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
nor Esau whose anger Iacob feared haue left it vnrevenged Neither is there in Scripture nor in any written Law vnder Heaven any Command to restraine the Fathers Power but rather the contrary For such is the Law of Nature that they who are ex aequo one Mans Children should if not ex aequo yet not ex iniquo bee prouided for Against which Partiality the Imperiall Lawes admit so forcible a Remedy vnder the Title of an inofficious Testament as it shall inable the younger Child to a certaine proportion of estate whether the deceased Father would or no if hee had no just reason for omission or disavowment in his last Will. Ruben See Gen. 49.4 1. Chro. 5.1 Ephraim The Example certainely of the same holy Patriark Iacob in depriving his eldest son Ruben of the dignity of Birth-right for his enormous offence and in preferring Ephraim before Manasses the younger sonne before the Elder being his Grand-children against the set * Gen. 48.18 Purpose of Ioseph their Father seemes vnanswerable on behalfe of * Grandfathers are vsually called Fathers in Scripture specially in respect of such as inherit after them Parents Power for transferring or distributing their Blessings Of which it may be verified Qui prior in Benedictione est potior in Iure Of Solomon I haue spoken before who was not Davids Eldest but Adonias after Absalon was slaine as David himselfe was not the Eldest sonne of Iesse his Father but the yongest and yet * See 1. Chro 28.4 chosen by God who sees not as Man doth for with him is no respect of Persons to gouerne Israel though he was not set before his Brothers in the private Inheritance of the Family And in the Gospell it is apparent by the Parable of the Workmen who came at vnequall houres into the Vine-yard and yet had equall Wages that First and Last are to him alike who though he created Things in number Weight and Measure yet hee squares not his Favours by priority of Being * Witnesse Ismael disinherited and Isaak the younger preferr'd by Gods Award See Gen. 21.12 where ver 10. 11. it is cleare that Abraham had otherwise divided his inheritance betwixt them Can the World yeeld a better Precedent N.B. but of well-deseruing Augustus Caesar the most Illustrious of all the first Emperours setled the Imperiall succession not vpon his only Grand-child Agrippa Posthumus the sonne of his daughter and sole Heire the Lady Iulia though Tacitus saith he was nullius flagitij compertus then what if he had indeed beene a notorious Vnthrift but vpon Tiberius Tiberius a stranger in Blood and his sonne by no other but by a Civill Title of Adoption because he reputed him farre the fitter to governe Chosroes King of Persia Medarses made Medarses his yonger sonne Consort in his Empire leauing out his Eldest Sinochius But to omit forraine Examples for Brevity sake wherewith of all Times and Places Books are full In our Country we might alleage the Fact of Brutus the Protoparent of our Nation Brutus who divided Albion afterward call'd Britaine to his three sonnes leauing only the best * England Portion to Locrinus anciently called Loegria Albania now Scotland to Albanact and Cambria or Wales to Camber Leir long after knewe he had so much Power in himselfe as a Father even against the Evidence of his owne Act of Partition by the Originall Law of Nature as for the Ingratitude of his owne Children Cordeilla to conferre the Kingdome wholly vpon his younger Child Cordeilla in prejudice of his Grand-sonnes Morgan and Cunedage borne of his Eldest daughters I know some will giue no credence to Brutus Story which in this case they might with the more Reason doe if the ancient Weale or British Custome were not responsible in the Practise thereof to that Act of Brutus Roderik For not only King Roderik divided his Kingdome of Wales to his three sonnes according to that distinction of the Country into North-Wales South-Wales and Powisland but Others since haue done the like among them As for Brutus History as it hath some Enemies so also hath it many Friends and those of Eminent Worth and Esteeme Henry Archdeacon of Huntington Matthew of Westminster others among the Ancient Of latter Times Sr Iohn Price William Lambert Humfrey Lloyd Dr White of Basingstoke Count Palatine in right of the Civill Law Chaire an Honour due to the just Number of yeares by him passed and innumerable others Aboue all the rest Edward the first King of England with all the Earles and Barons of this Realme by their Authentike Deed or Instrument confirmed in Parliament But to proceed They who knowe the old Fashions of Ireland either by Tradition or by printed Statutes of that Nation can testify of their most ancient Tenure or Fundamentall Custome which there is called Tanistry By which Irish Tanistry the Land and Cheefty of a Name after the Predecessors Death is not awarded to the Eldest sonne but to the Worthiest if I mis-remember not the Iudgement whereof is left to the People and such Tenents as haue Interest Right of Suffrage as Alexander the Great though as 't is apparent in the Maccabees 1. Macc. 1.7 very falsely is said to haue left his Empire And the Custome of equall shares may be in other places also which never borrowed their equall Partitions from Gavel-kinde A Custome I grant which some haue lately alter'd in their private Families by Parliament To omit a Number of vnexceptionable Precedents and forraine Examples If All must necessarily haue gone to One how came it then to passe that in this Kingdome there were at one time so many Great and Honourable Families of one Blood disjoyn'd in their seats and distinguished in their Armories by different Arguments Or who is so meanely seene in our Antiquities and Stories as not to knowe it was so And that many renowned Houses to speake as de magis notis Plantagenets Sundry great Families of one Blood at a Time Mortimers Beaufords Beauchamps Dela-Poles Nevils Graies and the like haue growne and flourisht out of one common common Ancestor It can never be refelled Of Disinherisons in Worthy Families Mr William Camden Clarenceaux King of Armes the singular Ornament of England giues vs two Eminent Examples And who is he that remembers not one or other in his owne Knowledge or Acquaintance Carew◠Iane Daughter of Hugh Courtney and Heire to her Mother wife of Nicolas Lord Carew disinherited her Eldest sonne Thomas cùm minùs reverenter matrem haberet for his irreverent Demeanour and parted her Lands which were goodly among her three younger sonnes of whom are sprung three severall Worshipfull Houses of the Carewes called Haccombe Anthony and Bury So that God by the successe crowned the Fact and confirm'd the Lawfulnesse of Partage And this is the first of Mr Camdens Examples The other is this Bryand Lyle or Fitz-Earle Lord of Abergevenny
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
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