the rules of iustice and honesty Wherevpon naturall reason perswaded that all things being deuided euerie man should knowe his owne otherwise no peace or concord could be maintayned in humane society For all things being Common the way lay open to euery man at his pleasure to abuse others and as it were to rob them of God his Blessing Heereupon Aristotle iudged the diuision of all worldlie goods to haue bene agreable to the law of Nature which the precept of our Decalogue seemes to approue NON FVRTVM FACIES For the Lawe of God is neuer contrarie to the Lawe of Nature neither doth Nature euer cōtrary it selfe though some may perhaps think that herein shee hath For albeit at the Creation of all things togeather with man in the state of grace a cōmunity was intended yet was it not so absolutely resolued of by Nature but that by necessity I meane by fall of man from Gods grace she did dispense with this law and left free to mans choyce to imbrace vpon her warrant either the one or the other as best might fit the time place and natures of men which euer synce the world began haue giuen occasiō of the making of all lawes Whereby we see that though Nature giue the grounds to lawes yet mans vnderstanding still giues the particuler forme For Nature creating man gaue vnto him those worldly blessings to vse well with warrant either to hold them in Common or in Proper as reasō from tyme to tyme could best perswade his will But when reason and will had agreed that it was fit that euery 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 onely 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 wife 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 hath hardlie beene so base but desirous to liue and leaue an honorable memory behind them Which that they may the better do Nature hath not only giuen them power to leaue their well gotten wealth but in a manner their habituall vertues to their issue in which this worldly honour the soules worldly lyfe and vertues temporall reward may liue free from all-killing tyme. Yet did she not then by any Commaund leaue it to any one in particuler but giuing a generall suggestion of the fitnes of the thing left the forme to their best discretion For had shee not done soe all Nations had bene tyed to obserue one forme in leauing their goods and fortunes to their Posterityes for Nature being one without chaunge to all of necessity prescribes no binding rule to any in particuler but to all in generall no man being able to say that this Natures law Commaunds me to do and yet byndes not any other to do the like Which is euident in the matter of succession or claymes of inheritance no one Country obseruing the forme held by another or tying it selfe without controle to obserue his owne as I shall hearafter declare For albeit as I haue said the coniunction of man and woman which wee call Marriage or Matrimony togeather which the desire of issue be of Nature from whence also are sprung not only a diuision of goods and the fortunes of this world but also a laudable desyre to preserue a family and name by the ordination of heyres to well gotten possessions yet did Nature neuer set downe as a law that those fortunes should be left to the elder brother or younger or to any one in particuler or to all but to whom the Father being true free Lord thereof should best deuise by will guided by reason For it was neuer yet auerred by any sound Deuine Philosopher or lawyer that Nature makes immediatly heyres but men whom the positiue lawes of euery Country ordayne by that forme and power of law where such an act should be done And this is I presume without controle what the law of Nature commaunded touching the matter in question Next let vs see what the lawes of God do commaund CHAP. III. That the breach of some written lawes of God vpon warrant of the Primarie law of Nature is without sinne and that therfore there can be no such right in Primogeniture which is not in the Fathers power to auoyd though there were a precept to the contrarie as there is not IF Nature being taken for the principall and all-producing cause of the whole frame of the Vniuerse with al creatures therein be nothing els but the working Will of the Highest and first Moouer as Deuines and Philosophers do hould then surely must Natures law be his will which he cannot contradict or commaund to the contrary except he should be contrary to himselfe which he cannot For what is in God is God therfore Constant Immutable Out of which ground 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 tyed to any other person or persons then to those which the Fathers will approues according to power giuen him by the lawes of the Nations where he liues Which power deriued from Natures law cannot erre from the law of God For whosoeuer shall consider but of Gods Commaundements giuen to man shall well fynd that God thereby hath still seconded his former ordinances giuen by Nature For so long as man kind liued in a sort after the innocency 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 remayned after his fall were quite extinguished he gaue him new lawes yet agreable to Nature As for example in our present affayres When man had made by Natures priuiledge partition of Gods and Natures blessings then God said to his people by the mouth of Moyses Thou shalt nor steale Thou shalt not couet thy Neighbours house his wife his oxe his Asse or any thing that is his As also Thou shalt not kill Which with all other his Comaundements teaching what sinne is are agreable to the law of Nature yet are dispensed withall as far as the lawes of Nature euer permitted For though that the expresse Comaundement of God be Thou shalt not couet any thing that is thy Neighbours nor kill yet in some cases both may lawfwlly be done The one in extreme want of present food the other in defence of life and 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 the losse of anothers bloud yea life if otherwise it cannot be Vpon which ground I argue thus Suppose the law of God did at this present cō maund which indeed it doth not that the in
or principall man of their house being at that time high Sheriffe In other countreys many Noble families from the Romans downward haue cōtinued where this custōe hath beene deemed vniust as by their lawes it is manifest whereas in our contrey in these our tymes if there be one familie in a Shire which is of three hundred yeares continuance verie many others are scarce of fiue descents in a bloud Why should our age then seing the fruit of this custome to be so small imbrace it with such zeale as to deeme the breach thereof being warranted for good and iust by the Law of God of Nature and of man to be a sinne Is it possible that it is held both lawfull and expedient for the preseruation of a family that degrees of kindred should be dispensed with to mary being knowne contrary to the general practise of gods Church and can it be lawfull before God and man for preseruation of our goods to venture our liues and to kill a Theife who shall assault vs and that perhaps for a trifle and yet that for preseruation of our whole estate and maintainance of a family it shal be held sinne to break a bare custome vnder no penalty obligatory yea alwaies allowed by law I haue neuer heard that a custome was of force to abiogate a law so far that it should be deemed a sinne to follow the said law though it haue power to dispense with the law which other wise to break were sinne especially when as the law is both more pious and more naturall then the custom is For how far is it from the law of Nature and from the practise of Fatherlie piety the Father dying intestate the eldest sonne to become absolute Lord of all his Fathers lands and not to be bound by law to prouide for brother or sister but at his owne good liking Aliud tempus alios mores postutat Men of vertue men of learning vertue both now and in former ages in this our countrey haue broken this custome as the world knowes vpon good consideration and iust causes not vpon spleene or false suppositions perswaded to leaue their fortunes to strangers or to a lustsuil issue as some haue done CHAP. VII That Fathers being tenants in Fee-tayle may likewise without scruple of Conscience discontinue the state-taile vpon cause and deuise the same at their reasonable pleasure HAVING treated largely and as I presume proued sufficiently that lands held in fee-simple may either be parted or vpon iust cause wholy giuē away to a younger sonne I intend now to speak of the lawfull freedome of a Father in like sort and on the same causes moued to dispose of his lands intailed of which there seemes more doubt then of the former Euery humane act which of it self is not forbidden by the law of God or Nature is to be iudged good or euill lawfull or vnlawfull either by the lawe of the place where the act is done or by intention of him who shall do the act For as the law of God commaunds somethings to be done other things to be auoided vnder paine of sinne so the third sort of actions are left free by the said authority from sinne except the law of man shall forbid them and so make them sinne or els euill intention make thē being of themselues lawfull to be a sinne and vnlawful according to that principle of Moral Philosophy Finis specifical actum For as an act of it self lawful being done against law is sinne so a good act comaunded by law yet done with an euill intention may be sinne Out of these grounds let vs see whether the Common law of our Countrey and the intention of a Father which are to be the Iudges of our Cause can allow the cutting offan entaile the parting of an inheritance or vpon proportionable cause the disinheriting of a sonne First it is cleere that the act of it self by law may be done but whether such an act be summū ius which may be summa iniuria that is the doubt What shal be the triall By other lawes it is either made lawfull or left indifferent Our law which makes this tye giues leaue to vndo it without any exception Ergo to a good end and vpon iust cause it may be done But it may be said that the eldest sonne during this entaile is quasi Dominus yet hauing neither Dominium directum nor indirectum he during his Fathers life hath only ius ad rem and not in re Wherby no chaunge is forbidden to be made by the Father according to the forme of the law vnder which he liueth and by which the sonne is to make clayme if the Father shall create no new estate in his life For it is lawfull for euery man to dispose of his owne as far as the law shall permit him if it be not forbidden by some other law but such an act is not forbidden by any other law Ergo it is lawfull and no sinne But it may be said that the intention of him who entailed the land was that it should not be vntyed or the state changed To which I answere That no act done by law can be free from chaung further or longer thē the law that made it a bynding act shall allow And it is well knowne to the learned in our lawes that euery mans intention is to be construed according to law by which his act and intentions are directed Whereupon the Ciuilian saith in like Cases valeat quantum valire potest Neither is it thought that any man who conuayeth his lands by entaile can intend an act beyond law or desyre that his sonne whom he makes tēnant entaile as our lawyers tearme him shall in no case no not for the preseruation of his family or relief of many others of his Children haue power to cut off this entaile and to be able to alien sell or giue his lands as reason law and religion shall permit For it may be iudged that he who doth an act to a good end as namely to preserue his family wil alwaies assent to another act which shall with better assurance then his owne strengthen his intention To the former considerations we may add what incoueniences may follow of this generall position For if in Conscience the whole inheritance of the Father is to come without comtroule to the eldest sonne then must it of necessity be inferied that the Father without this consent cannot giue to pious vses or set out for the aduancement of his other Children any other thing after his death So that if God should blesse a Father with many Children and crosse him with as many misfortunes his other Children and all other his pious intentions should be prouided for only at his sonnes or heyres courtesy Which how absurd it is all men know For hereupon all donations to pious vses and to younger Brothers for their preferment may be called in question It is an ordinary thing in these our
Henry the first was surrogated to Rufus his Brother VVilliam Rufus and still kept Robert out The title of more sufficiency not of more propinquity made Stephen K. Stephen as being then a man growne to step in before Matildes the Empresse and her Infant sonne Henry Plantagenet I will not speake of King Iohns succession before his nephew Arthur the sonne of Geffrâ—y the elder brother to Iohn Henry the 4. K. Iohn King of England did in open Parliament pretend a descent from Edmund Earle of Lancaster Edmund Earle of Lancaster soÌ„ne of Henry the third king of England in preiudice of king Richard 2. auering that Edmund was disinherited for deformity and his brother Edward afterward by the name of king Edward 1. preferred Which though it were not so yet is it sufficient to shew that Henry 4. did hould that his ancestour king Henry 3. might haue done such an act if the cause had bene sufficient And what interest had Henry of Riâ—hmoud to his Diademe being neyther of the right bloud nor of the Royall Name when neuerthelesse of the true Plantagenets sundry Males were aliue and one of them at that very tyme king of England also in possession But to leane Kings affaires If all must necessufily haue gone to one how came it then to passe that in this kingdome there were at one tyme so many great and honorable families of one bloud disinyned in their seats and distinguished in their Annories by different arguments Our whous to meanly seeme in our antiquities and stories as not to knowe it was so And that many renowned houses to speake as de magis notisâ— Plantagâ—nets Sundry grint Families of one 〈◊〉 at a tyme. Mortiniers Beaufords Bâ—â—â—champâ— 1 Disla-Poles Neuill Grayes and the like haue growne and flourished out of one common Ancestour It can neuer be refelled Of disinherisions in worthy Families M. William Camden â—â— Lâ—renceaux King of Arnies giues vs two eminent examples And who is he that remembers not one or other in this owne knowledge or acquaintance Ianc Daughter of Hugh Courtney and heyre to her Mother Carewes wife of Nirold Lord Carew disinaerited her eldest sonne Thomas cùm mirùs reuerenter matrem haberet and parted her lands which were goodly among her three younger sonnes of whom are sprung three seuerall worshipfull bouses of the Carewes called Haccombe Anthony and Bury So that God hath by the successe confirmed the lawfulnes of the fact And this is the first of Maister Caindens examples The other is this Bryand Lile or Fitz-Earle Lord of Abergeuenny hauing two sonnes Brientius de insula both leprous built for them a Lazaretto or spittall gaue to Miles Earle of Heresord far the greatest part of his patrimony from his Children The one of these exaÌ„ples is in the descriptioÌ„ of Deuonshire and this other in Monmouthshire And this Chapter may suffice for the illustration and clearing the former Doctrine and the subiect of this whole discourse by examples CHAP. X. That the Law of Naturall Equity Reason confirme iust Disinherision that the riotous liues of Elder Brothers deserue that vehement reproofe with which the Author closeth vp this Treatise LET vs now looke into the Nature of equity and examine whether in Naturall reason which is the law of all lawes the temperate ought to be subiect to intemperate Fooles Madmen to whom no law imputes sinne are not punished for theft or murther or for any other offence which they do being mad or vnreasonable For though humanely they cannot offend yet in this sort according to equity they many be punished The reason is That all law being grounded on Naturall equity for otherwise it is no law doth not only punish offences coÌ„mitted but also preuents offeÌ„ces which may be done by reasonable or vnreasonable creatures And since that Fooles and Madmen cannot offend to be punished or by punishment can be reformed and yet they with whom they shall liue shall surely be offended if not ouerthrowne by them hauing power as Namely Brothers Sisters and all their whole family put in daunger of misery and ruine the law according to all Natural equity takes al power from them I haue inserted this clause according to Naturall equity for that it is against Nature that men should be subiect to beasts or insensible creatures Heerupon Aristotle disputing the nature of rule and subiection saith That none are borne slaues but such as Nature hath abridged of the vse of reason who being truly slaues are altogether vnfit to gouerne VpoÌ„ which ground also the same great Philosopher disputing whether a Monarchy or Comonweale is the better forme of Policy he saith a Comonweale Because the wisest best meÌ„ are admitted to sway therein But it may be said What is all this to our purpose Yes thus far it may be well applied If Nature intent to make al mankind reasonable according to their species being hindered by some ineuitable accident shall so blemish and maime those in whom such want and Natural weaknes shal be found that they according to diuine and humane law may and ought to be depriued of all right and clayme to any thing more then to sustaine Nature as other creatures may do and not to giue vnto them any soueraignty rule or gouernement which by law or custome might otherwise haue falne on them Because according to naturall diuine equity neither man nor yet the creature made for mans vse ought to be gouerned by Beastes and such do fooles and madmen seeme If this be so as according to Natures rule it cannot be otherwise what punishment shall we think due to that reasonable creature borne in a ciuill society of men vnto whom Nature hath not bene a Stepdame in bestowing of her blessings whose name and Family hath bene ennobled and enriched by the industry and vertue of many worthy Predecessors who shall through disorder and inordinate desires habituated in him by custome euill conuersation become vnreasonable yea a sinfull-creature a wilfull and most punishable madman and a thing vnworthy the name of man a Prodigall who contrary to all rule law or order of the most barbarous society of men takes away the soule as I haue said before of all his Ancestors who being dead yet long might liue in their posterity and consumes the womb his family I meane wherein he was borne and without all remembrance of his obligation to the dead whom as hauing his being from them he ought to honour or respect to the huing to whome he should be a comfort deuoures in some sort them of his owne species society and bloud All which the Anthropophages do not For though they feed on their species which are men like to themselues yet they hunt after straungers and nourish then nearest bloud with others flesh obseruing still some law of society among themselues which our ciuill monster doth not For he contrary to all course of Nature sucks out oftentimes the bâ—oud of his nearest and dearest friends namely his children brothers and sisters Ariotous heyre is a ciuill Monster yea some haue brought their all-tender-harted parents to the greatest of all woes â—bâ—â—â—ary in their old age And all this to maintaine by force of fraud a damned crew of Diuells in the shapes of men Nature hath giuen yea she so strongly hath inhabituated a laudable desire in all creatures to preserue them species that directly or in directly to vndergo the contrary wore not onely vnnatural and moâ—â—â—rous bâ—â—â—worthy also of seuerest punishment Families let them be Princely Noble Gentle or Vulgar are in a manner particuler kindes or species allowed of by Natures law to be raised or maintaine of vnder or in their cheife genus mankind vniuersall which to ouerthrow either directly or indirectly let the Philosopher either Naturall or Morall the Lawier either Ciull or Caâ—â—â—â— the Diuine Scholeman or Casuist iudge how punishable Morall Law-makers for many ages pretermitted to make lawes against this sort of oftenders being asked why they answeared That no man could be so ingratefull or inhumane By which wee see how grieuous the offence was deemed by them and how seuere punishment were they to make lawes in these our corrupted times they would prescribe for such offenders Thus much for our present matter in question In the arguing whereof if what I write in defence of younger Brothers as here the case is put I seem to haue taken vpon trust rather then vpon knowledge or reading the wiser sort will I hope not blame me For my intent was nor but onely as at first I promised to set downe a Table-discourse and not a Controuersy discussed in Schooles If I haue spoken according to dialecticall reason as I belieue then may I safely think that my discourse is armed with strong Authority For what hath bene spoken heretofore truely which reason hath not dictated to all Authors pens If therefore I were able to cite a thousand great Writers for what I haue said yet should they be no more but that which Naturall reason hath or may teach daily All which with my self I intrust to the gentle and equall Censure of my Courtuous Reader FINIS