can to prove that eldest sons have no more right to inherit then other sons all is as pleases the father for he is the supream and absolute Lord of the estate and may lawfully and religiously dispose thereof at his pleasure He tells us that he never read any Authour of this Subject and why then should he so much presume of his self-sufficiency and extraordinary spirit that he should think he may deserve credit himself telling us that he is the singularis homo the only man who first disputed hereof or ever brought the matter in question Marry I 'll tell you but then you must take his own words for it he sayes that he believes he hath spoken according to dialectical reason and that there hath been nothing spoken of it heretofore truly which reason hath not dictated to all Authours pens and you shall now see what a messe of reason he doth serve in for his purpose He sayes in his Epistle that there is a natural reverence due unto the eldest sons from their younger brothers he sayes that it was the use of the Israelites to prefer their eldest sons to the better part of their possessions and that it is now the more general practise of Christian Parents to leave either all or the most part of their lands to their eldest sons and he honestly gives these two reasons why it should so be The first is because there is a natural reverence due unto the elder brothers The second is because this custome had its original from the imitation of Princes and for the preservation of Families and that an equal division of the lands and goods amongst all the children will bring an estate to nothing or to so little that it may be compared unto an attome in the Sun He sayes that at first fathers and then first born after them were as Kings and Priests in their own houses He sayes that our Common Laws give the right of inheritance to eldest sons He cites a Divine Precept Deut. 21. which plainly proves the rights of eldest sons He sayes that we find in holy Writ great respect was had of the first begotten and a blessing was held to come to Parents thereby You may see here how sufficiently the Apologer hath argued on the behalf of his younger brothers for I know not what he can say more that can more advance the rights of eldest sons But leaving the Apologer I will a little more dilate my self not so much in proof as in illustration of the premises The very vegetables and unreasonable creatures are no mean arguments of the excellency of Primogeniture How grateful to the Planter and indeed how much more vigorous and excellent are the first fruits of plants more then other productions and how fully do the first fruits of a new broken up ground content and satisfie the longing hopes of the honest husbandman and after some few crops how poorly doth the same earth discharge it self of its burthens and this was the reason why the first fruites were in the old Law reserved for the most sacred uses and so it was meet for God who is the giver of all good things should be served with the best of those things which himself hath given The very beasts and birds do no lesse declare the excellency of Primogeniture for it is generally observed that the Parent birds do use to feed their young ones as their young ones are in seniority yielding as it were a kind of right or a natural and lawful precedence unto the eldest and the very nest gull or the youngest of the young feathered creatures doth plainly demonstrate how much more perfect and excellent the senior birds are above their younger Salvianus lib. 4. de gubern Dei Aristotle and divers others do make excellent Discourses concerning the seeming prudence and piety of the Storks and Bees and shall the Bees yield to order and have a Commonwealth amongst them and shall ' the reasonable creature called Man be more unreasonable then they and have no rule or order of inheritance in their own Families but at the fathers affection and will They also deliver that the young of all creatures do observe a kind of reverence and obedience to their elder young and that the eldest young doth use to suck at the uppermost teat and the younger young will not so much as presume to usurp upon the rights of the eldest nor their Parents suffer it These things if rightly weighed are of no mean consideration concerning the excellency of Primogeniture and consequently of the rights and prerogatives of eldest sons and the saying of Job chap. 12. is no insufficient answer to any one who would disparage the rights of eldest sons Interrogato jumenta ask the beasts and they will teach you But that which is most considerable next to the Divine Precepts is the sacred esteem of Primogeniture amongst the elected people of God for with them as appears Exod. 13. and 34. Numb 38. c. the first born of the very beasts were exempted from work and fathers and their first born after them were as Kings and Priests in their own houses And it hath pleased the Divine Majesty to the infinite glory of Primogeniture to sanctifie unto himself all the first born of the male-kind calling them his and to call his Church triumphant the Church of the first born Hebr. 12. Nay even to call his Divine self who hath been from all eternity unbegotten his first begotten son Coloss 3. But these are no precepts that fathers should endow their eldest sons with the greatest part of the estate It is true yet are they good motives great instructions and may be taken for no lesse then precepts in any pious understanding for we are to elect and love whom God electeth and loveth and since it hath pleased God to elect and prefer our eldest sons in a higher degree of excellency then any other our children we are therefore to elect and prefer our eldest sons in a higher degree of inheritance then any other our children And can it be suppos'd that God would leave us in suspence concerning so high a point as is inheritance which is indeed the main ground and foundation of all humane Laws and therefore it hath pleased the Divine Majesty to impose this his great command upon his elected people which was that if any one of them died without a son his inheritance should go to his daughters and if he had no daughters to his brethren and if he had no brethren to his fathers brethren c. and that this should be a perpetual Law as the Lord commanded Moses Numb 27. By which it is evident that one son in particular and not sons in general ought to be heir and be endowed with the prime Blessing or Patrimony unto which accordeth an Apostle saying Gal. 4. as long as the heir is a little one he differeth nothing from a servant though he be Lord of all and the Apostle meant
Jus Fratrum THE Law of Brethren Touching the power of Parents to dispose of their Estates to their Children or to others The Prerogative of the Eldest and the Rights and Priviledges of the younger Brothers Shewing the variety of Customes in several Counties and the preservation of Families collected out of the Common Cannon Civil and Statute Laws of England By John Page late Master in Chancery and Dr. of the Civil Law LONDON Printed by I. M. for Henry Fletcher at the three gilt Cups near to the West end of S. Pauls 1658. To the Reader DIscordia fratrum inter se Amarissima wofull and long continued experience tells us with what bitterness enmity amongst brethren is carried on if we cast the least glance of our eye amongst the many violent Law-suits daily prosecuted by brother against brother so that we see the saying of the Poet complaining of the Iron age near two thousand years ago verified in the superlative degree in our age Concordia fratrum Rara est Filius ante diem patris inquirit in annos Love amongst brethren saith he is rare to be found and the son goes to the Oracle to enquire how long his father shall live that he may inherit his estate The eldest would have all to be his and the younger thinks the elder hath too much and while they strive who gets most use of his fathers estate commonly a third person carrles all from them both This Treatise will discover the Rights of both Elder and Younger if they will be contented with their portion fully answering the Apologer for the younger brother or the younger brothers Plea This book called the Apology or Plea for the younger brother being a Treatise so intituled was Printed at Oxford in the year 1636. Hereby brethren may learn to know their Right and that being known and obtained I could wish them to be therewith content and observe the Apostles divine command Let brotherly love continue The fathers power and Prerogative in disposing his estate A Fathers free power disputed as that he may dispose of his Lands or other his Fortunes to his son sons or any of them as right reason the Laws of God and man the civil cannon and municipal Laws of this kingdome do command 2 I will prove by the Laws of God and man that a fathers freedome is such that he may lawfully and religiously give his lands or goods or other his fortunes to any of his children for the preservation of his name and comfort of his posterity as right reason or the better deserts of a son shall perswade him 3. Nature never set it down as a Law that the estate should be left to the elder brother or younger or to any one in particular or to all but to whom the father being true and free Lord thereof should best devise by will guided by reason 4. Neither is there in Scripture nor in any other written Law under heaven any command to restrain the fathers power but rather the contrary for such is the Law of Nature that they who are ex aequo one mans children should if not ex aequo yet not ex iniquo be provided for 5. Children during their fathers lives have only jus ad rem not jus in re to a fathers goods whereupon the Law calleth them quasi bonorum patris dominos which their right only takes effect after their fathers death for during life he hath power to alter alien sell and give as it shall please him 6. The Cannon and civil Laws give no precedency or superiority of right to eldest sons but command it as a thing in equity the father either to divide his inheritance amongst his sons or to give to one more then to another as it shall please him yet with this proviso that he who hath the least hath his childs part except on just cause he disinherit him 7. The Common Laws of our Realm allow every father to give his land in fee either by deed in his life or will at his death to any of his children yea to a stranger without rendring a reason why he doth so 8. The Imperial or Civil Laws gave Parents at the first a power of life and death over their children and the Jews had the same power given them by the divine Laws An Advertisement to the Reader YOu may see here with what a merciless immanity this wild Apologer falls upon elder Brothers for no Laws either divine or humane allow them as he sayes any right of inheritance at all above other sons nor any other sons can claim any thing of their Parents as of right but what is their Parents pleasure to bestow of them and daughters are in the same or in a worse taking for he insers that they may lawfully be disinherited and the estate conferred by the father if he hath no sons to any one of the same name because the name of the family is extinct in the daughter and the Hebrew word Zacar which signifies a male child doth signifie also a memoriall because the fathers memory is preserved in the son But this is not all for it is not enought that Parents have a free power to make their children beggers unless they have also a free power over their childrens lives It is strange that the Apologer who pretends so much learning and honesty should be so fair in his Epistle and so fowl in his Treatise which thanks be to God is no Gospel for there he protests that it was not upon any the least presumption of a self-sufficiency to confront thereby any received custome nor to diminish the natural reverence due by younger brothers to their eider nor to enkindle emulation in families nor to innovate any thing to the prejudice of publick or private quiet that he made publick his Treatise but his principal motive or aim was the singular respect which as a Patriot he bears to the glory of Gentlemens houses and to the general good of great Brittain which how well he hath performed or whether he had any such intention or no let any man judge who shall read his Treatise And though he seems in some places a little to confine the parental power by saying that Fathers are to dispose of their estates as right reason and the better deserts of a son shall perswade them or chiefly for the preservation of their families which every wise and good man must and will have a care of yet this is but a seeming restriction for all is left to the fathers ther 's affection and will and the eldest son hath no more right to inherit then the youngest and either of them none at all but at the courtesie of the Parental Monarch As for his vain suppositions that if the eldest son be a natural fool or madman or turns Turk or be extreamly and desperately vitious they shall have no serious part of my Answer because they are no material parts of the charge of his Tratise The questions
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
only the first begotten or eldest son living for he calleth Esau a prophane person because for a dish of meat he sold his first birth-rights and in his dreadful denouncement against unnatural and neglectful Parents 1 Tim. 5. which is that they are worse then Infidels He sayes in the same chapter Seniorem ne increpaveris Do not disrespect thy elder c. giving a fine and full instruction thereby who it is that should be the right heir or chief Lord and master of the Family But here it may be some will object that this Law was only spoken to the Jews and therefore did only concern the Jews they may as well say that the holy Tables of the Law did only concern the Jews for they also were deliver'd to the Jews and surely I cannot conceive what can be more moral and necessary then that there should be a chief son or heir amongst our children and generally known by a native and undoubted right for there must necessarily be an order and subordination in all things and what can be more natural and just then that Parents should be bound to relieve and provide for their children And had this Law only concerned the Jews wouâ—d S. Paul have commended Seniority and condemned Esau for selling his birthright and would the ancient Fathers who are the best of humane testimony as S. Chrysostome in his fift Sermon against Julian and S. Jerom in his Epistle to Onogron and upon the 49. Gen. with divers others would they have averred that the first born or eldest sons are more honourable then other children and that the right of inheritance is only due to the first begotten or eldest son living and had this Law only bound the Jews would it have been denounced from the immediate mouth of God himself and delivered in these words a perpetual Law as the Lord commanded Moses But there is a plainer Precept Deut. 21 and these are the divine words If a man have two wives one beloved and the other hated and they have both children by him If the first son be hers that was hated he may not make the son of the beloved the first born and prefer him before the son of the hated but he shall acknowledge the son of the hated for the first born by giving him a double portion of all that he hath for he is the beginning of his strength the right of the first born is his Now though the litteral expression be that eldest sons are to have a double part of the estate and the other part to be divided amongst the children equally as well sons as daughters we are to consider that the son here mentioned is an unbeloved son or the son of a wife not beloved which doth utterly exclude the affection and free will of Parents in disposing of the estate at their pleasure and it is not here said nor any where else through the Divine Writ that we are to give but a double part or portion to our eldest sons for the practise of the Israelites was much otherwise the fathers and their eldest sons after them being as Kings and Priests in their own houses Neither are we to believe that we may lawfully and religiously so do for so we shall condemn the justice of the Cannon and Civil Laws and our Common Laws and all other good Laws which as I have already showed do all concur with the Divine Laws to erect an impregnable right of inheritance in eldest sons And we shall condemn the general practise of all good Parents who usually leave the greatest part of their estates to their eldest sons which general consent and custome can proceed from no other cause or ground then from the instinct of nature and consequently from the Will Providence and Ordinance of God himself but that which is most observable and considerable is that God giveth no long blessing to any other course of inheritance Whence we may collect how odious a crime and how great an injury it is to disinherit a rightful heir and it is no lesse for he that would dispalce the right heir from the due of his birthright and such a right as is enacted by God himself establish'd by all good Laws and generally practis'd by all good Parents he is no pidler for he strikes at the root and doth what he can to overthrow all Laws and order and bring into the world a Chaos of confusion Mistake me not I do not conceive nor dare not say that the rights of eldest sons are so absolute as that they will brook no exception for the great Law or Precept Matth. Upon which all the rest have their main dependance which is to love and honour God above all things doth abrogate and disanul as we piously believe all the other Precepts which do not concur with the love and honour of God And whereas we are commanded to honour our Parents and the words are absolute yet if Parents should be Idolators or Blasphemers or Atheists or Infidels or which as bad as any of these unnatural I cannot conceive but that children are freely discharged from their obligation of honouring such Parents for how can we love and honour God if we love and honour Gods greatest enemies So on the contrary side if eldest sons be Atheists or Infidels or extreamly and desperately vicious there is no question but that their fathers may lawfully and religiously disinherit them for they are so unworthy to inherit that they are not worthy to live To conclude good Reader if what I have here delivered may redound to thy benefit and better instruction for which it was intended I shall rejoyce in my labours I will give God the praise FINIS
may see how unnatural and unreasonable his pretended free power of Parents is I pray you consider a little tell me whether any thing can be more unprobable then that a father should be more free and absolute then Adam was when he was in Paradise and in the state of Innocency for Adam was under a command or Law but the Apologer would make fathers lawless Stat pro ratione voluntas And what I pray you can be more reasonable and necessary then that there should be a chief son or heir amongst our children for there must necessarily be an order and subordination in all things otherwise there will be a confusion in all things and what follows confusion may easily be conceived in any understanding for it is indeed the mark of hell or rather hell it self where no good order but an everlasting horrour doth inhabitate Job 10. And it is no less necessary for the preservation of peace and concord amongst Brethren that this cbief son or heir should be generally known by a native natural and undoubted right for otherwise all the other sons would malign and envy that son who should be preferred to the inheritance unless the son so preferred had an undoubted and native right thereunto and had his right also confirmed as is now in the case of eldest sons by the generall practise of all good Parents which general consent and practice can proceed from no other cause or ground then from the instinct of nature and consequently from the will providence and ordinance of Almighty God Proof out of the Common Law and Civil Law for the younger brothers right THat divine precepts are not so absolutely binding but that they may in some cases lawfully be broken for though the commandement is Thou shalt not steal nor Thou shalt not kill yet one may in extream want of food steal or violently take from another man and may lawfully kill any man in defence of his own life and goods so though there were a divine precept as there is none that eldest sons should inherit it could not intend that such eldest sons who are natural fools or madmen should inherit Answ It is true that natural fools and madmen though eldest sons do not deserve to inherit but what doth this make against the rights of eldest sons who are no fools or madmen Surely it concerns the pretended free power of Parents as much as the disinheritance of eldest sons for if the father according to the Apologer turn idiot or madman the Apologer will not deny but that he is made thereby incapable of the management and disposure of his estate Proof 7. That if the effect of eldership were such by the Law of God as some passionately defend that is that the whole inheritance should of right pertain to the eldest son then it followeth by good consequence that there should nor ever could have been but one temporal Lord of all the world for of necessity Adams inheritance should have gone still to the next in blood Answ It is absurd and no consequence at all that there should be any such temporal Lord for the eldest son is not to inherit all the estate but only the greatest part of it fathers being to provide for all their children and the Apologer knows though Adam had the whole world to himself before he had his wife and children who were partners with him by a coequal right though he had a kind of superiority and soveraignty over them yet he had it not by way of inheritance Proof 8. That it was never yet averred by any sound divine Philosopher or Lawyer that nature makes immediately heirs but men They talk idlely who say that God and nature make heirs upon which ground our Common Lawyers say that no heirs are born but men and Law make them Answ It is more then the Apologer or any man can prove that eldest sons are not born heirs eldest sons as soon as born are heirs apparent by the laws King James was born a King and crowned in his cradle and is there a native and natural right in Kings and not in others howsoever it cannot be denied but that Esau had a native and therefore a natural right as appears by the word Birthright and the Apologer cannot but know that it is God only who gives and makes heirs which heirs are the eldest sons as plainly appears by his divine precepts Deuternom 21. c. Proof 9. That God requiring obedience of children to Parents promised a reward saying Honour thy father and mother that thy dayes may be long in the land which the Lord shall give thee which surely was not spoken to one but to all the sons of men for with God there is no exception of persons but as a just and pious father he gives to every one according to his deserts terram autem dedit filiis hominum Answ I know not what the Apologer should intend hereby unless he would have it thought that as all children are equally commanded to honour their Parents so all children who equally honour their Parents should be equally rewarded by their Parents though the Laws both divine and humane give a superiour right of inheritance to eldest sons and concerning his terram dedit I know what he should mean thereby unless he would have every man to be thought an unnatural tyrant and an usurper who hath a particular and proper estate unto himself because the words are terram dedit filiis hominum God gave the whole earth to the sons of men that is not to any one in particular but to all in general You may see here how bold he is with the Laws for he strikes at the very root of them and you may see what a boundless and liberal mind he hath for he would have every man a freeholder and no less then the whole world his inheritance But Mr. Apologer if this should be so what would become of your pretended free power of Parents for they would have nothing to dispose of Proof 10. That there is no divine precept that eldest sons should inherit that it is well known to all Divines that holy Writ hath not prescribed any direct form to the children of God whereby they are bound in conscience to dispose of their lands and goods but hath absolutely left them to the customes of their countrey where any act of that kind shall be executed that there is neither in Scripture nor in any other written Law under Heaven any command to restrain the fathers power but rather the contrary Answ The Apologer cannot but know that there are diverse plain and divine precepts concerning the inheritance of eldest sons one of which he himself doth often cite but never fully relate and these are the divine words if a man have two wives one beloved and the other hated and they have born him children both the beloved and hated and if the first born be hers that was hated then shall it be when he maketh
strangers and what can be a greater affront to God then that a father should disaffect and reject his children whom God hath not only given him but given them for his honour for it is said Eccl. 3. and Prov. 17. that fathers are honoured in their children and that the Crown or glory of old men are their childrens children The Apologer sayes that it is a monstrous immanity in any man not to have care to preserve his Species that is not to have care to preserve and provide for his children and can it be a monstrous immanity and not a sin he also sayes that every act in it self or by circumstance evil is before God and man a sin and no way to be executed by a Christian That an act of it self lawful done against Law is sin and that no Law is valid where the thing it self is unlawful and a sin and is it not then a sin to disinherit an eldest son unto whom the Laws both Divine and humane give the right of inheritance and which we also see confirmed by the general practise of all good Parents Proof 26. That we cannot in conscience sell or give a weapon to one whom we know intends to murder Excommunications are imposed on them who sell armours or weapons to Turks The rule of conscience not only commands a man to use well those fortunes which God hath bestowed on him but forbids him either for affection or gain to part with them to others who will abuse them lest he partake of others sin which a Parent may do after his death who parts from his estate to a desperate unthrift Answ It is true that if we can assuredly know that our goods will be spent to the dishonour of God the harm of the Commonwealth or to the hurt or wrong of any man we are neither to sell nor give them to such persons as will so use them and if an heir be desperately vitious there is no question but his father may lawfully and religiously disinherit him but how can a desperate sinner or unthrift be known We are divinely commanded not to judge any man Rom. 14. which is so to judge him but by Gods grace he may be otherwise and be hereafter a glorious Saint in heaven when he that judgeth him for ought as he knows or can know may himself be an abhorred reprobate qui stat videat ne cadat he who presumes most of his sure footing is in most danger of falling And though a son be vitious and an unthrift doth it necessarily follow that he that is once an unthrift musty alwayes be so We have daily experience to the contrary many unthrifts prove the best husbands for such men commonly run out of one extream into another and from prodigallity fall to penury But if the eldest son be a natural fool or mad man he is not capable to mannage the estate or if according to the Apologer he turns Turk and tramples upon all Laws divine and humane I will say with the Apologer that he is so unfit to inherit that he is not worthy to live but I cannot conceive how in conscience an eldest son can be disinherited meerly for his unthriftinesse for we may so estate our land and yet suffer him and his heirs to inherit that it shall not be in his power to hurt or to overthrow his family Proof 27. That if in conscience the whole inheritance of the father is to come without controul to the eldest son then must it of necessity be inferred that the father without his consent cannot give to pious uses or set out for his other children after his death So that if God should blesse a father with many children and crosse him with as many misfortunes his other children and all his other charitable intentions should be provided for only at his sons or heirs courtesie for thereupon all donations to pious uses and to younger brothers for their portions may be called in question Answ Eldest sons are not to inherit all the estate but only the greatest part of it fathers being to provide for all their children And I deny not but that every man is bound in his Christian duty to do what good he well can to his neighbour or Christian brother for sayes an Apostle Rom. 14. No man is born to himself and the Apologer hath a good saying Da quae non potes retinere ut consequaris ea quae non potes amittere Give of those things which thou canst not keep that thou maist gain such things as cannot be taken from thee But Mr. Apologer I must tell you charity begins at home Proximus quisque sibi we must first look upon our selves and children and then upon our neighbour or Christian brother but I 'le come nearer to you put the case that a father were to make the Church or Commonwealth or children his heir which of all these may he the more lawfully do The Apologer it may be would be on the Commonwealths side for then the estate would be divided and he might chance to have a share amongst the rest but I must ever be on the childrens part and will give a plain Text for it S. Paul in his fifth Epistle to Timothy saith that he who hath not care to provide for his family doth deny the faith and is worse then an Infidel but it is no where said that he who hath not care to build Churches Colledges and Hospitals doth deny the faith and is worse then an Infidel Proof 28. That it plainly appears out of the sacred Text it self that fathers had a power amongst the Jews to cause their children for riot disorder and unthriftinesse to be stoned to death Ergo they had power to disinherit for the greater ever includes the lesse and that I may not seem to speak without book I will set down Moses words which are as follow If a man have a stubborn and rebellious son that will not obey the command of his father and being chastised shall be unreclaimable they shall apprehend and bring him to the Seniors of the city and to the place of justice and shall say to them This our son is incorrigible and disobedient contemns or monitions abandons himself to riotous excess and is a drunkard The citizens shall then overwhelm him with stones and he shall die That you may take evil from among you and that all Israel hearing it may fear Deut. 21. Whence we may collect how odious a crime unthriftinesse riot was among the people of God and what ample power the father had to punish the same in his child for if we observe well the manner of the processe between the father and the child in this case we shall find that the father was witnesse accuser and judge of his own cause for we read not that the Senators of the city did give sentence or further examined the proofs of the fathers accusation but their presence giving as it were allowance to a
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
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