as he did then in the Ghospell would vse an vnknowne discourse or striue to make the truth appeare to our weake vnderstandings by a Parable which in equity could not be true Noe surely For it appeares by Salomon his succeding to his Father Dauid that Dauid had power by the lawes of god and man to giue his Kingdome to the worthiest which hedeeming to be Salomon gaue vnto him his Kingdome though he was the yongest sonne Neither was there any iust exception made against Adonias his eldest Brother or against some other of his Brethren why they should be disinherited by their Father Dauid contrary to the common practise of those tymes in setling inheritances But the only knowne reason of this act in Scripture was Dauid promise made to Salomons Mother togeather with her great intreaty made to Dauid to performe the same Which surely he would not haue done except hee had found a lawfull power in himselfe to haue executed the same And thus much concerning what may be said out of Scripture or law of God in our present question CHAP. IIII. That nations begining to denise sundry formes of setling Inheritâ—nces the Romanes especially therin respected the free power of Fathers the right of Children to their Fathers estates begining only at their Fathers Death HAVING now declared in the former chapter what the lawes of God and Nature doe determyne of our present question we inted to examine in breif what is comaunded by the law of Man aswell ciuill of other Nations as common of our owne Gontry And first touching the ciuill Law thus Though that all Law which euer had but the name or credit of Law doth surely deriue her originall from the Law of Nature whereupon Cicero many hundreth yeares synce said that the ground of all law making is to be taken from the chief law which was borne before any law was written or Citty builded yet do they differ much in forme For as it is no law but tyranny which wholy disagrees with the law of Nature as Aristotle saith so if it agree in al with the law of Nature without limitation or difference it must of force be the very law of Nature it self and not the law of man Which surely is nothing els then a temper or forme of equity drawne by right reason from the grounds of Natures lawes according as tyme place and the Natures of men either gaue or shall giue the occasion For though new lawes be dayly made of new seuerall accidents yet all are agreable to the old and ancient grounds of reason in Nature the iust Mother of all law Wherefore hauing set downe before what the law of Nature is touching the matter in question I shall need only now to shew what temper or forme hath thereunto bene added by the Ciuill Lawyer After that mankind was inforced yet by Natures warrant as I haue said to make a partition of the Blessings of God and Nature and that men were possessed by the same right of goods and lands which they desyred to leaue to posterity law-makers and in particuler the Ciuilian deuised by little and little certayne formes of inheritance and ordination of heyres at the first somwhat rigorous giuing to Parents power of life and death ouer their Children a free disposition of all their fortunes to any one of them in his life but dying intestate then all which was the Fathers to be equally deuided among the Children as wel daughters as sonns Which Constitution was afterward vpon good grounds altered The Father being bound to leaue euery Child a portion which the Ciuill Lawyer calleth a legitimate others a Patrimony which at the first was the eight part of the Fathers substance equally to be deuided as I haue said which after a while seeming little the law commaunded that the fourth part should be left without controule except that vpon iust cause the Testator did disinherite him or them who by course of law were to succeed him still vpholding the former lawes that aswel daughters as sonnes should equally succeed to their Parents dying intestate herein assigning fourteene Causes why an heyre might lawfully be disinherited Many hundred yeares passed from the establishing of the Ciuill law and before that it was ordayned by force of law that Parents should leaue a Childes part as it is now called or that he could not disinherit without expressing the cause thereof in his last Will yet in all this tyme nor vntill this present day the priuiledg of engrossing all by Primogeniture was not once heard of or at least wise not admitted but rather excluded as by many texts in the same Law it well appeares The end of the Imperiall or Roman Ciuill law being only to maintaine morall Iustice inthree short precepts Liue honestly Hurt no Man Gine vnto euery one his owne So he who obserues these three fulfills this law yea the law of Nature from whence this law is sprung Now if any Brother can proue that his Father either in life by deed or by will at his death disposing of his goods lands no otherwise then I haue set downe doth none act against these three then why should he not content himself either with the fruits of his Fathers loue or his owne deserts whatsoeuer they be True it is that in Naturall iustice children during their Fathers life haue Ius ad rem and not Ius in re to a Fathers goods Whereupon the Law calleth them Quasibonorum patris Dominos Which their right onely takes effect after their Fathers death For during life hee hath power to alter alien sel and giue as it shal please him according to forme of law but being dead without will or disposition therof they fall vpon his children as I haue said according to the law of nations This law imbraceth a two fold iustice the one in exchange the other in distribution The first hath not to do with our cause the other surely rather commends then condemns a Father who vpon good occasion that is for the bad demerits of his eldest sonne and for the preseruation only of his family shall giue or conuey his lands goods to the yonger For the Nature of distributiue iustice is not only to giue proportionably to the well deferuing but also to forbeare to place benefits vpon any one who shall abuse them or vse them to any other end then to that good for which they were lent him and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his goods to an euill end or to any one whom he assures himselfe will vse them to the dishonour of God or the wrong of those who shall liue with him or by him of which I will speak more in the last chapter being there to handle what a Father may in conscience do or not do in our present question with sinne and without sinne And thus much of the Ciuill and Canon Lawyers auerment of an elder
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
THE YONGER BROTHER HIS APOLOGY BY IT SELFE OR A Fathers free power disputed for the disposition of his lands or other his fortunes to his Sonne Sonnes or any one of them as right reason the Laws of God and Nature the Ciuill Canon and Municipall lawes of this Kingdome do command By I. Ap-Robert Gent. Nisi Dominus aedificauerit domum in vanum laborauerunt qui aedificant eam Psal 126. Vnlesse our Lord build the house they haue laboured in vayne that build it ¶ Imprinted Anno M. DC XVIII TO ALL FATHERS AND SONNES OF WORTHY FAMILIES VVhome Vertue Birth and Learning haue iustly stiled Gentlemen Health Happinesse and Increase of the best Knowledge AS in the front of this briefe Discourse there is Right Worthy Gentlemen already deliuered vnto you some light of that which concerneth the Quality Reason and Scope of the same so do I heere sincerely professe that I did not priuately write it at first but for priuate satisfaction neither do I now make it publique but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking Paradoxicall Age. Not vpon the least presumption of a self-sufficiency to confront thereby any receiued Custome if any such bee nor to diminish the naturall Reuerence due by Younger Brothers to their Elder not to enkindle emulatiōs in families nor to innouate any thing to the preuidice of publique or priuate quiet which none I hope wil be so ill affected as to suppose neither myne inoffensiue zeale for younger brothers among whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Laws which I hauing a little studied do not a little respect nor the particuler honour I beare to the vsages in this point of our anciēt Britans from whom I am descended nor disire to maintaine and iustify an act in this Kind done by a Friend whom I must euer reuerence nor yet the hope of bettering my priuate fortunes which mooues men much in these our tymes hath drawne me to this vndertaking but principally as before is sōwhat touched the singuler Respect which as a Patriote I beare to the glory and good of Gentlemens Houses whose best Originalls surest means of Maintenance and principal Ornaments are Vertue or Force of mynd The want whereof is a comon cause of ruine The free Power therefore of You who are Fathers is heere in some special cases argued and defended to giue you occasion therby to consider with the cleerer eye-sight for the establishment and continuance of families Heere also the Naturall rights of vs that are children be so discoursed and discussed as that we younger Brothers may haue cause and courage to endeauour by vertuous means to make our selues without the least wrong to any capable if need shal be of the chiefest vses And both and all are so handled as that no offence can reasonably arise in any respect much lesse for that the whole is conceiued and written in Nature only of an Essay or Probleme to which I bynd no man to affoard more beliefe then himselfe hath liking of is free to refute the whole or any part at his pleasure as he feeles himself able and disposed If I may seeme among some to haue handled this subiect with more earnestnesse and acrimony then they think expedient let them be pleased to weigh the Decorum of Disputes which is principally herein obserued their Nature absolutly requiring quicknes and vehemency on whether syde soeuer Neither let this length of Epistle seeme vnto you like the gates of Myndus which were so great and the Citty so little that they ministred occasion to the Cynick to scoffe at the disproportion bidding the Townsemen shut their Gates for feare the Citty should run out through them seeing that in a new Matter a necessity lyeth vpon me to vse so large a Preparation As for the remedies of Euils by way of enacting Lawes that is the proper office of Magistrates and Courts of publick Counsell neuerthelesse to speak and treat of them vnder the fauour and correction of Superiours to whome I do alwaies very dutifully submit is a thing which may well belong to euery man But as for those graue and learned Censors vnto whom I may seeme to haue bestowed my paynes in very needlesse arguments because no lesse then I my self they hould the case as heere it is put to be most cleere and out of Controuersy to such I answere that I wrote it not for them vnlesse perhaps to confirme their iudgments but for others who are not altogeather so perswaded Nor to any as to prescribe or bynd further then their owne Consciences shall thinke good For that were far too peremtory Finally nothing being heer defended but by Authority Reason and Exāple nor any person taxed nor particuler personall vices if neuerthelesse I haue not performed my part in the worke so well as I desyre or as the Cause deserues which I feare I haue not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good intentions sake your will euer conceiue well of and taken into your speciall protection Your vnfayned vvel-vvisher I. Ap-Robert THE YOVNGER BROTHERS APOLOGIE CHAP. I. The Occasion of writing this Apology is to proue that Fathers may in some cases dispose of their worldly Estates to which of their Sonnes shal reasonably please c. for so much therof as they will and that to be Lawfull by the Law of God of Nature and of Nations NOT many moneths since being inuited by a deare friend of myne to a solemne Feast made by him to many of his well-deseruing friends it was my fortune at that Meeting to acquaint myselfe with many gentlemen of no meane discourse Whereby I feasted as well my vnderstanding with their pleasant society as my taste with the variety of most excellent meates With what our Senses were delighted I let passe to recoumpt since neither profit pleasure nor praise can arise thereof either to the writer or reader Only my intent is to make my Reader acquainted what accident caused me to write this small Treatise and imbouldned me to publish the same to the cōmon view of this al-reprehending age In which neuertheles I do rather hope for allowance then in any sort to feare displeasure For though my subiect be new yet I hope it shal want at the first rather age strēgth which growes by yeares then probable arguments yea forcible reasons to defend it selfe As for friends I hope it will fynd some and peraduenture more then enemyes if it deserue well For as younger Brothers be more in number then elder so are they generallie more free in bestowing their deserued loue For want breeding vnderstanding makes them knowe prize their friends according to their worth Whereas the elder either seated in their Fathers wealth and possessions with more then hopes to enioy their Fortunes do somtynes neyther
loue truely themselues not any man els but abusing that which indeed might gaine the loue of God and Man and easily mayntaine their hereditary honour loose themselues in Vanity most idle courses yea in their Fathers liues so strangely carry themselues as though the law of God of Nature and all other Canon Ciuil National lawes constitutiōs customessprūg from thē could not either in reasō or religiō bar them of that which they expect or giue to a wel-deseruing younger Brother any little hope lawfully to share with thē the least part of their Fathers inheritance much lesse to expect an elder Brothers fortunes oron any termes or for any cause by a Fathers fauour to step before them Which argument among many others was then handled by the Company Pro and Contra so doubtfully that it gaue vnto me an occasion to write this present discourse concerning the free power of some Fathers Wherein I intend to displease no elder Brothers no not them who not inheriting their Fathers Vertues striue not to mayntaine their Ancestors honour in preseruing their Noble Names and Families by which as a reward to their vertues and trauells men haue alwates laboured to liue to al succeding ages their Posterity But my intent is to shew how opinion inconsideration makes oftentimes the wise to be scrupulous and through superstitious zeale not only to feare to doe that which reason may or might haue comaunded but rashly to condemne other mens acts as vnlawfull and irreligious Which according to reason and Religion haue bene done ratified vsing themselues that Custome for the ouerthrow throw of their families which was indeed only deuised for their preseruation and being hood winked with false conceipts do wittingly leaue that which they and their Ancestours had gotten as the reward in this life of their vertues to be the future fuell of al inordinate desyres Beastiall sensuality which in their prouidence they could willingly otherwise haue disposed of All which I doubt not but to make cleere to the impartiall reader prouing by the lawe of God and Man that a Fathers freedome is such that he may Lawfully and Religiously giue his lands and goods or other his fortunes to any of his Children for the Preseruation of his Name and Comfort of his Posterity without all scruple as right reason or the better deserts of a Sonne shall perswade him voyd of all tendernesse or blyndnesse of affection which oftentymes leads a Fathers will and corrupts his vnderstanding so as he be true Lord therof not tyed by consideration of Money receiued or Contract made by Marriage of his Sonne which may alter the Case and make the Sonne Lord and the Father to haue but the vse only during his life as all our Common Lawyers well know In which Case we also haue experience that our Law permits many tymes to alter the Title and to vndoe what by former tymes was held not to be controlled But of this point I wil not treate Only I meane to argue whether a Father possessed in fee-tayle may in law and equity vpon the former considerations make any child which he hath his Heyre leauing to the rest a competency do an act which according to equity and Religion may stand good and valuable In this my present discourse let not any expect many quotations of authors for I neuer read any of this subiect What I bare away of the discourse made by my friends that I will set downe and what other reasons my vnderstanding shal affoard which I hope shal proue so demonstratiue that they shal be of Authority sufficient to satisfy my reader or incite some better pen and vnderstanding to treat of the same more largely substantially And lastly cheifly to cleare some of my Worthy friends frō those imputations which I fynd the ignorant to lay vpon them which if I may do I shall think my tyme and paines well imployed CHAP. II. That the grounds of all good Constitutions being in Nature yet shee neither before nor after the law of Propriety established did cōmaund that all should be left to any one more then to another SVCH are the wise tēperate workes of Nature that nothing is done by her rashly or unaduisedly For though in the infancy of the world she had an inuincible power to produce all effects which thé had their Originall in her yet being studious to please mankynd not only with variety but also with rarity successiuely discouereth and dayly doth disclose to the searching wits of the world her secrets as Tyme and Place either hath or doth dayly beget Occasion still as it were keping in store her heauenly treasure till mans necessity best moues her liberality For what can the wit of man deuise or what doth tyme or Art make knowne which good is that Nature from the first tyme shee began to work had not in her though to her selfe only knowne the ground thereof either to produce the particuler or general effect which wisely she left to be tempered according as the reason of man whose glory she pretends should think fittest to giue the forme as tyme place and the Nature of the thing should require For though that Mariage as it is a coniunctiō of man and woman contayning an inseparable society of life be of Nature it selfe and as Deuines and Canonists hold to haue his Originall in the state of innocencie which vndoubtedlie was then ordayned for issues sake from which a lineall succession was also intended yet vntill necessity in forced man to make diuision of the Blessings of God and Nature the claymes and rights which follow lineall succession to inheritance were not discouered For all things being common among men many ages were numbred from the worlds beginning before any man laid proper clayme to any thing as due to himself alone Wherby it well appeares that hereditary succession or Title to a Parents lands or goods could not then be in vse or so much as thought of This I perswade my selfe was the law of Nature vndepraued To the which I inclyne my will the sooner to credit because I find that all sorts of people as well Christians as others who haue perfection in Naturall Society or a perfect Religious life in a Natural and worldly cōuersation of men haue do daily imboace this naturall and blessed community Which happy law of Nature as I haue said for many age and without doubt had longer contynued had not sinne which breakes al vnion and depraues all naturall perfection gotten such dominion in the myndes of men that in naturall equitie all things could not longer be vsed in common For as some being possessed with an vnsatiable desire to get rule and raigne sought the oppression of others by taking from them that fredome which Nature had giué them so others giuen to sensuality and idlenes sought to liue of other mens labours Wheras by Natures lawes euery one ought to liue by his proper industry within
heritance should be left to any one particuler person and namely to the elder Brother yet in some Cases it would not bynd the Father to obserue it For as in the former Cōmandements vpon some considerations the Cōmandement may be dispensed withall so in this For it is not sufficient to be the elder Brother or the nearest in bloud to gaine an inheritance in the Case which I haue now proposed for other circumstances must concurre which if they be wanting bare propinquity or ancienty of bloud may iustly be reiected and he that is second third fourth fifth or last may lwafully be preferred before the first and this by al law diuyne and humane and by all Reason Conscience and Custome of nations Christian For if it should fall out that the next in bloud should be a Naturall foole or a madman or being taken by the Turkes or Mores in his infancy and brought vp in their religion would maintaine the same or if any other such accident ministring cause of iust exception should fall out is it likely that any law would allow that such a man should be admitted to the inheritance Wherefore how idly should they talk that would haue that it was his birthright or that God and Nature had made him heire since that neither God nor Nature doth imediately make heires as I haue sayd before True it is that God and Nature makes men who by the mediation of the lawes and customes of nations may come to be heires Vpon which ground our cómon Lawyers say that no heyres are borne but men and law make them True it is that in holy Writ great respect is had of the first begotten a blessing is held to come to parents thereby But this blessing I presuppose to be that therby the feare of sterility was taken away which in the old Law was held to be a great punishment of God and in respect thereof parents had of themselues and by the nationall lawes and customs a great regard of their first begotten and preferred them to the better part of their possessions yet not by any commaund from God as a precept to bind his elect people vnder paine of sinne For had any such Law bound them vnder such a penalty then should it bynd all Christians now on the same conditions For we see it by generall practise of all countryes to be otherwise Therefore it followes directly that it was not Gods Comaundement but a Nationall Law For God both is and ever was one without chaunge to all his people and so euer were and wil be his Lawes positiue made for them that truely worship him The clayme which Esau made to his Birthright was not by the law of God as some ignorantly affirme but by the lawes of his country For should the law of God haue commaunded it it had bene sinne in his Mother and brother by cunning to haue gotten it from him Neither could the Father or the State wherin they liued vpon no iust cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme by allowance from God and as it may be iudged by the sucesse Whereby it is thought that God ordained it as a punishment of the one and blessing of the other which by the permission of sinne to be committed God doth neuer do Neither did the Nationall law or custome of the Iewes as it is said absolutly commaund the Father to leaue vnto his first begotten all or the greatest part of his goods and fortunes But if in case he died not disposing therof by act in his life or will at his death then the custome of the Nation layd a double portion on the eldest or first begotten prouiding for the rest proportionably By all which you may gather that neither the law of God or man in this case commaunded that Esau should haue the inheritance but power to do the contrary was giuen to the Father in his life tyme euen by the law it selfe For many Deuines hold that Esau selling his Birthright as it is termed sould not goods or lands but his clayme of being high Preist after his Father which by custome was to come to him being his Fathers eldest sonne Of which dignity God seing him vnfit permitted him to passeaway his right in his Fathers life as we read in holy writ and which God seemed to approue And thus I hope this objection is answered Further if it were true that the effect of Eldership were such by the law of God as some passionately defend that is that the whole inheritance should of right pertaine to the eldest thē sure it followeth by good consequēce that there should nor euer could haue bene but one temporall Lord of all the world For of necessity Adams inheritance should haue gone still to the next in bloud which how absurd it is let all men iudge Moreouer we read that Nöe hauing three sonnes and the whole world to leaue vnto them gaue it not all to the Eldest but equally deuided it among them and their posterity as all authenticall histories do witnes God requiring obedience of children to parents promised a reward saying Honour thy Father Mother that thy dayes may be long in the land which the Lord shall giue thee This surely was not spoken to one but to all the children of men For with God there is no exception of persons but as a iust and pions Father he giues euery one according to his deserts Terram autem dedit filijs hominum We read also in holy writ how the prodigall child being weary or his Fathers house came vnto him and boldly sayd Pater da mihi portionem substantiae meae quae me contingit This child of which the Gospell speaks was the yoūger brother yet you see how boldly he sayd giue vnto me that portion of goods which belongs to me By which words it is euident that a diuision or partition of a Fathers fortunes was then in vse and that any child as well yoūger as elder had power by law to demaund his legitimate or childes part according to the Nature of the Ciuill and Canon Law as you haue heard For the words following in the text are these Et diuisit substantiam illis Thus we see that the priuiledge of Eldership was thē excluded which now in our countrey by custome onely is gotten to be of such force But it may be obiected that this was a parable onely as indeed it was and cannot be alledged as law True it is yet it cannot be denied but that all similies parables or examples which euer were alledged by the wise and learned to represent the truth haue euer bene deriued from the customes and nature of things according to the knowne truth in that tyme place and to those to whome the speach or discourse is directed And shall we think that our Sauiour Christ being wisdom and truth it selfe treating of so important an affaire
brothers right to his Fathers fortunes CHAP. V. That the present custome in our Cōntrey of giuing all or almost all to the Eldest was neuer so begun that it meant to exclude iust remedies for such euills as should growe out of the abuse of that custome when it may make Fathers guilty of their sonnes faults and of their families ruines I Haue of purpose reserued to treate of the lawes of our countrey in the last place because I assure my selfe that they are of most force to sway the matter in question For many things may be permitted by the lawes of God and Nature and yet they on the contrary are forbiden or practised by course of law in seuerall States of the world as the law-makers and the customes of the countries do allow or comaund I do confesse that the generall practise of our tyme among parents is to leaue either all or the most part of their lands to their eldest begotten sōne This without all question was as it hath bene said first deuised in former ages for the preseruation of a family and to raise some one who might be a comfort to his brothers sisters and family and in whom his progenitors vertues might line to the world Moreouer I will not deny but the partition of lands may bring in the end a goodly estate to nothing or to so little as it may be like an A tomie in the sunne yet I find in Naturall reason that ex nihilo nihil fit or at lest that Haud facilè emergunt quorum virtutibus obstat Res ang ista domi But if men do faile of those happy ends to which this generall custome should guide then would I wish that they would not vse that for their destruction which was meant for their preseruation For who doth not see in these our tymes may vnbridled youths to be so violently carried away with the humor of spending that they neglect brother and sister yea bring to extreame misery their Naturall Mothers after their Fathers death by their vnthristines What help for this hath law left vnto vs no means to put a bridle to these vnruly colts if they become heires according to the custome of our tyme no truely For some starting hole wil be found to vnty the knot which a Fathers care once tyed How then must many an hopefull and well-de seruing brother and sister be left to the mercy of this whirlwind There is no necessity in it For our law hath giuen power to a Father free will to dispose of his owne according as reason shall guide his will without all obligation to his heire Besides this custome takes place onely after a Fathers death if he dispose not of what is his by deed in life or by will at his death But least my words be more generally taken then they are meant I meane those Fathers who are possessed of their lands in fee or fee-tayle that is are absolute of themselues and haue not vpon good consideration conuaied their lands from themselues For all our lawyers do agree that such parents may alien sell and giue by power of our law their lands to whome they wil without respect of person or eldership But me thinks I heare one say that the custome is otherwise and that this custome is a law True it is the custome But let vs see whether it bindes sub peccato or as a custome which rather inuites then commaunds There neuer was any comaund to tye a Father vnder a penalty which admits no limitation but it was euer left indifferent and then only to take place where former prouision according to course of law is not made thé surely a parent is free from this deuouring custome and may in good consideration preuent what euill it may bring to his posterity yea reason comaunds it should be so For Interest reipublicae vt quilibet re sua bene vtatur as saith the ciuill law For if a man can ney ther sell nor set much lesse can hee giue any thing to another which he thinks in his conscience will vse it to the dishonour of God the ruine of himselfe or others Some Deuines hould that it is not lawfull to sell or let an house to any that he thinks assuredly would make thereof a stewes or to sel giue or lend a weapon to a man who intends therewith to do murder Excomunications are imposed on them who sell armes offensiue or defensiue to Turks though they be not assured that they will vse them against Christians Thus wee see the rule of conscience not onely to commaund a man to vse well those fortunes which God hath bestowed vpon him but forbids him either vpon affection or gaine to part with them to others who wil abuse them least he be partaker of others sinne which a parent may be after death who leaueth his lands to a desperate vnthrift But what religion and conscience doth commaund shal be declared in the following chapter In which vpon grounds drawne out of these former foure Chapters it shal be argued what sin may be contracted by the parting of an estate among sonns or by disinheriting of an eldest sonne vpon iust cause and vnto whom the Father is only tyed by the Custome of the Countrey without obligation of promise or contract in Marriage which may alter the Case CHAP. VI. That it is no offence before God for a Father being tenant in fee-simple to disinherit the eldest or to parcell his estate vpon cause that extreme vices of Heyres apparent togeather with the fewer meanes which younger Brothers haue now to liue on then heeretosore cryeth out against the contrary opinion THE right of these insociable inheritours of which wee now treat may grow as I magine out of three titles or claymes which they may pretend to a Fathers inheritance wherby it may be deemed as they think sinne in a Father vpon what desert soeuer to barre them of the faid right These three tytles are Purchase Custome and Entaile Of ech seuerally And of the first which is Purchase surely in the iudgment of the good and learned there is no question in law or conscience but that a Sonne ioyned Purchaser with his Father hath Ius in re and by equity must suruyuing his Father inherite such lands as were purchased in their names Now of the other two though it be as cleere as the noone light that a Lord in Fee simple or Tenant in taile may sell or giue by course of our Common law at his pleasure all such lauds held by him in that kind according to those formes of law which the learned in our lawes haue and can set downe yet there seemes to arise a great difficulty how such an act or acts may in cōscience be executed I haue heard some say in this our Case Summum ius summa iniuria Of these points therefore I will speake saluo meliori iudicio what may in Conscience vpon good and iust occasion giuen by the sonne to
his Father be put in execution It is well knowne to all diuines as I haue said that holy writ hath not prescribed any direct or precise forme to the Children of God whereby they are bound in Conscience to dispose of their lands goods but hath absolutely left them to the customes of their Country where any act of that kind shal be executed only as confirming all formes of deuises which by publick consent and authority either haue or shall in rightfull manner be deuised or ordained Out of this ground and others before mentioned let vs examyne whether a Father parting his fortunes by power of law and on iust cause shall do a wrongfull and a sinfull act as some pretend to make it I confesse that euery act in it self or by Circumstance euill and which vpon no occasion can be iustified is both before God and man sinne and is by no means to be executed by a Christian But that the parting of an inheritāce or the disinheriting of an eldest sonne vpon iust cause and according to course of Law is an act of that nature doth not appeare For I do not fynd that either the Law of Nature or grace nor yet the Lawes of man common ciuil or Canon euer forbad such acts whereby sinne may be imputed to those who do them on good considerations Sure I am that the Cannon and Ciuill Law are so far from forbidding them that they commaund as a thing in equity the Father either to deuide his inheritance or allow him according to his affection to giue to one more then to another yet with this prouiso that he who hath the least haue his childes part which the Law doth also assigne except on iust desert he do disinherit any one which at this day may yea must be by will with the cause of disinherision named therein Of which causes the Imperiall Lawes haue set downe fourteene as it shall well appeare to them who are desyrous to vnderstand more thereof So it is euident that by these two Lawes no sinne can grow vpon such acts being done vpon their warrant and vpon such consideration as hath bene before often by me set downe As for the cōmon Lawes of our Realme sure it is that they allow no lesse and with a greater preuiledge For a man may by this law giue his landes held in Fee either by deed in his life or by will at his death to any of his Children yea to a stranger without rendring a reason why he doth so True it is that a Father not disposing thereof in such sort the Custome giues the whole estate to the eldest yet in some parts of our Country the youngest Brother by Custome is to haue the land held by some kind of tenure if the Father in his life tyme do not dispose thereof As yet therefore I cannot see how any sinne is commited or contracted by the former acts being neither done against the law of God or man as we haue proued except it should be said to be sinne not to leaue it to the power of a custome which cannot be except the former law shal be proued not to be of force and no way to be executed which can no way bee done For though I must confesse that the custome of leauing the child-estate to the eldest sonne hath of later times bene much imbraced by our Gentry for the preseruation of their families for which it was inuented For the tymes haue so ruled that men of sort being either idle or not possessed with a couetous humor haue contended themselues with their Fathers fortunes and haue preferred their younger sonns by those means which the tymes did affoard which preferments were thē better then now they are namely by many cōmendable courses as either by seruice of spirituall men whereby many were raised or by professing a spirituall life whereby the younger brother hath oftentimes in hōnor stept before the elder But this manner of life is not so gratefull to our English gentlemens Natures as it hath bene The trade of the Merchant the Military profession the Courtyers life aduanced many more then now they do and lastly the elder brothers were the of better temper in spending and if they had no humour to get yet had they a care to keep what was left vnto them and euer held themselues bound by religion to prouide for their younger brothers and sisters left to their dispose which now is far otherwise For an elder brother is found to spend more in a yeare idlie then would prefer or maintaine a whose familie noblie and to suffer their brothers and sisters to shift which as these times shape is oftentymes to liue either lewdly or most miserably being forced either to forget their good education or to lay aside all badges of gentrie who otherwise with some reasonable helps might do God their Countrey and Family much honour Since wee haue gone so far let vs see on what grounds this custome first hath risen Surely for the maintenance of a family yet led with an ambition at the example of princes who finding some difficulties in the admitting of many to a gouernement and feling what inconueniences the parting of an estate brought deuised that one should gouerne sometimes the worthiest sometimes the eldest was elected according as the order was agreed vpon and yet the other brothers were mainteyned like Princes And thus custome also among them hath bene broken without imputation of sinne For to go no further then our later times it is well knowne that Ferdinand Charles the fifth his brother being setled in the Empyre deuided his estate To Maximilian his eldest sonn he left the Empyre with Austria Hungaria and Bohemia To Charles his second sonne Styria Carinthia and other dominions And to Ferdinand the youngest he gaue the Earldome of Tyrol All which if in his life tyme he had not disposed of had come to the eldest Philip the second late king of Spaine gaue to his Daughters the 17. Prouinces which were of right to haue descended to his sonne after his death if he had not disposed thereof in his life tyme. This is and was deemed lawfull by the Diuines of this age otherwise surely they would neuer haue done it But doth this custome in meaner degrees work that effect which it hath done in them No truely For as wee haue proued it is rather the ouerthrow then the preseruation of many families And let vs see withall whether families florithed not as much and more then now they do before this custome was receiued Liuic saith that three hundred of the Faby being all of one name and family issued out of Rome gates at one tyme on their owne cost to the defence of their citty which was done before this custome was dreamed of In Scotland 300. of the name and family of the Frasers gentlemen were at one tyme slaine in a fight by their enemies neighbors and 140. gentlemen of one name in Yorkshire waited vpon their chiefe
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
of a Fathers soueraigne power ouer the life of his child giueÌ„ to him by the lawes of the twelue Tables where it is written that * Leg. 12. Tabular cap. 3. Dionys Halicarnass Lib 2. Antiquitat Paterfamilias haberetius vitae yea more terque filium venundandi potestatem I will briefly and effectually proue what I affirme herein out of the sacred Text it selfe There theÌ„ it plainely appeares that Fathers had power among the Iewes to cause their children for riot disorder or vnthriftines to be stoned to death Ergo power to disinherit Deuter. 21. For the greater doth euer include the lesse And not to seeme to speake without booke it shall not be amisse to set downe Moyses words which are as follow If a man shall beget a stubborne and vnruely sonne who shall not heare the commaundement of his Father and Mother and being chastised shall contemne to obay they shall apprehend and bring him to the seniours of that Citty and to the gate of iudgment And they shall say to them This our sonne is headstrong and disobedient contemns to heare our admonishments giues himselfe ouer to rioutous excesse and is a drunkard The people of that Citty shall ouerwhelme hini with stones and he shall dye that yee may take euill from among you and that all Israell bearing it may feare Out of which place in Gods word wee may gather how odious a vice vnthriftines was among the people of God what ample power a Father had to punish the same in his child For if wee do well obserue the manner of the processe betweene the Father and the child in this case we shall fynd that the Father was accuser witnesse and as it were iudge of his owne cause For we fynd not that the Seniours of the Citty did giue sentence or further examyned the proofes of the Fathers accusation but their presence giuing as it were allowance to a Fathers power and intention to punish his sonne the people might without more inquiry stone to death so euil a deseruing child Which being by my reader well considered my hope is that it will neuer heerafter seeme vnlawfull though somwhat straung that a Father should disinherit his eldest or any other sonne of his for the cause only of vnthriftines And although the world of men is grownâ—â—â— to that greatnes that it is necessary that one generall Father or politique head should be in a Kingdome or State which may iustly abridge some of those priuiledges and abate a Fathers power all Fathers being become children to the Father of all Fathers their Lord and King vnder God yet the power to raise and maintaine a family by good and lawfull means is still both allowable and commendable in a Parent Who may from tyme to tyme reward according to distributiue iustice al those who liue vnder him by leauing his fortunes to them as in iustice they shall deserue and law shall allow So that there is no question but he may still disinherit according to the power of that law vnder which he liues For no other tye is ouer him God and Nature allowing that at this day and for euer which once they gaue vnto him Which authority he not only may but ought also to execute as far as the law of man shall permit otherwise he shal erre in his Paternall iustice For a Father is not only to beget and nourish his Children in his life but by Natures law must prouide to his power that they liue both in his life after his death to the honour of God the seruice of their Country and Comfort of their family which were the only ends for which God created man a ciuill a reasonable Creature All which if it shall assuredly be thought by a Father that any Child of his will wholy neglect or rather execute the coÌ„trary theÌ„ no question a Father is not bound to leaue him any more then shall honestly suffice the necessities of Nature For as I haue said before no man may giue or lend his goods to any one who will in all mens iudgments assuredly abuse them But let vs see whether a desperate vnthrift may be arraigned and adiuged guilty of these accusations Surely it is cleere that all vnthrifty courses are displeasing to God and contrary to his honour And how can he be able to serue his Countrey who in short tyme will not be able to serue himselfe with necessaries wherewith to liue but must of force be mainteyned like a Droane in a Common wealth out of others labours As for his family what greater discomfort can it haue then an absolute ouerthrow whereby the Noble acts and honour gotten to it by their Predecessors vertues are buried in obliuion and the present and future hopes of all worldly and lawfull honour vertues temporall rewards are taken away And shall not all this deserue disinherison Can there be a greater sinne committed against the honour and essence of a family as it is a family then to be spoyled of her honour life it self For in these our tymes welgotten goods and vsed as they ought are the only soule by which a family and all the vertuous acts which it hath done may liue Since therefore the highest is sought and aymed at in this sinne surely according to the proportion of distributiue iustice the greatest punishment is in equity due to the same according to the reason of the precept â—us suum vnicuique tribuere Nature teartheth the silly Bees in their Common wealth to do to death their Droanes who liue of others labours and shall it then be thought vnlawfull for a Father so to punish an incorrigible vnthrift who will not only liue of others labours but also subuert the honorable endeauours of his Noble Ancestors Thus if sonnes may be deemed domed by the offended hauing power to do both according as the offence done against them shall by circumstance be of quality as we haue proued they may and ought then certainely it is lawfull for a Father so to do as I haue formerly set downe But because example in all doubtfull questions do make their side the stronger it shal not be amisse for the cleering of all the premises to add some few to the former drawne as well from Kinges by whose patterns totus componitur orbis as from inferiour persons whose qualities best fit the condition of our present subiect And if kingdomes and CoÌ„mon wealths haue fauored it then certainly by all arguments à maioriad minus it may much rather be done and ought to be suffered in priuate families CHAP. IX The maine points of the Premisses exemplified in diuers particuler Facts aswell of Princes as of priuate Men. It is not fit perhaps to vrge the better acceptance with God of Abels offering aboue Cayns the elder Brother but of that estate which Abel had in Adams Patrimony Abel Nor will I reinforce the memory of Iaphets share in his Fathers right to the whole
world though he being the youngest sonne of three had Europ for his inheritance which in all arts and vses of life far excelleth Affrick Asia and all the rest of the earth Whereas according to the pretenses of those customary challenges Iaphet Sem should either haue had all or byn Lord Paramount of all Cham and Iaphet with their posterity but Farmers or Fre-holders vnder him I will not also as if there were penury of resemblances againe vse for example Esaus disinherision though that were inough for our present purpose For if it had bene sinne which Iosiphus the Iew neither in his Antiquities or Scripture faith the Mother could not haue procured it God would not haue prospered it nor Iacob himselfe being a good man haue accepted it nor Esau whose anger Iacob feared haue left it vnreuenged Neither is there in Scripture nor in any writen Law vnder heauen any commaundement to restraine the Fathers power but rather the contrary For such is the law of Nature that they who are exaequo one mans children should if not exaequo yet not exiniquo be prouided for Against which partiality the Imperiall Lawes admit so forcible a remedy vnder the title of an inofficious Testament as it shal inable the yonger childe to a certaine proportion of estate whether the deceased Father would or no if he had no iust reason for omission or disauowment in his last will The example certainely of the same holy Patriarch Iacob in preferring Ephraim before Manasses Ephraim the younger son before the elder being his grandchildren against the set purpose of Ioseph their Father seemes vnaÌ„swerable on behalfe of the power of parents for transferring or distributing their blessings Of which it may truely be said Qui prior in benedictione est potior in iure Of Salomon I haue spoken before who was not the eldest sonne of Dauid Salomon but Adonai after Absalom was slaine as Dauid himselfe was not the eldest sonne of lesse his Father but the youngest and yet chosen by God who sees not as man doth for with him there is respâ—ctus personarum to gouerne Israel though he was not set before his brothers in the priuate inheritance of his familie And in the Ghospell it is apparent by the Parable of the workmen who came at vnequall houres into the vineyard and yet had equal wages that first and last are to him a like who though he created thinges in number weight and measure yet he squares not his fauors by priority of being but of well-deseruing Augustus Caesar the most renowned of all the first Emperours setled the succession of his Empire not vpon his onely Gâ—andchilde Agrippa Posthumus Agrippa Posthumus the sonne of his daughter sole heyre the lady Iulia though Tacitus sayth that he was nullius stagitij compâ—rtus then what if he had indeed byn a notorious vnthrift but vpon Tiberius a stranger in bloud and his sonne by no other but by a ciuill title of Adoption because he reputed him far the fitter to gouerne Chosroas King of Persia Medarses made Medarses his younger sonne companion in his Empire and left out his eldest sonne Sinochius But let forraine examples passe for briefnes sake wherwith of all tymes places books are full In our Country wee might alledg the fact of Brutus Brutus the reputed fouÌ„der of our Nation who diuided Albion afterward called Brittaine to his three sonnes leauing onely the best portion to Locrinus ancieÌ„tly called Loegres Albania now Scotland to Albanact and Cambria or Wales to Camber Leir long after knew he had so much power in himselfe as a Father euen against the euidence of his owne act of partition by the originall law of Nature as for the ingratitude of his owne children to confer the kingdome wholy vpon his younger child Cordeilla in preiudice of his grandsoÌ„nes Mâ—rgan and Cunedage Cordeilla borne of his eldest daughters I knowe that some will deny credit to Brutus history which in this case they might with the more reason do if the ancient Weale or Brittish Custome did not answere in the practise thereof to that act of Brutus For not onely king Roderick deuided his kingdome of Wales to his three sonnes according to that distinctioÌ„ of the countrey into Northwales Southwales and Poâ—island but others since haue done the like among them As for Brutus History Brutus History an it hath some enmies so also hath is many friends and those of speciall worth and note Henry Archdeacon of Huntington Matthew of Westminister others among the ancient And of later tymes Syr Iohn Price William Lambert Humphrey Lloyds Doctor White of Basingstoke Count Palatine in right of the Ciuill law Chaire an honour due to the iust number of years by him passed innumerable others Aboue all the rest Edward the first King of England with all the Earles Barons of this Realme by their authentick deed or instrument confirmed in Parliament But let vs proceed They who know the old fashions of Ireland either by report or by the printed Statutes of that Nation may testify of their most ancient Tenure Irish Tauistry or Fundament custome which there is called Tauistry By which the land and chiefest of a Name after the predecessors death is not a warded to the eldest sonne but to the worthiest if I misremember not the iudgment wherof is left with the people and such Tenants about as haue interest and right of voyce As Alexander the great though as it is apparent in the Machabees very falsly is said to haue left his Empire And the custome of equal shares may be in other places also which neuer borrowed their equall partitions from Gauelkind A custome I graunt which some haue very lately altered in their priuate families by Parliament In Scotland there is scarse any thing in their most ancient Records more often found concerning their succession to the Crowne therof then Vncles to reigne before Nephewes euer by Nationall Custome as is auerred But the abundance of forraine examples must not carry me from home Arthur Arthur the Great was left heyre to the crowne by his Father King Vther surnamed Pendragon or Dragons head though begotten in Bastardy rather theÌ„ the soÌ„nes of Lot king of PicÌ„tland being borne of Vthers sister or as some write of his daughter Anne an history which euen Buchanan relateth out of the Scottish Monuments on Arthurs behalf for very true To come neerer in the same kynd Athelstane that victorious king of England Athelstane being a Bastard was notwithstanding preferred before the lawfull eldest sonne euen by his Father King Edward surnamed Sinior to whom saith Florentius Wigornienss an authour aboue 500 yeares old Râ—gni gub rnacula reliquit and not to any of his sonnes by his wife Queence Little cause is there to seeke examples so far off William the Conquerour preferred William his youngest sonne before Robert the eldest in the Kingdome of England and
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