it is alledged to as little purpose as the other for neither Bruce nor Roderic did disinherit their eldest sons but gave them a better and greater part then unto the rest and surely no man can think they did well to make such divisions because their actions did not prosper but now God be thanked they are again reunited into one glorious Monarchy and may they ever so continue as long as the world shall continue in the Koyal Line of our Gracious Soveraign who is descended to his Imperial Diadem by the most noble and only rightful way of inheritance which is from the next of blood to the next of blood or from one eldest son unto another Proof 35. That there is a Law or custome in Ireland called Tanistrie by which the land and Chiefty of a name after the Predecessours death is not awarded to the eldest son but to the worthiest the judgment whereof is left to the people and such Tennants as have interest and right of suffrage as Alexander the great though as 't is apparent in the Macchabees very falsly said to have left his Empire And that the tenure or custome of Gavell kind allows every son to have an equal share in the estate Answ It is marvel that the Apologer will acknowledge the Book of the Machabees to be Apocrypha because it seems to make something for his pretended free power of Parents and it is marvel he doth not condemn this Irish custome to be Apocrypha for there is nothing can make more against his power because upon the matter the futhers authority and the fortunes of the family are in the power of the Tennants he sayes that all customes which are against Law are void by the civil Law and he knows also that a great part of this prople are still called the wild Irish and surely such customes are fitter for wild Savages then for civil Christians And concerning the tenure or custome of Gavell kind it is true that it gives an equal share of the estate to every son but as I take it this custome was chiefly and I think only in Kent and the Apologer grants that some have altred it in their private Families by Act of Parliament and doubtless the cause hath been for the preservation of their Families which by such divisions could not chuse but come in short time to nothing and level the best and greatest of our Gentry to the degree of the meanest Vulgars Proof 36. That Briand Lyle or Fitzt earl Lord of Abergavenny having two sons both leaprous built for them a Lazaretto or Spittle and gave to Miles Earl of Hereford the greater part of his Patrimony from his children Jane daughter of Hugh Courtney and heir to her Mother wife of Nicholas Lord Carew disinherited her eldest son Thomas quoniam minus reverenter matrem haberet and parted her lands which were goodly among her three younger sons of whom are spâ—…ng three worshipful Families of the Carews called Haccomb Ancony and Bury So that God by the success crowned the fact and confirmed the lawfulnesse of partage Answ The Lord Abergavenny did well in giving away a great part of his lands away from his two sons for a Spittle was more fit for such sons then an inheritance yet he left them a great part of his lands and doubtless would have left them all had they not been leprous and unfit And the Lady Carew did well in giving her lands to her younger sons her eldest son being heir to his father and having as may be thought a sufficient competency of estate but the true cause was because he was undutiful which had he not been it is likely she had given him the greatest part if not all of her inherited lands And you know Mr. Apologer there is a different case betwixt an eldest son who inherits an estate from his father and a daughter who is an inheritrix for the son is to do that which hath been done to him and as he received an inheritance from his father because he was the eldest son so is he bound conscience not to disinherit his eldest son because he would have been loth to have been disinherited himself and that which we would not that others should do to us we are not to do to any other Matth 7. Luke 6. This is the very corner stone as I may well call it of the Law of Nature and of the Law of Grace especially for so much as concerns morality and distributive justice but women who are no fit presidents for men have a greater freedome then men in this case for they inherit by way of Parcenary and every daughter hath an equal share in the estate though the eldest by reason of her Seniority hath the priviledge to chuse first and an inheritrix hath the name of her Family extinct in her self and therefore may at her pleasure disperse her lands amongst her sons the better to preserve the memory of her self and Ancestours from whom she is descended and no marvel though God did bless with good successe the good acts of this Lady for she did both justly and wisely But who hath known an estate long prosper where a dutiful and deserving eldest son was disinherited by his father I must confesse I never did such unrightful and lawlesse heirs may be likened to the Bastard plants which the Wise man speaks of Wisd 3. and 4. that cannot take deep root nor lay sure foundation So that all these examples by the Apologer alledged are like his other arguments they either make against himself or serve to no purpose To the Reader I Have here answered as well as I can all the Apologers proofs and reasons on the behalf of his younger Brothers and I confess that according to the best of my poor judgement I have not found any one firm or sinewy argument which may satisfie any reasonable understanding in proof of his so absolute a free power of Parents or against the impregnable rights and prerogatives of eldest sons But I must not usurp upon anothers right the censure belongs to the impartial and judicious Reader unto whom I humbly commend it THE Second Part Wherein is Treated of The preservation of Families The free power of Parents The Rights of eldest sons Printed for H. Fletcher 1548. The preservation of Families ELder Brothers sayes the Apologer either seated in their fathers wealth or possessions or having more then hopes to enjoy their fortunes do sometimes love truly neither themselves nor any body else but abusing that which indeed might gain the love of God and man and easily maintain their hereditary honour lose themselves in vanity and most idle courses yea in their fathers lives so strangely carry themselves presuming rather on precedence of birth then worth as though the Law of God and Nature and all other Cannon Civil and National Laws and constitutions and customes sprung from them could not either in reason or religion bar them of that which they expect or
Jus Fratrum THE Law of Brethren Touching the power of Parents to dispose of their Estates to their Children or to others The Prerogative of the Eldest and the Rights and Priviledges of the younger Brothers Shewing the variety of Customes in several Counties and the preservation of Families collected out of the Common Cannon Civil and Statute Laws of England By John Page late Master in Chancery and Dr. of the Civil Law LONDON Printed by I. M. for Henry Fletcher at the three gilt Cups near to the West end of S. Pauls 1658. To the Reader DIscordia fratrum inter se Amarissima wofull and long continued experience tells us with what bitterness enmity amongst brethren is carried on if we cast the least glance of our eye amongst the many violent Law-suits daily prosecuted by brother against brother so that we see the saying of the Poet complaining of the Iron age near two thousand years ago verified in the superlative degree in our age Concordia fratrum Rara est Filius ante diem patris inquirit in annos Love amongst brethren saith he is rare to be found and the son goes to the Oracle to enquire how long his father shall live that he may inherit his estate The eldest would have all to be his and the younger thinks the elder hath too much and while they strive who gets most use of his fathers estate commonly a third person carrles all from them both This Treatise will discover the Rights of both Elder and Younger if they will be contented with their portion fully answering the Apologer for the younger brother or the younger brothers Plea This book called the Apology or Plea for the younger brother being a Treatise so intituled was Printed at Oxford in the year 1636. Hereby brethren may learn to know their Right and that being known and obtained I could wish them to be therewith content and observe the Apostles divine command Let brotherly love continue The fathers power and Prerogative in disposing his estate A Fathers free power disputed as that he may dispose of his Lands or other his Fortunes to his son sons or any of them as right reason the Laws of God and man the civil cannon and municipal Laws of this kingdome do command 2 I will prove by the Laws of God and man that a fathers freedome is such that he may lawfully and religiously give his lands or goods or other his fortunes to any of his children for the preservation of his name and comfort of his posterity as right reason or the better deserts of a son shall perswade him 3. Nature never set it down as a Law that the estate 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 4. Neither is there in Scripture nor in any other written Law under heaven any command to restrain 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 be provided for 5. Children during their fathers lives have only jus ad rem not jus in re to a fathers goods whereupon 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 and give as it shall please him 6. The Cannon and civil Laws give no precedency or superiority of right to eldest sons but command it as a thing in equity the father either to divide his inheritance amongst his sons or to give to one more then to another as it shall please him yet with this proviso that he who hath the least hath his childs part except on just cause he disinherit him 7. The Common Laws of our Realm allow every father to give his land in fee either by deed in his life or will at his death to any of his children yea to a stranger without rendring a reason why he doth so 8. The Imperial or Civil Laws gave Parents at the first a power of life and death over their children and the Jews had the same power given them by the divine Laws An Advertisement to the Reader YOu may see here with what a merciless immanity this wild Apologer falls upon elder Brothers for no Laws either divine or humane allow them as he sayes any right of inheritance at all above other sons nor any other sons can claim any thing of their Parents as of right but what is their Parents pleasure to bestow of them and daughters are in the same or in a worse taking for he insers that they may lawfully be disinherited and the estate conferred by the father if he hath no sons to any one of the same name because the name of the family is extinct in the daughter and the Hebrew word Zacar which signifies a male child doth signifie also a memoriall because the fathers memory is preserved in the son But this is not all for it is not enought that Parents have a free power to make their children beggers unless they have also a free power over their childrens lives It is strange that the Apologer who pretends so much learning and honesty should be so fair in his Epistle and so fowl in his Treatise which thanks be to God is no Gospel for there he protests that it was not upon any the least presumption of a self-sufficiency to confront thereby any received custome nor to diminish the natural reverence due by younger brothers to their eider nor to enkindle emulation in families nor to innovate any thing to the prejudice of publick or private quiet that he made publick his Treatise but his principal motive or aim was the singular respect which as a Patriot he bears to the glory of Gentlemens houses and to the general good of great Brittain which how well he hath performed or whether he had any such intention or no let any man judge who shall read his Treatise And though he seems in some places a little to confine the parental power by saying that Fathers are to dispose of their estates as right reason and the better deserts of a son shall perswade them or chiefly for the preservation of their families which every wise and good man must and will have a care of yet this is but a seeming restriction for all is left to the fathers ther 's affection and will and the eldest son hath no more right to inherit then the youngest and either of them none at all but at the courtesie of the Parental Monarch As for his vain suppositions that if the eldest son be a natural fool or madman or turns Turk or be extreamly and desperately vitious they shall have no serious part of my Answer because they are no material parts of the charge of his Tratise The questions
his sons to inherit that which he hath that he may not make the son of the beloved the first-born and prefer him before the son of the hated which is indeed the first born but he shall acknowledge the son of the hated the first born by giving him a double portion of all that he hath for he is the beginning of his strength the right hand of the first-born is his Deut. 21. Parents therefore are not to think themselves so absolute as that they may make choice of what heir they will according as the wind of their affection shall blow for affection is here excluded we live under a Law grounded upon Divine Ordinances which we are bound in conscience to observe and inviolably keep and though the letter of the law is that eldest sons should have a double portion above their younger brothers it is no where said that eldest sons should have but a double portion as though Parents should be concluded from giving them more for so we should condemn our national Laws and the general practise of all good Parents who usually leave the greatest part of their estates to their eldest sons But sayes the Apologer or seems to infer it neither this nor any other divine precept doth any way restrain a fathers free power for the words are when he maketh or is to make his sons inherit that is when he is disposed or minded so to do and if he be not so minded he may chuse for he hath a lawful power and freedome to do otherwise But Mr. Apologer shall I in answer propose a question to you and concerning your own profession for they say you are a learned Divine suppose there were this saying in Scripture that when a minister makes or is to make his prayers or a Sermon he is to demean himself in a zealous and sober manner will you say that a minister is not oblig'd at all but may chuse whether he will pray or preach or demean himself soberly indeed I could wish being your self as you say a younger brother that you would demean your self a little more soberly and mannerly towards elder Brothers who are your masters and not to question their ever yet undeniable rights but rather to conform your self to the admonition of the Apostle Tit. 3. Stultas autem quoestiones Geneologias pugnas legis deuita sunt enim inutiles vanae Preof 11. That the prodigal son mentioned in the Gospel Luke 15. being weary of his fathers house came to his father and boldly said pater da mihi portionem substantiae meae quae me contingit this child of which the Gospel speaks was the younger brother yet you see how boldly he said Give me that portion of goods which belongs to me by which words it is evident that a devision or partition of a fathers goods was then in use 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 thd Civil and Cannon Laws for the words following in the sacred Text are these divisit substantiam illis and he divided unto them his living thus we see that the priviledge of eldership was then excluded which now in our coutrey by custome only is gotten to be of such force Answ The parable of the Prodigal so much advanced by the Apologer makes nothing against the rights of eldest sons for though the words are pater divisit and the father divided yet it was movable goods or money and not lands which he divided and it cannot be understood that the father gave half the estate to the younger son for then he should leave but one half for himself his wife and eldest son But this parable clearly overthrows the pretended free power of Parents for the prodigall demanded his portion of his father as of right which the Apologer sayes all children may do and had it paid him Proof 12. That it is invincibly proved out of the book of Job who was contemporary with Moses by attestation of judicious Theologians that there was in those times and countreys no such Law or custome that the eldest son should play at sweepstake and all the rest left to the mercy of the four winds for it is expresly recorded in the last chapter and fourteenth verse that Job gave his daughters inheritance among their brethren which comes home to the point in question and irrepliably evinces a fathers power and right to make partition of his estate among his children Answ The Apologer sayes he is now home to the point in question but I know not what can be further off from the matter in question if he be no better an archer then an arguer the safest place for a man to stand in when he shoots would be at the mark as Diogenes was said to do to one who used to rove at randome for the question he is here come home to is that Iob gave some inheritance to all his sons and daughters and he did well and as all good Parents ought to do for neither the Levitical law nor any other good law doth allow fathers to leave their whole estates to their eldest sons but only the greatest part of it for they are with Iob to provide for all their children this I grant is a question without question but Mr. Apologer if it please you to remember the main question which appears in the mighty charge of your Treatise is whether eldest sons have a superiour right to inherit above other sons or rather have any right at all and whether fathers may lawfully and religiously give their lands and goods to which of their children they please or to whom they will The younger Brothers rights by the Cannon and Civil Law Proofs out of the Cannon and Civil Law THat God in his commandements did but second his former Ordinances given by nature for so long as mankind lived in a sort after the innocency which Gods grace in his first creation had wrought in him God gave him no other Law but when as by sin those sparks which remained after his fall were quite extinguished God gave him new Laws yet agreeable to nature and Laws which ever had but the name and credit of Law do derive their Original from the Law of Nature whereupon Cicero many hundred years since said that the ground of all Law-making is to be taken from the chief Law which was made before any Law was written or City builded Answ The Apologer to gain the more credit doth flyly cover himself with the Law of Nature and would perswade his easie Readers that all the Laws he alledges are grounded upon that Law I deny not but that the same was in the Law of Nature as is delivered in the holy Tables of the Law but neither the Apologer nor any man can know which were all the Laws of Nature nor what Laws are grounded upon that primary Law it is the duty of every good
would have it suppos'd because eldest sons inherit but it is rather the meer act and ordinance of God for it is only God who gives children and if there be no children the Family must needs extinguish and we find in Mr. Camden and in our ancient records and deeds of conveyance that many hundreds of names of noble and ancient Gentry are either lost for want of children or by marrying of the heirs general and the Apologer knows that the Civil wars treasons manslaughters felonies and the like have been the ruine of many noble houses which could not have been prevented with all the Apologers natural reason or by any free power or care of fathers Proof 23. That it is far from the Law of Nature or Paternal piety the father dying intestate the eldest son to become Lord Paramount of the estate and not to be bound by Law to provide for brother or sister but at his own good liking aliud tempus alios mores postulat when we have a wiser age we shall have better customes and men both of learning and virtue have broke this custome upon good considerations and just causes not upon spleen by leaving their fortunes to strangers or to a lustful issue as some have done Answ The Apologer cannot be ignorant that if the father dies intestate which the Laws suppose he will not do being so much bound in conscience to provide for all his children our Courts of equity do rectifie and regulate the Laws in such cases and the Civil Laws as sayes he ordain that every son and daughter shall have a legitimate or childs part whether the father dies intestate or no. And surely I cannot think but the Law does well in leaving such a large and absolute right in eldest sons for were the estate as the Apologer would have it to be equally divided amongst all the children and the Lawyers and Neighbours should be called upon to make the division every of the children would think his own part least and trouble the Courts for a new and better division until they had divided and brought the estate to nothing But I pray you mark the uprightnesse of the man it is he sayes against natural reason and paternal piety that eldest sons should inherit the estate but he no where sayes that it is against natural reason and paternal piety for fathers to disinherit their lawful children and give their estates to strangers and Bastards Nay he seems to incourage them what he can for they shall sayes he not want presidents nor do any more then others have done before them and will do after them Proof 24. That it is against natural reason which is the grandmother of all Laws that the temperate should be subject to the intemperate the sober and wise to fools and franticks That servitude proceeds not from the Law of Nature but from Nature corrupted That it is against natural equity and against Nature her self that men should be subject to beasts or insensible creatures whereupon Aristotle disputing the nature of rule and subjection saith that none are born slaves but such as Nature hath abridged of the use of reason who being truly slaves are utterly unfit to govern upon which ground the same great Philosopher prefers that form of policy where the wisest and best are admitted to the mannage of state affairs and therefore if it be Natures intent as it is to make all mankind reasonable how reasonable is it that they who are unreasonable ought to be deprived of all right and claim to any thing more then to sustain nature and debarred all superiority or seniority which by Law or custome might otherwise have faln on them because according to divine ahd humane Laws man ought not to be govern'd by beast such as Idiots and Franticks seem to be Answ Here is a note beyond Elah but he cannot want his answer for he hath it already the effect of all this fair flourish being but this that such eldest sons or any sons who are natural fools and mad-men or extreamly and desperately vitious are not fit nor worthy to inherit But I know not what the Apologer should mean by his alledging Aristotle that none are born slaves but such as nature hath abridged of the use of reason and that servitude proceeds not from the Law of Nature but from Nature corrupted if by the word servitude he means subjection he grosly errs for it as natural for a son to obey his father as it is natural and pious for a father to relieve to instruct and govern his son but the words slave and slavery are of so ill a sound and bad a sence that as no man is born a slave so no man methinks should either be or be made a slave Natural subjection does well both in son and subject but slavery is unnatural and monstrous both in him that forcibly and undeservedly inflicts it and in him that suffers it unlesse it be for the cause of religion and then it is an honour But sayes he it is against natural reason which is the grandmother of all Laws that the temperate should be subject to the intemperate the wise to the foolish and therefore in natural reason that son who is the wisest and worthiest ought to be heir if it so please the father for he is Lord paramount and he must be the Oracle But Mr. Apologer what if this your Oracle the father which is no very strange thing should be foolish for fools can get children as well as wise men there is little difference betwixt either of them that way Suppose I say that the father himself be foolish why what if he be may the Apologer answer fools are Christians as well as other folks and he may by chance for all that make as good a choice of an heir as a wiser man and this answer of his would be as solid and as much weighty as any other authority or reason he hath yet alledged for his pretended free power of Parents or against the rights of eldest sons Proof 25. That it is no sin nor offence for a father who hath estate in Fee simple to disinherit his eldest son or any of his sons for he hath a lawful power so to do Ergo fathers may with a good conscience Answ It is a hard matter to perswade some men what is sin our precise Separatists and new Anglians will acknowledge no sin but infidelity and some others there are of the Diabolical Sect of ede bibe lude who think there is no sin at all but the Apologer is none of these for he honestly sayes Natura Divinitatis fulgor that Nature is a bright beam or shining lamp of the Divinity and he sayes also Omne peccatum est Divinitati injuria that every sin is a wrong or an affront to God himself And what can be more against Nature then that a father should disinherit his own flesh and blood which are his children and give his estate to
prior in donis maior in imperio as also his dignity his power and his strength Proof 31. That the examples of Esau and Jacob and of Ephraim and Manasses where the younger brothers were by divine election preferred before the elder are unanswerable proofs of a fathers freedome in disposing of his estate Answ These examples of Jacob and Ephraim so much and often advanced by the Apologer make more for the advantage of eldest sons then for the pretended free power of Parents for Esau demanded the prime blessing of his father and his father intended to give him the blessing because he was the eldest son which his right he freely and willingly and volenti non fit injuria had before sold to his brother And when Jacob had put his right hand upon the head of Ephraim intending to give him the prime blessing their father Joseph was much troubled that his father should do so unjust a thing and thinking that Jacob was mistaken by reason of his blindness he endeavoured to remove his hand to the head of Manasses saying this is my eldest son put therefore thy right hand upon his head but Jacob refused saying I know my son I know and therefore unless fathers can infallibly know the divine will by divine revelation as Jacob did or have such as Jacob had concerning his eldest son Ruben they ought not to disinherit their eldest sons at all To conclude these examples so much urged by the Apologer do plainly show an apparent and undeniable right belonging to eldest sons and make nothing at all for the pretended free power of Parents but do indeed chiefly concern the divine providence and eternal predestination and did prefigure the conversion of our forefathers the Gentiles according to the divine word and divine Ordinance Gen. 25. Malaoh 1. The elder shall serve the younger and will not the Apologer give God leave to dispose of his gifts and graces as himself best pleases Proof 32. That it appears by Solomon his succeeding his father David that David had power both of the Laws of God and man to give his kingdome to the worthiest which he deeming to be Solomon did upon the entreaty of his wife give him the Kingdome though he was the youngest son Answ The preferring of Solomon to the crown doth no way impeach the rights of eldest sons for as David was himself divinely chosen being the youngest son so we may assuredly believe that he elected Solomon who was his youngest son to succeed him moved only thereunto by divine revelation for it cannot be thought being as he was a man according to Gods own heart that he would otherwise have done it And this good King had more reason and more freedome to dispose of the Kingdome then any other King hath since had for there had been no succession of Kings before him to establish a right nor any Laws made by the general votes of the people to erect a course of inheritance concerning the Crown and David himself did not inherit but was divinely elected and created King But I would have the Apologer tell us how many other Kings there were of Israel or Juda who were younger brothers and if he would make this an argument of disinheritance he shall much abate his pretended free powers of fathers and leave it in wives for David was entreated by his wife which will make more work for women who are already too busie and such actions and others that belong not to them Proof 33. That Augustus Caesar did not settle the imperial succession upon his Grandson Agrippa Posthumus but upon Tiberius who was no kin to him because he thought him more fit to govern Chosros King of Persia made Medarses his younger son consort with him in the Empire leaving out Sinochius who was his eldest son The Emperour Ferdinand left the Empire with Austria and the Kingdomes of Hungary and Bohemia to Maximilian his eldest son unto his second son Stiria and Carinthia and to his third son the Earldome of Tirol Philip King of Spain gave unto his daughter the seventeen Provinces Answ The Apologer having done with his divine and as he calls them invincible examples bestows upon us some other presidents as little invincible as the former which also shall be answered Augustus came in by conquest and therefore might the better appoint his Successor and he made so good a choice of one that instead of Tiberius Nero he was for his intemperance called Biberius mero Chosros the Persian King made his younger son consort with him in the Empire but it cost him dear for the people detesting so unjust an act took arms against him expelled both him and his usurping consort and put the Scepter into the hands of Sinochius who was the eldest son The Emperour Ferdinand did well in leaving his younger sons so well but he did better in leaving his Kingdomes and Empire unto Maximilian his eldest son And Philip King of Spain rather lent then gave the seventeen Provinces unto his daughter the late Arch Dutchess for she was not then likely to have children being so far in years and his gifts were no lesse prodigal then politick for he gave her more then he had to give or was able to keep But doth this make any thing against the rights of eldest sons or for the pretended free power of Parents It is well known that no heriditary King can as meerly of himself disinherit his eldest son the Prince nor as I have credibly heard do any act as meerly of himself which can impeach the rights and prerogatives of the Crown by which it is clearly evident that eldest sons have the only right to inherit and that fathers cannot have such a free power that they may at their pleasure lawfully and religiously disinherit them for Regis ad exemplum Subjects should follow the examples of their Soveraigns Proof 34. That our Proto-parent Brute divided this Island amongst his three sons Loegria or England to Locrinus Albania or Scotland to Albanact and Cambria or Wales to Camber King Leir gave his kingdome to his youngest daughter Cordeilla and King Roderic divided Wales amongst his three sons which divisions are still called to this day North-Wales South-Wales and Powes-Land Answ The Apologer may do well to make it first appear there was such a man as that noble Trojan The times are grown incredulous and critical and bare words gain little credit and our grand Historian Mr. Camden whom the Apologer terms the singular ornament of England is almost an Infidel concerning this History As for King Leir the story declares that his elder daughters were rebellious and undutiful and as Rebels were fit to be deposed and disinherited and the story also tells that the youngest daughter who was the Queen was a most infortunate Princesse for her Nephew Morgan who was the eldest son of her eldest sister took arms against her discomfited her and forced her to kill her self And for the divisions of King Roderic
can to prove that eldest sons have no more right to inherit then other sons all is as pleases the father for he is the supream and absolute Lord of the estate and may lawfully and religiously dispose thereof at his pleasure He tells us that he never read any Authour of this Subject and why then should he so much presume of his self-sufficiency and extraordinary spirit that he should think he may deserve credit himself telling us that he is the singularis homo the only man who first disputed hereof or ever brought the matter in question Marry I 'll tell you but then you must take his own words for it he sayes that he believes he hath spoken according to dialectical reason and that there hath been nothing spoken of it heretofore truly which reason hath not dictated to all Authours pens and you shall now see what a messe of reason he doth serve in for his purpose He sayes in his Epistle that there is a natural reverence due unto the eldest sons from their younger brothers he sayes that it was the use of the Israelites to prefer their eldest sons to the better part of their possessions and that it is now the more general practise of Christian Parents to leave either all or the most part of their lands to their eldest sons and he honestly gives these two reasons why it should so be The first is because there is a natural reverence due unto the elder brothers The second is because this custome had its original from the imitation of Princes and for the preservation of Families and that an equal division of the lands and goods amongst all the children will bring an estate to nothing or to so little that it may be compared unto an attome in the Sun He sayes that at first fathers and then first born after them were as Kings and Priests in their own houses He sayes that our Common Laws give the right of inheritance to eldest sons He cites a Divine Precept Deut. 21. which plainly proves the rights of eldest sons He sayes that we find in holy Writ great respect was had of the first begotten and a blessing was held to come to Parents thereby You may see here how sufficiently the Apologer hath argued on the behalf of his younger brothers for I know not what he can say more that can more advance the rights of eldest sons But leaving the Apologer I will a little more dilate my self not so much in proof as in illustration of the premises The very vegetables and unreasonable creatures are no mean arguments of the excellency of Primogeniture How grateful to the Planter and indeed how much more vigorous and excellent are the first fruits of plants more then other productions and how fully do the first fruits of a new broken up ground content and satisfie the longing hopes of the honest husbandman and after some few crops how poorly doth the same earth discharge it self of its burthens and this was the reason why the first fruites were in the old Law reserved for the most sacred uses and so it was meet for God who is the giver of all good things should be served with the best of those things which himself hath given The very beasts and birds do no lesse declare the excellency of Primogeniture for it is generally observed that the Parent birds do use to feed their young ones as their young ones are in seniority yielding as it were a kind of right or a natural and lawful precedence unto the eldest and the very nest gull or the youngest of the young feathered creatures doth plainly demonstrate how much more perfect and excellent the senior birds are above their younger Salvianus lib. 4. de gubern Dei Aristotle and divers others do make excellent Discourses concerning the seeming prudence and piety of the Storks and Bees and shall the Bees yield to order and have a Commonwealth amongst them and shall ' the reasonable creature called Man be more unreasonable then they and have no rule or order of inheritance in their own Families but at the fathers affection and will They also deliver that the young of all creatures do observe a kind of reverence and obedience to their elder young and that the eldest young doth use to suck at the uppermost teat and the younger young will not so much as presume to usurp upon the rights of the eldest nor their Parents suffer it These things if rightly weighed are of no mean consideration concerning the excellency of Primogeniture and consequently of the rights and prerogatives of eldest sons and the saying of Job chap. 12. is no insufficient answer to any one who would disparage the rights of eldest sons Interrogato jumenta ask the beasts and they will teach you But that which is most considerable next to the Divine Precepts is the sacred esteem of Primogeniture amongst the elected people of God for with them as appears Exod. 13. and 34. Numb 38. c. the first born of the very beasts were exempted from work and fathers and their first born after them were as Kings and Priests in their own houses And it hath pleased the Divine Majesty to the infinite glory of Primogeniture to sanctifie unto himself all the first born of the male-kind calling them his and to call his Church triumphant the Church of the first born Hebr. 12. Nay even to call his Divine self who hath been from all eternity unbegotten his first begotten son Coloss 3. But these are no precepts that fathers should endow their eldest sons with the greatest part of the estate It is true yet are they good motives great instructions and may be taken for no lesse then precepts in any pious understanding for we are to elect and love whom God electeth and loveth and since it hath pleased God to elect and prefer our eldest sons in a higher degree of excellency then any other our children we are therefore to elect and prefer our eldest sons in a higher degree of inheritance then any other our children And can it be suppos'd that God would leave us in suspence concerning so high a point as is inheritance which is indeed the main ground and foundation of all humane Laws and therefore it hath pleased the Divine Majesty to impose this his great command upon his elected people which was that if any one of them died without a son his inheritance should go to his daughters and if he had no daughters to his brethren and if he had no brethren to his fathers brethren c. and that this should be a perpetual Law as the Lord commanded Moses Numb 27. By which it is evident that one son in particular and not sons in general ought to be heir and be endowed with the prime Blessing or Patrimony unto which accordeth an Apostle saying Gal. 4. as long as the heir is a little one he differeth nothing from a servant though he be Lord of all and the Apostle meant
only the first begotten or eldest son living for he calleth Esau a prophane person because for a dish of meat he sold his first birth-rights and in his dreadful denouncement against unnatural and neglectful Parents 1 Tim. 5. which is that they are worse then Infidels He sayes in the same chapter Seniorem ne increpaveris Do not disrespect thy elder c. giving a fine and full instruction thereby who it is that should be the right heir or chief Lord and master of the Family But here it may be some will object that this Law was only spoken to the Jews and therefore did only concern the Jews they may as well say that the holy Tables of the Law did only concern the Jews for they also were deliver'd to the Jews and surely I cannot conceive what can be more moral and necessary then that there should be a chief son or heir amongst our children and generally known by a native and undoubted right for there must necessarily be an order and subordination in all things and what can be more natural and just then that Parents should be bound to relieve and provide for their children And had this Law only concerned the Jews wouâ—d S. Paul have commended Seniority and condemned Esau for selling his birthright and would the ancient Fathers who are the best of humane testimony as S. Chrysostome in his fift Sermon against Julian and S. Jerom in his Epistle to Onogron and upon the 49. Gen. with divers others would they have averred that the first born or eldest sons are more honourable then other children and that the right of inheritance is only due to the first begotten or eldest son living and had this Law only bound the Jews would it have been denounced from the immediate mouth of God himself and delivered in these words a perpetual Law as the Lord commanded Moses But there is a plainer Precept Deut. 21 and these are the divine words If a man have two wives one beloved and the other hated and they have both children by him If the first son be hers that was hated he may not make the son of the beloved the first born and prefer him before the son of the hated but he shall acknowledge the son of the hated for the first born by giving him a double portion of all that he hath for he is the beginning of his strength the right of the first born is his Now though the litteral expression be that eldest sons are to have a double part of the estate and the other part to be divided amongst the children equally as well sons as daughters we are to consider that the son here mentioned is an unbeloved son or the son of a wife not beloved which doth utterly exclude the affection and free will of Parents in disposing of the estate at their pleasure and it is not here said nor any where else through the Divine Writ that we are to give but a double part or portion to our eldest sons for the practise of the Israelites was much otherwise the fathers and their eldest sons after them being as Kings and Priests in their own houses Neither are we to believe that we may lawfully and religiously so do for so we shall condemn the justice of the Cannon and Civil Laws and our Common Laws and all other good Laws which as I have already showed do all concur with the Divine Laws to erect an impregnable right of inheritance in eldest sons And we shall condemn the general practise of all good Parents who usually leave the greatest part of their estates to their eldest sons which general consent and custome can proceed from no other cause or ground then from the instinct of nature and consequently from the Will Providence and Ordinance of God himself but that which is most observable and considerable is that God giveth no long blessing to any other course of inheritance Whence we may collect how odious a crime and how great an injury it is to disinherit a rightful heir and it is no lesse for he that would dispalce the right heir from the due of his birthright and such a right as is enacted by God himself establish'd by all good Laws and generally practis'd by all good Parents he is no pidler for he strikes at the root and doth what he can to overthrow all Laws and order and bring into the world a Chaos of confusion Mistake me not I do not conceive nor dare not say that the rights of eldest sons are so absolute as that they will brook no exception for the great Law or Precept Matth. Upon which all the rest have their main dependance which is to love and honour God above all things doth abrogate and disanul as we piously believe all the other Precepts which do not concur with the love and honour of God And whereas we are commanded to honour our Parents and the words are absolute yet if Parents should be Idolators or Blasphemers or Atheists or Infidels or which as bad as any of these unnatural I cannot conceive but that children are freely discharged from their obligation of honouring such Parents for how can we love and honour God if we love and honour Gods greatest enemies So on the contrary side if eldest sons be Atheists or Infidels or extreamly and desperately vicious there is no question but that their fathers may lawfully and religiously disinherit them for they are so unworthy to inherit that they are not worthy to live To conclude good Reader if what I have here delivered may redound to thy benefit and better instruction for which it was intended I shall rejoyce in my labours I will give God the praise FINIS
may see how unnatural and unreasonable his pretended free power of Parents is I pray you consider a little tell me whether any thing can be more unprobable then that a father should be more free and absolute then Adam was when he was in Paradise and in the state of Innocency for Adam was under a command or Law but the Apologer would make fathers lawless Stat pro ratione voluntas And what I pray you can be more reasonable and necessary then that there should be a chief son or heir amongst our children for there must necessarily be an order and subordination in all things otherwise there will be a confusion in all things and what follows confusion may easily be conceived in any understanding for it is indeed the mark of hell or rather hell it self where no good order but an everlasting horrour doth inhabitate Job 10. And it is no less necessary for the preservation of peace and concord amongst Brethren that this cbief son or heir should be generally known by a native natural and undoubted right for otherwise all the other sons would malign and envy that son who should be preferred to the inheritance unless the son so preferred had an undoubted and native right thereunto and had his right also confirmed as is now in the case of eldest sons by the generall practise of all good Parents which general consent and practice can proceed from no other cause or ground then from the instinct of nature and consequently from the will providence and ordinance of Almighty God Proof out of the Common Law and Civil Law for the younger brothers right THat divine precepts are not so absolutely binding but that they may in some cases lawfully be broken for though the commandement is Thou shalt not steal nor Thou shalt not kill yet one may in extream want of food steal or violently take from another man and may lawfully kill any man in defence of his own life and goods so though there were a divine precept as there is none that eldest sons should inherit it could not intend that such eldest sons who are natural fools or madmen should inherit Answ It is true that natural fools and madmen though eldest sons do not deserve to inherit but what doth this make against the rights of eldest sons who are no fools or madmen Surely it concerns the pretended free power of Parents as much as the disinheritance of eldest sons for if the father according to the Apologer turn idiot or madman the Apologer will not deny but that he is made thereby incapable of the management and disposure of his estate Proof 7. That if the effect of eldership were such by the Law of God as some passionately defend that is that the whole inheritance should of right pertain to the eldest son then it followeth by good consequence that there should nor ever could have been but one temporal Lord of all the world for of necessity Adams inheritance should have gone still to the next in blood Answ It is absurd and no consequence at all that there should be any such temporal Lord for the eldest son is not to inherit all the estate but only the greatest part of it fathers being to provide for all their children and the Apologer knows though Adam had the whole world to himself before he had his wife and children who were partners with him by a coequal right though he had a kind of superiority and soveraignty over them yet he had it not by way of inheritance Proof 8. That it was never yet averred by any sound divine Philosopher or Lawyer that nature makes immediately heirs but men They talk idlely who say that God and nature make heirs upon which ground our Common Lawyers say that no heirs are born but men and Law make them Answ It is more then the Apologer or any man can prove that eldest sons are not born heirs eldest sons as soon as born are heirs apparent by the laws King James was born a King and crowned in his cradle and is there a native and natural right in Kings and not in others howsoever it cannot be denied but that Esau had a native and therefore a natural right as appears by the word Birthright and the Apologer cannot but know that it is God only who gives and makes heirs which heirs are the eldest sons as plainly appears by his divine precepts Deuternom 21. c. Proof 9. That God requiring obedience of children to Parents promised a reward saying Honour thy father and mother that thy dayes may be long in the land which the Lord shall give thee which surely was not spoken to one but to all the sons of men for with God there is no exception of persons but as a just and pious father he gives to every one according to his deserts terram autem dedit filiis hominum Answ I know not what the Apologer should intend hereby unless he would have it thought that as all children are equally commanded to honour their Parents so all children who equally honour their Parents should be equally rewarded by their Parents though the Laws both divine and humane give a superiour right of inheritance to eldest sons and concerning his terram dedit I know what he should mean thereby unless he would have every man to be thought an unnatural tyrant and an usurper who hath a particular and proper estate unto himself because the words are terram dedit filiis hominum God gave the whole earth to the sons of men that is not to any one in particular but to all in general You may see here how bold he is with the Laws for he strikes at the very root of them and you may see what a boundless and liberal mind he hath for he would have every man a freeholder and no less then the whole world his inheritance But Mr. Apologer if this should be so what would become of your pretended free power of Parents for they would have nothing to dispose of Proof 10. That there is no divine precept that eldest sons should inherit that it is well known to all Divines that holy Writ hath not prescribed any direct form 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 countrey where any act of that kind shall be executed that there is neither in Scripture nor in any other written Law under Heaven any command to restrain the fathers power but rather the contrary Answ The Apologer cannot but know that there are diverse plain and divine precepts concerning the inheritance of eldest sons one of which he himself doth often cite but never fully relate and these are the divine words if a man have two wives one beloved and the other hated and they have born him children both the beloved and hated and if the first born be hers that was hated then shall it be when he maketh
Law against elder brothers and indeed against all children for fathers may as he sayes do what they will with their own for so the Laws permit I might here answer him with his own two sayings that Laws without reason are no Laws at all and that extream Law is extream injury but he shall have a fair answer and I hope a full one It is well known that it is impossible for any Law though there were a thousand Solons to compose it and the wisdome of a Solomon to assist them that could prevent all inconveniencies and those are the best Laws politick that prevent most And I am so far from thinking the Laws to be faulty herein that I must ever approve the goodness and wisdome of them in allowing Parents so absolute a soveraignty over their estates and children for it is most necessary and just that Parents should have this free power permitted them because it is a great means to keep their sons in a due obedience and make them strive by a noble emulation who should best deserve their fathers love And the Apologer knows that usury is permitted by the Laws and usury as himself sayes is as grievous a sin in the eye of Heaven as theft is and he may as soon prove that usury or theft is lawful as he can prove that an eldest son who is wise and dutiful may lawfully and religiously be disinherited for he cannot deny but that the intention justice and equity of the Law is that eldest sons should inherit so that upon the matter fathers are but Feoffees in trust of their estates and children and this great power is only lent them to prevent inconveniences Proof 18. That the Common Laws are of most force to sway the point in question which I have therefore purposely reserved to treat on in the last place That by the Common Laws a man may give his lands in Fee either by deed in his life or will at his death to any of his sons yea to a stranger without rendring a reason why he doth so That it is no offence to part an inheritance amongst children or to disinherit an eldest son upon just and evident cause of incapacity if it be done according to course of Law Answ If the Apologer supposes by his just and evident cause of incapacity that the eldest son be a natural fool or madman we will not much dispute the matter but if he means as he every where pretends that the want of the fathers affection and will is a just and evident cause of incapacity he is in a gross and shameful errour and I cannot but marvel why the Apologer should so much urge the authority and force of our Laws on the behalf of his younger Brothers for there is nothing so sacred in our Laws as are the rights and priviledges of Primogeniture or eldership old Bracton and divers others of our greatest Lawyers do plainly aver and prove that our Laws are herein divinely grounded and they give their Text Numb 27. A perpetual Law as the Lord commanded Moses And though the eldest son should be a natural fool or madman yet if the father do not otherwise dispose of the estate in his life time and it may be a question whether he may lawfully and religiously so do for it would be a wrong to all the succeeding posterity yet this natural fool or madman and his eldest son after him or the next in blood who should succed him is by the power and ordinance of our Laws to inherit And such is the indulgence of our Laws towards eldest sons and their rights that the Law takes even natural fools and mad-men if eldest sons into its bosome and protection and the estates are preserved that they may run in the right course of inheritance which is to the next in blood or from one eldest son unto another And surely Mr. Apologer I know not why you should be much commended for your integrity in perswading Parents that all is well done which is done by the power and permission of the Laws if you had aimed as you say in your Epistle at the general good of great Brittain you would have told Parents what they might lawfully do and not what they could do but suppose there were so absolute a power in Parents as you would have them believe what would your younger brothers get thereby for whom you apologize why forsooth nothing at all but what pleases the Parental Monarch for fathers may give their lands and goods to a stranger or to whom they will with rendring a reason why they do so I would fain know whether any thing can be more inhumane and monstrous and whether there was ever such a desperate John an oaks as this wild man for though he would a little hide himself under the words of a just and evident cause of incapacity yet he confidently avers or seems to infer it that it is a sufficient warrant for any mans conscience to do as the Laws shall enable him currat lex valeat quantum valere potest Proof 29. That though the use and custome be that eldest sons inherit yet the breach of this custome is no sin for it is such a customs which rather invites then commands or binds that customes against Law are void by the Civil Law and that it was never yet heard that custome was of such force that it should be deem'd a sin not to follow a custome especially when the Law is more pious and natural then the custome is Answ It is true that no good Christian ought to observe any bad custome and no custome is to be kept which is against the Laws if the Law be more pious and natural then the custome is but that it is against Law and Christian piety for eldest sons who are wise and honest to inherit the greatest part of their fathers estates or that a father may lawfully and religiously disinherit such a son I cannot think him a wise or honest man who can believe it And whereas the Apologer sayes that it is but by way of custome that eldest sons inherit he cannot but know that next to the Divine commands there is not any thing can more bind the conscience or more satisfie and settle the judgement then a general practise or custome if the custome be good and just as it is in this case of inheritance And he knows also that our Laws are divided into three parts Statute Law Common Law and Custome Law and Custome is a second Nature the Apologer sayes that it is the more general practise or custome for eldest sons to inherit and how can we better repose our consciences and judgements then in a general practise or custome and how can any man think otherwise but that Parents do thus and have done thus even from all antiquity moved only by right reason and out of conscience in obedience to to the Laws Proof Of the Law of Nature THat many younger brothers and sifters for
want of due means from their fathers and elder brothers are forced to shift which as these times shape is either to live lewdly or miserable That the trade of Merchandize the Military profession the Courtiers life the service of Noble men and the like have advanced more in former times then now they do and this kind of life is not so grateful to our English Gentlemens natures as anciently it hath been Ergo fathers are to allow and leave more largely to their younger children Answ The Apologer having used the Laws at his pleasure begins to tax the times for sayes he younger brothers for want of means are forced to live either lewdly or miserable as the times shape He next falls upon the Camp Court and City for sayes he neither Merchandize Souldiery nor service of the King will serve now adayes to prefer and help younger brothers and he gives this reason and very wisely because such courses of life are not so grateful to our English Gentlemens natures as anciently they have been and younger brothers being careless to encrease their small Patrimonies by thrift and honest industry do by his own reasons deserve no Patrimony at all for sayes he interest Reipublicae ut quilibet re sua bene utatur it concerns the Common-wealth that men be good husbands and imploy their goods in such a manner as shall make most for the good of the Commonwealth Yet I deny not but that it is a great errour in Parents who have great estates to leave so little as they usually do to younger sons for such younger sons who have small Amunities and have never been inured to labour nor have any other means to get their living by when their necessities make them say with the Steward in Matth. I cannot dig and I am ashamed to beg it doth often force them to dishonest courses and is a cause of numberlesse mischiefs and no marvel for it is a hell to the minds of most men to decline to more inferiour courses then those have been bred up with and therefore it were much better that Parents themselves would have a better respect to their younger children and not leave them as too many do to the courtesie of their eldest son whom they endeavour to advance by making the rest of their children beggers or by leaving them so little that they are not able to maintain the place and credit of their Birth I heartily wish it were otherwise and that Parents would be better advised But Mr. Apologer you are clean beside the matter in question for you undertook to prove a fathers free power in disposing of the estate at his pleasure and that eldest sons have no superiour right to inherit above other sons Proof 21. That the custome of eldest sons to inherit hath rather been the overthrow then the preservation of Families for when such custome was not in use we find in Livy that three hundred of the Fabii all of one name and Family issued out of Rome gates at one time on their own cost for the defence of their City who were all slain In Scotland also three hundred of the name and Family of the Frazers all Gentlemen were at one time slain in fight by their enemies and no lesse then an hundred and fourty Gentlemen of one name in Yorkshire waited on the chief or principal man of their house at that time high Sheriff Answ It is true indeed that the Fabii issue out of Rome gates on their cost and to their cost for it cost them their lives Vna dies Fabios ad bellum miserat omnes sayes Ovid And if the Apologer would have it thought that the custome was then to divide the estate amongst the sons equally for the enlarging and preservation of Families the best he can make of it is that it was but a heathenish custome for the Romans were then heathens And concerning his story of the Frazers I know why he should make any mention of it unlesse he would have his Reader to consider how much the Fabii and the Frazers did sympathize because their names began both with a letter as also because they were both of a number and both of a fortune for they were all slain by their enemies and the Yorkshire Sheriff as himself sayes was the chiefest or principal man of that House that is that he was of the eldest or noblest House and therefore by his own saying there was no such custome then in use as he speaks of Proof 22. That the custome of eldest sons to inherit hath been in use but of late times for how else could it come to passe that in this Kingdome there were at one time so many great and honourable Families of one blood disjoyned in their seats and distinguished in their Armories by different arguments or who is so meanly seen in our Antiquities and Stories as not to know it was so and that many renowned Houses to speak as de magis notis Plantaginates Mortimers Beaufords Beauâ—hamps De la Poles Nevils Grays and the like have grown and flourished from one common Ancestour it cannot be refelled But in these our times we find so great a decay of ancient families that if there be one Family in a shire of three hundred years continuance very many others are scarce five descents in blood Answ The Apologer needs not think it so strange that there should be so great a decay of Families for being so well vers'd in History as he would seem to be he must needs know that many great Nations and Peoples are not only decayed but have utterly lost their names what I pray you is become of the twelve Tribes of Israel who were a thousand times more glorious then then the Families he recites and our very next neighbours the French do not know where their Germane Ancestours called Franci did inhabit only our Cambro-Britanni can derive their descent from the Moon but other Nations are not so happy And concerning those honourable names mentioned by the Apologer as Plantaginets Mortimers Beaufords c. it cannot be thought as the Apologer would have it that the custome was then to divide the estate amongst the sons equally for when a Family is gotten to an eminent height and power it is an easie matter to advance younger sons by making some of them Bishops as the use then was who should help the rest or by preferring them to offices and imployments of state or by marrying them to heirs general and we see at this â—… day that the honourable name of Howard is as largely spred into as many several branches as any of the rest were then and yet I never heard of any disinheritance practis'd by them or that they used to make an equal division of the estate amongst their children It is true I think that there are not many Families in one shire of three hundred years descent though doubtless some are of much greater continuance but the cause is not as the Apologer
fathers power and intention to punish his son the people might without more inquiry stone to death so evil a deserving child which being well considered my hope is that it will never hereafter seem unlawful or against conscience that a father should disinherit his eldest or any of his sons for the cause only of unthriftinesse and riot Answ It is they say a shame to bely the devil then much more to bely Gods chosen people for had the Israelites been so much merciless as the Apologer would make them would Moses himself and from the immediate mouth of God himself would he have said Deut. 8. that as a father disciplineth his children so doth God discipline his people and would the royal Prophet who was a man according to Gods own heart would he have said Psal 102. and 118. that the mercies of God are infinite and far above all his works and that as a father hath compassion of his children so hath God compassion of them that fear him And would he have done so to his traiterous and inhumane son Absolon whose villanies were so transcendent that they have out gone all example Would he have pardoned and compassionated such a son and wished he could have died for him if the Law and practise of the Israelites had been put to death their riotous and unthrifty children which are offences so mean that in respect of Absalons inhumanities they deserve no mention It is true the Jews had a power permitted them to bring their riotous and rebellious sons to the Seniors of the city and to the place of judgement but these Senators were not to take the bare word of the father and so to proceed to judgement for what can be more unnatural and impious then that a person accused should not be heard speak and that Judges upon a bare allegation without and examination or proof should immediately give sentence of death And surely we may well believe that this Law was only permitted the Jews as was their Law of divorce Matth. 19. or rather that it was made in terrorem for terrour and not for execution for the words are that all Israel hearing it might be afraid and we find not that any son meerly for his riot and obstinacy to his father and by the procurement of his father did ever yet suffer death And we may piously believe that our blessed Saviour had himself some reference to this stoning Law when he said speaking to the Jews Matth. 7. Luke 11. Which of you is it of whom if his child shall ask bread will he reach him a stone Which of you is it as if that Divine mouth should say is there any such man amongst you or if there be such a man what man is he or is he or may he be called a man who can find in his heart to reach stones wherewith to kill his own children And concerning his inference that fathers have a free power to disinherit their eldest sons for unthriftiness and riot because by this Law Deut. 21. the Jews had a free power over their childrens lives and the greater includes the lesse his reason is to as much purpose as his was who being asked whether great heads or little heads had the more wit made answer little heads because omne majus continet in se minus meaning Omne majus caput continet in se minus ingenim For the Apologer cannot but know that disinheriting and putting to death are two distinct things and if they be unjustly done it is hard to say whether is the greater injustice or wrong for it is said Ecccl. 34. He that taketh away his neighbours living killeth him And surely it is much more foul and sinful for a father to disinherit and undo his children then for one neighbour to defraud and undo another and especially to disinherit his eldest son whom the Laws both divine and humane have made the heir or the chief Lord and Governour of the family Proof 29. That because examples in all controversies of fact are the best fortifications I will therefore in illustration of the premises add some few to the former drawn as well from royal presidents by whose patterns totus componitur orbis as from inferiour persons whose qualities best fit the condition of our present subject and if Kingdomes and Commonwealths have favour'd it then certainly by all arguments à majori ad minus it may much rather be done and ought to be suffered in private Families The offering of Abel was better accepted of God then the offering of Cain Japhet the youngest son of Noah had Europe allotted to him for his inheritance which in all arts and uses of life far excels Affrick and Asia and all the rest of the earth Answ Examples are indeed the light and life of natural reason experientia docet hath ever been and will ever be the most sure rule of rational judgement And surely Mr. Apologer your examples will want both in weight and number if you will go that way to work for your younger brothers we shall be able to out-vy you at a thousand to one The sacrifice of Abel sayes he was better accepted of God then the sacrifice of Cain he confesses that it is not fit to urge this and I confesse it is to no purpose for it concerns neither inheriting nor disinheriting there being then and for many ages after as himself sayes no ptoprieties or estates in the world at all And concerning Japhets large portion which was no lesse then Europe for so sayes he all authentique Histories do witness he will have much ado to get any man of authentique reason to believe him for he must first prove whether Europe were then known by that name or no and whethet it was then so divided and bounded as now it is as also which of his sons had America It may be he will say the eldest son which if he had having a third part of the world beside whereof Europe is the least and therefore the fittest for the youngest son he had no reason to find fault with his father for next to Adam and Noah he was the greatest Monarch for territory and one of the least for dominion or people that the world ever had Proof 30. That the disinheritance of Ismael the eldest son of Abraham and of Reuben the eldest son of Jacob are invincible arguments of a Fathers free power Answ It is true that Ismael who was the eldest son did not inherit and the reason was because he was begotten on a handmaid and not on a wife and if the Apologer would make this an invincible argument as he calls it of a fathers free power he must get new Laws made and remove lawful issues to make room for bastards though Ismael as the Law then was is not to be reputed illegitimate Reuben did deservedly forfeit his birth-right for he dishonoured his fathers bed which had he not done he had not been disinherited for his father termed him
serve for younger brothers and all men who are prodigal and especially prodigal fathers whom he terms and not unworthily to be worse then Cannibals and it is pity the Laws have no better execution concerning this great and too general a vice for sayes he the Civil Laws appoint Curatours for prodigals as for mad-men and guardians likewise of their estates the want whereof is the ruine of many great houses in England The Apologers Epistle examined THe Apologer sayes in his Epistle that he published his said Treatise for the general good of great Brittain and out of a singular respect which as a Patriot he bears to Gentlemens houses good motives I confesse if his intention or performance had been accordng but how can it be to the general good of great Brittain when eldest sons who are a great part of Brittain must suffer in it for he would have it thought and hath done what he can to prove it that they have no more right to inherit then other sons all is as pleases the father for he is the free and absolute Lord of the estate and may lawfully and religiously dispose thereof at his pleasure But is this the way to preserve Families it is sayes he the best and only way especially if fathers conform themselves to these two rules The first rule or way is that they divide the estate amongst the sons equally according as the Civil Laws ordain and as was the practise of the primitive Church The other way or rule is and this he thinks to be the more rational and better way that the wisest and worthiest son doth inherit As concerning the first he needs no other confuting then his own words for he sayes I must confesse that the custome of leaving the child estate to the eldest son hath of later times been much embraced by our gentry for the preservation of their Families for which it was invented and that they did this led with an ambition at the example of Princes And he also sayes that the more general practise of our time among Parents is to leave either all or most part of their estates unto their eldest sons this questionlesse was first devised in former ages for the preservation of a Family and to raise one who might be a comfort to his brothers sisters and Family and in whom his progenitours virtues might live to the world and I will not deny but that the partition of lands may reduce in the end a goodly estate to nothing or to so little that it may be compared unto an attome in the Sun and how I pray you can an estate be preserved it will in time and in a short time bring it unto the degree of an attome And concerning his other rule or way which is that the wisest and worthiest son should inherit I deny not but that wisdome is a great means to preserve a Family and that wisest sons are the fittest to be imployed in a Body politick or state general but it is not so fit that younger brothers because they are a little wiser then their elder brothers or because their fathers think them the wiser should therefore inherit the greatest part of the fathers estate for it would be an apparent injustice and wrong to the eldest son unto whom the right of inheritance doth cheifly and only belong But admit the wisest sons were to inherit who I pray you should be the judge and chooser of these wise sons Why who will the Apologer say but they that got them for they have a free and absolute power to dispose of the estate but what if the father be not wise himself or have not a wise son at all both which do often happen Why then perhaps will the Apologer say that the Commonwealth is to inherit for sayes he interest Reipublicae ut quilibet re sua bene utatur it belongs to the Commonwealth that estates be managed in such a manner as may make most for the good of the Commonwealth it would require a volume to shew all the absurdities and inconveniences which would necessarily arise out of this absolute power in Parents but I will instance only two The first inconvenience or mischief is that were there such a power in Parents to make choice of what heirs they would and were accordingly fully perswaded that they might lawfully and religiously so do they would not only be in danger to be blindly led by their own affections and will but would ly open to the advantage of every cunning Sycophant and ill-minded man who under colour of friendship would perswade them to effect some of their sons and reject other some and to give one son more then to another that so they might fall into dissention and discord which could to no other then an utter subversion of the Family for an house in it self divided cannot stand And that which would most move these Sycophants and sowers of dissention would be their own private ends and self interest a motive which bears too great a sway all the world over But the greatest peril of Parents would arise from the sly practises of their wives who would be sure to labour hard for the unworthiest son for womens affections are commonly as blind as they are and they use to swallow flatterers for friends and if the wife be wanton which is no great wonder now adayes she would be sure to endeavour what she could to prefer such a son whom she thought her husband had least part in and second wives as having more cause then any other would be sure to labour hard for their own children without any respect to the rightful course of inheritance or to their husbands other children by former wives and there is no doubt to be made but that all wives would be as busie this way as Bees if their husbands should permit them and their husbands could not hinder them if they should have such a ground to work upon as is the pretended free power of Parents for when there was no such thing dream'd of as is that monstrous power yet wives were then so bold to negotiate with their husbands of this matter as in the examples of Sara Rebecca and Cethsabee the wives of Abraham Isaac and David but these wives were moved to do as they did by divine revelation and it pleased even God himself to make them his agents and instruments of his divine Ordinances but that which would most move most of our wives would be a violent spleen and blind affection without any respect to justice or order which could not chuse but draw on an utter subversion of innumerable Families The second inconvenience or mischief would be that were there such a power in Parents that they might lawfully and religiously make choice of what heir they would there would be a perpetual diffention amongst the sons and consequently a confusion and overthrow of the Families for every other of the sons would be sure to malign and envy that son
who should be preferred to the inheritance unlesse the son so preferred had a native natural and undoubted right thereunto and that there were also a general practise of all good Parents concurring as it is in the case of eldest sons to confirm it and and this appears by dayly and infinite presidents some whereof the Apologer himself recites as that of Chosroes King of Persia Leir King of Brittain and that great example so much urged by him of the disinherited Esau For Esau though he sold his brother the Birthright and volenti non fit injuria yet being disinherited he purposed to kill his said brother and doubtless had done it if Jacob had not fled and banished himself for many years from his own father and countrey or rather indeed if God himself had not relented and mollified the obdurate and resolved heart of this fierce and offended brother And if Esau would for this have killed his own brother and a good brother who never wronged him in this or any thing else for Esau had before freely and willingly sold him the birthright how much more willingly and readily would he have revenged himself upon others nothing ally'd unto him who should have procured his disinheritance which is indeed the greatest injury that can be done to man in this world for our estate and birthright is as our life and whosoever takes away the one doth endeavour as much as in him lies to kill the other nay he doth kill and more then kill the other for it is said Eccl. 34. and 40. He that taketh away his neighbours living killeth him and that it is better to dy then to want You may see here how much the Apologer doth err in his zealous care which as a Patriot he bears to the glory and good of Gentlemens houses by alledging that that for a reason or cause of their preservation which would be their undoubted overthrow That indeed which doth most preserve a Family are these two things The first is children and chiefly good children and if there be no children the other collateral heirs who are the next in blood whom the divine and all good humane Laws have ordained to inherit The second is lands and goods well gotten or honestly descended and as honestly imploy'd during the possessours life and so to descend again in that right way of inheritance which God hath commanded and all good Laws establish'd and it cannot be doubted but that the blessing of God will accompany so good endeavours for it is promised Psal 1.24.91.101.127 c. that the just shall be as an everlasting foundation and shall not be removed That he shall spring as a green leaf and his house be permanent whereas after a while the sinner shall not be and thou maist look his place but thou shalt not find it The free power of Parents FAthers are so far from being such such absolute Lords and masters of their estates and children as the Apologer pretends that they are not so much as quarter masters of themselves for sayes an Apostle Rom. 14. No man is born to himself and the very Heathens say Cic. de offic Partem patria partem parentes our Parents and our countrey which is also our Parent do claim a great part of us and can we think there is nothing due to our children are we commanded Matth. 2. and 5. Luke 6.1 Pet. 2. To love our neighbours as our selves nay even to love our enemies and to do good to them that hate and hurt us and hath a father such free and absolute power over his estate and children that he may lawfully disinherit his children and give his estate to strangers or to whom he will and if a father be so far from being master of himself that his countrey Parents kinred friends neighbours nay every man who is a member with him of the same Commonwealth hath some right unto him or a part in him how can any man be so shameless to say or so foolish to think that a father or any man whosoever can be an absolute master of his estate when he is not so much as quarter master of himself And concerning that absolute and monstrous power of Parents in disposing of the estate at their pleasure The Apologer sayes that many ages were numbred from the worlds beginning before any man laid any proper claim to any thing as due to himself alone and he sayes also that with God there is no exception of persons and that God gave the whole earth to the sons of men terram autem dedit filiis hominum that is not to any one in particular but to all in general by which reasons and grounds there is not any man can absolutely say this is mine or that is mine by the Laws of God and Nature But have men therefore no right at all to their lands and goods Yes doubtless but it is a conditional not an absolute right for sayes the Apologer a Family is a civil society yea the only Commonwealth which God and Nature first ordained from which all Societies Republiques and Species of Regiment took their Original and it is true for there can be no doubt but that the first Commonwealths were at the first but so many great Families and that all Commonwealths sprung first from Families and when there was a Common-wealth establish'd or rather begun and a proportion of lands allotted to every one in particular they then bound themselves by Laws which Laws they enacted by an unanimous consent amongst themselves for the quiet enjoying and well ordering of such their particular estates for their peaceable and amicable living one with another for punishment of transgressors or repelling unjust violence amongst themselves and for their general defence against forraign invasion or for what else soever that shall make most for the general good alwayes including an inviolable right and power in the Republique or General state according to necessity of times and occasions to alter some of the said Laws as also to dispose and command as they found cause every mans person and every mans particular estate And this the Apologer acknowledges though it be against his free power saying the world of men is grown to that greatnesse that it is necessary one general father or politick head should be in a kingdom or state which may justly abate a fathers free power all fathers being children to the father of their countrey their Lord and King under God And the Apologer knows that fathers are so far from being such absolute Lords and masters of their estates that if a father or any man else do wilfully fling away some of his money or other his goods into the Sea or into any place where it cannot be had again he shall be begg'd for an Ideot and have his estate taken from him and he gives this reason and as good a reason as can be given interest Reipublicae it belongs to the Commonwealth that men so dispose of their estates as
shall make most for the good of the Common-wealth And can there be a worse prodigal then a prodigal father for he falsifies the trust which the Commonwealth our general Parent doth repose in him by wasting those his lands and goods wherewith he should relieve and provide for his children which was the greatest if not the only cause for which lands were at first given and are now permitted to be enjoy'd for only upon children dependeth the whole frame and propagation of mankind and upon the care and love of Parents in the good instructing of their children and in the relieving and providing for their children dependeth the civil order and Society of mankind And children have a native and as we may well call it a divine right to their fathers lands and goods in his life time for sayes the Apologer the prodigal son being weary of his fathers house came to his father and boldly said Pater dae mihi portionem Give me that portion of goods which belongs to me and the words following are pater divisit and the father gave him his portion and he sayes also that fathers are bound by the Civil Law to leave every one of their children a legitimate or childs part and if they be bound how can they be said to be free But should I here recount the many and great obligations wherewith we are bound in our Christian duty or charity towards our neighbours or Christian brother Qui habet duas turnīcas det non habenti qui habet escas similiter faciat Luke 6. He that hath two coats let him give one of them to him that hath none and he that hath meat to spare let him do the same And especially the infinite obligations wherewith we are bound to our children for sayes an Apostle 1 Tim. 5. Whosoever provides not for his family then much more he that provides not for his children doth deny the faith and is worse then an Infidel These things well considered it will easily appear to any pious understanding that the private or self-interest which any man hath in his estate is so small a thing that it may be compared unto an attome in the Sun for indeed we have no estates all which we can properly call our own that which we call an estate we hold it but at the courtesie and permission of others and should imploy it to the benefit of others and we are at the most but stewards of it for a while and like stewards must account unto a farthing Matth. 5. And concerning the large Soveraignty of Parents over their children there is no question but that fathers are as far from being absolute Lords and masters of their children as they are from being absolute Lords and masters of their estates of which I will only give two reasons The first reason is that children are the tender plants of the Commonwealth and that Parents are intrusted by the Common-wealth with the good education of their children which is a thing of that high and necessary consequence that it is in effect the cyment or bond which ties and holds together the whole frame and body of mankind The consideration whereof moved the wise Lacedemonians to make this brave and pious answer to Antipater who demanded many of their children in hostage for they said as Plutarch relates it that they would first chuse to die before they would yield him their children fearing their children would be corrupted and spoiled in their education nay they had Laws to punish such Parents whose children were ill condition'd or wicked supposing it proceeded for want of good care in their education and they had cause for sayes the wise Charron there cannot come so much evil to a Commonwealth by the ingratitude of children towards their Parents as by the carelesnesse of Parents in the instruction of their children So that upon the matter children are but the Pupils of the Commonwealth and Parents their Tutours and this the Apologer acknowledges though it be as much against his pretended free power as can be saying that all fathers are children to the father of their countrey and that a father is not only bound to nourish his children in his life but by Natures Law must provide to his power that they live in his life and 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 civil or rational creature But there is another reason and that transcends this as far as heaven doth earth for our children are not only our children but the children also and creatures of God adorned by him with the same faculties of Soul and Body as their Parents are and so become both our brothers and children for we have all one father which is in heaven Matth. 6. Luke 11. Certainly there cannot any thing be more consolable unto a truly religious heart then seriously to contemplate the infinite goodnesse of God as also to consider in what a sweet manner it hath pleased even God himself to treat with his dear creature Man All his wayes saith the royal Psalmist Psal 24. are mercy and truth and saith the Divine Majesty himself Deut. 8. I will be a father unto you and you shall be my sons and daughters and how often are we called children throughout the whole current of the Divine Word nay we are called 1 Cor. 6. the temples of the holy Ghost that is the Pallace or Court-Royal of God himself for such indeed is every pious soul and can it be supposed that God who only giveth children and calleth them his children and the temples of his holy Spirit would give any other power to Parents over their children but as governours under him to instruct and if need be gently to correct them for we had no sooner a Law from the Omnipotent hand but Parents were commanded Deut. 6.2 to teach that Law diligently to their children and so diligently that they were to speak of it as they sat in their house as they walked by the way when they lay down and when they rose up that is at all times and upon all occasions and if they are any way negligent herein or in the due relieving or providing for their children an Apostle tells them 1. Tim. 5. That they have denied the faith and are worse then Infidels So that if we either consider the great duties which we ow unto our general father the Commonwealth unto whom we are but Feoffees in trust of our estates and children or chiefly those infinite duties which we ow unto our heavenly father we shall find our selves so much inferiour to the Apologers pretended free power that no man of any common understanding unless he will accuse himself for an Atheist or most grosse Ideot can think himself an absolute Lord or master either of himself his estate or children The Rights of eldest Sons THe Apologer hath done what he