Floruit Ao 480. as the World knows vpon good Consideration just Causes not vpon spleene or false suppositions persuaded to leaue their Fortunes to Strangers or to a lustfull Issue as some haue done CHAP. 7. That Fathers being Tenents in Fee-taile may likewise without scruple of Conscience discontinue the State-taile vpon cause and devise the same at their reasonable pleasure HAving treated largely and as I presume proued sufficiently that Lands held in Fee-simple may either bee parted or vpon just Cause wholly given away to a younger Sonne I intend now to speake of the lawfull Freedome of a Father in like sort and on the same causes moued to dispose of his Lands entailed of which there seemes more Doubt then of the former Every humane Act which of it selfe is not forbidden by the Law of God or Nature is to bee judged Good or Evill Lawfull or Vnlawfull either by the Lawes of the place where the Act is done or by Intention of him who shall doe the Act. For as the Divine Law cōmands somethings to be done and other things to bee avoided vnder paine of sinne so the third sort of Actions are left free by the said Authority from sinne except the Law of Man prohibite thē so make them sin or else evill Intention make them being of themselues lawfull to be a sinne and vnlawfull according to that Principle of Morall Philosophy Finis specificat āctum For as an Act of it selfe lawfull done against Law is Sinne so a good Act commanded by Law yet done with an evill intention may be sinne From these Grounds let vs see whether the Common Law of our Country and the Intention of a Father which are to bee the Iudges of our Cause can allow the cutting off an Entaile the parting of an Inheritance or vpon proportionable cause the disinheriting of a Son First it is cleere that the Act of it selfe by Law may be done But whether such an Act bee summum Ius which may be summa injuria that is the Doubt What shall be the Triall By other Lawes it is either made lawfull or left indifferent Our Law which makes this Tye giues leaue to vndoe it without any exception Ergo to a good End and vpon just Cause it may be done It will bee replied that the Eldest sonne during this Entaile is quasi Dominus Yet hauing neither Dominium directum nor indirectum he during his Fathers life hath onely Ius ad Rem and not in Re Whereby no change is forbidden to be made by the Father according to the Forme of the Law vnder which he liueth and by which the sonne is to make claime if the Father create no new Estate in his life For it is lawfull for every Man to dispose of his Owne as far as the Law shall permit him if it bee not forbidden by some other Law but such an Act is not forbidden by any other Law Ergo 'tis lawfull and no sinne But it may bee said that the Intention of him who entaild the Land was that it should not be vntied or the state changed I answer No Act done by law can be free from Change further or longer then the Law that made it a binding Act shall allow And it is well knowne to the learned in our Lawes that every Mans Intention is to be construed according to Law by which his Act and Intentions are directed Wherevpon Civilians say in like Cases Valeat quantum valere potest Neither is it thought that any man who convaieth his Lands by Entaile can intend an Act beyond Law or desire that his sonne whom he makes Tenent entaile as our Lawyers terme him shall in no Case no not for the preservation of his Family or Releefe of many other of his Children haue power to cut of this Entaile and to be able to alien sell or giue his Lands as Reason Law and Religion shall permit For it may be judged that hee who doth an Act to a good End as namely to preserue his Family will alwaies assent to another Act which shall with better assurance then his owne strengthen his Intendment To the former Considerations wee may adde what Inconveniences may follow this Generall Position For if in conscience the whole Inheritance of the Father is to come without controle to the Eldest sonne then must it of necessity bee inferred that the Father without his Consent * Agens per medium est minus efficax in agendo cannot giue to pious * Da quae nō potes retinere vt consequaris ca quae non potes amittere Vses or set out for the Advancemēt of his other Children any thing 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 other his charitable Intentions should be provided for only at his Sonne 's or Heire's curtesy Which how * Pedissequa enim plerumque novi honoris est Arrogantia Salv. Ep. 2. absurd it is all men know For herevpon all Donations to pious Vses and to younger Brothers for their preferment may be called in Question It is an ordinary thing in these our Times when the Land is left to the Heire Generall to alter the Estate if the Land so cōvaied shal come to Daughters and to leaue it to a Brothers †Hebrewes call a Male-Child Zacar a memoriall because the Fathers memory is preseru'd in the Sonne See 2. Sam. 18.18 Sonne or some other of the same Name though peradventure many Degrees remoued for preservation of the Name and Family If this may bee deemed lawfull and no sinne being done against a well deseruing Child for whom Nature and her Deserts plead her worthy to be her Fathers Heire then without all compare if the preservation of a Name and Family may justly be labour'd for according to Power giuen by Law of God and Man the same may be lawfully acted against a debauched Heire who in any reasonable Mans Iudgement is likely in his shrowd to bury the Memory of all his Ancestors Vertues which should liue in him and his Progeny as his Progenitors did in theirs It is neither new nor strange in the Practise of our Times in Causes of this Nature to overthrow intended Perpetuities and by Act of Parliament to giue leaue vpon some good considerations to sell lands which otherwise by no Lawes can bee sold from the Heire the Father being but Tenent onely for terme of life Which surely by no Power vnder God could be done were the Thing in it selfe vnlawfull and sinne for * See Salvian ad Ecc. Cath. l. 4. Omne peccatum est Divinitatis injuria Whence may bee argued à Fortiori If power may be giuen to a Father being Tenent for Terme of life to sell his Sonnes lands only to pay his owne Debts peradventure idly made though it be to the Overthrow or extreame Diminution of his Family because Naturall Equity doth will that every one
that Forme and Power of Law where such an Act should bee done And this is I presume without controll what the Law of Nature commanded touching the Matter in Question Next let vs see what the Lawes of God doe command CHAP. 3. That the breach of some written Lawes of God vpon warrant of the primary Law of Nature is without sinne that therefore there can be no such Right in Primogeniture which is not in the Fathers power to avoid though there were a precept to the contrary as there is not IF Nature being taken for the principal all-producing Cause of the whole Frame of the Vniverse with all Creatures therein being nothing else but the working Will of the Highest and first Mover as Divines Philosophers hold then surely must Natures Law bee his Will which hee cannot contradict or counter-mand except hee should bee contrary to Himselfe which he cannot For what is in God is God therefore Constant and Immutable Out of which Principle it is easily proued that if the Law of God teach that which the Law of Nature hath ordained the Right of Inheritance cannot be tied to any other person or persons then to those which the Fathers Will approues according to the Power giuen him by the Lawes of Nations where he liues Which Power deriued from Natures Law cannot erre from the Law of God For whosoever shall consider but of Gods Commandements giuen to Man shall well find that God thereby hath still seconded his former Ordinances giuen by Nature For so long as Man-kinde liued in a sort after the Innocence which Gods Grace in his first Creation had wrought in him God gaue him no other Law But when as by sinne those sparks which remained after his Fall were quite extinguished he gaue him New Lawes yet agreeable to Nature As for example in our present Affaires When Man had made by Natures privilege partition of Gods and Natures Blessings then God said to his People by the mouth of Moses Thou shalt not steal Thou shalt not covet thy Neighbours house his Wife his Ox his Asse or any thing that is his As also Thou shalt not kill Which with all other his Commandements teaching what sinne is are agreeable to the Law of Nature yet are dispensed withall as farre as the Lawes of Nature euer permitted For though that the expresse Command of God bee thou shalt not couet any thing that is thy Neighbours nor kill yet in some Cases Both may lawfully be done The one in extreame Want of present Food the other in defence of Life Goods In which the Law of God is good by the Originall Law of Nature which made All for the sustenance of Man and gaue leaue to defend Life with with the losse of anothers Blood yea Life if otherwise it cannot be Vpon which Ground I argue thus Suppose the Law of God did at this present command which indeed it doth not that the Inheritance should be left to any one particular Person and namely to the Elder-Brother yet in some Cases it would not binde the Father to obserue it For as in the former Commandements vpon some considerations the Commandement may bee dispens'd withall so in this For it is not sufficient to be the Elder-Brother or the neerest in Blood to gaine an Inheritance in the Case which I haue now proposed for other Circumstances must concurre which if they be wanting bare propinquity or ancienty of Blood may iustly be rejected he that is second third fourth fift or last may lawfully be preferred before the First and this by all Law Divine and Humane and by all Reason Conscience and Custome of Nations Christian For if it should happen that the next in Blood should be a Naturall Foole or a Mad-man or being taken by the Turkes or Moores in his Infancy and educated in their Religion would maintaine the same or if any other such Accident ministring cause of iust Exception should fall out is it likely that any Law would allow that such a man should be admitted to the Inheritance Wherefore how idly should they talke that would haue it to bee his Birth-right or that God Nature had made him Heire since neither God nor Nature doth immediatly make Heires as before is declared Vpon which Ground our Common Lawyers say that No Heires are borne but Men and Law make them I confesse that in Holy Writ great * In allusion hereto the Church Triumphant is stiled The Church of the First-borne Heb. 12.23 Respect is had of the first-begotten and a Blessing is held to come to Parents thereby But this Blessing I presuppose to bee that thereby the Feare of sterility was taken away which in the Old Law was held to be a great Punishment of God in respect thereof Parents had of themselues and by the Nationall Lawes Customes a great Regard of their First-begotten and preferd them to the better part of their Possessions yet not by any Command from God as a Precept to binde his Elect people vnder paine of sinne For had any such Law bound them vnder such a Penalty then should it binde all Christians now on the same Conditions But we see it by Generall Practise of all Countries to be otherwise Therefore it followes directly that it was not Gods Command but a Nationall Law For God both is and ever was One without change to all his People so ever were will be his Laws Positiue made for them that truly worship him The Claime which Esau made to his Birth-right was not by the Law of God as some ignorantly affirme but by the Lawes of his Country For should the Divine Law haue commanded it it had been sinne in his Mother and Brother by Cunning to haue got it from him Neither could the Father or the State wherein they liued vpon no just cause knowne but to God alone without sinne haue setled the same vpon his Brother Iacob as it was and as it may seeme Iacob praelatione divinâ primogenituram benedictionem promeruit Ita Eximius Praesul D. Episc Cicestr Apparat I. by allowance from God and as it may bee judged by the successe Whereby it is thought that God ordained it as a Punishment of the One and Blessing of the Other which by the permission of sinne to bee committed God never doth Neither did the Nationall Law or Custome of the Iewes as it is said absolutely command the Father to leaue to his first begotten all or the greatest part of his Goods and Fortunes But in case he died not disposing thereof by Act in his Life or Will at his death then the Custome †Viz. Grounded on the Right of Primogeniture See Deut. 21.17 and the Geneva note there of the Nation laid a double Portion on the Eldest or First-begot providing for the rest proportionally By all which you may collect that neither the Law of God or Man in this case commanded that Esau should haue the Inheritance
invincible power to produce all effects which then had their Originall in her yet being studious to please Man-kinde not only with variety but also with raritie shee successiuely discouers daily discloses to the searching Wits of the World her Secrets as Time and Place either hath or doth daily beget Occasion still as it were keeping in store her heauenly Treasure till Mans necessitie best moues her Liberalitie For what can the Wit of man devise or what doth Time or Art make known which good is that Nature from the first time shee beganne to worke hath not in her though to her selfe only knowne the ground thereof either to produce the particular or generall effect which wisely shee left to bee tempered according as the Reason of Man whose glory she pretends should thinke fittest to giue the Forme as Time Place and the nature of the Thing should require For though Marriage as it is a conjunction of Man and Woman containing an inseparable societie of life be of Nature it selfe and had its Originall in the state of Innocence which as Divines Canonists hold was vndoubtedly ordained for Issues sake whereby a Lineall succession was also intended yet vntill necessity enforced Man to make Division of the Blessings of God Nature the Claimes and Rights which follow Lineall succession to Inheritance were not discouered For all communicable things being common amongst Men many Ages were numbred from the Worlds beginning before any man laid proper claime to any thing as due to himselfe alone Whereby it well appeares that hereditary succession or Title to a Parents Lands or Goods could not then be in vse or so much as thought of This I perswade my selfe was the Law of Nature vndepraved Which I incline my Will the sooner to credit because I find that all sorts of people as well Christians as others who haue perfection in Naturall society or a perfect and Religious life in a Naturall and worldly conversation of Mē haue and doe daily imbrace this naturall and †See Acts 2.44 blessed Community Which happy Law of Nature as I haue said for many ages endured without doubt had longer continued had not sinne which breakes all vnion and depraues all Naturall perfection gotten such dominion in the minds of Men that in Naturall Equity all things could not longer bee vsed in common For as some being possest with an insatiate desire to get rule and raigne sought the oppression of others by taking from thē that freedome which Nature had giuen them So others giuen to sensuality and idlenesse sought to liue of other mens labours whereas by Natures lawes every one ought to liue by his proper industry within the rules of Iustice and Honesty Wherevpon naturall Reason persuaded that all things being divided every Man should know his owne otherwise no peace or concord could be maintained in Humane society For all things being common the way lay open to every man at his pleasure to abuse others as it were to rob them of God his Blessing Herevpon Aristotle judged the Division of all worldly Goods to haue been agreeable to the law of Nature which the precept of our Decalogue seemes to approue Thou shalt not steale For the Law of God is never contrary to the Law of Nature neither doth Nature ever contrary it selfe though some may perhaps thinke that herein she hath For albeit at the Creation of all things together with Man in the state of Grace a fraternall and amicable Community was intended yet was it not so absolutely resolued of by Nature but that by Necessity I meane by the fall of Man from Gods Grace she did dispense with this Law and left free to Mans choice to embrace vpon her warrant either the One or the Other as best might fit the Time Place and Natures of Men which ever since the World began haue giuen occasion of making of all Lawes Whereby we see that though Nature giue the grounds to Lawes yet Mans vnderstanding still giues the particular Forme For Nature creating Man gaue to him those worldly blessings to vse well with Warrant either to hold them in Common or in Proper as reason from time to time could best persuade his Will But when Reason and Will had agreed that it was fit that every Man should enioy his Part in Proper Nature moued Man further and told him that now he might lawfully think on his succession and not only liue in his species but breath as it were to the Worlds end in a lineall Posterity by honorable Deeds and Vertuous Acts with which Desire Nature as a wise mother so inflamed Man her Noblest Child after his Fall from Grace that some Men by Natures light only haue done Acts almost aboue Nature and none haue hardly beene so base but desirous to liue and leaue an honorable memory behind them Which that they may the better doe Nature hath not only giuen them power to leaue their wel-gotten Wealth but in a manner their habituall * They which are descended of ancient Nobility haue in them an implanted compleat Generosity or vertuous Disposition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio Cas Hist Ro. l. 44. ex Orat. M. Antonii Vertues to their Issue in which this worldly Honor the Soules worldly life and Vertue 's temporall Reward may liue free from all-killing Time Yet did shee not then by any Command leaue it to any one in particular but giuing a generall suggestion of the Fitnesse of the Thing left the Forme to their best Discretion For had shee not done so all Nations had beene tied to obserue one Forme in leauing their goods and Fortunes to their Posterities for Nature being One without change to all of necessity prescribes no binding Rule to any in particular but to all in generall no man being able to say This Natures Law commands me to doe yet binds not any other to doe the like Which is evident in the Matter of Succession Consule Clariss V. D. Zouch de Iure Feudali p. 18. 21. or Claimes of Inheritance no one Country obseruing the Forme held by another or tying it selfe without controll to obserue its owne as I shall hereafter declare For albeit as I haue said the Conjunction of Man and Woman which we call Matrimony together with the Desire of Issue be of Nature from whence also are sprung not onely a Division of the Goods and Fortunes of this World but also a laudable Desire to preserue a Family and Name by the ordination of Heires to well-gotten Possessions yet did Nature never set down as a Law that those Fortunes 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 For it was never yet averred by any sound Divine Philosopher or Lawyer that Nature makes immediatly Heires but Men whom the positiue Lawes of every Country ordaine by
the Mercy of this Whirlewinde There is no Necessity For our Law hath giuen Power to a Father and Free-will to dispose of his Owne according as Reason shall guid his Will without all obligation to his Heire Besides this Custome takes place only after a Fathers Death if hee dispose not what is his by Deed in life or by Will at his Death But lest my Words bee more generally taken then they are meant I meane those Fathers who are possest of their Lands in Fee or Fee-taile that is are absolute of themselues and haue not vpon good Consideration convaied their Lands from themselues For all our Lawyers agree that such Parents may alien sell and giue by power of our Law their Lands to whom they will without respect of Person or Eldership But may some say the Custome is otherwise this Custome is a Law True it is the Custome But let vs see whether it binde sub peccato or as a Custome which rather invites then commands There was never any Command to tye a Father vnder a Penalty which admits no limitation but it was euer left indifferent and then only to take place where former Provision according to course of Law is not made Then surely a Parent is free from this devouring Custome and may considerately prevent what Evill it may bring to his posterity yea Reason commands it should be so For Interest Reip. vt quilibet re suâ benè vtatur It concernes the publike State that Men be Good Husbands saith the Ciuill Law For if a Man can neither sell nor set much lesse can hee giue any thing to another which he thinkes in his Conscience will vse it to the Dishonour of God and the Ruine of himselfe or others Divines hold that it is not lawfull to sell or let a house to any that hee thinkes assuredly will make thereof a Stewes or to sell giue or lend a Weapon to a man who intends therewith to doe murther Excommunications are imposed on them who sell Armes Offensiue or Defensiue to Turks though they bee not assured they will vse them against Christians Thus we see the Rule of Conscience not onely commands a man to vse wel those Fortunes which God hath bestowed on him but forbids him either vpon Affection or Gaine to part with them to others who will abuse them lest hee partake of others sinne which a Parent may doe after death who leaues his Lands to a desperate Vnthrift But what Religion and Conscience commands shall be declared in the following Chapter In which vpon Principles drawne from the former Conclusions shall be argued what sinne may bee contracted by the parting an Estate among Sonnes or by disinheriting an Eldest son vpon just Cause to whom the Father is onely tied by the Custome of the the Countrey without Obligation of Promise or Contract in Marriage which may alter the Case CHAP 6. That it is no offence before God for a Father being Tenent in Fee-simple to disinherit the Eldest or to parcell his estate vpon cause and that extreame vices of Heires Apparent together with the fewer meanes which younger Brothers haue now to liue on then heretofore cryeth out against the contrary opinion THE Right of these insociable Inheritors of which wee now treat may grow as I conceaue from three Titles or Claimes which they may pretend to a Fathers Inheritance and whereby it may be deemed as they thinke sinne in a Father vpon what Desert soeuer to barre them of the said Right These three Titles are Purchase Custome and Entaile Of each seuerally And of the first which is Purchase Surely in the Iudgement of the Good Learned there is no question in Law or Conscience but that a sonne joyned Purchaser with his Father hath Ius in re and by Equity must surviuing his Father inherite such Lands as were purchased in their Names Now of the other two though it be as cleere as Noone-light that a Lord in Fee-simple or Tenent in Taile may sel or giue by course of our common Law at his pleasure all such Lands held by him in that kind according to those formes of Law which the learned in our Lawes haue and can set downe yet there seems to arise a great Difficulty how such an Act or Acts may in Conscience be executed I haue heard some say in this our Case summum Ius summa injuria Of these Points therefore I will speake Salvo meliori judicio what may in Conscience vpoÌ„ good and just Occasion giuen by the Sonne to his Father bee put in Execution It is well knowne to all Divines as I haue said that Holy Writ hath not prescribed any direct or precise Forme 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 Country where any Act of that kinde shall be executed only as confirming all Formes of Devises which by publike Consent and Authority either haue or shall in rightfull manner bee devised or ordained Out of this Ground and others prementioned let vs examine whether a Father parting his Fortunes by Power of Law and on just Cause shall do a wrongfull and sinfull Act as some would make it I confesse that every Act in it selfe or by circumstance evill and which vpon no occasion can be justified is both before God and Man sinne and by no meanes to be executed by a Christian But that the parting of an Inheritance or Disinheriting of an Eldest Sonne vpon just and evident cause of incapacity according to Course of Law is an Act of that Nature doth not appeare For I finde not that either the Law of Nature or Grace nor yet the Lawes of Man Common Civill or Canon ever for bad such Acts whereby sinne may bee imputed to those who doe them on good Considerations Sure I am that the Canon and Civill Law are so farre from forbidding them that they command as a Thing in Equity the Father either to divide his Inheritance or allow him according to his Affection to giue to one more then to another yet with this Proviso that hee who hath the lest haue his * Or lawfull Portion See pag. 61. of Dr Ridleys View illustrated by the judiciously â—eâ—â—ined Mr Gregory Childs part which the Law doth also assigne except on just desert he disinherit any one which at this day may yea must bee by Will with the cause of Disinherison therein specified Of which Causes the Imperiall Lawes haue set downe foureteene as may well appeare to them who are desirous to vnderstand more thereof So it is evident that by these two Lawes no sinne can grow vpon such Acts being done vpon their Warrant and vpon on such Consideration as is formerly deliuered As for the Common Lawes of our Realme sure it is they allow no lesse and with a greater Privilege For a Man may by this Law giue his Lands held in Fee either by Deed in his life
or by Will at his death to any of his Children yea to a stranger without rendring a Reason why he doth so True it is that a Father not disposing thereof in such sort Custome giues the whole Estate to the Eldest yet in some part of our Countrey the youngest Brother by custome is to haue the Land held by some kind of Tenure if the Father in his life-time dispose not thereof As yet therefore I cannot see how any sinne is committed or contracted by the former Acts being neither done against the Law of God or Man as we haue proued vnlesse it should be said to bee sin not to leaue it to the Power of a Custome which cannot be except the former Law shall bee proued not to be of Force and not to be executed which can no way be done Though I must confesse that the Custome of leauing the Child-estate to the Eldest sonne hath of latter Times beene much imbraced by our Gentry for the preservation of their Families for which it was invented For the Times haue so ruled that Men of sort being either idle or not possest with a couetous Humour haue contented themselues with their Fathers Fortunes and prefer'd their younger sonnes by those meanes which the Times did afford namely by many commendable Courses as either by service of Spirituall and Ecclesiasticall Persons whereby many were raised or by professing a spirituall Life wherby the younger Brother hath oft-times in Honour stept before the Elder But this manner of Life is not so gratefull to our English Gentlemens Natures as anciently it hath beene The Trade of the Merchant the Military profession the Courtiers life advanced many more then now they doe and lastly Elder Brothers in former Ages were generally of better Temper in spending and if they had no humour to get yet had they a care to keepe what was left them and ever held themselues bound by Religion to provide for their younger Brothers and Sisters left to their Dispose which now is far otherwise For some Elder Brothers are found to spend more in a yeare idly then would prefer or maintaine a whole Family Nobly and to suffer their Brothers Sisters to shift which as these Times shape is often-times to liue either lewdly or most miserably * Strenue esurire being forced either to forget their good Education or to lay aside all Badges of Gentry who otherwise with some reasonable helpes might doe God their Country and Family much Honour Since we haue gone so farre let vs see on what Ground this Custome first hath risen Surely for the maintenance of a Family yet led with an Ambitiō at the Example of Princes who finding some difficulties in the admitting of many to a Gouernment and feeling what Inconveniences the parting of an Estate brought devised that One should governe sometime the Worthiest sometime the Eldest was Elected according as the Order was agreed vpon and yet the other Brothers were maintained like Princes And this Custome also among them hath beene broken without Imputation of sinne For to goe no further then our late Times 't is well knowne that Ferdinand Charles the fift his Brother being setled in the Empire divided his Estate To Maximilian his Eldest sonne he left the Empire with Austria Hungary and Bohemia To Charles his second sonne Stiria Carinthia and other Dominions And to Ferdinand the youngest he gaue the Earledome of Tyroll All which if in his life-time hee had not disposed had come to the Eldest Also Philip the second late King of Spaine gaue to his Daughter the 17 Provinces which were of Right to haue descended to his sonne after his Death if otherwise he had not disposed in his life And this was adjudged lawfull by Graue Divines otherwise surely they would never haue done it But doth this Custome in meaner Degrees work that Effect which it hath done in them No truly For as we haue proued it is rather the Overthrow then the Preservation of many Families Let vs see withall whether Families flourished not as much and more then now they doe before this Custome was receaued Livy saith that three hundred of the Fabij Vna dies Fabios ad bellum miserat omnes Ovid. Fast all of one Name and Family issued out of Rome Gates at one time on their owne Cost for Defense of their City which was done before this Custome was dream'd of In Scotland three hundred of the Name and Family of Frasers Gentlemen were at one Time slaine in Fight by their Enemies Neighbours and 140 Gentlemen of one Name in Yorkshiere waited on their chiefe or principal Man of their House at that time High Sheriffe In other Countries many Noble Families from the Romans downeward haue continued where this Custome hath beene deemed vnjust as by their Laws is manifest wheras in our Country in these our Times if there bee one Family in a Shire which is of three hundred yeares continuance very many others are scarse of fiue Descents in a Blood Why should our Age then seeing the Fruit of this Custome to be so small embrace it with such Zeale as to deeme the Breach thereof being warranted for Good and Iust by the Law of God Nature and Man to be a sinne Is it held both lawfull and expedient in some Countries for the preservation of a Family that Degrees of Kindred should be dispensed with to marry contrary to Ecclesiasticall Canons and the Generall Practise and can it be lawfull before God and Man for the preservation of our Goods to venture our Liues and to kill a Theefe who shall assault vs and that perhaps for a Trifle and yet that for preservation of our whole Estate and perpetuity of a Family it shall bee reputed sinne to breake a bare Custome vnder no Penalty Obligatory yea alwaies allowed by Law Never was it heard that a Custome * Customes against Lawes are void by the Civill Law was of such force to abrogate a Law so farre that it should bee deem'd a sinne to follow the said Law though it haue Power to dispense with the Law which otherwise to infringe were sinne especially when as the the Law is both more pious and more naturall then the Custome is For how farre is it from the Law of Nature and from the Practise of Paternall Piety the Father dying intestate the Eldest sonne to become Lord Paramount of all his Fathers Lands not to be bound by Law to provide for Brother or Sister but at his owne good liking Aliud Tempus alios mores postulat Men of Vertue Men of Learning Vertue both now and in former Ages in this our Countrey haue brok this Custome * This Custome is contrary to the iudgement practise of the Primitiue Church as is cleare in Salvianus who intimateth that aequa haereditatis portio was vsually left by Christian Parents to their Children and that to doe otherwise were Grosse Iniquity Ad Eccles Cath pag 422. 425. Edit Oxon
should be relieued with his Owne for so it may bee deemed though in loue to his Child he hath passed the Estate yet ought hee to be therewith preserued from Thraldome in his Necessity Which if it be so as confessedly it is how reasonable a thing yea how commendable and far †So Salvianus Non iniustè testator sapiens non relinquit quod haeres impius non meretur Ad Ecc. Cath. l. 3. from sinne is it for a Father truely Lord of his owne without all Tie of Law Divine or Humane as I haue proued to dispose his Lands to the Honour of God and Comfort of his Family to a Younger Sonne when in all probability the Elder will neither vse it to the One nor the Other but rather to wallow in Riot and Sensuality CHAP. 8. That Vnthriftinesse is one knowne name of many hidden sinnes and is alone a sufficient cause of disinherison proved by the Law of God and Man HAuing vpon good Consideration enlarged my selfe beyond my first intention I haue resolu'd vnder my Readers Favour on the precedent Principles to Argue one Question more for the accomplishment of this Discourse viz Whether a Father may disinherit his Eldest Son or Heire at Common Law for such an Vnthriftinesse as in most mens * Viz Grounded on the concurrence of great and violent Presumptions Iudgements is like to bee the Ruine of his Family Though many foule sinnes besides the Abuse of Gods Blessings bee concomitant to vnthriftinesse yet because they are not apparent to the World de absconditis non judicat Praetor I will briefly argue Whether in Reason or Conscience a desperate Vnthrift may be disinherited It is well knowne to all the Wise Temperate whose Iudgements Passion doth not ouer-sway how great an Enemy Prodigality or Vnthriftinesse is to all manner of Goodnesse and how cunningly she not only hinders the Increase of all Vertues in those in whom she raignes but also vnjustly oft-times cuts off the vertuous reward of many a worthy Predecessour yea giues occasion to the Evill to detract to the Good to suspect their Deserts All which how great a Wrong it is to a Noble Family I leaue to the indifferent Reader to censure I will not deny but there may bee many sinnes in a Man which in the sight of God and iudgement of Men of themselues are more haynous and deserue a farre greater Damnation then Prodigality doth Those sinnes more punishable which are more offensiue to common Society though lesse heinous in their parâ—â—â—ular nature yet are sinnes in this World to bee punisht not as they are in themselues but as by CircuÌ„stances they are offensiue to the Society Peace and Honour of Man-kind which God and Nature ever as the Reward to all Morall Vertues and as the cheefe End of Mans Life intended For otherwise Vsury Detraction Forgery Adultery Fornication Swearing and Drunkennesse with many more which are as greevous offences in the Eye of Heaven as Theft should be punisht with Death as Theft is But since they offend not so much the Peace of a publike Weale at which the Civill Magistrate aymes as Theft doth they are not censur'd with such seuere Punishment as it is All which shewes directly that Offences by Circumstance are made in a Civill Society against which they are committed either greater or lesser and are accordingly to be punisht and no lesse doth the Reason right Rule of State command Out of which Grounds it is evident that all Formes of Goverment doe most punish that Offender who directly or indirectly seekes to disturbe the Peace or overthrow the Liberty or disgrace the Dignity of the State where he liues yet many greater Offences then these may be committed as Incest and Apostasy which are not so sharply punisht by the Civill Magistrate For every one to whom God hath giuen power on Earth doth chiefly seeke the End for which his Power from aboue is giuen to him and doth censure and punish in the highest Degree those Offenses which tend to the Overthrow of a well-setled State by good lawfull Power confirmed Now to descend from these Premisses to the Point in Controversy and to apply what hath been said to our purpose It is well knowne to the World that a Family is a Civill Society yea the only Common-Weale which God Nature first ordained from which all Societies Republikes Species of Regiment tooke their Originall For the maintenance of which Society there is no Question but God hath giuen many * Fathers of Families had power to blesse curse disinherit and punish with death as appeares by the Examples of of Noë towards Cham Abraham towards Hagar and Ismael Iacob towards Simeon 〈◊〉 Levi and of Iuda towards Thamar Gen. 38.24 See Mr. Godwin vbi supra Privileges to a Father as well to reward the well-deseruing as to punish an evill child or member of his Body not only by depriuing them of their expected Fortunes but by cutting them off from his Body either by Abdication or Exile or Death it selfe For it is cleere by the Civll Law that a Father had for many yeares not only free Power to disinherit but also Power of Life and Death over his Children who should greivously offend him or his liuing vnder his Civill Government But since that Things vnknowne are growne out of Vse and may seeme as well incredible as strange I cannot in prudence passe ouer the Matter in Question so lightly as that it may bee worthily subiect to sharp Censure or rashly branded with the Marke of Vntruth Therefore laying aside the Testimony of the old Romane Lawes in the case of a Fathers Soveraigne Power over the life of his child given to him by the * Cap. 3. Dio. Halicar l. 2. Antiq. Twelue Tables where it is written Pater familiâs habeat jus vitae yea terque filium venundandi potestatem I will breefly and effectually proue out of the Sacred Text it selfe what I affirme There then it plainely appeares that Fathers had Power among the Iewes to cause their children for Riot Disorder or Vnthriftinesse to be ston'd to Death Ergo power to disinherit For the Greater ever includes the Lesse Not to seeme to speake without Booke it shall not bee amisse to set downe Moses words which are as follow If a Man haue a stubborne and rebellious sonne that will not obey the Command of his Father or Mother Deut. 21.18 and being chastised shall be vnreclaimable they shall apprehend and bring him to the Seniors of that City and to the place of Iustice and they shall say to them This our sonne is incorrigible and disobedient contemnes our Monitions abandons himselfe to riotous Excesse and is a Drunkard The Citizens shall then overwhelme him * Stoning was appointed a Death for Blasphemy Idolatry which by coÌ„currence in this case argues how execrable a Crime Disobedience to Parents is in Gods sight with Stones and he shall dye that
Brientius de Insula hauing two sonnes both Leprous built for them a LaZaretto or Spittall and gaue to Miles Earle of Hereford farre the greatest part of his Patrimony from his Children The One of these Examples is in the Description of Devonshire and this other in Monmouthshire And this may suffice for clearing the former Document the subiect of this Whole Discourse by Exemplification CHAP. 10. That the Law of Naturall Equity Reason confirme iust Disinherison and that the riotous liues of Elder Brothers deserue that vehement Increpation with which the Author closeth vp this Treatise LET vs now look into the Nature of Equity and examine whether in Naturall Reason which is the Law of all Lawes the Temperate ought to be subject to Intemperate I mean within the Verge of private Families Fooles and Frantiks to whom no Law imputes * Voluntas crimê non habet vbi furore peccatur Salvian Sinne are not punisht for Theft or Murther or for any other Offense which they doe being mad or vnreasonable And though humanely they cannot offend yet in THIS SORT according to Equity they may be punished The Reason is All Law being groūded on Naturall Equity otherwise it is no Law doth not only punish Offenses committed but also prevents Offenses which may be done by rationall or irrationall Creatures And since Fooles and Madmen cannot offend to be punisht or by punishment be reform'd and yet they with whom they liue shall inevitably be offended if not overthrown by them hauing * Nothing more dangerous then armed Madnes power as namely Brothers Sisters and their whole Family put in danger of extreame Misery and Ruine the Law according to all NATVRALL EQVITIE takes all Power from them I haue inserted this clause according to Naturall Equity for that it is against Nature that Men should be subject to Beasts or insensible Creatures Whervpon Aristotle disputing the Nature of Rule and Subjection saith that None are borne * Servitude proceeds not from the Law of Nature but from Nature corrupted See Mr Downings Discourse of the State Ecclesiast p. 68. slaues but such as Nature hath abridged of the Vse of Reason who being truly slaues are vtterly vnfit to gouerne Upon which Ground the same Great Philosopher prefers that Forme of Politie where the Wisest and Best are admitted to the Manage of State-Affaires as at this day is most conspicuous in the Blessed Raigne * Consule Plausus Vita Illustrissimi Equitis D. Henrici Worton Viti omnium literatum linguarum ac Virtutum laude florentissimi and Regiment of our Most Gracious and Glorious SOVERAIGNE whom God preserue But it may be said What is all this to our Purpose Yes thus farre it may bee well applied If Natures Intent to make all Man-kind Reasonable according to their Species being hindred by some inevitable Accident shall so blemish and maime Those in whom such Defect and Naturall Weaknesse shall be found that They according to Divine and Humane Law may and ought to bee depriued of all Right and Claime to any Thing more then to sustaine Nature and debarred from all Superiority and Seniority which by Law or Custome might otherwise haue falne on them because according to Naturall and Divine Equity MAN ought not to bee gouern'd by BEASTS such as Idiots and Frantiks seeme to be If This bee so as according to Natures Rule it cannot bee otherwise what punishment shall wee thinke due to That Reasonable Creature The Prodigals Character See more of this Subject in that Reverend and Illustrious Author Democritus Iunior Part. 1. Sect. 2. Memb. 3. subsect 13. borne in a Civill Society of Men to whom Nature hath not beene a Step-dam in bestowing her Blessings and whose Name and Family hath beene ennobled enriched by the Vertue and Industry of many Worthy Predecessors who shall through Disorder and inordinate Desires habituated in him by Custome and Evill Conversation become an Vnreasonable and vnmeasurable sinfull and shamefull Creature a debauched * The Civill Law appoints Curators for Prodigals as for Madmen and Guardians likewise of their Estates the Want whereof is the Ruine of many great Houses in England See D. Ridley vbi sup p. 268 where hee notes a Defect in our Lawes which haue no provisionall order therein Bedlem a wild American a wilfull and most intolerable Madman a Thing vnworthy the Name of Man a Prodigall shall I say or a PRODIGIE who contrary to all Rule Law or Order of the most Barbarous Society of Men takes away by his outragious Impiety the Soule as I said before of all his Ancestors who being dead yet long might liue in their * Immortalitatem spondet Deus Abrahae cum Genus promittit Ambros Ariotous heire a Civill Monster Posterity and consumes the Womb of his Family Viper-like wherein he was borne and without all Remembrance of his obligement to the Dead whom as having his Being from them he ought to honour or Respect to the Living to whom hee should bee a Comfort devoures in some sort them of his owne Species Society and Blood All which the Canibals doe not For though they feed on their Species which are Men like Themselues yet they hunt after Strangers and nourish themselues with Others Flesh obseruing still some Lawe of Society among Themselues which our CIVILL MONSTER doth not For he contrary to all Course of Nature sucks oftimes the Blood of his nearest and dearest Friends namely his Children Brothers and Sisters yea some of these furious Fiends haue brought their all-tender-hearted Parents to the Greatest of all Woes Beggery in their old Age. And all this to maintaine by Force or Fraud a damned Crew of Roring Divels in the shapes of Men. Of eich of whom we may say dividually Tali Bacchus erat tali Gargantua vultu Tale triplex * Of the Family of the Treble-chins mentum Pantagruelis erat So did old Bacchus or Gargantua swell And such a Bull-chin was Pantagruell And of the whole Mad-cap Fraternity for they will needs be * Fratres in malo or fraterrimi as was said of Friers Sworne Brothers Pestis quâ gelidum Boreae violentiùs Axem Nulla vel infecit nulla vel inficiet A greater Plague to this our Northerne Clime Never yet came nor can in After-Time But to returne from the pursuit of these Salvages Nature hath given yea shee hath so strongly inhabituated a laudable Desire in all Creatures to * Salvianus excellently demonstrates this in Bees De guber Dei l. 4. p. 120. preserue their Species that directly or indirectly to attempt the Contrary were more then Monstrous Immanity Families be they Princely Noble Gentile or Vulgar are in a sort particular Kinds or Species allow'd of by Natures Law to bee raised Totus namque mundus totum humanum genus pignus est creatoris sui Salvian vbi sup and maintain'd vnder or in their cheefe Genus Mankind Vniversall which to defeat or overthrow by irregular extravagant and exorbitant Courses let the Philosopher either Naturall or Morall the Lawier either Civill or Canon the Divine Schoolman or Casuist judge how punishable Morall Law-makers in ancient Times praetermitted to make Lawes against Offenders of this nature Being asked Why They answer'd That no Man could be so impiously ingrate or inhumane Whereby is evidenced how transcendently haynous the Offense was adjudged by them and how severe Punishment were they to make Lawes in these our corrupt Times they would prescribe for such Cardinall Criminalls Thus much for the Ventilation of the present Point in Question In the arguing whereof if what I write in defense of Younger Brothers as here the Case is put I seeme to haue receau'd Ex traduce rather then Ex certâ scientiâ the wiser sort will I hope not blame mee For my Intent was onely as at first I promised to set downe a Table-Discourse and not a Controversy discust in Schooles If I haue spoken according to Dialecticall Reason as I beleeue then may I safely thinke that my Discourse is arm'd with strong Authority For what hath beene spoken heretofore truely which Reason hath not dictated to all * Salvianus in this Case may speake for All Nam 〈◊〉 omnes admodum filij membra parentum esse videantur non putandi sunt tamen membra eorum esse à quibus affectu caeperint discrepare quia morum degenerantium pravitate pereunt in talibus beneficia naturae Though all Sonnes be equally Members or Portions of their Parents yet are not They so to be reputed that shall by 〈◊〉 Courses wilfully dismember themselues from them for degenerate Conditions tender such Children vnworthy of the Benefits of Nature Salvian de gubern Dei lib. 3o. Authors Pennes If therefore I were able to cite a Thousand Great Authors for what I haue said yet All would amount to no more but that which Naturall Reason hath or may teach daily All which with my Selfe I intrust to the gentle and equall Censure of my Courteous Reader FINIS Implumis ales nunquam Coelum Omnivago penetret volatu LAVS DEO ET IESV MEO