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
Floruit Ao 480. as the World knows vpon good Consideration just Causes not vpon spleene or false suppositions persuaded to leaue their Fortunes to Strangers or to a lustfull Issue as some haue done 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 HAving treated largely and as I presume proued sufficiently that Lands held in Fee-simple may either bee parted or vpon just Cause wholly given away to a younger Sonne I intend now to speake of the lawfull Freedome of a Father in like sort and on the same causes moued to dispose of his Lands entailed of which there seemes more Doubt then of the former Every humane Act which of it selfe is not forbidden by the Law of God or Nature is to bee judged Good or Evill Lawfull or Vnlawfull either by the Lawes of the place where the Act is done or by Intention of him who shall doe the Act. For as the Divine Law cōmands somethings to be done and other things to bee avoided vnder paine of sinne so the third sort of Actions are left free by the said Authority from sinne except the Law of Man prohibite thē so make them sin or else evill Intention make them being of themselues lawfull to be a sinne and vnlawfull according to that Principle of Morall Philosophy Finis specificat āctum For as an Act of it selfe lawfull done against Law is Sinne so a good Act commanded by Law yet done with an evill intention may be sinne From these Grounds let vs see whether the Common Law of our Country and the Intention of a Father which are to bee the Iudges of our Cause can allow the cutting off an Entaile the parting of an Inheritance or vpon proportionable cause the disinheriting of a Son First it is cleere that the Act of it selfe by Law may be done But whether such an Act bee summum Ius which may be summa injuria that is the Doubt What shall be the Triall By other Lawes it is either made lawfull or left indifferent Our Law which makes this Tye giues leaue to vndoe it without any exception Ergo to a good End and vpon just Cause it may be done It will bee replied that the Eldest sonne during this Entaile is quasi Dominus Yet hauing neither Dominium directum nor indirectum he during his Fathers life hath onely Ius ad Rem and not in Re Whereby no change 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 claime if the Father create no new Estate in his life For it is lawfull for every Man to dispose of his Owne as far as the Law shall permit him if it bee not forbidden by some other Law but such an Act is not forbidden by any other Law Ergo 'tis lawfull and no sinne But it may bee said that the Intention of him who entaild the Land was that it should not be vntied or the state changed I answer No Act done by law can be free from Change further or longer then the Law that made it a binding Act shall allow And it is well knowne to the learned in our Lawes that every Mans Intention is to be construed according to Law by which his Act and Intentions are directed Wherevpon Civilians say in like Cases Valeat quantum valere potest Neither is it thought that any man who convaieth his Lands by Entaile can intend an Act beyond Law or desire that his sonne whom he makes Tenent entaile as our Lawyers terme him shall in no Case no not for the preservation of his Family or Releefe of many other of his Children haue power to cut of this Entaile and to be able to alien sell or giue his Lands as Reason Law and Religion shall permit For it may be judged that hee who doth an Act to a good End as namely to preserue his Family will alwaies assent to another Act which shall with better assurance then his owne strengthen his Intendment To the former Considerations wee may adde what Inconveniences may follow this Generall Position For if in conscience the whole Inheritance of the Father is to come without controle to the Eldest sonne then must it of necessity bee inferred that the Father without his Consent * Agens per medium est minus efficax in agendo cannot giue to pious * Da quae nō potes retinere vt consequaris ca quae non potes amittere Vses or set out for the Advancemēt of his other Children any 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 charitable Intentions should be provided for only at his Sonne 's or Heire's curtesy Which how * Pedissequa enim plerumque novi honoris est Arrogantia Salv. Ep. 2. absurd it is all men know For herevpon 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 Times when the Land is left to the Heire Generall to alter the Estate if the Land so cōvaied shal come to Daughters and to leaue it to a Brothers †Hebrewes call a Male-Child Zacar a memoriall because the Fathers memory is preseru'd in the Sonne See 2. Sam. 18.18 Sonne or some other of the same Name though peradventure many Degrees remoued for preservation of the Name and Family If this may bee deemed lawfull and no sinne being done against a well deseruing Child for whom Nature and her Deserts plead her worthy to be her Fathers Heire then without all compare if the preservation of a Name and Family may justly be labour'd for according to Power giuen by Law of God and Man the same may be lawfully acted against a debauched Heire who in any reasonable Mans Iudgement is likely in his shrowd to bury the Memory of all his Ancestors Vertues which should liue in him and his Progeny as his Progenitors did in theirs It is neither new nor strange in the Practise of our Times in Causes of this Nature to overthrow intended Perpetuities and by Act of Parliament to giue leaue vpon some good considerations to sell lands which otherwise by no Lawes can bee sold from the Heire the Father being but Tenent onely for terme of life Which surely by no Power vnder God could be done were the Thing in it selfe vnlawfull and sinne for * See Salvian ad Ecc. Cath. l. 4. Omne peccatum est Divinitatis injuria Whence may bee argued à Fortiori If power may be giuen to a Father being Tenent for Terme of life to sell his Sonnes lands only to pay his owne Debts peradventure idly made though it be to the Overthrow or extreame Diminution of his Family because Naturall Equity doth will that every one
Brientius de Insula hauing two sonnes both Leprous built for them a LaZaretto or Spittall and gaue to Miles Earle of Hereford farre the greatest part of his Patrimony from his Children The One of these Examples is in the Description of Devonshire and this other in Monmouthshire And this may suffice for clearing the former Document the subiect of this Whole Discourse by Exemplification CHAP. 10. That the Law of Naturall Equity Reason confirme iust Disinherison and that the riotous liues of Elder Brothers deserue that vehement Increpation with which the Author closeth vp this Treatise LET vs now look into the Nature of Equity and examine whether in Naturall Reason which is the Law of all Lawes the Temperate ought to be subject to Intemperate I mean within the Verge of private Families Fooles and Frantiks to whom no Law imputes * Voluntas crimê non habet vbi furore peccatur Salvian Sinne are not punisht for Theft or Murther or for any other Offense which they doe being mad or vnreasonable And though humanely they cannot offend yet in THIS SORT according to Equity they may be punished The Reason is All Law being groūded on Naturall Equity otherwise it is no Law doth not only punish Offenses committed but also prevents Offenses which may be done by rationall or irrationall Creatures And since Fooles and Madmen cannot offend to be punisht or by punishment be reform'd and yet they with whom they liue shall inevitably be offended if not overthrown by them hauing * Nothing more dangerous then armed Madnes power as namely Brothers Sisters and their whole Family put in danger of extreame Misery and Ruine the Law according to all NATVRALL EQVITIE takes all Power from them I haue inserted this clause according to Naturall Equity for that it is against Nature that Men should be subject to Beasts or insensible Creatures Whervpon Aristotle disputing the Nature of Rule and Subjection saith that None are borne * Servitude proceeds not from the Law of Nature but from Nature corrupted See Mr Downings Discourse of the State Ecclesiast p. 68. slaues but such as Nature hath abridged of the Vse of Reason who being truly slaues are vtterly vnfit to gouerne Upon which Ground the same Great Philosopher prefers that Forme of Politie where the Wisest and Best are admitted to the Manage of State-Affaires as at this day is most conspicuous in the Blessed Raigne * Consule Plausus Vita Illustrissimi Equitis D. Henrici Worton Viti omnium literatum linguarum ac Virtutum laude florentissimi and Regiment of our Most Gracious and Glorious SOVERAIGNE whom God preserue But it may be said What is all this to our Purpose Yes thus farre it may bee well applied If Natures Intent to make all Man-kind Reasonable according to their Species being hindred by some inevitable Accident shall so blemish and maime Those in whom such Defect and Naturall Weaknesse shall be found that They according to Divine and Humane Law may and ought to bee depriued of all Right and Claime to any Thing more then to sustaine Nature and debarred from all Superiority and Seniority which by Law or Custome might otherwise haue falne on them because according to Naturall and Divine Equity MAN ought not to bee gouern'd by BEASTS such as Idiots and Frantiks seeme to be If This bee so as according to Natures Rule it cannot bee otherwise what punishment shall wee thinke due to That Reasonable Creature The Prodigals Character See more of this Subject in that Reverend and Illustrious Author Democritus Iunior Part. 1. Sect. 2. Memb. 3. subsect 13. borne in a Civill Society of Men to whom Nature hath not beene a Step-dam in bestowing her Blessings and whose Name and Family hath beene ennobled enriched by the Vertue and Industry of many Worthy Predecessors who shall through Disorder and inordinate Desires habituated in him by Custome and Evill Conversation become an Vnreasonable and vnmeasurable sinfull and shamefull Creature a debauched * The Civill Law appoints Curators for Prodigals as for Madmen and Guardians likewise of their Estates the Want whereof is the Ruine of many great Houses in England See D. Ridley vbi sup p. 268 where hee notes a Defect in our Lawes which haue no provisionall order therein Bedlem a wild American a wilfull and most intolerable Madman a Thing vnworthy the Name of Man a Prodigall shall I say or a PRODIGIE who contrary to all Rule Law or Order of the most Barbarous Society of Men takes away by his outragious Impiety the Soule as I said before of all his Ancestors who being dead yet long might liue in their * Immortalitatem spondet Deus Abrahae cum Genus promittit Ambros Ariotous heire a Civill Monster Posterity and consumes the Womb of his Family Viper-like wherein he was borne and without all Remembrance of his obligement to the Dead whom as having his Being from them he ought to honour or Respect to the Living to whom hee should bee a Comfort devoures in some sort them of his owne Species Society and Blood All which the Canibals doe not For though they feed on their Species which are Men like Themselues yet they hunt after Strangers and nourish themselues with Others Flesh obseruing still some Lawe of Society among Themselues which our CIVILL MONSTER doth not For he contrary to all Course of Nature sucks oftimes the Blood of his nearest and dearest Friends namely his Children Brothers and Sisters yea some of these furious Fiends haue brought their all-tender-hearted Parents to the Greatest of all Woes Beggery in their old Age. And all this to maintaine by Force or Fraud a damned Crew of Roring Divels in the shapes of Men. Of eich of whom we may say dividually Tali Bacchus erat tali Gargantua vultu Tale triplex * Of the Family of the Treble-chins mentum Pantagruelis erat So did old Bacchus or Gargantua swell And such a Bull-chin was Pantagruell And of the whole Mad-cap Fraternity for they will needs be * Fratres in malo or fraterrimi as was said of Friers Sworne Brothers Pestis quâ gelidum Boreae violentiùs Axem Nulla vel infecit nulla vel inficiet A greater Plague to this our Northerne Clime Never yet came nor can in After-Time But to returne from the pursuit of these Salvages Nature hath given yea shee hath so strongly inhabituated a laudable Desire in all Creatures to * Salvianus excellently demonstrates this in Bees De guber Dei l. 4. p. 120. preserue their Species that directly or indirectly to attempt the Contrary were more then Monstrous Immanity Families be they Princely Noble Gentile or Vulgar are in a sort particular Kinds or Species allow'd of by Natures Law to bee raised Totus namque mundus totum humanum genus pignus est creatoris sui Salvian vbi sup and maintain'd vnder or in their cheefe Genus Mankind Vniversall which to defeat or overthrow by irregular extravagant and exorbitant Courses let the Philosopher either Naturall or Morall the Lawier either Civill or Canon the Divine Schoolman or Casuist judge how punishable Morall Law-makers in ancient Times praetermitted to make Lawes against Offenders of this nature Being asked Why They answer'd That no Man could be so impiously ingrate or inhumane Whereby is evidenced how transcendently haynous the Offense was adjudged by them and how severe Punishment were they to make Lawes in these our corrupt Times they would prescribe for such Cardinall Criminalls Thus much for the Ventilation of the present Point in Question In the arguing whereof if what I write in defense of Younger Brothers as here the Case is put I seeme to haue receau'd Ex traduce rather then Ex certâ scientiâ the wiser sort will I hope not blame mee For my Intent was onely as at first I promised to set downe a Table-Discourse and not a Controversy discust in Schooles If I haue spoken according to Dialecticall Reason as I beleeue then may I safely thinke that my Discourse is arm'd with strong Authority For what hath beene spoken heretofore truely which Reason hath not dictated to all * Salvianus in this Case may speake for All Nam 〈◊〉 omnes admodum filij membra parentum esse videantur non putandi sunt tamen membra eorum esse à quibus affectu caeperint discrepare quia morum degenerantium pravitate pereunt in talibus beneficia naturae Though all Sonnes be equally Members or Portions of their Parents yet are not They so to be reputed that shall by 〈◊〉 Courses wilfully dismember themselues from them for degenerate Conditions tender such Children vnworthy of the Benefits of Nature Salvian de gubern Dei lib. 3o. Authors Pennes If therefore I were able to cite a Thousand Great Authors for what I haue said yet All would amount to no more but that which Naturall Reason hath or may teach daily All which with my Selfe I intrust to the gentle and equall Censure of my Courteous Reader FINIS Implumis ales nunquam Coelum Omnivago penetret volatu LAVS DEO ET IESV MEO