a Brother is possest of an Estate which holds of his Sister But after all what can you reply to your Histories which tell us that Isabella of Austria Daughter by the first bed to Philip the second enjoyed all the Estates of the Low Countries excluding Philip the third her half Brother Son by a second Marriage to the same Kiag Philip the second Flem. You cannot find any other President besides this to justifie that ever any Daughter by the first bed excluded a Son by the second in the possession of this Dutchy French Neither can you find any one that proves that ever any Son by the second bed was preferred before a Daughter by the first for never since this was a Dutchy was there ever but only that one time such a concurrence of a Daughter by the first bed with a Son by the second where you see the Daughter was preferred Flem. The Dutchess Isabella was not preferred by right of Devolution but she received those Estates from King Philip her Father who freely gave them to her in favour of her Marriage French Consult your Annals and they will tell you that 't is true Philip the second to give himself the honour of an imaginary bounty gave to Isabella all those Estates which belonged to her by the right of Devolution You will see also in your Records that all the Orders of the Dutchy protested that this Donation should not prejudice their Rights Customs and Priviledges and that notwithstanding this contract they should look upon Isabella as their natural and lawful Soveraign a Scripto Ordinibus caveat duodecimum cessionis articulum Belgicarum provinclarum libertati privilegiis nihil derogatum aut dettimento fore Ordines Brabantiae per suum Grapharium sententiam protulerunt quae palam pronunclavit Ordines ita censuisse se Alberto Archiduci serenissimae Insantis nomine tanquam Principis legitimae harum provinciâ—rum jusjurandum praestituros si vicissim els jusjurandum praestetur de observandis patriae privilegiis de lis sarciendis quae contra majorum instituta auspicia innovata aut abrogata sunt And if your curiosity leads you any further you may entirely satisfie it in the History of the Low Countries written by Grotius where we read that Philip II. was willing to give these Provinces to Isabella not only for the reduction of the Rebels to their duty but also by this division to assure them to her against those troubles which her half brother might some time or other have given her notwithstanding that she was the lawful inheretrix to them b Dotem Philippus Burgundiam cum Belgica dixerat ut legitimae haeredi adversus fratrem minorem divisioneconsuleretur lib. 6. An. 1597. Which made such an impression upon all the hearts and spirits of the Country that it was at that time that Christineus Kinscot Buken and those other famous Doctors of the Country enlarged themselves upon the business of the Right of Devolution to make it known to their Princess that it was this Title of the Law and not the Kings her Fathers Donation which made her Soveraign of Brabant Germ. This example and these protestations seem to me to be of great strength to support the right of the Daughters by the first bed against the Sons of the second in Brabant but it may be Sir he will tell you of some presidents to the contrary French That will be an hard matter for him to do for all the Dukes of Brabant that had more Wives then one before Philip the second are Geoffrey the third Henry the first Henry the second John the first Anthony of Burgundy and Philip le Bon Now 't is certain that after the death of these Dukes either a Son by the first bed alwaies succeeded in the Dutchy or a Son by the second where there were no Children by the first as was John the second or a Son by the third bed where there were none by the first and second as was Charles le Hardi Son by a third Marriage to Philip le Bon who left no Children by the two former Germ. I am extreamly satisfyed as to the Dutchy of Brabant in favour of the Queen and if her right be as well founded to the other Estates I think a man must be very obstinate to deny it French The rest of her Titles are as easily justifyed and made out in very few words for the Objections and Answers which you now hear are applicable to all the rest of them Flem. Let us proceed then if you please French The Seigneury of Malines belongs to the Infanta by the same right of Devolution The 15. Article of the 10. Title of the Custom is precise in it a Si vir aut mulier quibus liberi supersunt relictis feudis diem suum obeat tum ex maritis is qui in vitâ manet usum fructum habebit in omnia commoda accidentaris Patronatus feudales in arces feudales nec non semissem in obventiones cettas proprietas corundem feudorum tamen statim ad liberos devolvitur And Christineus in the Learned Commentary which he has publish'd upon it formally avouches that all the Fiefs of the Survivor whether acquired or Patrimonial belong by right of Devolution to the Children by the first bed from the moment of the Dissolution of the fiâ—st Marriage He adds also that this Custom is in this particular more severe then that of Brabant in that it gives the Children by the first bed all those Fiefs which fall to the Survivor by inheritance during his second Marriage to the prejudice and exclusion of the Children he has by it which is not the Custom in Brabant a Etiam notandum venit quod secundum antiquam Mecklin Constitutionem ferè per universam Brabanti am superstes altero conjugum mortuo usufructuarius redditur suorum bonorum sive industriâ quaesita sunt sive haereditate obvenerunt corum proprietate statim ad liberos perâ—inente qui haeredes futuri sunt devolutâ qui si ante eum moriantur proprietas denuo ipsi cum usu fr. consolidatur id propter spem rediturae haereditatis haereditarius ille usufructuarius appellatur atque hinc est quod proprietariis non liceat quamdiu in vita est usufructuarius eam proprietatem vel vendere vel oppigneraâ—e vel ullo denique colore onerate uti colligi potest ex generali statuto consuetudine Brabantiae particularibus c. In Consuetud Mecklin Tit. 16. Art 24. Num. 25. As to Antwerp which is one of the chief Fiefs of Brabant the Infanta has a claim by 3 Titles The first is that by the Custom which introduces the Devolution The second is the Union of that Marquisate with the Dutchy of Brabant made by Philip le Hardi Duke of Burgundy and some time since renewed by a Solemn Act of the Emperour Charles the Fifth where he declares it to be inseparable from
A DIALOGUE Concerning the RIGHTS Of Her most CHRISTIAN MAJESTY Licensed by Authority In the Savoy Printed by Thomas Newcomb 1667. IN a short time after the late Queen-Mother had paid all the Devoirs and Civilities which are usually performed on the like Occasions to the Memory of the Catholique King her Brother and the Queen his Widow She sent for the Marquis De la Fuente the Spanish Ambassador and let him know from her own Mouth That amongst all the pains of a fatal Distemper into which she was fallen she should yet think her self happy and dye with Comfort If she could see a Peace firmly settled between the Two Crowns so as not easily to be broken or interrupted That from this Motive without any other Interest than that of the Publick Peace she heartily wished That Spain would be induced to give Satisfaction to the King her Son in certain States and Dominions that were fallen to the Queen his Wife in the Low-Countries since the refusal of a Right so Natural and Legal would inevitably cause Differences between the Two Kings But she required him to write to the Queen her Sister and to conjure her in her Name That she would not lose any opportunity of employing the little remainder of her the Queen-Mothers Life which she freely offered for the putting an End to an Affair of such Importance to the Estate of the Catholique King her Son and generally to all Christendom Assuring her That her Mediation would not be ineffectual with the King her Son whose Goodness and Moderation she was so well perswaded of as to promise her self That from her Desires and his own Inclinations to Peace he would be induced a little to moderate his Interests The Marquis De la Fuente undertook to write about it but the Answer he had after a considerable space of time was a precise Order to declare to the Queen-mother as he accordingly did That the Queen his Mistress would not upon any account whatsoever hear of any Accommodation in those pretensions which she took to have no appearance at all of reason and so much the less since the late King her Husband had forbid her by his Will to alienate or dismember any part not so much as one single Village or Hamlet of the Sovereignty of the Low Countries And although so formal and positive a refusal as this was might from that instant have driven things to a resentment yet the moct Christian King instead of executing his rights was willing to suspend for some time the design of pursuing them in the belief he had that the Queen of Spain would take care to be better informed about them but at last perceiving that a longer patience might prejudice the interests of the Queen his Wife Spain having already taken advantage of it in exacting a new Oath from these Estates that were fallen to him he is resolved to march and take possession of them in a posture fit to assure the quiet of such of his subjects as shall be faithful to him or to force the Rebellion of those that shall refuse to acknowledge him for their true and lawful Sovereign and at the same time for the informing all Europe of the justice of his Rights he has caused to be publisht a large Treatise whereof the short discourse that follows is a faithful Abstract A DIALOGUE Concerning the RIGHTS Of Her most CHRISTIAN MAJESTY A French Advocate meeting in Brussels with Two others of the same Profession one of them a Flemming the other a German they had together this following Discourse French Adv. I Have frequently heard much talk of the Magnificence of this City of Brussels but whatsoever Idea I formed of it I confess it was not equal either to the Grandeur or Beauty of what I see Flem. By your Accent 't is no hard matter to guess you are a Frenchman Fren. 'T is very true Sir I am so Flem. I wish you may find wherewith to satisfie your Curiosity I should think my self happy could I contribute any thing towards it Fren. That you may easily do Sir in helping me into the Palace where the Courts of Justice usually sit which is the only thing considerable in the City that I have not seen Flem. I am the more willing to undertake to conduct you thither because I have as much freedom there as you can desire Fren. I am infinitely pleased with the favour you do me but yet I fear I shall be troublesom to you Flem. Fear not that for who can be fitter to do this small kindness for you than an Advocate in a time of Vacation Fren. You are then an Advocate Sir Flem. That 's my Profession Fren. You cannot tell me any thing that pleases me better since 't is mine also Flem. I am much pleased with this our happy meeting but may I take the boldness to ask you in what Court you practise Fren. I cannot but satisfie your Curiosity 'T is in the Parliament of Paris Flem. After this Declaration I am almost ashamed to lead you where you desire For I am told nothing can compare with the Dignity and Majesty of that August Parliament Fren. Every place has its particular Beauties and Rarities but pray Sir be pleased to do me the favour you promis'd me Flem. Enter then since you will have it so for we are come insensibly to the Door Fren. In truth I should have had reason to complain of you had you concealed from me a place where I discover so much beauty This Tribunal is very Magnificent the place it self methinks has much of Greatness in it and I doubt not but it appears much another thing when animated with yours and your Brethrens Eloquence Flem. 'T is your Bar Sir that is the true Field of Eloquence and not this place where 't is confin'd to too narrow limits for all Causes here are discussed by writing the Advocates never plead yet I confess since the Establishment of Peace between the Two Crowns the Sciences begin to take their places But of late there is a flying Rumor of War that somewhat troubles us you may probably better inform us of it since you come from Paris from whence we have also this News Fren. You surprize me much for when I came from thence which was about a Fortnight since I can assure you They were then intent upon nothing but Peace Arts which are the most noble Ornaments of a Peace flourish there more than ever The Sciences are cultivated with singular application They are there reforming Abuses crept into Justice correcting the Disorders in the Finances establishing an excellent Politie Now Manufactures take up and employ whatever Idleness before corrupted Trade is encouraged to take off the Superfluities of our own and to supply us with the Abundances of Forreign Countries Vertue is now perfecting her Conquest over Fortune and Honours begin to be distributed only at the rate of Merit In a word The most Christian King purifies all things by
point of Argument it is of all others the most unjust that in the order of Succession in Brabant it is impossible And lastly that the Custom contradicts and condemns it by most expresse Articles Flem. If you prove all these things I shall willingly come over to your side but I very much doubt you cannot do it French You will not deny but that the Right of Devolution is a Favour which the Customs bestow upon the first Marriage against the second Doctor Sandeus hath wrote that this Law was made in respect to the first Marriages and in favour to the Children issuing from them a In Consuetud Feud Gueldriae Zulphan tr 1. tit 1. Sect. 9. Christineus b In Consuetud Meklin tit 16. art 4. in addit says that second Marriages do so much change and lessen the advantages and affections of the former that Custom thought it justice to allow them a Compensation by introducing the Right of Devolution And Kinscot affirms that this Compensation is a thing so sacred and so carefully reserved for the Children by the first Bed that thereby the second can have no pretentions to it so long as there remains any one person of the first c Resp 65. Num. 1. This then being so can it be thought that a Right only established in favour to the first Marriages in opposition to the second may be forced away from the Children of the first Bed who are seized by Custom to be bestowed upon those of the second against whom it was founded You must not by your Favour take the advantage here of the Prerogative of Sex for in matter of Devolution there is no comparing of Sexes so as to give the advantages to the more Noble of them but the Order of Marriages is there considered where the Prerogative is given to the first against the latter pray tell me to what purpose would it have been to grant the Children by the first bed a right to defend themselves from any prejudice they might receive from a second if they should be obliged to render and give it up to the Children by the second In fine take this one reason for all that Devolution being a kind of penalty and a fence against the second Marriages in favour to the first it can never be that the first should be deprived of it in favour of the second because that would contrary to Nature turn reward into punishment and punishment into reward I say then that your preference upon debate is very unjust But to go on I adde that 't is morally impossible in the Order of Succession in Brabant my reason is because the Children by the first bed being seised at the very instant of the Dissolution of Marriage of the property of all the Fiefs of the Survivor the Father is not in possession of the property at his second Marriage nor of the Succession at his death and consequently 't is impossible that a Child by the second bed should succeed him in it For if we would prefer the Son by the second bed before the Daughter by the first 't would be necessary that the Fief were at the Fathers disposal at the time of his death because none can succeed to that which belonged not to the deceased so that being stript of the whole property and becoming only Tenant for life 't is absolutely impossible that he should leave that to the Children by the second Marriage which he was out of the possession of at the time when he contracted the Marriage from which they issue But for the better clearing of this Argument let us say if you please that the Custom having by the right of Devolution seised the Children of the first Marriage of the property of the Fiefs which were the Survivors if we would have the Son by the second bed succeed 't were necessary that the property should again revert to the Father and that the Child by the first bed should be disseised which can only be done these three ways Either by the rule of Custom or by the will of the Survivor or by Common Right But you will not say that the Custom which has given this Right to the first bed does deprive it of it to bestow it on the second Marriage from which its only meaning and intent was to take it away It cannot also be said that the Survivor who was disseised of it had a power to recall it from the first bed and to pass it over to the second and as to Common Right we know that all its inclination as well as all its rules and ordinances tend to the favour of first Marriage against the second Conclude we then that your preference is impossible in the order of Succession in Brabant and give me leave for a close to shew you that 't is condemned by an express Ordinance of the Custom of the Country This Custom distinguishing between Fiefs which belonged to the Survivor at the instant of the dissolution of the first Marriage and those which fell to him or were acquired by him since his second Marriage declares by its second and third Articles that the Children by the first bed shall leave the property of all Fiefs possessed by the Survivor at the time of the decease of the other person that was joyned in Marriage and expressely orders that the Brethren and Sisters of this Marriage succeed one another therein This being pre-supposed is not your preference directly contrary to this Law since by it the Son by the second bed against the very words of this Text would hinder the Sister from succeeding her Brother by the first bed and you say Kinscot that Great Chancellour of Brabant hath very precisely said that never any Children by the second bed could make any demand of the Fiefs whilst any one of the first was living which is also confirmed by Christineus and Sandeus when they tell us that this right of Devolution is not to be applyed but to such Children as were in common between the Deceased and the Survivor But you have the less reason to deny these truths since being of that Country you know that 't is the General rule of all these Customs to prefer the Daughter of the first bed before the Son of the second and that indeed that of Haynault Malines Namur and divers others have made several express Articles of it Flem. It will follow then that against the order of Nature as well as against that of the General Polity of all the world the Brother must obey the Sister French Pardon me for the Catholick King will command in his own Estates and the most Christian Queen in hers and neither of them have Dominion over the other I adde too that by your own acknowledgement this is always the practice in Brabant for the Daughter of the first bed by vertue of the right of Devolution carrying the Fiefs of the Survivor from the Son of the second it often happens that
very instant of the dissolution of Marriage pass to the Children of the first bed leaving no manner of pretence to those that shall be born of the second b Consuetudine generali Brabantiae proprietas bonorum seudallum devolvitur ad prolem dissoluto eo Matrimonio quo stante bons ejusmodi suere unius vel alterius conjugum five sint patrimonialia five acquisits its ut proles secundi Matrimonii in successione Parentis qui Superstes fuit nihilex talibus bonis consequatur Resp 65. Nu. 1. Christineus a famous Doctor of that Nation affirms that a devolution made by the death of one of the married persons doth as it were anticipate the succession in favour of the Children by the first Venter absolutely excluding those of the second c Notandum hic est quod devolutio bonorum quae sit per mortem alterius conjugum fieri censetur quasi per anticipationem successionis quoad proprietatem tantum In Concil Meklin tit 16. Art 4. in addit Frederick de Saude in a Chapter which he expressely made upon the chief Customs of Brabant tells us that in respect to the first Marriage and in favour to the Children begotten in it this Right of Devolution hath been introduced and observed in that Dutchy with more than ordinary Religion and exactness d Ob honorem primarum Nuptiarum favorem priorum liberorum Brabantiae moribus introductum esse ut matrimonio post morcem alterius Conjugum soluto tam Superstitis quam defuncti feuda deferantur communibus liberis salvo tamen Superstiti usu fruct feudorum ab ipso profectorum sive ex haereditate sibi obvenerint sive ex industriâ quaesiverit In Cons Feud Gueldriae Zutphanioe tit 1. Numb 1. Sect. 9. The Judgment lately given at the great Council of Malines in the Count de Bergues case and that latter one concerning the Marquisate of Berg. of som adjudg'd to the Countess D'Auvergn upon the death of her Father though the Marquisate came by her Mother are unquestionable proofes of the practise of this Right of Devolution And his most Christian Majesty putting this Case to one of the most famous persons of your Brethren but under borrowed names he gave his Judgment in favour of the Daughter of the first Bed against the Son and all the Children of the second Germ. It being so where lies the difficulty since that custom is conformable to Law and the 't is manifest His Catholick Majesty was in possession of Brabant at the time of the Dissolution of his first Marriage Flem. The difficulty lies in 4 principal points which it will concerns us to clear before we proceed further to the business of the Title French What Sir are these 4. Difficulties Flem. The first is that the Local Customs cannot be a rule to the Inheritances of Soveraignties The second that the Devolution being not an actual and effective right but only a bare expectancy which could not be compleated till the death of the Survivor the Infanta might make a good Renunciation The third that the Estates of the Low Countries were re-united into one body by the Pragmatick or solemn Constitution of Charles the 5th in the year 1549. and cannot be enjoy'd but by one person and he a Soveraign The 4th is that the Catholick King leaving behind him a Son though by a second Venter he excludes the Daughter of the first from the inheritance in question Germ. I confess I did not foresee these Objections which notwithstanding appear to be very Solid and Essential French I must give you satisfaction in them but I believe in truth they are rather proposed to try my skill in their solution then that there is really any difficulty in them For I am perswaded that this Gentleman is better versed in the Histories of his Country and a person of greater judgement then to propose them seriously The very Records of Brabant inform me that the right of Devolution establish'd by the Custom of Brabant is so exactly observed in the succession of the Soveraign and even in regard of the Soveraignty it self that about the year 1230. a dispute arising between the Duke on one side and his Son on the other and the question being put whether the Duke possessing that Dutchy in his own right had not lost the property of it upon the Decease of the Dutchess his Wife by Vertue of the Devolution The Emperour Henry assembled all the Princes of his Court and after a charge given in as ample a manner as a cause so famous could require at length by the advice of his Council gave sentence that the property belonged to the Son upon the decease of his Mother although she had no manner of right whatsoever upon her own account prohibiting the Duke from proceeding further in it to the prejudice of his Children a Henricus Dei Gratia Rom. Rex semper Augustus omnibus ad quos praesens scriptum pervenerit gratiam suam omne bonum Notum facimus quod cum Henricus majot filius Illustris principis Ducis Lother matram habuerit illa sit mortua per sententiam principum in Curia nostra est judicatum quod si idem Dux de bonis quae possider aliquid alienaret vel in manus vellet transferre alienas dictus Henricus se de iisdem bonis posset intromittere occupare licenter ad usus suos tenere Datum Fridbergae an gratiae 1230. ptox Dom. post Festum Paschae 4. Cal. Maii. Indict 3. Bukenheph de Brahant I have read also in the same Records a letter of 1273 written by the Emperour Rodolph I. to John Duke of Brabant in which he strongly confirms the Vertue of this right of Devolution in the succession of the Dukes and it cannot be denyed but that the Emperour Charles the Fifth after the death of the Empress his Wife so fully acknowledged that the property of Brabant was passed into the person of Philip his Son by this right of Devolution that he publickly protested he could neither confirm the Customs nor meddle with the Priviledges of the Country but jointly with his Son But if from examples we proceed to argument in the examination of the power of Local Customs in relation to the inheritance of Soveraignties nothing can be more easily proved for there are only three sorts of Laws that can be of use to regulate Soveraignties That of a Soveraignty it self if it have any particular Law to guide it The Laws of the Neighbouring Kingdoms or those of the Country As to the particular Laws of each Crown 't is certain that where any such are they are necessarily obliged to follow them as in France the Salique Law in Poland and several States in the Northern parts their form of Election But where no particular Law can be found I affirm that 't is the worst of errors to pretend that the succession to a Soveraignty ought not to be regulated by the custom