practice and received in all times and without interruption The Authours of these Libells having consumed their spirits in seeking from all parts materials to make their Volume big could not yet find one single Example which is truely comprehended within the fact in question Let us trie if we shall be more successfull The Sieur Stockmans cites some very convincing to wit Stockm de Jure devol cap. 21. nu 9. the Surrender which Charles the Vth made to his Son Philip the Second of the Estates of the Low-Countries calling thereunto failling of him the Heirs which he should have of his Second Marriage to the exclusion of Charles the Son of Philip and Mary of Portugal of the First Bed to whom nevertheless as well as to his Father because of the Widowhoods of Charles and Philip the right of Succession had belonged if the Devolution could have taken place in the Sovereign Succession As also the Donation that Philip the Second made to his Daughter the Infanta Isabella under Restrictions which were altogether inconsistent with the right of Devolution and which could not have been inserted to the prejudice of the Dutchess of Savoy and her Successors And if the Devolution had taken place in Sovereignties the Pretension of the Queen of France would have been at this day annihilated by that of the Duke of Savoy who would be the true and lawfull Successour to it He cites also other Examples which the Reader may see in the same Chapter but because they are all of Charles the Vth downwards I will resume the business from a higher source that I may be the abler to prove the Antiquity and the Continuation of this Custome William Butkens Troph de Brab fol. 627. Son of Godfrey the III d Duke of Lothier and Brabant by Imaine de Los his second Wife and Brother to Henry the Son of the same Godfrey of a former Marriage by Marguerite of Limbourg had for his share the Lands of Perweys Ruysbroeck and others which Godfrey could not have done if the Devolution had taken place since by the death of Marguerite all the Right must have entirely been devolved to Henry the first and all manner of Alienation prohibited to the Father to the prejudice of the first Son The same Godfrey after the death of his Wife Idem fol. 129 130. the case of the Devolution if it had taken place in the Sovereigntie having of necessitie happened married Henry his eldest son Duke of Brabant to Matilda the Daughter of Matthew of Flanders Earl of Boulogne in the year 1179 and there were inserted into the Contract of Marriage Clauses altogether repugnant to the Devolution viz. That Godfrey who then was a Widower gave to his Son to endow his Spouse Bruxells Vilvorde Vccle and Ruysbroeck upon condition that if Henry deceased before Matilda she should enjoy the use and profit of those Lands during her life whether she had any Children by him or not and in case Matilda came to die before the said Henry without leaving any Issue behind her then the Earl of Boulogne her Uncle should hold Bruxells untill that he was re-imburst of her Portion If the Devolution had taken place the Father could not have disposed of those Lands nor assigned Portions out of them to the Princesses Uncle to the prejudice of his Son and of his Children to whom the Right would have been devolved by the death of Henry unless that in the same Treatie of Marriage they had expresly renounced the Devolution of which notwithstanding no mention is made in the Contract Here we must also observe that in the same Contract the said Godfrey doth appoint his Son Henry to succeed to him as his Heir in the Dutchy and his other Lands and Possessions This appointment would be superfluous and ridiculous if the Right had been already fallen to him by Devolution And which is yet more remarkable he doth appoint him with a Reservation too of the District of Dorten and the County of Arescot and excludes even the Sons which shall be born of this Marriage which destroys from the very foundation the pretended Devolution in the Sovereigntie and is directly repugnant to the Interpretation which the Authours of these Libells do make of this Custom because if the Devolution be a true Succession and do attribute the Right of Proprietie to the Children during the Father's life Godfrey could not have appointed his Son in the Succession as Heir after his decease because he should have already been so during his life And much less could he have cut off from a Succession already acquired and devolved to him two Portions so considerable as the District of Dorten and the Countie of Arescot nor have reserved to himself the disposition of them in favour of others The same Godfrey consented to a Donation which Gerard his Son of the Second Bed had made to the Abby of Everbode Butkens fol. 131. of certain Lands situated in the Parish of Tessenderlo and he himself gave to the Abbot of St. Sepulchers at Cambray certain Lands situated in the Land of Bierbeeck for the founding of a Provostrie which he could not have done to the prejudice of the Prince of the former Bed if the Devolution might have taken place in relation to Sovereigns and if this Right had been a true Succession nevertheless the said Donations have remained inviolable without the intervening Consent of Henry and without being subject to any Recoverie either on his part or his Successors The same Trophies of Butkens will furnish us with other Examples of this nature which by Consequences and necessary Inductions shew that neither Princes nor their Sovereignties were ever subject to this particular Rule nor that in reference to them the pretended Sentence of the Emperour Henry was put in practice But let us come to the Donation of the Low-Countreys made by Philip the Second in favour of the Infanta Isabella All its Clauses and all its Circumstances are directly opposed to the Right of Devolution Philip the Second could not have given what was not his own a Donation supposes the Proprietie to be in him who gives the Consent of the Prince his Son would not have been required nor ought to have been passed as afterwards it was on the 6. of May 1598 if the Right of the Succession and of the Proprietie had been fully devolved to the Infanta's his Sisters This Donation which was contrary to the Devolution and also to the prejudice of a third person would not have been received in that qualitie by all the Estates as it was the 21. of August of the same year Philip could not have assigned them in Portion to his Daughter as it is certain he did by the same Act and that the Archduke Albert accepted and possessed them by this Title To get out of this bad way they have recourse to two Shifts which serve only but to discover their Weakness They acknowledge that Philip gave these
force of a Custome among them and being onely a particular Right it can neither tie the Prince nor the Sovereignty because it comes but from a simple Custome and Consent of the Subjects who have no Jurisdiction over the Superiour Power So that to judge of the Right of Succession of the Lording Fief one must look into the first Original thereof and into its proper nature independently of all that is inferiour to it If we consider the principal End of this ordinary Custome which preferrs the Males before the Females even in the Succession of particular Fiefs we shall find that it is for the conservation of Noble Families for fear their Estates should pass to and be confounded in some other House to the prejudice of them who are able to uphold the Splendour maintain the Name and perpetuate the Line of them Though this benefit in some sort do redound to the good of the State it is but by an indirect reflexion and by the relation of the private to the publick and 't is for this that it may be derogated from in consideration of another private good if it be esteemed to be equal or of greater importance then the other But the conservation of Sovereignties is a good which directly concerns the State against which no private Reason can prevail otherwise what Disorder would it be in the World if we did see Sovereignties liable to the change of Masters every moment and pass under another Dominion How many causes of War and Revolutions would arise from such a strange Constitution which could not but offend all Laws and good Politie How unworthy a spectacle must this be and what an heart-breaking to faithfull Subjects to see their Princes and all their Line reduced to povertie whilst a Daughter should elevate to their Throne some Stranger-Prince If these inconveniences be compared with the particular good which arises from the Devolution it will be found that the one is but an Atome in comparison of the other and that there is no kind of appearance that the very People though it had been in their power would ever have been such enemies to themselves as to have exposed themselves to all these dangers by subjecting their Prince to their Custome and taken pleasure to live under a Dominion suspended in the Air and exposed to all Winds On the contrary Sovereigns in one thing seem to be in a worse condition then private persons because in the greatest part of States which are well governed they cannot alienate any parcell of their Dominions they are in some kind Slaves to the Publick good they cannot doe advantage to a younger Brother to the prejudice of the Elder and are ordinarily so tied to the regular order of Succession which preferrs the Males and the Eldest that they cannot follow the motions of their Affection to the prejudice of this Rule which the Safety of the State renders not to be dispensed with how then can it be overthrown and destroyed by a local Custome instituted to an End which cannot be put in the balance with the Utilitic which proceeds from this publick Law In effect If we look upon the order of the Successions of the Dukes of Brabant and of the Princes of the other Provinces in the Netherlands it will be found that they have alwaies descended from Father to Son as long as that could be had and that in no case they have been divided nor shared among many Children though there have been often sundry Males of the same Bed Butkens pag. 107 113 133 204 270 232 c. As is seen in Godfrey the First who left two Sons of his first Marriage Godfrey and Henry Godfrey his Son succeeded singlie to the Dutchie and of three Sons which he had Godfrey the Elder styled the Third succeeded alone he had two Sons by his first Wife Henry and Albert the Elder onely succeeded to the Dutchy as Henry the Third had done and the same throughout the whole Succession From whence I draw two Consequences One That the Sovereign Fief is by its nature indivisible which shews that the principal end is to conserve it entire in the Family which were unusefull if it must descend to the Daughters of the First Bed to the exclusion of the Males for in this case it would import very little that it were dismembred and it would be more just and more covenient to divide it at least among the Children of the same Bed The other is That by this Indivisibilitie it is different from particular Fiefs which according to the Feodal Customs are partable beyond the Forrest at the choice of the Eldest and on this side though there were but one Fief the Eldest hath but two Thirds and the rest belongs to the Brothers excepting to the Eldest the Castle and a Capon 's flight which being unpracticable in a Sovereign Fief Chap. 21. of the Feodal Customs of Brabant 't is evident that there is a manifest difference and that the one hath for its end onely the particular good of Families and the other the good of the State which chiefly consists in keeping the Sovereignty as long as is possible in the same Line that it may not be exposed to continual Changes So that being of a different nature we cannot draw any consequence from the Fief to the Crown nor subject the Lording Fief to the Local Customs which be of another nature and for other ends This difference is the more remarkable by reason that the subservient Fiefs which Princes do possess are of another nature and subject to other Laws then the Sovereigntie and do not depend of one and the same Jurisdiction as is to be seen in Butkens in the Charters of the year 1222. And it is out of doubt that these may be divided and the other not as is clear by the XXI Article it self which I cited before and even the Customs of Lovain were decreed with this Clause Without prejudice to the Rights and the Superiorities of the King Which clearly demonstrates that in the toleration or approbation of these particular Customs the Sovereigns never meant to subject their Sovereignties and that the Consequence which they draw from the one to the other cannot be of validitie betwixt two such disproportionate things In the Customs of Brabant and the other Provinces which the King hath approved this Reservation is ordinarily found Without prejudice to our Rights and Authorities A notable difference is yet to be observed here which is that private persons may derogate and do daily derogate from the Devolution by their Treaties of Marriage or by Testaments to preserve the free disposition of their Goods to themselves and to hinder the Daughters of the First Bed from coming to exclude the Sons of the Second which Princes have never practised though much more concerned in conserving their Successions in the Masculine Line and would not have failed to use those Precautions as well as private persons do against this
her and what his own proper reputation requires of him As to the other Lands if it be true as they affirm it to be that Sovereignties are unalienable that Princes cannot renounce their Rights in prejudice of their Successours even by publick Treaties that those are Rights of Bloud inseparably tied to all the posteritie that they may pretend Relief even against Treaties of Peace upon the score of Laesion in fine if no consideration neither of Advantage nor of publick Faith can prevail against the rules of litigious wrangling behold the Treatie of Munster concluded with the States of the United Provinces reduced to the same inconveniences with the Pyrenean Some Objections remain to be satisfied in particular which I have not yet touched but very superficially though they be sufficiently repelled by the Principles which I have established They oppose to us in the first place the Sentence of the Emperour Henry in the year 1230. The same Counsellour Stockmans hath very pertinently answered it in the 21. Article of his Treatise to which I will onely adde that this Sentence can have no relation to the Right of Devolution for these following Reasons 1. The first is That the whole Narrative on which he founds the Decision of the Emperour is meerly the Invention of this Scribbler in regard that neither the Sentence nor the History do mention any such thing and that it is repugnant to the Text even of the Sentence which speaks not of the Propriety but onely interdicts the Alienation which in it self was not permitted to him without the Consent of the States and what he adds in the Sentence Matrem habuerit illa fit mortua shews that it ought not to be understood of the Sovereigntie but of some patrimonial Goods belonging to the Prince which might have been affected with the Portion of the deceased Mother For if this Sentence were founded upon the Right of Devolution he would have made of it some express mention as well as have alledged another cause for it besides that as I have already made appear the Devolution doth not absolutely hinder and does not annull the Alienation but renders it onely subject to be rescinded after the death of the Father remaining notwithstanding valid in case the Son comes to die before him 2. This Sentence would be unjust and contrary to the same Custome if it were founded upon the Devolution because this Right doth not give the Children that horrible power presently to seise upon the Goods of the Father in his life-time because of a simple Alienation but gives them onely a hope to enjoy them after his death and the right to pretend Relief and to re-demand what hath been alienated during his life Otherwise it were to authorize an unjust Violence which would stifle the Law of Nature it were to make Children Curatours to their Fathers and to give them an opportunity to drive them from their Throne From whence it is necessarily to be concluded that the Sentence of the Emperour ought to have some other motive which can be no other then that which I have related In effect seeing that it is not founded but upon the Death of the Dutchess it must needs have had some other cause then that of Devolution in regard the Emperour's Argument would not be concluding The Dutchess is dead then her Husband cannot Alienate it being certain that he may not onely in some cases but that the Dutchess also her self might have renounced this Right by a Disposition amongst the living or by one relating to her death 3. If this Sentence did concern the Goods of the Sovereigntie it would determine nothing at all by reason that by their own nature they cannot be Alienated without the Consent of the States who themselves would have been the first to have opposed this Alienation unless their Assent had been required and that they had judged it to be founded on the benefit of the State in which case the Emperour with Justice could not have hindered the effect thereof 4. This Sentence was given in favour of an Heir-male and does not inferr that the Daughters of the First Bed ought to exclude the Sons of the Second Indeed it is horrible and repugnant to Reason onely to imagine that such a case should ever happen whereby we might see a Daughter upon the Throne to the exclusion of her Brother and the Son of a Sovereign become Subject to his Sister this shocks Nature which hath given the preeminence to Men and the rights to command by reason of the excellency of their Sex The Authour of the Dialogue strives to get out of this difficulty by restricting this general inconvenience to the particular fact which is actually in question Fol. 52. but he runs from the Lists and eludes the point in controversie He speaks thus The Catholick King shall command in his Estates and the most Christian Queen in hers without either of them having any Jurisdiction over the other This Subterfuge is very pleasant and most handsomlie fansied at present he changes the person of an Advocate into that of a Polititian and makes use of the Expedient when he finds not his advantage in litigious wrangling It is happy that Philip the IVth left unto his Son other Estates But if he had been onely Duke of Brabant or Prince onely of any one of the other Provinces to which France doth pretend and that the Devolution had place as to Sovereignties the case had happened wherein the Prince his Son had become a Subject to his Sister And when we speak of the Monstrousness which this Custome would produce in it self and the Inconveniences which may generally arise from thence we do look upon the thing purely in it self and not in the present circumstance which is out of the case of the Question â—nd holds no manner of similitudâ—â—â—th it because if the Duke of â—â—abant do possess other Kingdoms it is a thing meerly accidental in respect of the Dutchy and of its Customs In fine all that is to be gathered from this Sentence is that the Emperour would not permit the Duke to alienate his Goods to the prejudice of his Son We cannot inferr from thence any thing in favour of the Devolution since there be a thousand Imperial Sentences of the same nature for Fiefs in which the right of Devolution never reigned The second Objection is drawn out of the alledged and ill-applied Opinion of some Doctors who do maintain that when any difference about Feodal Customs is in agitation it is not to be regulated by those of the Lording but by those of the Serving Fief It is certain that all of them do speak in this place of those Differences which arise upon the Serving Fiefs which being neither so absolute nor so privileged as the Lording ought not to be measured by the same Rule and this makes altogether in our favour to shew the advantagious difference which there is of the greater in regard of the lesser
into the matter it will be found that this Rule hath always remained inviolable in the Succession of its Princes Whereupon several Observations may be made The first That this order of Succession hath been common in all the Provinces to which France doth pretend and that this shews that of their own nature they have always been indivisible 2. That the Males have ever succeeded to the exclusion of Daughters 3. That all the Local Customs which these Authours do alledge have never taken place in all these Sovereignties 4. That the Right of Devolution never had effect in reference to Princes on any occasion otherwise Catharine Dutchesse of Savoy had succeeded Isabella her Sister and so much the rather because she had not at all renounced It seems that he seeks onely to divert himself in all the discourse he makes touching the Countie of Hainault The Treatise of the Queen's Rights page 365. and that by the Examples and Allegations which he produces he will set forth his Memory to the prejudice of his Judgment It is not here the place to dispute whether Hainault be a Fief or a Free-hold since in the one as well as the other Title the Right of the Queen is equally ill founded The Sentence which he cites in favour of Jaqueline Countess of Hainault against the Bishop of Liege is wholly from the purpose seeing it is out of controversie that the Daughters do succeed in this Countie failing of Heirs-male of the same Line The Point in question was to prove that the Daughters of the First Bed did exclude the Males of the Second in the Succession of this Countie yet of this he is altogether silent and all the remainder of his discourse is but a straying and a vain Caracole out of his course and after he hath run himself out of wind without being able to make any Conclusion upon those Grounds which have cost him so much pains to establish them he retires like a Cacus into his den of the particular Customs which is his onely refuge But it is here where he hath lost all manner of Modesty when he dares affirm that the Custom of the place prefers the Daughters of the First Bed before the Males of the Second If he had consulted the Practitioners of the Countrey they would have informed him of the Use inviolably observed among them and founded upon their Custom which gives the preference to the Males without any distinction of Bed in the Succession of Fiefs they would have let him see in the 13th Chapter Article 6. of their Customs that the Daughters of the First Bed should remain without any part in the Fiefs of their Fathers and that the Males of the Second should absolutely carry them by the disposition of the Custom according to their ordinary Rule if the same Custom had not permitted the Fathers and Mothers to provide a remedie in this by a special Disposition These are the very words of the Custome Two Conjuncts having onely one Daughter may make and pass advice to her profit out of their Fiefs and Allodes and main Farms either wholly or in part of them even by charging one piece or more of the Rents hereditarie or Viageres revocable or irrevocable as if they had many Children to the end that if from the said Conjuncts or from other subsequent Marriages Sons should come the said Daughter may have a Portion It is clearer then the day that the End of this Custome is to give the Fathers a remedy against the practice and the general Custome which prefers the Males of the Second Bed to hinder that the Daughters may not be left without any part at all as it would happen if the Parents did make no disposition to the contrary It is also seen by the same Text that regularly the Parents had not the power to make even this Disposition and that they did receive it onely by this Custome may make and pass advice Therefore they could not doe it if this Custome did not give them the power otherwise it would be superfluous and without effect The 7th Article of the same Custome doth so neatly interpret the preceding that if the Writer had but taken the pains to reade it he would not have so inconsiderately hazarded upon a Proposition which tends to destroy all his credit the terms whereof are these And though by the Law if there be no advice the Fiefs patrimonial of the Survivor belong to the Son of the Second Marriage when there is onely a Daughter of the First Bed nevertheless the said Fiefs being ordained by advice to the Daughter as in the preceding Article or to many of the former Marriage such an Ordinance shall take place to the exclusion of the Son of the Second Marriage which is in the publick an universal practice and without contradiction throughout all this Province As to the Country of Namur though particular Goods there be subject to the Devolution it is as true that the Sovereigntie is exempt from it that it is seen at this hour by the Contract of Sale which the Earl John made to the behoof of the Duke of Burgundie in the year 1421. that he parted with the said Countrey to this Duke upon Conditions which are inconsistent with the Devolution having sold it to him for himself and his Heirs which should be Earls of Flanders without ever being able to be separated from that Countie This Inseparabilitie doth necessarily exclude the Devolution and the rather because the Countie of Flanders to which it is united doth no ways acknowledge this Custome As for what concerns Artois the Custome which he cites is not received and the disposition of the 27th Article which he alledges extends no farther then to the Goods that are situated within the Sheriffdom of Arras as is clear by the preceding Articles and in the Text of the same Custome which cannot onely not be a Law to the Sovereigntie but cannot so much as be a Rule to the other Lands of the Countrey which hath its general and received Customs failing whereof it hath recourse to the written Law And though this Custome of Arras gives some right to the Children upon the Goods of the Survivor it is notwithstanding far different from the Devolution in all its effects as those may observe who shall have the curiosity to reade it And it is so limited to the place that though it affects the Movables yet those cannot be seised on which are out of the Sheriffdom But by the general and the received Custome of this Province there is neither Devolution nor Intervestiture as they call it on the contrary by the 139. Article the Survivor inherits one half of all the Movables of the first deceased and by the 134. the Husband hath the Administration of all the Goods of his Wife and can alienate the Unmoveables without her consent which is altogether opposite to the Intervestiture The 176. Article which is urged against us concerns not the