet in all this tyme nor vntill this present day the priuiledg of engrossing all by Primogeniture was not once heard of or at least wise not admitted but rather excluded as by many texts in the same Law it well appeares The end of the Imperiall or Roman Ciuill law being only to maintaine morall Iustice inthree short precepts Liue honestly Hurt no Man Gine vnto euery one his owne So he who obserues these three fulfills this law yea the law of Nature from whence this law is sprung Now if any Brother can proue that his Father either in life by deed or by will at his death disposing of his goods lands no otherwise then I haue set downe doth none act against these three then why should he not content himself either with the fruits of his Fathers loue or his owne deserts whatsoeuer they be True it is that in Naturall iustice children during their Fathers life haue Ius ad rem and not Ius in re to a Fathers goods Whereupon the Law calleth them Quasibonorum patris Dominos Which their right onely takes effect after their Fathers death For during life hee hath power to alter alien sel and giue as it shal please him according to forme of law but being dead without will or disposition therof they fall vpon his children as I haue said according to the law of nations This law imbraceth a two fold iustice the one in exchange the other in distribution The first hath not to do with our cause the other surely rather commends then condemns a Father who vpon good occasion that is for the bad demerits of his eldest sonne and for the preseruation only of his family shall giue or conuey his lands goods to the yonger For the Nature of distributiue iustice is not only to giue proportionably to the well deferuing but also to forbeare to place benefits vpon any one who shall abuse them or vse them to any other end then to that good for which they were lent him and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his goods to an euill end or to any one whom he assures himselfe will vse them to the dishonour of God or the wrong of those who shall liue with him or by him of which I will speak more in the last chapter being there to handle what a Father may in conscience do or not do in our present question with sinne and without sinne And thus much of the Ciuill and Canon Lawyers auerment of an elder
brothers right to his Fathers fortunes CHAP. V. That the present custome in our Cōntrey of giuing all or almost all to the Eldest was neuer so begun that it meant to exclude iust remedies for such euills as should growe out of the abuse of that custome when it may make Fathers guilty of their sonnes faults and of their families ruines I Haue of purpose reserued to treate of the lawes of our countrey in the last place because I assure my selfe that they are of most force to sway the matter in question For many things may be permitted by the lawes of God and Nature and yet they on the contrary are forbiden or practised by course of law in seuerall States of the world as the law-makers and the customes of the countries do allow or comaund I do confesse that the generall practise of our tyme among parents is to leaue either all or the most part of their lands to their eldest begotten sōne This without all question was as it hath bene said first deuised in former ages for the preseruation of a family and to raise some one who might be a comfort to his brothers sisters and family and in whom his progenitors vertues might line to the world Moreouer I will not deny but the partition of lands may bring in the end a goodly estate to nothing or to so little as it may be like an A tomie in the sunne yet I find in Naturall reason that ex nihilo nihil fit or at lest that Haud facilè emergunt quorum virtutibus obstat Res ang ista domi But if men do faile of those happy ends to which this generall custome should guide then would I wish that they would not vse that for their destruction which was meant for their preseruation For who doth not see in these our tymes may vnbridled youths to be so violently carried away with the humor of spending that they neglect brother and sister yea bring to extreame misery their Naturall Mothers after their Fathers death by their vnthristines What help for this hath law left vnto vs no means to put a bridle to these vnruly colts if they become heires according to the custome of our tyme no truely For some starting hole wil be found to vnty the knot which a Fathers care once tyed How then must many an hopefull and well-de seruing brother and sister be left to the mercy of this whirlwind There is no necessity in it For our law hath giuen power to a Father free will to dispose of his owne according as reason shall guide his will without all obligation to his heire Besides this custome takes place onely after a Fathers death if he dispose not of what is his by deed in life or by will at his death But least my words be more generally taken then they are meant I meane those Fathers who are possessed of their lands in fee or fee-tayle that is are absolute of themselues and haue not vpon good consideration conuaied their lands from themselues For all our lawyers do agree that such parents may alien sell and giue by power of our law their lands to whome they wil without respect of person or eldership But me thinks I heare one say that the custome is otherwise and that this custome is a law True it is the custome But let vs see whether it bindes sub peccato or as a custome which rather inuites then commaunds There neuer was any comaund 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 prouision according to course of law is not made thé surely a parent is free from this deuouring custome and may in good consideration preuent what euill it may bring to his posterity yea reason comaunds it should be so For Interest reipublicae vt quilibet re sua bene vtatur as saith the ciuill law For if a man can ney ther sell nor set much lesse can hee giue any thing to another which he thinks in his conscience will vse it to the dishonour of God the ruine of himselfe or others Some Deuines hould that it is not lawfull to sell or let an house to any that he thinks assuredly would make thereof a stewes or to sel giue or lend a weapon to a man who intends therewith to do murder Excomunications are imposed on them who sell armes offensiue or defensiue to Turks though they be not assured that they will vse them against Christians Thus wee see the rule of conscience not onely to commaund a man to vse well those fortunes which God hath bestowed vpon him but forbids him either vpon affection or gaine to part with them to others who wil abuse them least he be partaker of others sinne which a parent may be after death who leaueth his lands to a desperate vnthrift But what religion and conscience doth commaund shal be declared in the following chapter In which vpon grounds drawne out of these former foure Chapters it shal be argued what sin may be contracted by the parting of an estate among sonns or by disinheriting of an eldest sonne vpon iust cause and vnto whom the Father is only tyed by the Custome of the Countrey without obligation of promise or contract in Marriage which may alter the Case CHAP. VI. That it is no offence before God for a Father being tenant in fee-simple to disinherit the eldest or to parcell his estate vpon cause that extreme vices of Heyres apparent togeather with the fewer meanes which younger Brothers haue now to liue on then heeretosore cryeth out against the contrary opinion THE right of these insociable inheritours of which wee now treat may grow as I magine out of three titles or claymes which they may pretend to a Fathers inheritance wherby it may be deemed as they think sinne in a Father vpon what desert soeuer to barre them of the faid right These three tytles are Purchase Custome and Entaile Of ech seuerally And of the first which is Purchase surely in the iudgment of the good and learned there is no question in law or conscience but that a Sonne ioyned Purchaser with his Father hath Ius in re and by equity must suruyuing his Father inherite such lands as were purchased in their names Now of the other two though it be as cleere as the noone light that a Lord in Fee simple or Tenant in taile may sell or giue by course of our Common law at his pleasure all such lauds 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 seemes to arise a great difficulty how such an act or acts may in cōscience be executed I haue heard some say in this our Case Summum ius summa iniuria Of these points therefore I will speake saluo meliori iudicio what may in Conscience vpon good and iust occasion giuen by the sonne to