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
upon which I shall chiefly ground my Answer are these two The first is Whether eldest sons have a superiour right above other sons to inherit the greatest part of the fathers estate The second is Whether fathers may lawfully and religiously give their lands and goods to which of their children they please or to whom they will But I will now take a view of his proofs and be so bold as to examine his invincible reasons and arguments for so he calls them The younger brothers Prerogative Proof I. Out of the Law of Nature for the younger brother THat all communicable things were common amongst men for many ages after the Creation in all which time no man laid proper claim to any thing as due to himself alone whereby it well appears that hereditary succession or title to a fathers lands or goods could not be then in use or so much as thought of Answer It ir more then the Apologer or any man can prove that all things were enjoyed in common for so many ages as he surmises But the contrary is manifest for we find that immediately after the Creation and for many ages together the generations of Seth and Cain did neither communicate nor so much as marry the one with the other and it is not unprobable to think that Cain and Abel the first Sons of our first Parents as they had several vocation so they had as a curse for sin a several propriety in their goods because they agreed no better But admit all things were enjoyed in common for many ages after the Creation what is this to purpose for if there were no proprieties or estates there could be no inheritance then in use though questionless the right of inheritance was then in eldest sons as now it is unto whom as the Apologer sayes there is a natural reverence due from his younger brothers and if there be a natural reverence due there ought also to be a natural right to inherit the greatest part of the fathers estate for how else should that natural reverence be maintained with such a due respect as it ought to be Proof 2. That all sorts of people as well Christians as others who have perfection in natural society or a perfect and religious life in a natural or wordly conversation of men have and do daily imbrace this natural and blessed community Answ This blessedness of community which the Apologer so much contemplates takes away his pretended free power of Parents for if there were no estates they would have nothing to dispose And it is the Anabaptists and Eamelists so much admire and prophanely practice for they enjoy all things in common even as much as their wives and in that are more beasts then many of the unreasonable creatures for amongst many of them there is a kind of conjugal contract and a constancy observed between the males and females It is true that all good Christians should so live and love and help one another as though they enjoy'd all things in common But I would fain know what other people besides Christians the Apologer means who have and do as he sayes daily imbrace this blessed community and in the way of a perfect and religious life Proof 3. That the Law of God is never contrary to the Law of Nature and that fathers have by the Law of Nature a free power to dispose of their estates and children Answ It is true that there is no Law of God against the Law of undepraved Nature or as Nature was in her first purity yet as our nature now is there are many things in the Law of God which are seemingly against Nature or meerly preternatural as is the loving of our enemies the doing of good to them that hate and hurt us Matth. 5. Luke 6. 1 Pet. 2. But as there is no Law of God contrary to the Law of Nature so there can be no good or warrantable Law of Nature which doth not agree with all the divine admonitions and precepts both of the Old and New Testament and therefore the pretended free power of Parents cannot be grounded upon the Law of Nature for it is directly against the divine precepts as appears Numb 27. Deut. 21. Proof 4. That the happy Law of Nature which indured so many ages and without doubt had longer continued had not sin which breaks all union and depraves all natural perfection gotten such dominion in the minds of men that in natural equity all things could not longer be used in common for as some men being possest with an insatiate desire to get rule and raign sought the oppression of others by taking from them that freedom which Nature had given them so others given to sensuality and idleness sought to live of other mens labours whereas by Natures Law every one ought to live by his proper industry within the rules of justice and honesty whereupon Natural reason perswaded that all things being divided every man should know his own otherwise no peace or concord could be maintained in humane society Answ The Apologer is so transported with the imagination of the happiness of community that he flutters up and down and even loses himself in impertinent discourses to what he undertook to treat on But admit sin were the cause of dividing lands and making laws he will not say I hope though he seems to infer it that it is a sin to observe the laws because sin was a cause of making laws Proof 5. That 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 Answ Neither the Apologer nor any man whosoever can prove or so much as make it probable that Parents have that free and absolute power by the Law of Nature as is pretended neither can they prove that the right of inheritance in eldest sons is not grounded upon the Law of Nature But if the Apologer would have fathers to have that free power by the Law of Nature as is pretended he must first prove how fathers are become the true and absolute Lords and masters of their estates by the Laws of Nature for it is absurd to say that Nature gives a power to dispose of that which the her self gives not and this is more I believe then the Apologer or any man else can prove It is true that every man hath his several way of understanding which is unto him his natural reason though the thing conceived be never so absurd and foolish The Apologer sayes that fathers have such a free power by the Law of Nature and that eldest sons have no right of inheritance by the Law of Nature and this is the dictamen of his nature or his natural reason for which he gives no reason nor can alledge any convincing or satisfying authority to prove it And that you
Christian and good subject to conform himself to the Laws he lives under and not to wretch and stretch them to wicked ends by their false constructions nor yet too curiously to search into them which is alwayes an argument of a proud and rebellious spirit So that in all this fair flourish the Apologer hath proved nothing to purpose but only shewed the antiquity of Cicero who lived he sayes many hundred years ago Proof 14. That by the Civil Law Parents had at first a power of life and death given them over their children and a free disposition of all their fortunes to any of them in his life but if he died intestate then the estate was to be divided among the children egually as well sons as daughters Answ I might here answer him with his own two sayings Cessante ratione cessat lex summuÌ„ jus est summa injuria and he also sayes that it is no Law but tyranny which wholly disagrees with the Law of Nature what can be more against Nature and natural equity then that Parents should have a power to destroy their own flesh and blood which are their children and he sayes that these Laws were first invented and practis'd by the Romanes when they were heathens and he needs no other answer then this that it was very heathenishly done of them but why should the Apologer urge this himself saying that this Law was rigorous and afterwards altered upon good grounds And concerning the division of the estate equally amongst the children for so sayes he the Civil Laws ordain It is well known that the practise is much otherwise where the Civil Laws are in most force as in Spain France Germany Italy c. for there the chief house and the greatest part of the inheritance is usually conferred upon the eldest son and it is a Maxime amongst them Seniores honores juniores labores the Arts Arms A munities and the more noble trades as Merchandize and the like and not lands of inheritance are the more proper portions for younger brothers Proof 15. That in natural justice children during their fathers lives have jus ad rem not jus in re to their 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 according to form of Law but being dead without will or disposition thereof they fall upon his children according to the Law of Nations hat the Cannon and Civil Laws command it as a thing in equity the father either to divide his inheritance amongst his children or allow his children according to his affection by giving to one more then unto another as it shall please him Answ The Apologer speeks generally and cites neither authority nor Authour and so deserues to be neither credited nor answered but I will not deal so unkindly with him There is no question but that children have not only jus ad rem but jus in re to their fathers goods in his life time as plainly appears by the claim which Esau made and by the parable of the prodigal for the prodigal came to his father and boldly said Pater da mihi portionem substantiae meae give me that portion of goods which belongs to me pater divisit and the father gave him his portion and Esau came as boldly to his father and demanded the due of his Birthright because he was the eldest son And for all the large soveraignty which as the Apologer sayes the Civil Laws give Parents over the children the Apologer confesseth that fathers unless they can give a just cause to the contrary are bound by the Civil Laws to leave every child a portion called a Legitimate or Patrimony which makes clearly against his so absolute a power of Parents for if they are bound how can they be said to be free Proof 16. That even to this present day the engrossing all by primogeniture hath not been so much as heard of or at leastwise never admitted in the Civil Law as by many Text in the same Law it well appears Answ The Apologer is still upon his generalities and gives neither reasons nor authority but the best is we may believe him as we list I confess that no good Law either Civil or Cannon or any other Law whatsoever allows the engrossing all by Primogeniture as that the eldest son should have all the estate the other children nothing but it is false that there is no mention at all in the Civil Law of the rights of Primogeniture for the great Lawyer Baldus in his Book De justitia jure faith semper fuit semper erit it alwayes hath been and alwayes shall be that the first-born doth succeed and inherit And the arcient Historian Herodotus in his Polihim thus saith it is the general custome amongst all men that the first born doth succeed and inherit And if we will believe Sir John Heywood a late and learned Doctour of the same Laws he tells us that all the best and most approved interpreters of the Civil and Cannon Laws do jointly hold that Parents have no lawful power to invert or pervert the due course of inheritance unless there be some such great cause as was in the case of Ruben and the word Senior say they which signifies priority of birth is often times taken for Lord and not without cause for sayes on Apostle 1 Timoth. 5. Seniorem ne increpaveris sed obsâ—cra ut patrem Do not disrespect thy elder but honour him and treat with him as if he were thy father and indeed the Senior or eldest of our sons as is manifest Gen. 27.49 Gal. 4. c. is to be as a Lord over the rest of his brethren But the Apologer it may be being himself a Divine cannot rellish any other authority but from Divines I will therefore for his better instruction and satisfaction if it can be present him with the opinions of two very authentique Divines and of great antiquity S. Chrysostome and S. Jerom S. Chrysostome in his fift Sermon against Iulian saith that the first-born is is to be esteemed more honourable then the other children and S. Jerom in his Epistle to Onogron and upon the 49. Gen. saith that the right of inheritance is only due to the first begotten or eldest son living Proof out of the Common Law THat our Common Laws give power to a father and free will to dispose of his own as far as reason shall guide his will without all obligation to his heir all Lawyers agree that such Parents who have estates in Fee simple may alien sell and give by power of our Law their lands to whom they will without respect of person or Eldership for it is lawful for every man to dispose his own as far as the Law shall permit him Answ You see here how the Apologer layes down the
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
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
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