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
AN APOLOGY FOR A YOVNGER BROTHER OR A DISCOVRSE PROVING that PARENTS may dispose of their Estates to which of their Children they please By I. A. Written for the generall good of this Kingdome OXFORD Printed by LEONARD LICHFIELD for Edward Forrest 1641. TO ALL FATHERS AND SONNES OF WORTHY FAMILIES Whom Vertue Birth and Learning have iustly stiled GENTLEMEN Health Hapinesse and Encrease of the best Knowledge AS in the Front of this brefe Discourse there is Right Worthy Gentlemen already delivered vnto you some light of that which concernes the Qualitie Reason and Scope thereof so doe I here sincerely professe that J did not privatly write it at First but for privat satisfaction neither doe I now make it publike but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking and paradoxicall age Not vpon the least presumption of a selfe-sufficiency to confront thereby any receaved custone if any such be nor to diminish the naturall reverence due by Younger brothers to to theire Elder not to enkindle Emulations in Families nor to innovate any thing to the prejudice of publike or privat quiet which none I hope will be soe ill affected as to suppose neither mine in offensive zeale for Younger Brothers amongst whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Lawes which J haveing a litle studied doe not a litle respect nor the particular honor I beare to the vsages in this poynt of our ancient Brittaines from whom J am decended nor desire to maintaine and justifie an act in this kinde done by a friend whome I must ever reverence nor yet the hope of bettering my private fortunes which moves men much in these our times hath drawne me to this Vndertaking but principally as before is somewhat touched the singular respect which as a Patriot I beare to the glory and good of Gentlemens houses whose best originall surest meanes of maintenance and principall Ornament is Vertue or force of Minde The want whereof is a common cause of Ruine The free power therefore of You who are Fathers is here in some speciall cases argued and defended to giue you occasion thereby to consider with the clearer Eye-sight for the establishment and continuance of Families Here also the naturall Rights of vs that are Children be soe discoursed and discussed as that We younger Brothers may have caues and courage to endeavour by vertuous meanes to make our selves without the least wrong to any capable if need shall be of the chiefest vses And Both and All are so handled as that no offence can reasonably arise in any respect much lesse for that the whole is conceaved and written in nature onely of an Essay or Probleme to which I binde no man to afford more beleefe then himselfe hath liking of being free to refute the whole or any part at his pleasure as he feeles himselfe able and disposed If I may seeme to some to have handled this Subject with more earnestnesse and Acrimony then they thinke expedient let them be plealed to weigh the Decorum of Disputes which is principally herein observed their nature absolutely requiring quicknesse and vehemency on whether side soever As for the remedies of Evils by way of enacting Lawes that is the proper office of Magistrates and Courts of publike Counsell neverthelesse to speake and treat of them vnder the favour and correction of Superiours to whome I doe alwaies very dutifully submit is a thing which may well belong to every man But for those graue and Learned Censors to home I may seeme to have bestowed my paines in very needlesse Arguments because no lesse then I my selfe they hold the case as here it is put to be most cleere and out of controversie to such I answer that I writ it not for them vnlesse perhaps to confirme their judgements but for others who are not altogether so principled or perswaded Nor to any as to prescribe or bind further then their owne consciences shall think good For that were farre too peremptory Finally nothing being here defended but by Authority Reason and Example nor any person taxed nor particular personall Vices if neverthelsse I have not perform'd my part in the work so well as J desire or as the Cause deserves which I feare I have not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good Intntentions sake you will ever conceave well of and take in your speciall Protection Your vnfained Well-wisher J. A. THE CONTENTS CHAP. 1. The occasions and scope of this Appoligie to prove that Fathers may in some cases dispose their Estates to which of their Sonnes shall reasonably please c. and that to be lawfull by the law of God of Nature and of Nations CHAP. 2. That the grounds of good Constitutions being in Nature yet she neither before nor after the law of Propriety established did command that all should I le left to any one more then to another CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without siinne that therefore ther can be no such Right in primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not CHAP. 4. That Nations beginning to devise sundry Formes of setling Inheritances the Romans especially therein respected the free power of Fathers the right of Children to their Fathers estates beginning onely at their Fathers death 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 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 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 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 CHAP. 9. The main points of the Premises exemplified indiuers particular Facts as well of Princes as of private persons CHAP. 10. That the Law of Naturall Equity Reason confirme Disinherison and that the riotous liues of Elder Brothers deserue that vehement Increpation with which the Author closeth vp this Treatise THE YOVNGER BROTHER HIS APOLOGIE CHAP. 1. The occasion of writing this Apologie is to proue that Fathers may in some cases dispose
that Forme and Power of Law where such an Act should bee done And this is I presume without controll what the Law of Nature commanded touching the Matter in Question Next let vs see what the Lawes of God doe command CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without sinne that therefore there can be no such Right in Primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not IF Nature being taken for the principal all-producing Cause of the whole Frame of the Vniverse with all Creatures therein being nothing else but the working Will of the Highest and first Mover as Divines Philosophers hold then surely must Natures Law bee his Will which hee cannot contradict or counter-mand except hee should bee contrary to Himselfe which he cannot For what is in God is God therefore Constant and Immutable Out of which Principle it is easily proued that if the Law of God teach that which the Law of Nature hath ordained the Right of Inheritance cannot be tied to any other person or persons then to those which the Fathers Will approues according to the Power giuen him by the Lawes of Nations where he liues Which Power deriued from Natures Law cannot erre from the Law of God For whosoever shall consider but of Gods Commandements giuen to Man shall well find that God thereby hath still seconded his former Ordinances giuen by Nature For so long as Man-kinde liued in a sort after the Innocence which Gods Grace in his first Creation had wrought in him God gaue him no other Law But when as by sinne those sparks which remained after his Fall were quite extinguished he gaue him New Lawes yet agreeable to Nature As for example in our present Affaires When Man had made by Natures privilege partition of Gods and Natures Blessings then God said to his People by the mouth of Moses Thou shalt not steal Thou shalt not covet thy Neighbours house his Wife his Ox his Asse or any thing that is his As also Thou shalt not kill Which with all other his Commandements teaching what sinne is are agreeable to the Law of Nature yet are dispensed withall as farre as the Lawes of Nature euer permitted For though that the expresse Command of God bee thou shalt not couet any thing that is thy Neighbours nor kill yet in some Cases Both may lawfully be done The one in extreame Want of present Food the other in defence of Life Goods In which the Law of God is good by the Originall Law of Nature which made All for the sustenance of Man and gaue leaue to defend Life with with the losse of anothers Blood yea Life if otherwise it cannot be Vpon which Ground I argue thus Suppose the Law of God did at this present command which indeed it doth not that the Inheritance should be left to any one particular Person and namely to the Elder-Brother yet in some Cases it would not binde the Father to obserue it For as in the former Commandements vpon some considerations the Commandement may bee dispens'd withall so in this For it is not sufficient to be the Elder-Brother or the neerest in Blood 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 Blood may iustly be rejected he that is second third fourth fift or last may lawfully be preferred before the First and this by all Law Divine and Humane and by all Reason Conscience and Custome of Nations Christian For if it should happen that the next in Blood should be a Naturall Foole or a Mad-man or being taken by the Turkes or Moores in his Infancy and educated 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 talke that would haue it to bee his Birth-right or that God Nature had made him Heire since neither God nor Nature doth immediatly make Heires as before is declared Vpon which Ground our Common Lawyers say that No Heires are borne but Men and Law make them I confesse that in Holy Writ great * In allusion hereto the Church Triumphant is stiled The Church of the First-borne Heb. 12.23 Respect is had of the first-begotten and a Blessing is held to come to Parents thereby But this Blessing I presuppose to bee that thereby the Feare of sterility was taken away which in the Old Law was held to be a great Punishment of God in respect thereof Parents had of themselues and by the Nationall Lawes Customes a great Regard of their First-begotten and preferd them to the better part of their Possessions yet not by any Command from God as a Precept to binde his Elect people vnder paine of sinne For had any such Law bound them vnder such a Penalty then should it binde all Christians now on the same Conditions But we see it by Generall Practise of all Countries to be otherwise Therefore it followes directly that it was not Gods Command but a Nationall Law For God both is and ever was One without change to all his People so ever were will be his Laws Positiue made for them that truly worship him The Claime which Esau made to his Birth-right was not by the Law of God as some ignorantly affirme but by the Lawes of his Country For should the Divine Law haue commanded it it had been sinne in his Mother and Brother by Cunning to haue got it from him Neither could the Father or the State wherein they liued vpon no just cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme Iacob praelatione divinâ primogenituram benedictionem promeruit Ita Eximius Praesul D. Episc Cicestr Apparat I. by allowance from God and as it may bee judged by the successe 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 bee committed God never doth Neither did the Nationall Law or Custome of the Iewes as it is said absolutely command the Father to leaue to his first begotten all or the greatest part of his Goods and Fortunes But in case he died not disposing thereof by Act in his Life or Will at his death then the Custome †Viz. Grounded on the Right of Primogeniture See Deut. 21.17 and the Geneva note there of the Nation laid a double Portion on the Eldest or First-begot providing for the rest proportionally By all which you may collect that neither the Law of God or Man in this case commanded that Esau should haue the Inheritance
but Power to do the contrary was giuen to the Father in his Life-time even by the Law it selfe For many Divines hold that Esau selling his Birth-right as it is termed sold not Goods or Lands but his Claime of being * At first Fathers their first borne after theÌ„ were both Kings Priests in their owne houses but in Moses daies this Prerogatiue of Primogeniture ceased Aaron and his Progeny being invested in the Priesthood Moses being as King Deut 33.5 As judicious Mr. Godwyn in his Moses and Aaron Lib. 1. c. 1 High Priest after his Father which by Custome was to come to him being his Fathers Eldest Sonne For which Dignity God seeing him vnfit permitted him to passe away 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 then sure it followeth by good Consequence that there should nor ever could haue beene but one Temporall Lord of all the World For of Necessity Adams Inheritance should haue gone still to the next in Blood which how absurd it is let all men judge Moreover we read that Noe hauing three Sons and the whole world to leaue vnto them gaue it not All to the Eldest but equally divided it among them their Posterity as all Authentike Histories doe witnesse Againe God requiring Obedience of Children to Parents promised a Reward saying Honor thy Father and thy Mother that thy Daies may bee long in the Land which the Lord shall giue thee Which 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 just and pious Father hee giues every one according to his Deserts Terram autem dedit filiis hominum We read also in Holy Writ how the Prodigall Sonne being weary of his Fathers house Luk. 15.12 came to him and boldly said Pater da mihi portionem substantiae meae quae me contingit This child of which the Gospell speakes was the younger Brother yet you see how boldly he said Giue me that Portion of Goods which belongs to me By which words it is evident that a Division or PartitioÌ„ of a Fathers Fortunes was then * As is further evidenced Luk. 12.13 where our Saviour was willed by One to require his Brother to divide the InheritaÌ„ce with him Which was the suit of a younger Brother aggreeved at the churlish Iniquity of his Elder The Iudgement of that Illustrious Religious Divine M. Iohn Haâ—â—â— the most exquisite Illustrator of Chrysostome publisht by the Right Noble Knight Sir Henry Savile 〈◊〉 in Glory in vse and that any child as well younger as elder had power by law to demand his Legitimate or Childs part according to the nature of the Civill and Canon Law as you haue heard For the words following in the sacred Text are these Et divisit substantiam illis And hee divided vnto them his Living Thus wee see that the privilege of Eldership was then excluded which now in our Country by Custome only is gotten to be of such Force But it may be objected that this was a Parable only as indeed it was and cannot bee alleaged as Law True it is yet it cannot be denied but that all Similies Parables or Examples which ever were alleaged by the wise and learned to represent the Truth haue euer beene deriued from the custome and nature of Things according to the knowne Truth in that time and place and to those persons to whom the Speech or Discourse is directed And shall we thinke that our Saviour Christ being Wisdome and Truth it selfe treating of so important an Affaire as he did then in the Gospell would vse an vnknowne Discourse or striue to make the Truth appeare to our weake Vnderstanding by a Parable which in Equity could not bee true No surely For it appeares by Solomon his succeeding his Father David that David had power by the Lawes of God and Man to giue his Kingdome to the worthiest which hee deeming to be Solomon gaue to him his Kingdome though hee was the youngest Sonne Neither was there any just exception made against Adonias his Eldest Brother or against some other of his Brethren why they should be disinherited by their Father David contrary to the common practise of those Times in setling Inheritances But the onely knowne reason of this Act in Scripture was Davids Promise 1. Kings 1. made to Solomons Mother together with her great Entreaty made to David to performe it Which surely he would not not haue done had he not found a lawfull Power in himselfe to haue executed the same Lastly it is invincibly proued out of the Booke of Iob who was contemporary with Moses by attestation of judicious Theologians that there was in those Times and Countries no such Law or Custome that the Eldest should play at Sweep-stake and all the rest be left to the foure Windes for it is expresly recorded in the last Chapter and the 15 Verse that Iob gaue his Daughters Inheritance among their Brethren Iob. 42.15 Which comes home to the point in Question and irrepliably evinces a Fathers Power and Right to make such a Partition of his Estate among his Children as vpon emergent occasion he shall judge expedient And thus much concerning what may bee said out of Scripture or Law of God in our present Question CHAP. 4. That Nations beginning to devise sundry Formes of setling Inheritances the Romans especially therein respected the free power of Fathers the right of Children to their Fathers estates beginning onely at their Fathers death HAuing now declared what the Laws of God and Nature determine of our present Question we intend to examine in breefe what is commanded by the Law of Man as well Civill of other Nations as Common of our owne Country And first concerning the Civill Law Though all Law which ever had but the Name or Credit of Law doth surely deriue her Originall from the Law of Nature wherevpon Cicero many hundred yeares since said that the Ground of all Law-making is to be taken from the chiefe Law which was made before any Law was written or City builded yet doe 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 All with the Law of Nature without limitation or difference it must of Force be the very Law of Nature it selfe and not the Law of Man Which surely is nothing else then a Temper or Forme of Equity drawne by right Reason from the Grounds of Natures Laws according as Time Place and the Natures of Men either gaue or shall giue Occasion For though new Lawes bee daily made of new
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