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-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
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-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
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
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
THE YONGER BROTHER HIS APOLOGY BY IT SELFE OR A Fathers free power disputed for the disposition of his lands or other his fortunes to his Sonne Sonnes or any one of them as right reason the Laws of God and Nature the Ciuill Canon and Municipall lawes of this Kingdome do command By I. Ap-Robert Gent. Nisi Dominus aedificauerit domum in vanum laborauerunt qui aedificant eam Psal 126. Vnlesse our Lord build the house they haue laboured in vayne that build it ¶ Imprinted Anno M. DC XVIII TO ALL FATHERS AND SONNES OF WORTHY FAMILIES VVhome Vertue Birth and Learning haue iustly stiled Gentlemen Health Happinesse and Increase of the best Knowledge AS in the front of this briefe Discourse there is Right Worthy Gentlemen already deliuered vnto you some light of that which concerneth the Quality Reason and Scope of the same so do I heere sincerely professe that I did not priuately write it at first but for priuate satisfaction neither do I now make it publique but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking Paradoxicall Age. Not vpon the least presumption of a self-sufficiency to confront thereby any receiued Custome if any such bee nor to diminish the naturall Reuerence due by Younger Brothers to their Elder not to enkindle emulatiōs in families nor to innouate any thing to the preuidice of publique or priuate quiet which none I hope wil be so ill affected as to suppose neither myne inoffensiue zeale for younger brothers among whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Laws which I hauing a little studied do not a little respect nor the particuler honour I beare to the vsages in this point of our anciēt Britans from whom I am descended nor disire to maintaine and iustify an act in this Kind done by a Friend whom I must euer reuerence nor yet the hope of bettering my priuate fortunes which mooues men much in these our tymes hath drawne me to this vndertaking but principally as before is sōwhat touched the singuler Respect which as a Patriote I beare to the glory and good of Gentlemens Houses whose best Originalls surest means of Maintenance and principal Ornaments are Vertue or Force of mynd The want whereof is a comon cause of ruine The free Power therefore of You who are Fathers is heere in some special cases argued and defended to giue you occasion therby to consider with the cleerer eye-sight for the establishment and continuance of families Heere also the Naturall rights of vs that are children be so discoursed and discussed as that we younger Brothers may haue cause and courage to endeauour by vertuous means to make our selues without the least wrong to any capable if need shal 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 conceiued and written in Nature only of an Essay or Probleme to which I bynd no man to affoard more beliefe then himselfe hath liking of is free to refute the whole or any part at his pleasure as he feeles himself able and disposed If I may seeme among some to haue handled this subiect with more earnestnesse and acrimony then they think expedient let them be pleased to weigh the Decorum of Disputes which is principally herein obserued their Nature absolutly requiring quicknes and vehemency on whether syde soeuer Neither let this length of Epistle seeme vnto you like the gates of Myndus which were so great and the Citty so little that they ministred occasion to the Cynick to scoffe at the disproportion bidding the Townsemen shut their Gates for feare the Citty should run out through them seeing that in a new Matter a necessity lyeth vpon me to vse so large a Preparation As for the remedies of Euils by way of enacting Lawes that is the proper office of Magistrates and Courts of publick Counsell neuerthelesse to speak and treat of them vnder the fauour and correction of Superiours to whome I do alwaies very dutifully submit is a thing which may well belong to euery man But as for those graue and learned Censors vnto whom I may seeme to haue bestowed my paynes in very needlesse arguments because no lesse then I my self they hould the case as heere it is put to be most cleere and out of Controuersy to such I answere that I wrote it not for them vnlesse perhaps to confirme their iudgments but for others who are not altogeather so perswaded Nor to any as to prescribe or bynd further then their owne Consciences shall thinke good For that were far too peremtory Finally nothing being heer defended but by Authority Reason and Exāple nor any person taxed nor particuler personall vices if neuerthelesse I haue not performed my part in the worke so well as I desyre or as the Cause deserues which I feare I haue not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good intentions sake your will euer conceiue well of and taken into your speciall protection Your vnfayned vvel-vvisher I. Ap-Robert THE YOVNGER BROTHERS APOLOGIE CHAP. I. The Occasion of writing this Apology is to proue that Fathers may in some cases dispose of their worldly Estates to which of their Sonnes shal reasonably please c. for so much therof as they will and that to be Lawfull by the Law of God of Nature and of Nations NOT many moneths since being inuited by a deare friend of myne to a solemne Feast made by him to many of his well-deseruing friends it was my fortune at that Meeting to acquaint myselfe with many gentlemen of no meane discourse Whereby I feasted as well my vnderstanding with their pleasant society as my taste with the variety of most excellent meates With what our Senses were delighted I let passe to recoumpt since neither profit pleasure nor praise can arise thereof either to the writer or reader Only my intent is to make my Reader acquainted what accident caused me to write this small Treatise and imbouldned me to publish the same to the cōmon view of this al-reprehending age In which neuertheles I do rather hope for allowance then in any sort to feare displeasure For though my subiect be new yet I hope it shal want at the first rather age strēgth which growes by yeares then probable arguments yea forcible reasons to defend it selfe As for friends I hope it will fynd some and peraduenture more then enemyes if it deserue well For as younger Brothers be more in number then elder so are they generallie more free in bestowing their deserued loue For want breeding vnderstanding makes them knowe prize their friends according to their worth Whereas the elder either seated in their Fathers wealth and possessions with more then hopes to enioy their Fortunes do somtynes neyther
loue truely themselues not any man els but abusing that which indeed might gaine the loue of God and Man and easily mayntaine their hereditary honour loose themselues in Vanity most idle courses yea in their Fathers liues so strangely carry themselues as though the law of God of Nature and all other Canon Ciuil National lawes constitutiōs customessprūg from thē could not either in reasō or religiō bar them of that which they expect or giue to a wel-deseruing younger Brother any little hope lawfully to share with thē the least part of their Fathers inheritance much lesse to expect an elder Brothers fortunes oron any termes or for any cause by a Fathers fauour to step before them Which argument among many others was then handled by the Company Pro and Contra so doubtfully that it gaue vnto me an occasion to write this present discourse concerning the free power of some Fathers Wherein I intend to displease no elder Brothers no not them who not inheriting their Fathers Vertues striue not to mayntaine their Ancestors honour in preseruing their Noble Names and Families by which as a reward to their vertues and trauells men haue alwates laboured to liue to al succeding ages their Posterity But my intent is to shew how opinion inconsideration makes oftentimes the wise to be scrupulous and through superstitious zeale not only to feare to doe that which reason may or might haue comaunded but rashly to condemne other mens acts as vnlawfull and irreligious Which according to reason and Religion haue bene done ratified vsing themselues that Custome for the ouerthrow throw of their families which was indeed only deuised for their preseruation and being hood winked with false conceipts do wittingly leaue that which they and their Ancestours had gotten as the reward in this life of their vertues to be the future fuell of al inordinate desyres Beastiall sensuality which in their prouidence they could willingly otherwise haue disposed of All which I doubt not but to make cleere to the impartiall reader prouing by the lawe of God and Man that a Fathers freedome is such that he may Lawfully and Religiously giue his lands and goods or other his fortunes to any of his Children for the Preseruation of his Name and Comfort of his Posterity without all scruple as right reason or the better deserts of a Sonne shall perswade him voyd of all tendernesse or blyndnesse of affection which oftentymes leads a Fathers will and corrupts his vnderstanding so as he be true Lord therof not tyed by consideration of Money receiued or Contract made by Marriage of his Sonne which may alter the Case and make the Sonne Lord and the Father to haue but the vse only during his life as all our Common Lawyers well know In which Case we also haue experience that our Law permits many tymes to alter the Title and to vndoe what by former tymes was held not to be controlled But of this point I wil not treate Only I meane to argue whether a Father possessed in fee-tayle may in law and equity vpon the former considerations make any child which he hath his Heyre leauing to the rest a competency do an act which according to equity and Religion may stand good and valuable In this my present discourse let not any expect many quotations of authors for I neuer read any of this subiect What I bare away of the discourse made by my friends that I will set downe and what other reasons my vnderstanding shal affoard which I hope shal proue so demonstratiue that they shal be of Authority sufficient to satisfy my reader or incite some better pen and vnderstanding to treat of the same more largely substantially And lastly cheifly to cleare some of my Worthy friends frō those imputations which I fynd the ignorant to lay vpon them which if I may do I shall think my tyme and paines well imployed CHAP. II. That the grounds of all good Constitutions being in Nature yet shee neither before nor after the law of Propriety established did cōmaund that all should be left to any one more then to another SVCH are the wise tēperate workes of Nature that nothing is done by her rashly or unaduisedly For though in the infancy of the world she had an inuincible power to produce all effects which thé had their Originall in her yet being studious to please mankynd not only with variety but also with rarity successiuely discouereth and dayly doth disclose to the searching wits of the world her secrets as Tyme and Place either hath or doth dayly beget Occasion still as it were keping in store her heauenly treasure till mans necessity best moues her liberality For what can the wit of man deuise or what doth tyme or Art make knowne which good is that Nature from the first tyme shee began to work had not in her though to her selfe only knowne the ground thereof either to produce the particuler or general effect which wisely she left to be tempered according as the reason of man whose glory she pretends should think fittest to giue the forme as tyme place and the Nature of the thing should require For though that Mariage as it is a coniunctiō of man and woman contayning an inseparable society of life be of Nature it selfe and as Deuines and Canonists hold to haue his Originall in the state of innocencie which vndoubtedlie was then ordayned for issues sake from which a lineall succession was also intended yet vntill necessity in forced man to make diuision of the Blessings of God and Nature the claymes and rights which follow lineall succession to inheritance were not discouered For all things being common among men many ages were numbred from the worlds beginning before any man laid proper clayme to any thing as due to himself alone Wherby it well appeares that hereditary succession or Title to a Parents lands or goods could not then be in vse or so much as thought of This I perswade my selfe was the law of Nature vndepraued To the which I inclyne my will the sooner to credit because I find that all sorts of people as well Christians as others who haue perfection in Naturall Society or a perfect Religious life in a Natural and worldly cōuersation of men haue do daily imboace this naturall and blessed community Which happy law of Nature as I haue said for many age and without doubt had longer contynued had not sinne which breakes al vnion and depraues all naturall perfection gotten such dominion in the myndes of men that in naturall equitie all things could not longer be vsed in common For as some being possessed with an vnsatiable desire to get rule and raigne sought the oppression of others by taking from them that fredome which Nature had giué them so others giuen to sensuality and idlenes sought to liue of other mens labours Wheras by Natures lawes euery one ought to liue by his proper industry within
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
his Father be put in execution It is well knowne to all diuines 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 goods but hath absolutely left them to the customes of their Country where any act of that kind shal be executed only as confirming all formes of deuises which by publick consent and authority either haue or shall in rightfull manner be deuised or ordained Out of this ground and others before mentioned let vs examyne whether a Father parting his fortunes by power of law and on iust cause shall do a wrongfull and a sinfull act as some pretend to make it I confesse that euery act in it self or by Circumstance euill and which vpon no occasion can be iustified is both before God and man sinne and is by no means to be executed by a Christian But that the parting of an inheritāce or the disinheriting of an eldest sonne vpon iust cause and according to course of Law is an act of that nature doth not appeare For I do not fynd that either the Law of Nature or grace nor yet the Lawes of man common ciuil or Canon euer forbad such acts whereby sinne may be imputed to those who do them on good considerations Sure I am that the Cannon and Ciuill Law are so far from forbidding them that they commaund as a thing in equity the Father either to deuide his inheritance or allow him according to his affection to giue to one more then to another yet with this prouiso that he who hath the least haue his childes part which the Law doth also assigne except on iust desert he do disinherit any one which at this day may yea must be by will with the cause of disinherision named therein Of which causes the Imperiall Lawes haue set downe fourteene as it shall well appeare to them who are desyrous to vnderstand more thereof So it is euident that by these two Lawes no sinne can grow vpon such acts being done vpon their warrant and vpon such consideration as hath bene before often by me set downe As for the cōmon Lawes of our Realme sure it is that they allow no lesse and with a greater preuiledge For a man may by this law giue his landes held in Fee either by deed in his life 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 the Custome giues the whole estate to the eldest yet in some parts of our Country the youngest Brother by Custome is to haue the land held by some kind of tenure if the Father in his life tyme do not dispose thereof As yet therefore I cannot see how any sinne is commited or contracted by the former acts being neither done against the law of God or man as we haue proued except it should be said to be sinne not to leaue it to the power of a custome which cannot be except the former law shal be proued not to be of force and no way to be executed which can no way bee done For though I must confesse that the custome of leauing the child-estate to the eldest sonne hath of later times bene much imbraced by our Gentry for the preseruation of their families for which it was inuented For the tymes haue so ruled that men of sort being either idle or not possessed with a couetous humor haue contended themselues with their Fathers fortunes and haue preferred their younger sonns by those means which the tymes did affoard which preferments were thē better then now they are namely by many cōmendable courses as either by seruice of spirituall men whereby many were raised or by professing a spirituall life whereby the younger brother hath oftentimes in hōnor stept before the elder But this manner of life is not so gratefull to our English gentlemens Natures as it hath bene The trade of the Merchant the Military profession the Courtyers life aduanced many more then now they do and lastly the elder brothers were the of better temper in spending and if they had no humour to get yet had they a care to keep what was left vnto them and euer held themselues bound by religion to prouide for their younger brothers and sisters left to their dispose which now is far otherwise For an elder brother is found to spend more in a yeare idlie then would prefer or maintaine a whose familie noblie and to suffer their brothers and sisters to shift which as these times shape is oftentymes to liue either lewdly or most miserably being forced either to forget their good education or to lay aside all badges of gentrie who otherwise with some reasonable helps might do God their Countrey and Family much honour Since wee haue gone so far let vs see on what grounds this custome first hath risen Surely for the maintenance of a family yet led with an ambition at the example of princes who finding some difficulties in the admitting of many to a gouernement and feling what inconueniences the parting of an estate brought deuised that one should gouerne sometimes the worthiest sometimes the eldest was elected according as the order was agreed vpon and yet the other brothers were mainteyned like Princes And thus custome also among them hath bene broken without imputation of sinne For to go no further then our later times it is well knowne that Ferdinand Charles the fifth his brother being setled in the Empyre deuided his estate To Maximilian his eldest sonn he left the Empyre with Austria Hungaria and Bohemia To Charles his second sonne Styria Carinthia and other dominions And to Ferdinand the youngest he gaue the Earldome of Tyrol All which if in his life tyme he had not disposed of had come to the eldest Philip the second late king of Spaine gaue to his Daughters the 17. Prouinces which were of right to haue descended to his sonne after his death if he had not disposed thereof in his life tyme. This is and was deemed lawfull by the Diuines of this age otherwise surely they would neuer haue done it But doth this custome in meaner degrees work that effect which it hath done in them No truely For as wee haue proued it is rather the ouerthrow then the preseruation of many families And let vs see withall whether families florithed not as much and more then now they do before this custome was receiued Liuic saith that three hundred of the Faby being all of one name and family issued out of Rome gates at one tyme on their owne cost to the defence of their citty which was done before this custome was dreamed of In Scotland 300. of the name and family of the Frasers gentlemen were at one tyme slaine in a fight by their enemies neighbors and 140. gentlemen of one name in Yorkshire waited vpon their chiefe