of a Fathers soueraigne power ouer the life of his child giueÌ„ to him by the lawes of the twelue Tables where it is written that * Leg. 12. Tabular cap. 3. Dionys Halicarnass Lib 2. Antiquitat Paterfamilias haberetius vitae yea more terque filium venundandi potestatem I will briefly and effectually proue what I affirme herein out of the sacred Text it selfe There theÌ„ it plainely appeares that Fathers had power among the Iewes to cause their children for riot disorder or vnthriftines to be stoned to death Ergo power to disinherit Deuter. 21. For the greater doth euer include the lesse And not to seeme to speake without booke it shall not be amisse to set downe Moyses words which are as follow If a man shall beget a stubborne and vnruely sonne who shall not heare the commaundement of his Father and Mother and being chastised shall contemne to obay they shall apprehend and bring him to the seniours of that Citty and to the gate of iudgment And they shall say to them This our sonne is headstrong and disobedient contemns to heare our admonishments giues himselfe ouer to rioutous excesse and is a drunkard The people of that Citty shall ouerwhelme hini with stones and he shall dye that yee may take euill from among you and that all Israell bearing it may feare Out of which place in Gods word wee may gather how odious a vice vnthriftines was among the people of God what ample power a Father had to punish the same in his child For if wee do well obserue the manner of the processe betweene the Father and the child in this case we shall fynd that the Father was accuser witnesse and as it were iudge of his owne cause For we fynd not that the Seniours of the Citty did giue sentence or further examyned the proofes of the Fathers accusation but their presence giuing as it were allowance to a Fathers power and intention to punish his sonne the people might without more inquiry stone to death so euil a deseruing child Which being by my reader well considered my hope is that it will neuer heerafter seeme vnlawfull though somwhat straung that a Father should disinherit his eldest or any other sonne of his for the cause only of vnthriftines And although the world of men is grownâ—â—â— to that greatnes that it is necessary that one generall Father or politique head should be in a Kingdome or State which may iustly abridge some of those priuiledges and abate a Fathers power all Fathers being become children to the Father of all Fathers their Lord and King vnder God yet the power to raise and maintaine a family by good and lawfull means is still both allowable and commendable in a Parent Who may from tyme to tyme reward according to distributiue iustice al those who liue vnder him by leauing his fortunes to them as in iustice they shall deserue and law shall allow So that there is no question but he may still disinherit according to the power of that law vnder which he liues For no other tye is ouer him God and Nature allowing that at this day and for euer which once they gaue vnto him Which authority he not only may but ought also to execute as far as the law of man shall permit otherwise he shal erre in his Paternall iustice For a Father is not only to beget and nourish his Children in his life but by Natures law must prouide to his power that they liue both in his life after his death to the honour of God the seruice of their Country and Comfort of their family which were the only ends for which God created man a ciuill a reasonable Creature All which if it shall assuredly be thought by a Father that any Child of his will wholy neglect or rather execute the coÌ„trary theÌ„ no question a Father is not bound to leaue him any more then shall honestly suffice the necessities of Nature For as I haue said before no man may giue or lend his goods to any one who will in all mens iudgments assuredly abuse them But let vs see whether a desperate vnthrift may be arraigned and adiuged guilty of these accusations Surely it is cleere that all vnthrifty courses are displeasing to God and contrary to his honour And how can he be able to serue his Countrey who in short tyme will not be able to serue himselfe with necessaries wherewith to liue but must of force be mainteyned like a Droane in a Common wealth out of others labours As for his family what greater discomfort can it haue then an absolute ouerthrow whereby the Noble acts and honour gotten to it by their Predecessors vertues are buried in obliuion and the present and future hopes of all worldly and lawfull honour vertues temporall rewards are taken away And shall not all this deserue disinherison Can there be a greater sinne committed against the honour and essence of a family as it is a family then to be spoyled of her honour life it self For in these our tymes welgotten goods and vsed as they ought are the only soule by which a family and all the vertuous acts which it hath done may liue Since therefore the highest is sought and aymed at in this sinne surely according to the proportion of distributiue iustice the greatest punishment is in equity due to the same according to the reason of the precept â—us suum vnicuique tribuere Nature teartheth the silly Bees in their Common wealth to do to death their Droanes who liue of others labours and shall it then be thought vnlawfull for a Father so to punish an incorrigible vnthrift who will not only liue of others labours but also subuert the honorable endeauours of his Noble Ancestors Thus if sonnes may be deemed domed by the offended hauing power to do both according as the offence done against them shall by circumstance be of quality as we haue proued they may and ought then certainely it is lawfull for a Father so to do as I haue formerly set downe But because example in all doubtfull questions do make their side the stronger it shal not be amisse for the cleering of all the premises to add some few to the former drawne as well from Kinges by whose patterns totus componitur orbis as from inferiour persons whose qualities best fit the condition of our present subiect And if kingdomes and CoÌ„mon wealths haue fauored it then certainly by all arguments à maioriad minus it may much rather be done and ought to be suffered in priuate families CHAP. IX The maine points of the Premisses exemplified in diuers particuler Facts aswell of Princes as of priuate Men. It is not fit perhaps to vrge the better acceptance with God of Abels offering aboue Cayns the elder Brother but of that estate which Abel had in Adams Patrimony Abel Nor will I reinforce the memory of Iaphets share in his Fathers right to the whole
THE YONGER BROTHER HIS APOLOGY BY IT SELFE OR A Fathers free power disputed for the disposition of his lands or other his fortunes to his Sonne Sonnes or any one of them as right reason the Laws of God and Nature the Ciuill Canon and Municipall lawes of this Kingdome do command By I. Ap-Robert Gent. Nisi Dominus aedificauerit domum in vanum laborauerunt qui aedificant eam Psal 126. Vnlesse our Lord build the house they haue laboured in vayne that build it ¶ Imprinted Anno M. DC XVIII TO ALL FATHERS AND SONNES OF WORTHY FAMILIES VVhome Vertue Birth and Learning haue iustly stiled Gentlemen Health Happinesse and Increase of the best Knowledge AS in the front of this briefe Discourse there is Right Worthy Gentlemen already deliuered vnto you some light of that which concerneth the Quality Reason and Scope of the same so do I heere sincerely professe that I did not priuately write it at first but for priuate satisfaction neither do I now make it publique but with due relation to the generall good of Great Britaine and for the exercise of Honourable Spirits in this our much-speaking Paradoxicall Age. Not vpon the least presumption of a self-sufficiency to confront thereby any receiued Custome if any such bee nor to diminish the naturall Reuerence due by Younger Brothers to their Elder not to enkindle emulatiōs in families nor to innouate any thing to the preuidice of publique or priuate quiet which none I hope wil be so ill affected as to suppose neither myne inoffensiue zeale for younger brothers among whom I am rancked one nor the absolute consent of Imperiall and Ecclesiasticall Laws which I hauing a little studied do not a little respect nor the particuler honour I beare to the vsages in this point of our anciēt Britans from whom I am descended nor disire to maintaine and iustify an act in this Kind done by a Friend whom I must euer reuerence nor yet the hope of bettering my priuate fortunes which mooues men much in these our tymes hath drawne me to this vndertaking but principally as before is sōwhat touched the singuler Respect which as a Patriote I beare to the glory and good of Gentlemens Houses whose best Originalls surest means of Maintenance and principal Ornaments are Vertue or Force of mynd The want whereof is a comon cause of ruine The free Power therefore of You who are Fathers is heere in some special cases argued and defended to giue you occasion therby to consider with the cleerer eye-sight for the establishment and continuance of families Heere also the Naturall rights of vs that are children be so discoursed and discussed as that we younger Brothers may haue cause and courage to endeauour by vertuous means to make our selues without the least wrong to any capable if need shal be of the chiefest vses And both and all are so handled as that no offence can reasonably arise in any respect much lesse for that the whole is conceiued and written in Nature only of an Essay or Probleme to which I bynd no man to affoard more beliefe then himselfe hath liking of is free to refute the whole or any part at his pleasure as he feeles himself able and disposed If I may seeme among some to haue handled this subiect with more earnestnesse and acrimony then they think expedient let them be pleased to weigh the Decorum of Disputes which is principally herein obserued their Nature absolutly requiring quicknes and vehemency on whether syde soeuer Neither let this length of Epistle seeme vnto you like the gates of Myndus which were so great and the Citty so little that they ministred occasion to the Cynick to scoffe at the disproportion bidding the Townsemen shut their Gates for feare the Citty should run out through them seeing that in a new Matter a necessity lyeth vpon me to vse so large a Preparation As for the remedies of Euils by way of enacting Lawes that is the proper office of Magistrates and Courts of publick Counsell neuerthelesse to speak and treat of them vnder the fauour and correction of Superiours to whome I do alwaies very dutifully submit is a thing which may well belong to euery man But as for those graue and learned Censors vnto whom I may seeme to haue bestowed my paynes in very needlesse arguments because no lesse then I my self they hould the case as heere it is put to be most cleere and out of Controuersy to such I answere that I wrote it not for them vnlesse perhaps to confirme their iudgments but for others who are not altogeather so perswaded Nor to any as to prescribe or bynd further then their owne Consciences shall thinke good For that were far too peremtory Finally nothing being heer defended but by Authority Reason and Exāple nor any person taxed nor particuler personall vices if neuerthelesse I haue not performed my part in the worke so well as I desyre or as the Cause deserues which I feare I haue not yet my hope is Right Worthy Fathers and Worthy Sonnes of Right Worthy Families that for my honest meaning and good intentions sake your will euer conceiue well of and taken into your speciall protection Your vnfayned vvel-vvisher I. Ap-Robert THE YOVNGER BROTHERS APOLOGIE CHAP. I. The Occasion of writing this Apology is to proue that Fathers may in some cases dispose of their worldly Estates to which of their Sonnes shal reasonably please c. for so much therof as they will and that to be Lawfull by the Law of God of Nature and of Nations NOT many moneths since being inuited by a deare friend of myne to a solemne Feast made by him to many of his well-deseruing friends it was my fortune at that Meeting to acquaint myselfe with many gentlemen of no meane discourse Whereby I feasted as well my vnderstanding with their pleasant society as my taste with the variety of most excellent meates With what our Senses were delighted I let passe to recoumpt since neither profit pleasure nor praise can arise thereof either to the writer or reader Only my intent is to make my Reader acquainted what accident caused me to write this small Treatise and imbouldned me to publish the same to the cōmon view of this al-reprehending age In which neuertheles I do rather hope for allowance then in any sort to feare displeasure For though my subiect be new yet I hope it shal want at the first rather age strēgth which growes by yeares then probable arguments yea forcible reasons to defend it selfe As for friends I hope it will fynd some and peraduenture more then enemyes if it deserue well For as younger Brothers be more in number then elder so are they generallie more free in bestowing their deserued loue For want breeding vnderstanding makes them knowe prize their friends according to their worth Whereas the elder either seated in their Fathers wealth and possessions with more then hopes to enioy their Fortunes do somtynes neyther
as he did then in the Ghospell would vse an vnknowne discourse or striue to make the truth appeare to our weake vnderstandings by a Parable which in equity could not be true Noe surely For it appeares by Salomon his succeding to his Father Dauid that Dauid had power by the lawes of god and man to giue his Kingdome to the worthiest which hedeeming to be Salomon gaue vnto him his Kingdome though he was the yongest sonne Neither was there any iust exception made against Adonias his eldest Brother or against some other of his Brethren why they should be disinherited by their Father Dauid contrary to the common practise of those tymes in setling inheritances But the only knowne reason of this act in Scripture was Dauid promise made to Salomons Mother togeather with her great intreaty made to Dauid to performe the same Which surely he would not haue done except hee had found a lawfull power in himselfe to haue executed the same And thus much concerning what may be said out of Scripture or law of God in our present question CHAP. IIII. That nations begining to denise sundry formes of setling Inheritâ—nces the Romanes especially therin respected the free power of Fathers the right of Children to their Fathers estates begining only at their Fathers Death HAVING now declared in the former chapter what the lawes of God and Nature doe determyne of our present question we inted to examine in breif what is comaunded by the law of Man aswell ciuill of other Nations as common of our owne Gontry And first touching the ciuill Law thus Though that all Law which euer had but the name or credit of Law doth surely deriue her originall from the Law of Nature whereupon Cicero many hundreth yeares synce said that the ground of all law making is to be taken from the chief law which was borne before any law was written or Citty builded yet do they differ much in forme For as it is no law but tyranny which wholy disagrees with the law of Nature as Aristotle saith so if it agree in al with the law of Nature without limitation or difference it must of force be the very law of Nature it self and not the law of man Which surely is nothing els then a temper or forme of equity drawne by right reason from the grounds of Natures lawes according as tyme place and the Natures of men either gaue or shall giue the occasion For though new lawes be dayly made of new seuerall accidents yet all are agreable to the old and ancient grounds of reason in Nature the iust Mother of all law Wherefore hauing set downe before what the law of Nature is touching the matter in question I shall need only now to shew what temper or forme hath thereunto bene added by the Ciuill Lawyer After that mankind was inforced yet by Natures warrant as I haue said to make a partition of the Blessings of God and Nature and that men were possessed by the same right of goods and lands which they desyred to leaue to posterity law-makers and in particuler the Ciuilian deuised by little and little certayne formes of inheritance and ordination of heyres at the first somwhat rigorous giuing to Parents power of life and death ouer their Children a free disposition of all their fortunes to any one of them in his life but dying intestate then all which was the Fathers to be equally deuided among the Children as wel daughters as sonns Which Constitution was afterward vpon good grounds altered The Father being bound to leaue euery Child a portion which the Ciuill Lawyer calleth a legitimate others a Patrimony which at the first was the eight part of the Fathers substance equally to be deuided as I haue said which after a while seeming little the law commaunded that the fourth part should be left without controule except that vpon iust cause the Testator did disinherite him or them who by course of law were to succeed him still vpholding the former lawes that aswel daughters as sonnes should equally succeed to their Parents dying intestate herein assigning fourteene Causes why an heyre might lawfully be disinherited Many hundred yeares passed from the establishing of the Ciuill law and before that it was ordayned by force of law that Parents should leaue a Childes part as it is now called or that he could not disinherit without expressing the cause thereof in his last Will yet in all this tyme nor vntill this present day the priuiledg of engrossing all by Primogeniture was not once heard of or at least wise not admitted but rather excluded as by many texts in the same Law it well appeares The end of the Imperiall or Roman Ciuill law being only to maintaine morall Iustice inthree short precepts Liue honestly Hurt no Man Gine vnto euery one his owne So he who obserues these three fulfills this law yea the law of Nature from whence this law is sprung Now if any Brother can proue that his Father either in life by deed or by will at his death disposing of his goods lands no otherwise then I haue set downe doth none act against these three then why should he not content himself either with the fruits of his Fathers loue or his owne deserts whatsoeuer they be True it is that in Naturall iustice children during their Fathers life haue Ius ad rem and not Ius in re to a Fathers goods Whereupon the Law calleth them Quasibonorum patris Dominos Which their right onely takes effect after their Fathers death For during life hee hath power to alter alien sel and giue as it shal please him according to forme of law but being dead without will or disposition therof they fall vpon his children as I haue said according to the law of nations This law imbraceth a two fold iustice the one in exchange the other in distribution The first hath not to do with our cause the other surely rather commends then condemns a Father who vpon good occasion that is for the bad demerits of his eldest sonne and for the preseruation only of his family shall giue or conuey his lands goods to the yonger For the Nature of distributiue iustice is not only to giue proportionably to the well deferuing but also to forbeare to place benefits vpon any one who shall abuse them or vse them to any other end then to that good for which they were lent him and hee shall leaue them And this is Ius suum vnicuique tribuere For no man can giue or sell his goods to an euill end or to any one whom he assures himselfe will vse them to the dishonour of God or the wrong of those who shall liue with him or by him of which I will speak more in the last chapter being there to handle what a Father may in conscience do or not do in our present question with sinne and without sinne And thus much of the Ciuill and Canon Lawyers auerment of an elder
world though he being the youngest sonne of three had Europ for his inheritance which in all arts and vses of life far excelleth Affrick Asia and all the rest of the earth Whereas according to the pretenses of those customary challenges Iaphet Sem should either haue had all or byn Lord Paramount of all Cham and Iaphet with their posterity but Farmers or Fre-holders vnder him I will not also as if there were penury of resemblances againe vse for example Esaus disinherision though that were inough for our present purpose For if it had bene sinne which Iosiphus the Iew neither in his Antiquities or Scripture faith the Mother could not haue procured it God would not haue prospered it nor Iacob himselfe being a good man haue accepted it nor Esau whose anger Iacob feared haue left it vnreuenged Neither is there in Scripture nor in any writen Law vnder heauen any commaundement to restraine the Fathers power but rather the contrary For such is the law of Nature that they who are exaequo one mans children should if not exaequo yet not exiniquo be prouided for Against which partiality the Imperiall Lawes admit so forcible a remedy vnder the title of an inofficious Testament as it shal inable the yonger childe to a certaine proportion of estate whether the deceased Father would or no if he had no iust reason for omission or disauowment in his last will The example certainely of the same holy Patriarch Iacob in preferring Ephraim before Manasses Ephraim the younger son before the elder being his grandchildren against the set purpose of Ioseph their Father seemes vnaÌ„swerable on behalfe of the power of parents for transferring or distributing their blessings Of which it may truely be said Qui prior in benedictione est potior in iure Of Salomon I haue spoken before who was not the eldest sonne of Dauid Salomon but Adonai after Absalom was slaine as Dauid himselfe was not the eldest sonne of lesse his Father but the youngest and yet chosen by God who sees not as man doth for with him there is respâ—ctus personarum to gouerne Israel though he was not set before his brothers in the priuate inheritance of his familie And in the Ghospell it is apparent by the Parable of the workmen who came at vnequall houres into the vineyard and yet had equal wages that first and last are to him a like who though he created thinges in number weight and measure yet he squares not his fauors by priority of being but of well-deseruing Augustus Caesar the most renowned of all the first Emperours setled the succession of his Empire not vpon his onely Gâ—andchilde Agrippa Posthumus Agrippa Posthumus the sonne of his daughter sole heyre the lady Iulia though Tacitus sayth that he was nullius stagitij compâ—rtus then what if he had indeed byn a notorious vnthrift but vpon Tiberius a stranger in bloud and his sonne by no other but by a ciuill title of Adoption because he reputed him far the fitter to gouerne Chosroas King of Persia Medarses made Medarses his younger sonne companion in his Empire and left out his eldest sonne Sinochius But let forraine examples passe for briefnes sake wherwith of all tymes places books are full In our Country wee might alledg the fact of Brutus Brutus the reputed fouÌ„der of our Nation who diuided Albion afterward called Brittaine to his three sonnes leauing onely the best portion to Locrinus ancieÌ„tly called Loegres Albania now Scotland to Albanact and Cambria or Wales to Camber Leir long after knew he had so much power in himselfe as a Father euen against the euidence of his owne act of partition by the originall law of Nature as for the ingratitude of his owne children to confer the kingdome wholy vpon his younger child Cordeilla in preiudice of his grandsoÌ„nes Mâ—rgan and Cunedage Cordeilla borne of his eldest daughters I knowe that some will deny credit to Brutus history which in this case they might with the more reason do if the ancient Weale or Brittish Custome did not answere in the practise thereof to that act of Brutus For not onely king Roderick deuided his kingdome of Wales to his three sonnes according to that distinctioÌ„ of the countrey into Northwales Southwales and Poâ—island but others since haue done the like among them As for Brutus History Brutus History an it hath some enmies so also hath is many friends and those of speciall worth and note Henry Archdeacon of Huntington Matthew of Westminister others among the ancient And of later tymes Syr Iohn Price William Lambert Humphrey Lloyds Doctor White of Basingstoke Count Palatine in right of the Ciuill law Chaire an honour due to the iust number of years by him passed innumerable others Aboue all the rest Edward the first King of England with all the Earles Barons of this Realme by their authentick deed or instrument confirmed in Parliament But let vs proceed They who know the old fashions of Ireland either by report or by the printed Statutes of that Nation may testify of their most ancient Tenure Irish Tauistry or Fundament custome which there is called Tauistry By which the land and chiefest of a Name after the predecessors death is not a warded to the eldest sonne but to the worthiest if I misremember not the iudgment wherof is left with the people and such Tenants about as haue interest and right of voyce As Alexander the great though as it is apparent in the Machabees very falsly is said to haue left his Empire And the custome of equal shares may be in other places also which neuer borrowed their equall partitions from Gauelkind A custome I graunt which some haue very lately altered in their priuate families by Parliament In Scotland there is scarse any thing in their most ancient Records more often found concerning their succession to the Crowne therof then Vncles to reigne before Nephewes euer by Nationall Custome as is auerred But the abundance of forraine examples must not carry me from home Arthur Arthur the Great was left heyre to the crowne by his Father King Vther surnamed Pendragon or Dragons head though begotten in Bastardy rather theÌ„ the soÌ„nes of Lot king of PicÌ„tland being borne of Vthers sister or as some write of his daughter Anne an history which euen Buchanan relateth out of the Scottish Monuments on Arthurs behalf for very true To come neerer in the same kynd Athelstane that victorious king of England Athelstane being a Bastard was notwithstanding preferred before the lawfull eldest sonne euen by his Father King Edward surnamed Sinior to whom saith Florentius Wigornienss an authour aboue 500 yeares old Râ—gni gub rnacula reliquit and not to any of his sonnes by his wife Queence Little cause is there to seeke examples so far off William the Conquerour preferred William his youngest sonne before Robert the eldest in the Kingdome of England and