and seuerall Accidents yet all are agreeable to the old and ancient Grounds of Reason in Nature the Grand-Mother of all Law Wherefore hauing before specified what the Law of Nature is touching the Point in Question I shall now declare what Temper or Forme hath thereto beene added by the Civill Lawyer After that Man-kinde was inforced yet by Natures Warrant to make as I haue said a partition of the Blessings of God and Nature and that Men were possest by the same Right of Goods Lands which they desir'd to leaue to Posterity Law-makers and in particular the Civilian devised by little and little certaine Formes of Inheritance and ordination of Heires at first somewhat rigorous giving to Parents power of Life Death ouer their Children and a free disposition of all their Fortunes to any one of them in his life but dying intestate then all which was the Fathers to be equally divided among the Children as well daughters as sonnes Which Constitution was afterward vpon good grounds altered the Father being bound to leaue every child a Portiō which the Civilian cals a Legitimate Others a Patrimony which at first was the eight part of the Fathers substance equally to be divided as hath beene said which after a while seeming litle the Law commanded that the Fourth part should be left without Controll except vpon just cause the Testator did disinherite him or them who by course of Law were to succeed him stil vpholding the former Lawes that as well daughters as sonnes should equally succeed their Parents dying intestate Herein assigning fourteene causes why an Heire might lawfully be disinherited Many hundred yeares passed frō the establishing of the Civill Law before it was ordained by force of Law that Parents should leaue a Childs part as it is now called or that they could not disinherit without expressing the cause thereof in their last Will yet in all this Time nor till this present Day the Privilege of engrossing all by Primogeniture was not once heard of or at lestwise not admitted but rather excluded as by many Text in the same Law it well appeares The End of the Imperiall or Roman Civill Law being only to maintaine Morall Iustice in three short Precepts Liue honestly Hurt no Man Giue every one his owne So that hee who obserues these three fulfills this Law yea the Law of Nature whence this Law is deriued Now if any Brother can proue that his Father either in his life by Deed or by Will at his Death disposing of his Goods and Lands no otherwise then I haue declar'd doth no act against these three why should he not content himselfe either with the Fruits of his Fathers loue or his owne Deserts what ever they bee True it is that in Naturall Iustice children during their Fathers life haue Ius ad rem not Ius in re to a Fathers Goods Wherevpon the Law calleth them quasi bonorum Patris Dominos Which their Right only takes effect after their Fathers Death For during life he hath power to alter alien sell giue as it shall please him according to forme of Law but being dead without Will or disposition thereof they fall vpon his children according to the Law of Nations This Law embraceth a twofold Iustice the one in Exchange the other in Distribution The first hath not to doe with our cause The other * This warrants not the injurious Abdication of vnnatural Parents irremediable by the common Law as is also the oppression of Orphans by lewd Step-fathers and sharking Executors See D. Ridleys View republisht by a learned Student of the Royall College of Christ Church Oxon part 4. Sect. 1. 2. rather commends then condemnes a Father who vpon good Occasion that is for the bad Demerits of his Eldest Sonne and for the preservation of his Family shall giue or convey his Lands or Goods to the Younger For the Nature of distributiue Iustice is not only to giue proportionally to the well-deseruing but also to forbeare to place Benefits vpon any one who shall abuse them or vse thē to any other end then to that good for which they were lent and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his Goods to an evill end or to any one who he assures himselfe will vse them to the Dishonour of God or the Wrong of those who shall liue with him or by him whereof I will treat more in the seventh Chapter being then to handle what a Father may in Conscience doe or not doe in our present Question with sinne without sin And thus much of the Civill and Canon Lawyers Averment of an Elder Brothers Right to his Fathers Fortunes CHAP. 5. That the present custom in our Country of giuing All or almost All to the Eldest was never so begunne that it meant to exclude iust Remedies for such Evills as should grow out of the abuse of that Custome when it may make Fathers guilty of their Sonnes faults and of their Families ruines I Haue purposely reserued to treat of the Lawes of our Country in the last place because I assure my selfe they are of most force to sway the Point in question For many things may be permitted by the Lawes of God and Nature and yet contrarily prohibited or practised by course of Law in severall States of the World as the Law-makers and Customes of Countries allow or command I confesse the generall practise of our Time among Parents is to leaue either All or most part of their Lands to their Eldest Sonne This questionlesse as hath beene said was first devised in former Ages for the preservation of a Family and to raise One who might bee a Comfort to his Brothers Sisters and Family and in whom his Progenitors Vertues might liue to the World And I wil not deny but the Partition of Lands may reduce in the end a goodly Estate to Nothing or to so litle as it may be like an Atome in the Sun yet I finde in Naturall Reason that ex nihilo nihil fit or at lest that Haud facilè emergunt quorum virtutibus obstat Res angusta domi But if Men faile of those happy Ends Cessante ratione cessat Lex to which this generall Custome should guid then could I wish that they would not vse That for their Destruction which was meant for their Preservation For who sees not in these our Times many vnbridled youths so violently carried away with the humour of spending that they neglect Brother and Sister yea bring to extreame misery their Naturall Mothers after their Fathers Death by their vnthriftinesse What help for this hath Law left vnto vs No meanes to bridle these vnruly Colts if they become Heires according to the custome of our Time No truly For some starting-hole will bee found to vnty the Knot which a Fathers care once tied How then Must many a hopefull and well-deseruing Brother and Sister bee left to
AN APOLOGY FOR A YOVNGER BROTHER OR A DISCOVRSE PROVING that PARENTS may dispose of their Estates to which of their Children they please By I. A. Written for the generall good of this Kingdome OXFORD Printed by LEONARD LICHFIELD for Edward Forrest 1641. TO ALL FATHERS AND SONNES OF WORTHY FAMILIES Whom Vertue Birth and Learning have iustly stiled GENTLEMEN Health Hapinesse and Encrease of the best Knowledge AS in the Front of this brefe Discourse there is Right Worthy Gentlemen already delivered vnto you some light of that which concernes the Qualitie Reason and Scope thereof so doe I here sincerely professe that J did not privatly write it at First but for privat satisfaction neither doe I now make it publike but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking and paradoxicall age Not vpon the least presumption of a selfe-sufficiency to confront thereby any receaved custone if any such be nor to diminish the naturall reverence due by Younger brothers to to theire Elder not to enkindle Emulations in Families nor to innovate any thing to the prejudice of publike or privat quiet which none I hope will be soe ill affected as to suppose neither mine in offensive zeale for Younger Brothers amongst whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Lawes which J haveing a litle studied doe not a litle respect nor the particular honor I beare to the vsages in this poynt of our ancient Brittaines from whom J am decended nor desire to maintaine and justifie an act in this kinde done by a friend whome I must ever reverence nor yet the hope of bettering my private fortunes which moves men much in these our times hath drawne me to this Vndertaking but principally as before is somewhat touched the singular respect which as a Patriot I beare to the glory and good of Gentlemens houses whose best originall surest meanes of maintenance and principall Ornament is Vertue or force of Minde The want whereof is a common cause of Ruine The free power therefore of You who are Fathers is here in some speciall cases argued and defended to giue you occasion thereby to consider with the clearer Eye-sight for the establishment and continuance of Families Here also the naturall Rights of vs that are Children be soe discoursed and discussed as that We younger Brothers may have caues and courage to endeavour by vertuous meanes to make our selves without the least wrong to any capable if need shall be of the chiefest vses And Both and All are so handled as that no offence can reasonably arise in any respect much lesse for that the whole is conceaved and written in nature onely of an Essay or Probleme to which I binde no man to afford more beleefe then himselfe hath liking of being free to refute the whole or any part at his pleasure as he feeles himselfe able and disposed If I may seeme to some to have handled this Subject with more earnestnesse and Acrimony then they thinke expedient let them be plealed to weigh the Decorum of Disputes which is principally herein observed their nature absolutely requiring quicknesse and vehemency on whether side soever As for the remedies of Evils by way of enacting Lawes that is the proper office of Magistrates and Courts of publike Counsell neverthelesse to speake and treat of them vnder the favour and correction of Superiours to whome I doe alwaies very dutifully submit is a thing which may well belong to every man But for those graue and Learned Censors to home I may seeme to have bestowed my paines in very needlesse Arguments because no lesse then I my selfe they hold the case as here it is put to be most cleere and out of controversie to such I answer that I writ it not for them vnlesse perhaps to confirme their judgements but for others who are not altogether so principled or perswaded Nor to any as to prescribe or bind further then their owne consciences shall think good For that were farre too peremptory Finally nothing being here defended but by Authority Reason and Example nor any person taxed nor particular personall Vices if neverthelsse I have not perform'd my part in the work so well as J desire or as the Cause deserves which I feare I have not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good Intntentions sake you will ever conceave well of and take in your speciall Protection Your vnfained Well-wisher J. A. THE CONTENTS CHAP. 1. The occasions and scope of this Appoligie to prove that Fathers may in some cases dispose their Estates to which of their Sonnes shall reasonably please c. and that to be lawfull by the law of God of Nature and of Nations CHAP. 2. That the grounds of good Constitutions being in Nature yet she neither before nor after the law of Propriety established did command that all should I le left to any one more then to another CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without siinne that therefore ther can be no such Right in primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not CHAP. 4. That Nations beginning to devise sundry Formes of setling Inheritances the Romans especially therein respected the free power of Fathers the right of Children to their Fathers estates beginning onely at their Fathers death CHAP. 5. That the present custom in our Country of giuing All or almost All to the Eldest was never so begunne that it meant to exclude iust Remedies for such Evills as should grow out of the abuse of that Custome when it may make Fathers guilty of their Sonnes faults and of their Families ruines CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure CHAP. 8. That Vnthriftinesse is one knowne name of many hidden sinnes and is alone a sufficient cause of disinherison proved by the Law of God and Man CHAP. 9. The main points of the Premises exemplified indiuers particular Facts as well of Princes as of private persons CHAP. 10. That the Law of Naturall Equity Reason confirme Disinherison and that the riotous liues of Elder Brothers deserue that vehement Increpation with which the Author closeth vp this Treatise THE YOVNGER BROTHER HIS APOLOGIE CHAP. 1. The occasion of writing this Apologie is to proue that Fathers may in some cases dispose
invincible power to produce all effects which then had their Originall in her yet being studious to please Man-kinde not only with variety but also with raritie shee successiuely discouers daily discloses to the searching Wits of the World her Secrets as Time and Place either hath or doth daily beget Occasion still as it were keeping in store her heauenly Treasure till Mans necessitie best moues her Liberalitie For what can the Wit of man devise or what doth Time or Art make known which good is that Nature from the first time shee beganne to worke hath not in her though to her selfe only knowne the ground thereof either to produce the particular or generall effect which wisely shee left to bee tempered according as the Reason of Man whose glory she pretends should thinke fittest to giue the Forme as Time Place and the nature of the Thing should require For though Marriage as it is a conjunction of Man and Woman containing an inseparable societie of life be of Nature it selfe and had its Originall in the state of Innocence which as Divines Canonists hold was vndoubtedly ordained for Issues sake whereby a Lineall succession was also intended yet vntill necessity enforced Man to make Division of the Blessings of God Nature the Claimes and Rights which follow Lineall succession to Inheritance were not discouered For all communicable things being common amongst Men many Ages were numbred from the Worlds beginning before any man laid proper claime to any thing as due to himselfe alone Whereby it well appeares that hereditary succession or Title to a Parents Lands or Goods could not then be in vse or so much as thought of This I perswade my selfe was the Law of Nature vndepraved Which I incline my Will the sooner to credit because I find that all sorts of people as well Christians as others who haue perfection in Naturall society or a perfect and Religious life in a Naturall and worldly conversation of Mē haue and doe daily imbrace this naturall and †See Acts 2.44 blessed Community Which happy Law of Nature as I haue said for many ages endured without doubt had longer continued had not sinne which breakes all vnion and depraues all Naturall perfection gotten such dominion in the minds of Men that in Naturall Equity all things could not longer bee vsed in common For as some being possest with an insatiate desire to get rule and raigne sought the oppression of others by taking from thē that freedome which Nature had giuen them So others giuen to sensuality and idlenesse sought to liue of other mens labours whereas by Natures lawes every one ought to liue by his proper industry within the rules of Iustice and Honesty Wherevpon naturall Reason persuaded that all things being divided every Man should know his owne otherwise no peace or concord could be maintained in Humane society For all things being common the way lay open to every man at his pleasure to abuse others as it were to rob them of God his Blessing Herevpon Aristotle judged the Division of all worldly Goods to haue been agreeable to the law of Nature which the precept of our Decalogue seemes to approue Thou shalt not steale For the Law of God is never contrary to the Law of Nature neither doth Nature ever contrary it selfe though some may perhaps thinke that herein she hath For albeit at the Creation of all things together with Man in the state of Grace a fraternall and amicable Community was intended yet was it not so absolutely resolued of by Nature but that by Necessity I meane by the fall of Man from Gods Grace she did dispense with this Law and left free to Mans choice to embrace vpon her warrant either the One or the Other as best might fit the Time Place and Natures of Men which ever since the World began haue giuen occasion of making of all Lawes Whereby we see that though Nature giue the grounds to Lawes yet Mans vnderstanding still giues the particular Forme For Nature creating Man gaue to him those worldly blessings to vse well with Warrant either to hold them in Common or in Proper as reason from time to time could best persuade his Will But when Reason and Will had agreed that it was fit that every Man should enioy his Part in Proper Nature moued Man further and told him that now he might lawfully think on his succession and not only liue in his species but breath as it were to the Worlds end in a lineall Posterity by honorable Deeds and Vertuous Acts with which Desire Nature as a wise mother so inflamed Man her Noblest Child after his Fall from Grace that some Men by Natures light only haue done Acts almost aboue Nature and none haue hardly beene so base but desirous to liue and leaue an honorable memory behind them Which that they may the better doe Nature hath not only giuen them power to leaue their wel-gotten Wealth but in a manner their habituall * They which are descended of ancient Nobility haue in them an implanted compleat Generosity or vertuous Disposition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio Cas Hist Ro. l. 44. ex Orat. M. Antonii Vertues to their Issue in which this worldly Honor the Soules worldly life and Vertue 's temporall Reward may liue free from all-killing Time Yet did shee not then by any Command leaue it to any one in particular but giuing a generall suggestion of the Fitnesse of the Thing left the Forme to their best Discretion For had shee not done so all Nations had beene tied to obserue one Forme in leauing their goods and Fortunes to their Posterities for Nature being One without change to all of necessity prescribes no binding Rule to any in particular but to all in generall no man being able to say This Natures Law commands me to doe yet binds not any other to doe the like Which is evident in the Matter of Succession Consule Clariss V. D. Zouch de Iure Feudali p. 18. 21. or Claimes of Inheritance no one Country obseruing the Forme held by another or tying it selfe without controll to obserue its owne as I shall hereafter declare For albeit as I haue said the Conjunction of Man and Woman which we call Matrimony together with the Desire of Issue be of Nature from whence also are sprung not onely a Division of the Goods and Fortunes of this World but also a laudable Desire to preserue a Family and Name by the ordination of Heires to well-gotten Possessions yet did Nature never set down as a Law that those Fortunes should be left to the Elder Brother or Younger or to any One in particular or to All but to whom the Father being true and free Lord thereof should best devise by Will guided by Reason For it was never yet averred by any sound Divine Philosopher or Lawyer that Nature makes immediatly Heires but Men whom the positiue Lawes of every Country ordaine by
that Forme and Power of Law where such an Act should bee done And this is I presume without controll what the Law of Nature commanded touching the Matter in Question Next let vs see what the Lawes of God doe command CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without sinne that therefore there can be no such Right in Primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not IF Nature being taken for the principal all-producing Cause of the whole Frame of the Vniverse with all Creatures therein being nothing else but the working Will of the Highest and first Mover as Divines Philosophers hold then surely must Natures Law bee his Will which hee cannot contradict or counter-mand except hee should bee contrary to Himselfe which he cannot For what is in God is God therefore Constant and Immutable Out of which Principle it is easily proued that if the Law of God teach that which the Law of Nature hath ordained the Right of Inheritance cannot be tied to any other person or persons then to those which the Fathers Will approues according to the Power giuen him by the Lawes of Nations where he liues Which Power deriued from Natures Law cannot erre from the Law of God For whosoever shall consider but of Gods Commandements giuen to Man shall well find that God thereby hath still seconded his former Ordinances giuen by Nature For so long as Man-kinde liued in a sort after the Innocence which Gods Grace in his first Creation had wrought in him God gaue him no other Law But when as by sinne those sparks which remained after his Fall were quite extinguished he gaue him New Lawes yet agreeable to Nature As for example in our present Affaires When Man had made by Natures privilege partition of Gods and Natures Blessings then God said to his People by the mouth of Moses Thou shalt not steal Thou shalt not covet thy Neighbours house his Wife his Ox his Asse or any thing that is his As also Thou shalt not kill Which with all other his Commandements teaching what sinne is are agreeable to the Law of Nature yet are dispensed withall as farre as the Lawes of Nature euer permitted For though that the expresse Command of God bee thou shalt not couet any thing that is thy Neighbours nor kill yet in some Cases Both may lawfully be done The one in extreame Want of present Food the other in defence of Life Goods In which the Law of God is good by the Originall Law of Nature which made All for the sustenance of Man and gaue leaue to defend Life with with the losse of anothers Blood yea Life if otherwise it cannot be Vpon which Ground I argue thus Suppose the Law of God did at this present command which indeed it doth not that the Inheritance should be left to any one particular Person and namely to the Elder-Brother yet in some Cases it would not binde the Father to obserue it For as in the former Commandements vpon some considerations the Commandement may bee dispens'd withall so in this For it is not sufficient to be the Elder-Brother or the neerest in Blood to gaine an Inheritance in the Case which I haue now proposed for other Circumstances must concurre which if they be wanting bare propinquity or ancienty of Blood may iustly be rejected he that is second third fourth fift or last may lawfully be preferred before the First and this by all Law Divine and Humane and by all Reason Conscience and Custome of Nations Christian For if it should happen that the next in Blood should be a Naturall Foole or a Mad-man or being taken by the Turkes or Moores in his Infancy and educated in their Religion would maintaine the same or if any other such Accident ministring cause of iust Exception should fall out is it likely that any Law would allow that such a man should be admitted to the Inheritance Wherefore how idly should they talke that would haue it to bee his Birth-right or that God Nature had made him Heire since neither God nor Nature doth immediatly make Heires as before is declared Vpon which Ground our Common Lawyers say that No Heires are borne but Men and Law make them I confesse that in Holy Writ great * In allusion hereto the Church Triumphant is stiled The Church of the First-borne Heb. 12.23 Respect is had of the first-begotten and a Blessing is held to come to Parents thereby But this Blessing I presuppose to bee that thereby the Feare of sterility was taken away which in the Old Law was held to be a great Punishment of God in respect thereof Parents had of themselues and by the Nationall Lawes Customes a great Regard of their First-begotten and preferd them to the better part of their Possessions yet not by any Command from God as a Precept to binde his Elect people vnder paine of sinne For had any such Law bound them vnder such a Penalty then should it binde all Christians now on the same Conditions But we see it by Generall Practise of all Countries to be otherwise Therefore it followes directly that it was not Gods Command but a Nationall Law For God both is and ever was One without change to all his People so ever were will be his Laws Positiue made for them that truly worship him The Claime which Esau made to his Birth-right was not by the Law of God as some ignorantly affirme but by the Lawes of his Country For should the Divine Law haue commanded it it had been sinne in his Mother and Brother by Cunning to haue got it from him Neither could the Father or the State wherein they liued vpon no just cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme Iacob praelatione divinâ primogenituram benedictionem promeruit Ita Eximius Praesul D. Episc Cicestr Apparat I. by allowance from God and as it may bee judged by the successe Whereby it is thought that God ordained it as a Punishment of the One and Blessing of the Other which by the permission of sinne to bee committed God never doth Neither did the Nationall Law or Custome of the Iewes as it is said absolutely command the Father to leaue to his first begotten all or the greatest part of his Goods and Fortunes But in case he died not disposing thereof by Act in his Life or Will at his death then the Custome †Viz. Grounded on the Right of Primogeniture See Deut. 21.17 and the Geneva note there of the Nation laid a double Portion on the Eldest or First-begot providing for the rest proportionally By all which you may collect that neither the Law of God or Man in this case commanded that Esau should haue the Inheritance
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
their worldly Estates to which of their Sonnes shall reasonably please c. for so much thereof as they will that to be lawfull by the Law of God of Nature and of Nations NOT many Moneths since being invited by a deare Friend of mine to a solemne Feast made by him to many of his well-deseruing Friends it was my fortune at that Meeting to acquaint my selfe with many Gentlemen of no meane discourse Whereby I feasted as well my Vnderstanding with their pleasant Societie as my Tast with the variety of most excellent Meats With what our senses were delighted I let passe to recompt since neither profit pleasure nor praise can arise thereof either to the Writer or Reader Onely my intent is to make my Reader acquainted what accident caused mee to write this small Treatise and emboldned me to publish the same to the common view of this all-reprehending Age. In which neuerthelesse I rather hope for Allowance then in any sort feare Displeasure For though my subject bee New yet I hope it shall want at the first rather Age and Strength which growes by yeares then probable Arguments yea forcible Reasons to defend it selfe As for Friends I trust it will finde some and peradventure more then Enimies if it deserue well For as younger Brothers be more in number then Elder so are they generally more free in bestowing their deserued Loue. For Want breeding Vnderstanding makes them know and prize their Friends †Some frends sticke closer then a Brother Prov. 18.1.24 according to their Worth Whereas the Elder either seated in his Fathers Wealth or Possessions with more then hopes to enjoy their Fortunes doe sometimes neither loue truly themselues nor any man else but abusing that which indeed might gain the loue of God and Man easily maintaine their hereditary Honour loose themselues in Vanity most idle courses yea in their Fathers liues so strangely carry themselues presuming rather on precedence of Birth then Worth as though the Law of God of Nature and all other Canon Civill Nationall Lawes Constitutions and Customes sprung from them could not either in Reason or Religion barre them of that which they expect or giue to a well-deseruing younger brother any little * The harsh and malevolent disposition of some Elder Brothers is graphically delineated by our Saviour in the Parable Luc. 15.28 See vers 32. the Fathers Apology for the younger hope lawfully to share with them the least part of their Fathers Inheritance much lesse to expect an Elder Brothers Fortunes or on any termes or for any cause by a Fathers favour to steppe before them Which Argument among many others was then handled by the Company pro and contra so doubtfully that it gaue mee occasion to write this present Discourse concerning the free power of some Fathers Wherein I intend not to displease or inconciliate Elder Brothers no not them who not inheriting their Fathers Vertues striue not to maintaine their Ancestors Honour in preseruing their Noble Names * Amongst all Gods tempoporall blessings promised as Rewards to his faithfull servants I finde none greater in holy Writ thē the spreading of their Family So God to Abraham I will make of thee a mighty people What God prizes as so great a guerdon to his best Favorites shall Vnworthy Man esteeme a Trifle Carpenter Achitophel part 3. and Familes by which as a reward to their Vertues and Trauels Men haue alwaies laboured to liue to all succeeding Ages in their Posterity But my intent is to shew how Opinion and Inconsideration make oft-times the Wise to bee scrupulous and through superstitious Zeale not onely to feare to doe that which Reason may or might haue commanded but in their erroneous Iudgements rashly to condemne other mens Acts as vnlawfull and irreligious which according to Reason and Religion haue beene done and ratified vsing themselues THAT CVSTOME for the overthrow of their Families which was indeed only deuised for their preservation and being hoodwinkt with false conceipts doe wittingly leaue that which they and their Ancestors had gotten as the reward in this life of their vertues to be the future Fuell of all inordinate Desires Bestiall sensuality which in their providence they could willingly otherwise haue disposed of All which I doubt not but to make cleare to the impartiall Reader prouing by the Law of God Man that a Fathers freedome is such that hee may Lawfully and Religiously giue his Lands 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 void of all tendernesse or blindnesse of Affection which oftentimes leads a Fathers Will corrupts his Vnderstanding so as he be true Lord thereof not tied by consideration of Mony receaued 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 Lawiers well know In which case we also haue experience that our Law permits many times to alter the Title and to vndoe what by former times was held not to bee controlled But of this point I will not treat Only I meane to argue whether a Father possessed in Fee-Taile may in law and equitie vpon the former considerations make any child which hee hath his Heire leauing to the rest a competency and doe an Act which according to Equity Religion may stand good and valuable In this my present Discourse let not any expect many Quotations of Authors for I never read any of this subject What I bare away of my friends Conference I will set downe and what other Reasons my vnderstanding shall afford which I hope shall proue so Demonstratiue that they shall bee of Authority sufficiēt * T is one thing to convince an error another to make men forsake it A third to win them to the truth vid. pag. 117.2 part of divine Essence Attributes by Reverend D. Iackson worthily honord with the Elogie of an Incomparable writer by M. Pinke of pious memory See his Triall of synceritie serm 4. p. 57. to satisfy any Reader or incite some better Penne to treat of the same more largely and substantially and lastly and chiefly to cleare some of my Worthy Friends from those imputations which I finde the Ignorant to lay vpon them Which done I shall thinke my Time and Paines well imploied CHAP. 2. That the grounds of all good Constitutions being in Nature yet she neither before nor after the Law of Propriety established did command that All should be left to any one more then to another SUch are the wise and temperate Workes of Nature †Natura Divinitatis fulgor Valles de sa◠phil c. 1. p 22. that nothing is done by her rashly or vnadvisedly For though in the Infancie of the World shee had an
but Power to do the contrary was giuen to the Father in his Life-time even by the Law it selfe For many Divines hold that Esau selling his Birth-right as it is termed sold not Goods or Lands but his Claime of being * At first Fathers their first borne after theÌ„ were both Kings Priests in their owne houses but in Moses daies this Prerogatiue of Primogeniture ceased Aaron and his Progeny being invested in the Priesthood Moses being as King Deut 33.5 As judicious Mr. Godwyn in his Moses and Aaron Lib. 1. c. 1 High Priest after his Father which by Custome was to come to him being his Fathers Eldest Sonne For which Dignity God seeing him vnfit permitted him to passe away his Right in his Fathers life as we read in Holy Writ and which God seemed to approue And thus I hope this Objection is answered Further if it were true that the effect of Eldership were such by the Law of God as some passionately defend that is that the whole Inheritance should of Right pertaine to the Eldest then sure it followeth by good Consequence that there should nor ever could haue beene but one Temporall Lord of all the World For of Necessity Adams Inheritance should haue gone still to the next in Blood which how absurd it is let all men judge Moreover we read that Noe hauing three Sons and the whole world to leaue vnto them gaue it not All to the Eldest but equally divided it among them their Posterity as all Authentike Histories doe witnesse Againe God requiring Obedience of Children to Parents promised a Reward saying Honor thy Father and thy Mother that thy Daies may bee long in the Land which the Lord shall giue thee Which surely was not spoken to one but to all the Children of men For with God there is no Exception of Persons but as a just and pious Father hee giues every one according to his Deserts Terram autem dedit filiis hominum We read also in Holy Writ how the Prodigall Sonne being weary of his Fathers house Luk. 15.12 came to him and boldly said Pater da mihi portionem substantiae meae quae me contingit This child of which the Gospell speakes was the younger Brother yet you see how boldly he said Giue me that Portion of Goods which belongs to me By which words it is evident that a Division or PartitioÌ„ of a Fathers Fortunes was then * As is further evidenced Luk. 12.13 where our Saviour was willed by One to require his Brother to divide the InheritaÌ„ce with him Which was the suit of a younger Brother aggreeved at the churlish Iniquity of his Elder The Iudgement of that Illustrious Religious Divine M. Iohn Haâ—â—â— the most exquisite Illustrator of Chrysostome publisht by the Right Noble Knight Sir Henry Savile 〈◊〉 in Glory in vse and that any child as well younger as elder had power by law to demand his Legitimate or Childs part according to the nature of the Civill and Canon Law as you haue heard For the words following in the sacred Text are these Et divisit substantiam illis And hee divided vnto them his Living Thus wee see that the privilege of Eldership was then excluded which now in our Country by Custome only is gotten to be of such Force But it may be objected that this was a Parable only as indeed it was and cannot bee alleaged as Law True it is yet it cannot be denied but that all Similies Parables or Examples which ever were alleaged by the wise and learned to represent the Truth haue euer beene deriued from the custome and nature of Things according to the knowne Truth in that time and place and to those persons to whom the Speech or Discourse is directed And shall we thinke that our Saviour Christ being Wisdome and Truth it selfe treating of so important an Affaire as he did then in the Gospell would vse an vnknowne Discourse or striue to make the Truth appeare to our weake Vnderstanding by a Parable which in Equity could not bee true No surely For it appeares by Solomon his succeeding his Father David that David had power by the Lawes of God and Man to giue his Kingdome to the worthiest which hee deeming to be Solomon gaue to him his Kingdome though hee was the youngest Sonne Neither was there any just exception made against Adonias his Eldest Brother or against some other of his Brethren why they should be disinherited by their Father David contrary to the common practise of those Times in setling Inheritances But the onely knowne reason of this Act in Scripture was Davids Promise 1. Kings 1. made to Solomons Mother together with her great Entreaty made to David to performe it Which surely he would not not haue done had he not found a lawfull Power in himselfe to haue executed the same Lastly it is invincibly proued out of the Booke of Iob who was contemporary with Moses by attestation of judicious Theologians that there was in those Times and Countries no such Law or Custome that the Eldest should play at Sweep-stake and all the rest be left to the foure Windes for it is expresly recorded in the last Chapter and the 15 Verse that Iob gaue his Daughters Inheritance among their Brethren Iob. 42.15 Which comes home to the point in Question and irrepliably evinces a Fathers Power and Right to make such a Partition of his Estate among his Children as vpon emergent occasion he shall judge expedient And thus much concerning what may bee said out of Scripture or Law of God in our present Question CHAP. 4. That Nations beginning to devise sundry Formes of setling Inheritances the Romans especially therein respected the free power of Fathers the right of Children to their Fathers estates beginning onely at their Fathers death HAuing now declared what the Laws of God and Nature determine of our present Question we intend to examine in breefe what is commanded by the Law of Man as well Civill of other Nations as Common of our owne Country And first concerning the Civill Law Though all Law which ever had but the Name or Credit of Law doth surely deriue her Originall from the Law of Nature wherevpon Cicero many hundred yeares since said that the Ground of all Law-making is to be taken from the chiefe Law which was made before any Law was written or City builded yet doe they differ much in Forme For as it is no Law but Tyranny which wholy disagrees with the Law of Nature as Aristotle saith so if it agree in All with the Law of Nature without limitation or difference it must of Force be the very Law of Nature it selfe and not the Law of Man Which surely is nothing else then a Temper or Forme of Equity drawne by right Reason from the Grounds of Natures Laws according as Time Place and the Natures of Men either gaue or shall giue Occasion For though new Lawes bee daily made of new
the Mercy of this Whirlewinde There is no Necessity For our Law hath giuen Power to a Father and Free-will to dispose of his Owne according as Reason shall guid his Will without all obligation to his Heire Besides this Custome takes place only after a Fathers Death if hee dispose not what is his by Deed in life or by Will at his Death But lest my Words bee more generally taken then they are meant I meane those Fathers who are possest of their Lands in Fee or Fee-taile that is are absolute of themselues and haue not vpon good Consideration convaied their Lands from themselues For all our Lawyers agree that such Parents may alien sell and giue by power of our Law their Lands to whom they will without respect of Person or Eldership But may some say the Custome is otherwise this Custome is a Law True it is the Custome But let vs see whether it binde sub peccato or as a Custome which rather invites then commands There was never any Command 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 Provision according to course of Law is not made Then surely a Parent is free from this devouring Custome and may considerately prevent what Evill it may bring to his posterity yea Reason commands it should be so For Interest Reip. vt quilibet re suâ benè vtatur It concernes the publike State that Men be Good Husbands saith the Ciuill Law For if a Man can neither sell nor set much lesse can hee giue any thing to another which he thinkes in his Conscience will vse it to the Dishonour of God and the Ruine of himselfe or others Divines hold that it is not lawfull to sell or let a house to any that hee thinkes assuredly will make thereof a Stewes or to sell giue or lend a Weapon to a man who intends therewith to doe murther Excommunications are imposed on them who sell Armes Offensiue or Defensiue to Turks though they bee not assured they will vse them against Christians Thus we see the Rule of Conscience not onely commands a man to vse wel those Fortunes which God hath bestowed on him but forbids him either vpon Affection or Gaine to part with them to others who will abuse them lest hee partake of others sinne which a Parent may doe after death who leaues his Lands to a desperate Vnthrift But what Religion and Conscience commands shall be declared in the following Chapter In which vpon Principles drawne from the former Conclusions shall be argued what sinne may bee contracted by the parting an Estate among Sonnes or by disinheriting an Eldest son vpon just Cause to whom the Father is onely tied by the Custome of the the Countrey without Obligation of Promise or Contract in Marriage which may alter the Case CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion THE Right of these insociable Inheritors of which wee now treat may grow as I conceaue from three Titles or Claimes which they may pretend to a Fathers Inheritance and whereby it may be deemed as they thinke sinne in a Father vpon what Desert soeuer to barre them of the said Right These three Titles are Purchase Custome and Entaile Of each seuerally And of the first which is Purchase Surely in the Iudgement of the Good Learned there is no question in Law or Conscience but that a sonne joyned Purchaser with his Father hath Ius in re and by Equity must surviuing his Father inherite such Lands as were purchased in their Names Now of the other two though it be as cleere as Noone-light that a Lord in Fee-simple or Tenent in Taile may sel or giue by course of our common Law at his pleasure all such Lands 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 seems to arise a great Difficulty how such an Act or Acts may in Conscience be executed I haue heard some say in this our Case summum Ius summa injuria Of these Points therefore I will speake Salvo meliori judicio what may in Conscience vpoÌ„ good and just Occasion giuen by the Sonne to his Father bee put in Execution It is well knowne to all Divines 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 and Goods but hath absolutely left them to the Customes of their Country where any Act of that kinde shall be executed only as confirming all Formes of Devises which by publike Consent and Authority either haue or shall in rightfull manner bee devised or ordained Out of this Ground and others prementioned let vs examine whether a Father parting his Fortunes by Power of Law and on just Cause shall do a wrongfull and sinfull Act as some would make it I confesse that every Act in it selfe or by circumstance evill and which vpon no occasion can be justified is both before God and Man sinne and by no meanes to be executed by a Christian But that the parting of an Inheritance or Disinheriting of an Eldest Sonne vpon just and evident cause of incapacity according to Course of Law is an Act of that Nature doth not appeare For I finde not that either the Law of Nature or Grace nor yet the Lawes of Man Common Civill or Canon ever for bad such Acts whereby sinne may bee imputed to those who doe them on good Considerations Sure I am that the Canon and Civill Law are so farre from forbidding them that they command as a Thing in Equity the Father either to divide his Inheritance or allow him according to his Affection to giue to one more then to another yet with this Proviso that hee who hath the lest haue his * Or lawfull Portion See pag. 61. of Dr Ridleys View illustrated by the judiciously â—eâ—â—ined Mr Gregory Childs part which the Law doth also assigne except on just desert he disinherit any one which at this day may yea must bee by Will with the cause of Disinherison therein specified Of which Causes the Imperiall Lawes haue set downe foureteene as may well appeare to them who are desirous to vnderstand more thereof So it is evident that by these two Lawes no sinne can grow vpon such Acts being done vpon their Warrant and vpon on such Consideration as is formerly deliuered As for the Common Lawes of our Realme sure it is they allow no lesse and with a greater Privilege For a Man may by this Law giue his Lands 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 Custome giues the whole Estate to the Eldest yet in some part of our Countrey the youngest Brother by custome is to haue the Land held by some kind of Tenure if the Father in his life-time dispose not thereof As yet therefore I cannot see how any sinne is committed or contracted by the former Acts being neither done against the Law of God or Man as we haue proued vnlesse it should be said to bee sin not to leaue it to the Power of a Custome which cannot be except the former Law shall bee proued not to be of Force and not to be executed which can no way be done Though I must confesse that the Custome of leauing the Child-estate to the Eldest sonne hath of latter Times beene much imbraced by our Gentry for the preservation of their Families for which it was invented For the Times haue so ruled that Men of sort being either idle or not possest with a couetous Humour haue contented themselues with their Fathers Fortunes and prefer'd their younger sonnes by those meanes which the Times did afford namely by many commendable Courses as either by service of Spirituall and Ecclesiasticall Persons whereby many were raised or by professing a spirituall Life wherby the younger Brother hath oft-times in Honour stept before the Elder But this manner of Life is not so gratefull to our English Gentlemens Natures as anciently it hath beene The Trade of the Merchant the Military profession the Courtiers life advanced many more then now they doe and lastly Elder Brothers in former Ages were generally of better Temper in spending and if they had no humour to get yet had they a care to keepe what was left them and ever held themselues bound by Religion to provide for their younger Brothers and Sisters left to their Dispose which now is far otherwise For some Elder Brothers are found to spend more in a yeare idly then would prefer or maintaine a whole Family Nobly and to suffer their Brothers Sisters to shift which as these Times shape is often-times to liue either lewdly or most miserably * Strenue esurire being forced either to forget their good Education or to lay aside all Badges of Gentry who otherwise with some reasonable helpes might doe God their Country and Family much Honour Since we haue gone so farre let vs see on what Ground this Custome first hath risen Surely for the maintenance of a Family yet led with an Ambitiō at the Example of Princes who finding some difficulties in the admitting of many to a Gouernment and feeling what Inconveniences the parting of an Estate brought devised that One should governe sometime the Worthiest sometime the Eldest was Elected according as the Order was agreed vpon and yet the other Brothers were maintained like Princes And this Custome also among them hath beene broken without Imputation of sinne For to goe no further then our late Times 't is well knowne that Ferdinand Charles the fift his Brother being setled in the Empire divided his Estate To Maximilian his Eldest sonne he left the Empire with Austria Hungary and Bohemia To Charles his second sonne Stiria Carinthia and other Dominions And to Ferdinand the youngest he gaue the Earledome of Tyroll All which if in his life-time hee had not disposed had come to the Eldest Also Philip the second late King of Spaine gaue to his Daughter the 17 Provinces which were of Right to haue descended to his sonne after his Death if otherwise he had not disposed in his life And this was adjudged lawfull by Graue Divines otherwise surely they would never haue done it But doth this Custome in meaner Degrees work that Effect which it hath done in them No truly For as we haue proued it is rather the Overthrow then the Preservation of many Families Let vs see withall whether Families flourished not as much and more then now they doe before this Custome was receaued Livy saith that three hundred of the Fabij Vna dies Fabios ad bellum miserat omnes Ovid. Fast all of one Name and Family issued out of Rome Gates at one time on their owne Cost for Defense of their City which was done before this Custome was dream'd of In Scotland three hundred of the Name and Family of Frasers Gentlemen were at one Time slaine in Fight by their Enemies Neighbours and 140 Gentlemen of one Name in Yorkshiere waited on their chiefe or principal Man of their House at that time High Sheriffe In other Countries many Noble Families from the Romans downeward haue continued where this Custome hath beene deemed vnjust as by their Laws is manifest wheras in our Country in these our Times if there bee one Family in a Shire which is of three hundred yeares continuance very many others are scarse of fiue Descents in a Blood Why should our Age then seeing the Fruit of this Custome to be so small embrace it with such Zeale as to deeme the Breach thereof being warranted for Good and Iust by the Law of God Nature and Man to be a sinne Is it held both lawfull and expedient in some Countries for the preservation of a Family that Degrees of Kindred should be dispensed with to marry contrary to Ecclesiasticall Canons and the Generall Practise and can it be lawfull before God and Man for the preservation of our Goods to venture our Liues and to kill a Theefe who shall assault vs and that perhaps for a Trifle and yet that for preservation of our whole Estate and perpetuity of a Family it shall bee reputed sinne to breake a bare Custome vnder no Penalty Obligatory yea alwaies allowed by Law Never was it heard that a Custome * Customes against Lawes are void by the Civill Law was of such force to abrogate a Law so farre that it should bee deem'd a sinne to follow the said Law though it haue Power to dispense with the Law which otherwise to infringe were sinne especially when as the the Law is both more pious and more naturall then the Custome is For how farre is it from the Law of Nature and from the Practise of Paternall Piety the Father dying intestate the Eldest sonne to become Lord Paramount of all his Fathers Lands not to be bound by Law to provide for Brother or Sister but at his owne good liking Aliud Tempus alios mores postulat Men of Vertue Men of Learning Vertue both now and in former Ages in this our Countrey haue brok this Custome * This Custome is contrary to the iudgement practise of the Primitiue Church as is cleare in Salvianus who intimateth that aequa haereditatis portio was vsually left by Christian Parents to their Children and that to doe otherwise were Grosse Iniquity Ad Eccles Cath pag 422. 425. Edit Oxon
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
yee may take Evill from among you and that all Israel hearing it may feare Whence we may collect how odious a Crime Vnthriftinesse was among the People of God and what ample Power the Father had to punish the same in his Child For if we obserue well the Manner of the Processe betweene the Father and the Child in this Case wee shall finde that the Father was Accuser Witnesse and as it were Iudge of his owne Cause For we read not that the Senators of the City did giue sentence or further examined 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 Enquiry stone to Death so evill a deseruing Child Which being well consider'd my Hope is that it will never hereafter seeme vnlawfull though somewhat strange that a Father should disinherit his Eldest or any other sonne of his for the Cause only of Unthriftines And although the World of Men is growne to that Greatnesse that it is necessary One Generall Father or Politike Head should be in a Kingdome or State which may justly abridge some of these Privileges and abate a Fathers Power all Fathers being Children to the Father of their Countrey their Lord and King vnder God yet the Power to advance and maintaine a Family by good and lawfull Meanes is still both allowable and commendable in a Parent who may from time to time reward according to distributiue Iustice all those which 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 hee may still disinherit according to the power of that Law vnder which he liues For no other Ty is ouer him God and Nature * The Law of Nature or as Civilians stile A of Nations on which a Fathers Plenary Power is founded is by S Paul expresly termed The Law of God Rom. 1.31 allowing that at this day for ever which once they gaue vnto him Which Authority he not only may but ought also to execute as farre as the Law of Man shall permit otherwise he shall 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 provide to his Power that they liue both in his life after his death to the honour of God the service of their Countrey and comfort of their Family which were the only Ends for which God created Man a Civill and rationall Creature All which if it shall assuredly bee thought by a Father that any Child of his will wholly neglect or rather execute the contrary then no questiō a Father is not bound to leaue him any more then shall honestly suffice the Necessities of Nature For as before is said no Man may giue or lend his Goods to any one who will in all Mens Iudgements assuredly abuse them But let vs see whether a desperate Vnthrift may be arraigned and adjudged Guilty of these Accusations Surely it is cleere that all vnthrifty * To play away our Praedecessors labours is a greater dishonour then to pisse on our parents ashes 〈◊〉 raze their monuments Carp Achitoph p. 3. courses are displeasing to God and contrary to to his Honour And how can hee bee able to serue his Country who in short time will not bee able to serue himselfe with Necessaries wherewith to liue but must of force bee maintained like a Drone in a Common Wealth out of others Labours As for his Family what greater Discomfort can it haue then an absolute Overthrow Whereby the Noble Acts and Honour gotten to it by vertuous Predecessors are buried in Oblivion and the present future Hopes of all worldly and lawfull Honours Vertues temporall Reward are quite taken away And shall not ALL THIS deserue Disinherison Can there bee a greater sinne committed against the Honour and Essence of a Family as it is a Family The life and soule of a Family then to be spoil'd of its Honour and Life it selfe For in these our Times well gotten Goods and vsed as they ought are the onely Soule by which a Family and all the vertuous Acts which it hath done may liue Since therefore so great a mischiefe is sought aim'd 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 Ius summum vnicuique tribuere Nature teacheth the silly Bees in their Common Wealth to doe to death their Drones who liue of others Labours and shall it bee thought vnlawfull for a Father so to punish an incorrigible Unthrift who will not only liue of others Labours but also subvert the honourable Endeavours of his Noble Ancestors Thus if Sonnes may be deemed and doomed by the offended hauing power to doe 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 doe as I haue formerly demonstrated But because Examples in all Controversies of Fact are the best Fortifications I will in illustration of the Premisses adde some few to the former drawne as well from Royall Precedents by whose Patternes totus componitur Orbis as from inferiour Persons whose Qualities best fit the condition of our present subject And if Kingdomes Common Weales haue fauour'd it then certainely by all Arguments à majori ad minus it may much rather be done and ought to bee suffered in private Families CHAP. 9. The main points of the Premises exemplified in diuers particular Facts as well of Princes as of private Persons IT is not fit perhaps to vrge the better Acceptance with God of Abels Offering aboue Cain's the Elder Brother Temporis praelationem tulit improbitas Dignitatis praerogativā Virtus Philo. de Caino Abele Abel Iaphet but that Estate which Abel had in Adams Patrimony Nor will I reinforce Iaphets share in his Fathers Right to the whole World though hee being the youngest Son of three had Europe for his Inheritance which in all Arts and Vses of Life farre excells Africk Asia and all the rest of the Earth Whereas according to the pretenses of those customary challenges Sem should either haue had all or beene Soveraigne Lord of all and Cham and Iaphet with their Posterity but Farmers or Free-holders vnder him I will not also as if there were penury of Resemblances produce againe Esau's Disinherison though that * In this case God said expresly The Elder shall serue the yoūger See Gen. 25.23 and Mal 1.3 with the Geneva Note there were enough for our present purpose For had it beene Sinne which neither Scripture nor Iosephus in his Antiquities saith the Mother could not haue procured it God would not haue prosper'd it nor Iacob himselfe being a good man haue accepted it
nor Esau whose anger Iacob feared haue left it vnrevenged Neither is there in Scripture nor in any written Law vnder Heaven any Command to restraine the Fathers Power but rather the contrary For such is the Law of Nature that they who are ex aequo one Mans Children should if not ex aequo yet not ex iniquo bee prouided for Against which Partiality the Imperiall Lawes admit so forcible a Remedy vnder the Title of an inofficious Testament as it shall inable the younger Child to a certaine proportion of estate whether the deceased Father would or no if hee had no just reason for omission or disavowment in his last Will. Ruben See Gen. 49.4 1. Chro. 5.1 Ephraim The Example certainely of the same holy Patriark Iacob in depriving his eldest son Ruben of the dignity of Birth-right for his enormous offence and in preferring Ephraim before Manasses the younger sonne before the Elder being his Grand-children against the set * Gen. 48.18 Purpose of Ioseph their Father seemes vnanswerable on behalfe of * Grandfathers are vsually called Fathers in Scripture specially in respect of such as inherit after them Parents Power for transferring or distributing their Blessings Of which it may be verified Qui prior in Benedictione est potior in Iure Of Solomon I haue spoken before who was not Davids Eldest but Adonias after Absalon was slaine as David himselfe was not the Eldest sonne of Iesse his Father but the yongest and yet * See 1. Chro 28.4 chosen by God who sees not as Man doth for with him is no respect of Persons to gouerne Israel though he was not set before his Brothers in the private Inheritance of the Family And in the Gospell it is apparent by the Parable of the Workmen who came at vnequall houres into the Vine-yard and yet had equall Wages that First and Last are to him alike who though he created Things in number Weight and Measure yet hee squares not his Favours by priority of Being * Witnesse Ismael disinherited and Isaak the younger preferr'd by Gods Award See Gen. 21.12 where ver 10. 11. it is cleare that Abraham had otherwise divided his inheritance betwixt them Can the World yeeld a better Precedent N.B. but of well-deseruing Augustus Caesar the most Illustrious of all the first Emperours setled the Imperiall succession not vpon his only Grand-child Agrippa Posthumus the sonne of his daughter and sole Heire the Lady Iulia though Tacitus saith he was nullius flagitij compertus then what if he had indeed beene a notorious Vnthrift but vpon Tiberius Tiberius a stranger in Blood and his sonne by no other but by a Civill Title of Adoption because he reputed him farre the fitter to governe Chosroes King of Persia Medarses made Medarses his yonger sonne Consort in his Empire leauing out his Eldest Sinochius But to omit forraine Examples for Brevity sake wherewith of all Times and Places Books are full In our Country we might alleage the Fact of Brutus the Protoparent of our Nation Brutus who divided Albion afterward call'd Britaine to his three sonnes leauing only the best * England Portion to Locrinus anciently called Loegria Albania now Scotland to Albanact and Cambria or Wales to Camber Leir long after knewe he had so much Power in himselfe as a Father even against the Evidence of his owne Act of Partition by the Originall Law of Nature as for the Ingratitude of his owne Children Cordeilla to conferre the Kingdome wholly vpon his younger Child Cordeilla in prejudice of his Grand-sonnes Morgan and Cunedage borne of his Eldest daughters I know some will giue no credence to Brutus Story which in this case they might with the more Reason doe if the ancient Weale or British Custome were not responsible in the Practise thereof to that Act of Brutus Roderik For not only King Roderik divided his Kingdome of Wales to his three sonnes according to that distinction of the Country into North-Wales South-Wales and Powisland but Others since haue done the like among them As for Brutus History as it hath some Enemies so also hath it many Friends and those of Eminent Worth and Esteeme Henry Archdeacon of Huntington Matthew of Westminster others among the Ancient Of latter Times Sr Iohn Price William Lambert Humfrey Lloyd Dr White of Basingstoke Count Palatine in right of the Civill Law Chaire an Honour due to the just Number of yeares by him passed and innumerable others Aboue all the rest Edward the first King of England with all the Earles and Barons of this Realme by their Authentike Deed or Instrument confirmed in Parliament But to proceed They who knowe the old Fashions of Ireland either by Tradition or by printed Statutes of that Nation can testify of their most ancient Tenure or Fundamentall Custome which there is called Tanistry By which Irish Tanistry the Land and Cheefty of a Name after the Predecessors Death is not awarded to the Eldest sonne but to the Worthiest if I mis-remember not the Iudgement whereof is left to the People and such Tenents as haue Interest Right of Suffrage as Alexander the Great though as 't is apparent in the Maccabees 1. Macc. 1.7 very falsely is said to haue left his Empire And the Custome of equall shares may be in other places also which never borrowed their equall Partitions from Gavel-kinde A Custome I grant which some haue lately alter'd in their private Families by Parliament To omit a Number of vnexceptionable Precedents and forraine Examples If All must necessarily haue gone to One how came it then to passe that in this Kingdome there were at one time so many Great and Honourable Families of one Blood disjoyn'd in their seats and distinguished in their Armories by different Arguments Or who is so meanely seene in our Antiquities and Stories as not to knowe it was so And that many renowned Houses to speake as de magis notis Plantagenets Sundry great Families of one Blood at a Time Mortimers Beaufords Beauchamps Dela-Poles Nevils Graies and the like haue growne and flourisht out of one common common Ancestor It can never be refelled Of Disinherisons in Worthy Families Mr William Camden Clarenceaux King of Armes the singular Ornament of England giues vs two Eminent Examples And who is he that remembers not one or other in his owne Knowledge or Acquaintance Carew◠Iane Daughter of Hugh Courtney and Heire to her Mother wife of Nicolas Lord Carew disinherited her Eldest sonne Thomas cùm minùs reverenter matrem haberet for his irreverent Demeanour and parted her Lands which were goodly among her three younger sonnes of whom are sprung three severall Worshipfull Houses of the Carewes called Haccombe Anthony and Bury So that God by the successe crowned the Fact and confirm'd the Lawfulnesse of Partage And this is the first of Mr Camdens Examples The other is this Bryand Lyle or Fitz-Earle Lord of Abergevenny