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
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
invincible power to produce all effects which then had their Originall in her yet being studious to please Man-kinde not only with variety but also with raritie shee successiuely discouers daily discloses to the searching Wits of the World her Secrets as Time and Place either hath or doth daily beget Occasion still as it were keeping in store her heauenly Treasure till Mans necessitie best moues her Liberalitie For what can the Wit of man devise or what doth Time or Art make known which good is that Nature from the first time shee beganne to worke hath not in her though to her selfe only knowne the ground thereof either to produce the particular or generall effect which wisely shee left to bee tempered according as the Reason of Man whose glory she pretends should thinke fittest to giue the Forme as Time Place and the nature of the Thing should require For though Marriage as it is a conjunction of Man and Woman containing an inseparable societie of life be of Nature it selfe and had its Originall in the state of Innocence which as Divines Canonists hold was vndoubtedly ordained for Issues sake whereby a Lineall succession was also intended yet vntill necessity enforced Man to make Division of the Blessings of God Nature the Claimes and Rights which follow Lineall succession to Inheritance were not discouered For all communicable things being common amongst Men many Ages were numbred from the Worlds beginning before any man laid proper claime to any thing as due to himselfe alone Whereby 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 vndepraved Which I incline 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 and Religious life in a Naturall and worldly conversation of Mē haue and doe daily imbrace this naturall and †See Acts 2.44 blessed Community Which happy Law of Nature as I haue said for many ages endured without doubt had longer continued had not sinne which breakes all vnion and depraues all Naturall perfection gotten such dominion in the minds of Men that in Naturall Equity all things could not longer bee vsed in common For as some being possest with an insatiate desire to get rule and raigne sought the oppression of others by taking from thē that freedome which Nature had giuen them So others giuen to sensuality and idlenesse sought to liue of other mens labours whereas by Natures lawes every one ought to liue by his proper industry within the rules of Iustice and Honesty Wherevpon naturall Reason persuaded that all things being divided every Man should know his owne otherwise no peace or concord could be maintained in Humane society For all things being common the way lay open to every man at his pleasure to abuse others as it were to rob them of God his Blessing Herevpon Aristotle judged the Division of all worldly Goods to haue been agreeable to the law of Nature which the precept of our Decalogue seemes to approue Thou shalt not steale For the Law of God is never contrary to the Law of Nature neither doth Nature ever contrary it selfe though some may perhaps thinke that herein she hath For albeit at the Creation of all things together with Man in the state of Grace a fraternall and amicable Community was intended yet was it not so absolutely resolued of by Nature but that by Necessity I meane by the fall of Man from Gods Grace she did dispense with this Law and left free to Mans choice to embrace vpon her warrant either the One or the Other as best might fit the Time Place and Natures of Men which ever since the World began haue giuen occasion of making of all Lawes Whereby we see that though Nature giue the grounds to Lawes yet Mans vnderstanding still giues the particular Forme For Nature creating Man gaue to him those worldly blessings to vse well with Warrant either to hold them in Common or in Proper as reason from time to time could best persuade his Will But when Reason and Will had agreed that it was fit that every Man should enioy his Part in Proper Nature moued Man further and told him that now he might lawfully think on his succession and not only liue in his species but breath as it were to the Worlds end in a lineall Posterity by honorable Deeds and Vertuous Acts with which Desire Nature as a wise mother so inflamed Man her Noblest Child after his Fall from Grace that some Men by Natures light only haue done Acts almost aboue Nature and none haue hardly beene so base but desirous to liue and leaue an honorable memory behind them Which that they may the better doe Nature hath not only giuen them power to leaue their wel-gotten Wealth but in a manner their habituall * They which are descended of ancient Nobility haue in them an implanted compleat Generosity or vertuous Disposition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio Cas Hist Ro. l. 44. ex Orat. M. Antonii Vertues to their Issue in which this worldly Honor the Soules worldly life and Vertue 's temporall Reward may liue free from all-killing Time Yet did shee not then by any Command leaue it to any one in particular but giuing a generall suggestion of the Fitnesse of the Thing left the Forme to their best Discretion For had shee not done so all Nations had beene tied to obserue one Forme in leauing their goods and Fortunes to their Posterities for Nature being One without change to all of necessity prescribes no binding Rule to any in particular but to all in generall no man being able to say This Natures Law commands me to doe yet binds not any other to doe the like Which is evident in the Matter of Succession Consule Clariss V. D. Zouch de Iure Feudali p. 18. 21. or Claimes of Inheritance no one Country obseruing the Forme held by another or tying it selfe without controll to obserue its owne as I shall hereafter declare For albeit as I haue said the Conjunction of Man and Woman which we call Matrimony together with the Desire of Issue be of Nature from whence also are sprung not onely a Division of the Goods and Fortunes of this World but also a laudable Desire to preserue a Family and Name by the ordination of Heires to well-gotten Possessions yet did Nature never set down as a Law that those Fortunes should be left to the Elder Brother or Younger or to any One in particular or to All but to whom the Father being true and free Lord thereof should best devise by Will guided by Reason For it was never yet averred by any sound Divine Philosopher or Lawyer that Nature makes immediatly Heires but Men whom the positiue Lawes of every Country ordaine by
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