CHAP. I. The Occasion of writing this Apology, is to proue, that Fathers may in some cases dispose of their worldly Estates to which of their Sonnes shal reasonably please &c. for so much therof as they will; and that to be Lawfull by the Law of God, of Nature, and of Nations.

NOT many moneths since be­ing inuited by a deare friend of myne to a solemne Feast, made by him to many of his well-deseruing friends, it was my fortune at that Meeting to acquaint myselfe with many gentlemen of no meane discourse: Whereby I [Page 2]feasted as well my vnderstanding with their pleasant society, as my taste with the variety of most excellent meates. With what our Senses were delighted, I let passe to recoumpt, since neither profit, pleasure, nor praise can arise thereof, either to the writer or reader. Only my intent is, to make my Reader acquainted what accident caused me to write this small Treatise, and imbouldned me to publish the same to the cōmon view of this al-reprehending age. In which neuertheles I do rather hope for allowance, then in any sort to feare displeasure.

For though my subiect be new, yet I hope it shal want at the first rather age & strēgth, which growes by yeares, then probable argu­ments, yea forcible reasons to defend it selfe. As for friends, I hope it will fynd some; and peraduenture more then enemyes, if it deserue well. For, as younger Brothers be more in number then elder, so are they generallie more free in bestowing their deserued loue. For want breeding vnderstanding, makes them knowe & prize their friends according to their worth. Whereas the elder, either seated in their Fathers wealth and possessions, with more then hopes to enioy their Fortunes, do somtynes neyther loue truely themselues, not any man els; but abusing that which indeed might gaine the loue of God and Man, and easily mayntaine their hereditary honour, loose themselues in Vanity, & most idle courses; yea, in their Fathers liues, [Page 3]so strangely carry themselues as though the law of God, of Nature, and all other Canon, Ciuil, & National lawes, constitutiōs, & customessprūg from thē, could not either in reasō or religiō bar them of that which they expect; or giue to a wel-deseruing younger Brother any little hope lawfully to share with thē the least part of their Fathers inheritance; much lesse to expect an el­der Brothers fortunes; oron any termes, or for any cause by a Fathers fauour, to step before them.

Which argument among many others, was then handled by the Company Pro and Contra, so doubtfully, that it gaue vnto me an occasion to write this present discourse, concerning the free power of some Fathers. Wherein I intend to displease no elder Brothers; no, not them, who not inheriting their Fathers Vertues, striue not to mayntaine their Ancestors honour, in pre­seruing their Noble Names, and Families; by which, as a reward to their vertues and trauells, men haue alwates laboured to liue to al succe­ding ages their Posterity.

But my intent is to shew, how opinion & inconsideration makes oftentimes the wise to be scrupulous, and through superstitious zeale, not only to feare to doe that which reason may, or might haue comaunded; but rashly to condemne other mens acts as vnlaw­full, and irreligious. Which according to reason and Religion haue bene done & ratified; vsing themselues that Custome for the ouer­throw [Page 4]throw of their families, which was indeed only deuised for their preseruation; and being hood winked with false conceipts, do wittingly leaue that, which they and their Ancestours had gotten, as the reward in this life of their vertues, to be the future fuell of al inordinate desyres, & Beastiall sensuality, which in their prouidence they could willingly otherwise haue disposed of.

All which I doubt not but to make cleere to the impartiall reader: prouing by the lawe of God and Man, that a Fathers freedome is such that he may Lawfully, and Religiously, giue his lands and goods, or other his fortunes to any of his Children, for the Preseruation of his Name, and Comfort of his Posterity, without all scruple, as right reason, or the better deserts of a Sonne shall perswade him, voyd of all ten­dernesse, or blyndnesse of affection, which oftentymes leads a Fathers will, and corrupts his vnderstanding: so as he be true Lord therof, not tyed by consideration of Money receiued, or Contract made by Marriage of his Sonne, which may alter the Case, and make the Sonne Lord, and the Father to haue but the vse only during his life, as all our Common Lawyers well know. In which Case, we also haue expe­rience, that our Law permits many tymes to alter the Title, and to vndoe what by former tymes was held not to be controlled. But of this point I wil not treate. Only I meane to argue, whether a Father possessed in fee-tayle, may in [Page 5]law and equity, vpon the former considerations, make any child which he hath, his Heyre, leauing to the rest a competency; & do an act, which according to equity and Religion may stand good and valuable.

In this my present discourse let not any expect many quotations of authors; for I neuer read any of this subiect. What I bare away of the discourse made by my friends, that I will set downe: and what other reasons my vnderstan­ding shal affoard, which I hope shal proue so de­monstratiue, that they shalbe of Authority sufficient to satisfy my reader, or incite some better pen and vnderstanding, to treat of the same more largely & substantially. And lastly & cheifly, to cleare some of my Worthy friends frō those imputations, which I fynd the ignorant to lay vpon them: which if I may do, I shall think my tyme and paines well imployed.

CHAP. II. That the grounds of all good Constitutions being in Nature; yet shee, neither before, nor after the law of Propriety established did cōmaund, that all should be left to any one, more then to another.

SVCH are the wise & tēperate workes of Nature, that no­thing is done by her rashly, or unaduisedly. For though in the infancy of the world, she had an inuincible power to produce all effects, which thé had their Originall in her: yet being studious to please mankynd, not only with variety, but also with rarity, successiuely discouereth, and dayly doth disclose to the searching wits of the world her secrets: as Tyme and Place either hath, or doth dayly beget Occasion; still as it were keping in store her heauenly treasure, till mans necessity best moues her liberality.

For what can the wit of man deuise, or what doth tyme, or Art make knowne, which good is; that Nature, from the first tyme shee began to work, had not in her (though to her selfe only knowne) the ground thereof, either [Page 7]to produce the particuler or general effect which wisely she left to be tempered according as the reason of man (whose glory she pretends) should think fittest to giue the forme; as tyme, place, and the Nature of the thing should require.

For though that Mariage, as it is a con­iunctiō of man and woman, contayning an inse­parable society of life, be of Nature it selfe; and (as Deuines and Canonists hold) to haue his Originall in the state of innocencie, which vn­doubtedlie was then ordayned for issues sake, from which a lineall succession was also inten­ded: yet vntill necessity in forced man to make diuision of the Blessings of God and Nature, the claymes, and rights which follow lineall succes­sion to inheritance, were not discouered. For all things being common among men many ages were numbred from the worlds beginning, be­fore any man laid proper clayme to any thing, as due to himself alone. Wherby 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 vndepraued. To the which I inclyne 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 Religious life in a Natural and worldly cōuersation of men haue; & do daily imboace this naturall, and blessed community. Which happy [Page 8]law of Nature (as I haue said) for many age: and without doubt had longer contynued, had not sinne (which breakes al vnion and depraues all naturall perfection) gotten such dominion in the myndes of men; that in naturall equitie all things could not longer be vsed in common.

For as some being possessed with an vn­satiable desire to get rule and raigne, sought the oppression of others, by taking from them that fredome which Nature had giué them: so others giuen to sensuality and idlenes, sought to liue of other mens labours. Wheras by Natures lawes euery one ought to liue by his proper industry, within the rules of iustice and honesty. Where­vpon naturall reason perswaded, that all things being deuided, euerie man should knowe his owne: otherwise no peace or concord could be maintayned in humane society. For, all things being Common, the way lay open to euery man at his pleasure to abuse others, and as it were to rob them of God his Blessing.

Heereupon, Aristotle iudged the diui­sion of all worldlie goods, to haue bene agreable to the law of Nature, which the precept of our Decalogue seemes to approue,

For the Lawe of God is neuer contrarie to the Lawe of Nature: neither doth Nature euer cōtrary it selfe, though some may perhaps think [Page 9]that herein shee hath. For albeit at the Creation of all things togeather with man in the state of grace, a cōmunity was intended: yet was it not so absolutely resolued of by Nature, but that by necessity (I meane by fall of man from Gods grace) she did dispense with this law, and left free to mans choyce to imbrace, vpon her war­rant, either the one or the other, as best might fit the time, place, and natures of men, which euer synce the world began haue giuen occasiō of the making of all lawes.

Whereby we see, that though Nature giue the grounds to lawes: yet mans vnder­standing still giues the particuler forme. For Nature creating man, gaue vnto him those worldly blessings to vse well, with warrant either to hold them in Common, or in Proper, as reasō from tyme to tyme could best perswade his will. But, when reason and will had agreed, that it was fit that euery 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 onely 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 wife 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 hath hardlie beene so base, but desirous to liue, and leaue an honorable memory behind [Page 10]them.

Which, that they may the better do, Na­ture hath not only giuen them power, to leaue their well gotten wealth, but in a manner their habituall vertues to their issue; in which this worldly honour (the soules worldly lyfe, and vertues temporall reward) may liue free from all-killing tyme. Yet, did she not then by any Commaund, leaue it to any one in particuler, but giuing a generall suggestion of the fitnes of the thing, left the forme to their best discre­tion. For had shee not done soe, all Nations had bene tyed to obserue one forme, in leauing their goods, and fortunes to their Posterityes; for Nature being one, without chaunge to all, of necessity prescribes no binding rule to any in particuler, but to all in generall; no man being able to say, that this Natures law Commaunds me to do, and yet byndes not any other to do the like. Which is euident in the matter of succession, or claymes of inheritance; no one Country obseruing the forme held by another, or tying it selfe without controle to ob­serue his owne, as I shall hearafter declare.

For albeit (as I haue said) the coniunction of man and woman, which wee call Marriage, or Matrimony, togeather which the desire of issue, be of Nature, from whence also are sprung not only a diuision of goods, and the fortunes of this world: but also a laudable desyre to preserue a family, and name, by the [Page 11]ordination of heyres, to well gotten posses­sions; yet did Nature neuer set downe as a law, that those fortunes should be left to the elder brother or younger, or to any one in particuler, or to all, but to whom the Father, being true & free Lord thereof, should best deuise by will guided by reason. For it was neuer yet auerred by any sound Deuine, Philosopher, or lawyer, that Nature makes immediatly heyres, but men, whom the positiue lawes of euery Country or­dayne by that forme, and power of law, where such an act should be done. And this is (I presume) without controle, what the law of Nature commaunded touching the matter in question. Next let vs see, what the lawes of God do commaund.

CHAP. III. That the breach of some written lawes of God vpon warrant of the Primarie law of Na­ture, is without sinne: and that therfore there can be no such right in Primogeniture, which is not in the Fathers power to auoyd, though there were a precept to the contra­rie, as there is not.

IF Nature, being taken for the principall, and all-producing cause of the whole frame of the Vniuerse with al creatures therein, be nothing els, but the working. Will of the Highest, and first Moouer, as Deuines and Phi­losophers do hould; then surely must Natures law be his will, which he cannot contradict or commaund to the contrary, except he should be contrary to himselfe, which he cannot. For, what is in God, is God; therfore Constant, & Immutable.

Out of which ground 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 tyed to any other person or persons, then to those which the Fathers will [Page 13]approues, according to power giuen him by the lawes of the Nations where he liues. Which power deriued from Natures law, cannot erre from the law of God. For whosoeuer shall con­sider but of Gods Commaundements giuen to man, shall well fynd, that God thereby hath still seconded his former ordinances giuen by Nature. For so long as man kind liued in a sort, after the innocency 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 remayned after his fall were quite extinguished, he gaue him new lawes, yet agreable to Nature.

As for example, in our present affayres. When man had made by Natures priuiledge partition of Gods and Natures blessings; then God said to his people by the mouth of Moyses, Thou shalt nor steale: Thou shalt not couet thy Neighbours house, his wife, his oxe, his Asse, or any thing that is his. As also, Thou shalt not kill. Which with all other his Comaundements teaching what sinne is, are agreable to the law of Nature, yet are dispensed withall as far as the lawes of Nature euer permitted. For, though that the expresse Comaundement of God be; Thou shalt not couet any thing that is thy Neighbours, nor kill, yet in some cases, both may lawfwlly be done. The one in extreme want of present food: the other in defence of life and goods; in which, the law of God is [Page 14]good, by the originall law of Nature, which made all for the sustenance of man; and gaue leaue to defend life with the losse of anothers bloud, yea life, if otherwise it cannot be. Vpon which ground I argue thus.

Suppose the law of God did at this present cō maund (which indeed it doth not) that the in heritance should be left to any one particuler person, and namely to the elder Brother: yet in some Cases it would not bynd the Father to obserue it. For as in the former Cōmandements vpon some considerations, the Cōmandement may be dispensed withall, so in this. For, it is not sufficient to be the elder Brother, or the nearest in bloud 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 bloud may iustly be reiected: and he that is second, third, fourth, fifth, or last may lwafully be pre­ferred before the first, and this by al law diuyne and humane, and by all Reason, Conscience, and Custome of nations Christian.

For if it should fall out that the next in bloud, should be a Naturall foole, or a madman; or being taken by the Turkes or Mores in his in­fancy, and brought vp 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 [Page 15]Wherefore how idly should they talk, that would haue that it was his birthright, or that God and Nature had made him heire, since that neither God nor Nature doth imedi­ately make heires, as I haue sayd before. True it is, that God and Nature makes men, who by the mediation of the lawes and customes of na­tions may come to be heires. Vpon which ground our cómon Lawyers say, that no heyres are borne, but men and law make them.

True it is, that in holy Writ, great res­pect is had of the first begotten, & a blessing is held to come to parents thereby. But this bles­sing (I presuppose) to be, that therby the feare of sterility was taken away, which in the old Law was held to be a great punishment of God, and in respect thereof parents had of them­selues, and by the nationall lawes and customs, a great regard of their first begotten, and pre­ferred them to the better part of their possessions: yet not by any commaund from God, as a pre­cept to bind his elect people vnder paine of sinne. For, had any such Law bound them, vnder such a penalty; then should it bynd all Christians now, on the same conditions. For we see it by generall practise of all countryes to be otherwise. Therefore it followes directly, that it was not Gods Comaundement, but a Nationall Law. For God both is, and ever was one, without chaunge to all his people; and so euer were, and wilbe his Lawes positiue, [Page 16]made for them that truely worship him.

The clayme which Esau made to his Birthright was not by the law of God, as some ignorantly affirme, but by the lawes of his coun­try. For, should the law of God haue com­maunded it, it had bene sinne in his Mother, and brother, by cunning to haue gotten it from him. Neither could the Father or the State wher­in they liued, vpon no iust cause knowne but to God alone, without sinne, haue setled the same vpon his Brother. Iacob, as it was, and as it may seeme by allowance from God, and as it may be iudged by the sucesse. 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 be committed, God doth neuer do.

Neither did the Nationall law or cu­stome of the Iewes (as it is said) absolutly com­maund the Father to leaue vnto his first begot­ten, all, or the greatest part of his goods and for­tunes. But if in case he died, not disposing ther­of by act in his life, or will at his death, then the custome of the Nation, layd a double portion on the eldest or first begotten, proui­ding for the rest proportionably.

By all which you may gather; that nei­ther the law of God, or man, in this case, com­maunded that Esau should haue the inheritance; but power to do the contrary was giuen to the Father in his life tyme; euen by the law it selfe. [Page 17]For many Deuines hold, that Esau selling his Birthright (as it is termed) sould not goods, or lands, but his clayme of being high Preist after his Father, which by custome was to come to him, being his Fathers eldest sonne. Of which dignity God seing him vnfit, permitted him to passeaway his right in his Fathers life, as we read in holy writ, and which God seemed to approue. And thus (I hope) this objection is answered.

Further, if it were true, that the effect of Eldership were such by the law of God, as some passionately defend: that is, that the whole inheritance should of right pertaine to the eldest; thē sure it followeth by good consequēce; that there should, nor euer could, haue bene but one temporall Lord of all the world. For of ne­cessity Adams inheritance should haue gone still to the next in bloud; which how absurd it is, let all men iudge.

Moreouer, we read, that Nöe hauing three sonnes, and the whole world to leaue vnto them, gaue it not all to the Eldest, but equally deuided it among them, and their posterity, as all authenticall histories do witnes. God requi­ring obedience of children to parents, promised a reward, saying, Honour thy Father & Mother, that thy dayes may be long in the land which the Lord shall giue thee. This surely was not spoken to one, but to all the children of men. For with God there is no exception of persons: but as a iust and pions Father, he giues euery one [Page 18]according to his deserts: Terram autem dedit filijs hominum.

We read also in holy writ, how the pro­digall child, being weary or his Fathers house, came vnto him, and boldly sayd: Pater, da mihi portionem substantiae meae, quae me contingit. This child of which the Gospell speaks, was the yoū ­ger brother: yet you see how boldly he sayd: giue vnto me that portion of goods which be­longs to me. By which words it is euident, that a diuision, or partition of a Fathers fortunes was then in vse: and that any child as well yoū ­ger, as elder had power by law, to demaund his legitimate, or childes part, according to the Nature of the Ciuill and Canon Law, as you haue heard. For the words following in the text are these: Et diuisit substantiam illis. Thus we see, that the priuiledge of Eldership was thē exclu­ded; which now in our countrey by custome onely is gotten to be of such force.

But it may be obiected, that this was a parable onely (as indeed it was) and cannot be alledged as law. True it is; yet it cannot be denied, but that all similies, parables, or exam­ples, which euer were alledged by the wise and learned, to represent the truth, haue euer bene deriued from the customes and nature of things, according to the knowne truth in that tyme, place, and to those to whome the speach, or dis­course is directed. And shall we think, that our Sauiour Christ being wisdom and truth it selfe, [Page 19]treating of so important an affaire as he did then in the Ghospell, would vse an vnknowne dis­course, or striue to make the truth appeare to our weake vnderstandings by a Parable which in equity could not be true? Noe surely. For it appeares by Salomon his succeding to his Father Dauid, that Dauid had power by the lawes of god and man, to giue his Kingdome to the worthiest, which hedeeming to be Salomon, gaue vnto him his Kingdome, though he was the yongest sonne.

Neither was there any iust exception made against Adonias his eldest Brother, or against some other of his Brethren, why they should be disinherited by their Father Dauid, contrary to the common practise of those tymes, in setling inheritances. But, the only knowne reason of this act in Scripture, was Dauid promise made to Salomons Mother, togeather with her great intreaty made to Dauid to performe the same. Which surely he would not haue done, except hee had found a lawfull power in himselfe, to haue executed the same. And thus much con­cerning what may be said out of Scripture, or law of God in our present question.

CHAP. IIII. That nations begining to denise sundry formes of setling Inherit [...]nces, the Romanes es­pecially therin respected the free power of Fathers; the right of Children to their Fa­thers estates begining only at their Fathers Death.

HAVING now declared in the former chapter what the lawes of God, and Nature doe deter­myne of our present question; we inted to examine in breif, what is comaunded by the law of Man, aswell ciuill of other Nations as common of our owne Gontry. And first touching the ciuill Law thus.

Though that all Law, which euer had but the name or credit of Law, doth surely deriue her originall from the Law of Nature; whereupon Cicero many hundreth yeares synce said, that the ground of all law making, is to be taken from the chief law, which was borne be­fore any law was written, or Citty builded: yet do they differ much in forme. For as it is no law, but tyranny, which wholy disagrees with the law of Nature, as Aristotle saith:so if it agree [Page 21]in al with the law of Nature without limitation, or difference it must of force be the very law of Nature it self, and not the law of man. Which surely is nothing els, then a temper, or forme of equity, drawne by right reason from the grounds of Natures lawes; according as tyme, place, and the Natures of men either gaue or shall giue the occasion. For though new lawes be dayly made of new & seuerall accidents: yet all are agreable to the old, and ancient grounds of reason in Nature, the iust Mother of all law. Wherefore, hauing set downe before, what the law of Na­ture is, touching the matter in question, I shall need only now to shew, what temper or forme hath thereunto bene added by the Ciuill Lawyer.

After that mankind was inforced (yet by Natures warrant) as I haue said to make a parti­tion of the Blessings of God, and Nature: and that men were possessed by the same right of goods and lands, which they desyred to leaue to posterity; law-makers, and in particuler the Ciuilian, deuised by little and little certayne formes of inheritance, and ordination of heyres, at the first somwhat rigorous; giuing to Parents power of life and death ouer their Children, & a free disposition of all their fortunes to any one of them in his life: but dying intestate, then all which was the Fathers, to be equally deuided among the Children, as wel daughters as sonns. Which Constitution was afterward vpon good [Page 22]grounds altered: The Father being bound to leaue euery Child a portion, which the Ciuill Lawyer calleth a legitimate, others a Patrimony; which at the first was the eight part of the Fa­thers substance equally to be deuided (as I haue said:) which after a while seeming little, the law commaunded, that the fourth part should be left without controule: except, that vpon iust cause the Testator did disinherite him or them who by course of law were to succeed him: still vpholding the former lawes, that aswel daugh­ters, as sonnes, should equally succeed to their Parents dying intestate; herein assigning fourteene Causes, why an heyre might lawfully be disinherited.

Many hundred yeares passed, from the esta­blishing of the Ciuill law, and before that it was ordayned by force of law that Parents should leaue a Childes part (as it is now called) or that he could not disinherit, without expressing the cause thereof in his last Will: yet, in all this tyme, nor vntill this present day, the priuiledg of engrossing all by Primogeniture was not once heard of, or at least wise not admitted, but rather excluded; as by many texts in the same Law it well appeares: The end of the Imperiall, or Roman Ciuill law, being only to maintaine mo­rall Iustice inthree short precepts, Liue honestly; Hurt no Man; Gine vnto euery one his owne. So he who obserues these three, fulfills this law, yea the law of Nature, from whence this law is [Page 23]sprung. Now, if any Brother can proue, that his Father either in life by deed, or by will at his death disposing of his goods & lands, no other­wise then I haue set downe, doth none act a­gainst these three; then why should he not con­tent himself, either with the fruits of his Fathers loue, or his owne deserts whatsoeuer they be.

True it is, that in Naturall iustice, chil­dren during their Fathers life, haue Ius ad rem, and not Ius in re to a Fathers goods. Whereupon the Law calleth them Quasibonorum patris Domi­nos. Which their right onely takes effect after their Fathers death. For during life, hee hath power to alter, alien, sel, and giue as it shal please him according to forme of law; but being dead without will, or disposition therof, they fall v­pon his children (as I haue said) according to the law of nations. This law imbraceth a two fold iustice; the one in exchange, the other in distribution. The first hath not to do with our cause: the other surely rather commends, then condemns a Father, who vpon good occasion, that is, for the bad demerits of his eldest sonne, and for the preseruation only of his family, shall giue, or conuey his lands & goods to the yonger. For the Nature of distributiue iustice, is not only to giue proportionably to the well deferuing: but also to forbeare to place benefits vpon any one who shall abuse them; or vse them to any other end, then to that good for which they [Page 24]were lent him, and hee shall leaue them. And this is, Ius suum vnicuique tribuere. For no man can giue or sell his goods to an euill end, or to any one whom he assures himselfe will vse them to the dishonour of God; or the wrong of those who shall liue with him, or by him; of which I will speak more in the last chapter, being there to handle what a Father may in conscience do, or not do, in our present question, with sinne, and without sinne. And thus much of the Ciuill and Canon Lawyers auerment of an elder bro­thers right to his Fathers fortunes.

CHAP. V. That the present custome in our Cōntrey of gi­uing all, or almost all to the Eldest, was neuer so begun, that it meant to exclude iust remedies for such euills, as should growe out of the abuse of that custome, when it may make Fathers guilty of their sonnes faults, and of their families ruines.

I Haue of purpose reserued to treate of the lawes of our countrey in the last place, be­cause (I assure my selfe) that they are of most force to sway the matter in question. For many things may be permitted by the lawes of God and Nature; and yet they on the contrary are forbiden, or practised by course of law in seuerall States of the world, as the law-makers, and the customes of the countries do allow or comaund. I do confesse, that the generall pra­ctise of our tyme among parents is to leaue either all, or the most part of their lands to their eldest begotten sōne. This without all question, was (as it hath bene said) first deuised in for­mer ages, for the preseruation of a family, and to raise some one, who might be a comfort to his [Page 26]brothers, sisters, and family, and in whom his progenitors vertues might line to the world. Moreouer, I will not deny, but the partition of lands may bring, in the end, a goodly estate to nothing, or to so little, as it may be like an A to­mie in the sunne: yet I find in Naturall reason, that, ex nihilo nihil fit, or at lest, that,

Haud facilè emergunt, quorum virtutibus obstat Res ang ista domi.

But if men do faile of those happy ends to which this generall custome should guide, then would I wish, that they would not vse that for their destruction, which was meant for their preseruation. For who doth not see, in these our tymes, may vnbridled youths, to be so violently carried away with the humor of spending, that they neglect brother, and sister; yea, bring to extreame misery their Naturall Mothers after their Fathers death by their vn­thristines. What help for this hath law left vnto vs? no means to put a bridle to these vnruly colts if they become heires according to the custome of our tyme? no truely. For some starting hole wilbe found to vnty the knot which a Fathers care once tyed. How then? must many an hope­full, and well-de seruing brother and sister, be left to the mercy of this whirlwind? There is no necessity in it. For our law hath giuen power to a Father, & free will to dispose of his owne, ac­cording as reason shall guide his will, without all obligation to his heire. Besides, this custome [Page 27]takes place, onely after a Fathers death, if he di­spose not of what is his by deed in life, or by will at his death.

But least my words be more generally taken, then they are meant; I meane those Fa­thers, who are possessed of their lands in fee, or fee-tayle; that is, are absolute of themselues, and haue not vpon good consideration, con­uaied their lands from themselues. For all our lawyers do agree, that such parents may alien, sell, and giue by power of our law their lands to whome they wil, without respect of person or eldership. But me thinks I heare one say, that the custome is otherwise; and that this custome is a law. True, it is the custome. But let vs see whether it bindes sub peccato, or as a custome, which rather inuites then commaunds. There neuer was any comaund 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 prouision according to course of law is not made; thé surely a parent is free from this deuouring custome, and may in good con­sideration preuent what euill it may bring to his posterity, yea reason comaunds it should be so. For, Interest reipublicae vt quilibet re sua bene vtatur, as saith the ciuill law. For if a man can ney ther sell, nor set, much lesse can hee giue any thing to another, which he thinks in his consci­ence will vse it to the dishonour of God, the ru­ine of himselfe, or others.

Some Deuines hould, that it is not law­full to sell, or let an house to any that he thinks assuredly would make thereof a stewes; or to sel, giue, or lend a weapon to a man who intends therewith to do murder. Excomunications are imposed on them, who sell armes offensiue, or defensiue to Turks, though they be not assured that they will vse them against Christians.

Thus wee see, the rule of conscience, not onely to commaund a man to vse well those fortunes which God hath bestowed vpon him: but forbids him, either vpon affection, or gaine, to part with them to others who wil abuse them; least he be partaker of others sinne; which a pa­rent may be after death who leaueth his lands to a desperate vnthrift. But what religion, and conscience doth commaund, shalbe declared in the following chapter. In which vpon grounds drawne out of these former foure Chapters, it shalbe argued, what sin may be contracted by the parting of an estate among sonns, or by disinhe­riting of an eldest sonne, vpon iust cause; and vnto whom the Father is only tyed by the Cu­stome of the Countrey, without obligation of promise, or contract in Marriage, which may alter the Case.

CHAP. VI. That it is no offence before God for a Father, being tenant in fee-simple, to disinherit the eldest, or to parcell his estate vpon cause: & that extreme vices of Heyres apparent, togeather with the fewer meanes which younger Brothers haue now to liue on, then heeretosore, cryeth out against the con­trary opinion.

THE right of these insociable inheritours, of which wee now treat, may grow (as I magine) out of three titles, or claymes, which they may pretend to a Fathers inheritance, & wherby it may be deemed (as they think) sinne in a Father, vpon what desert soeuer, to barre them of the faid right. These three tytles, are Pur­chase, Custome, and Entaile. Of ech seuerally. And of the first, which is Purchase; surely in the iudgment of the good and learned, there is no question in law, or conscience, but that a Sonne ioyned Purchaser with his Father, hath Ius in re, and by equity must, suruyuing his Father, in­herite such lands as were purchased in their names. Now of the other two, though it be as [Page 30]cleere, as the noone light; that a Lord in Fee simple, or Tenant in taile, may sell, or giue by course of our Common law, at his pleasure, all such lauds 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 seemes to arise a great difficulty how such an act, or acts may in cōscience be executed. I haue heard some say, in this our Case, Summum ius, summa iniuria.

Of these points therefore I will speake, saluo meliori iudicio, what may in Conscience, vpon good and iust occasion giuen by the sonne to his Father, be put in execution. It is well knowne to all diuines (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 & goods, but hath absolutely left them to the cu­stomes of their Country, where any act of that kind shalbe executed, only as confirming all formes of deuises which by publick consent, and authority, either haue, or shall in rightfull man­ner be deuised, or ordained.

Out of this ground and others before mentioned; let vs examyne, whether a Father parting his fortunes by power of law, and on iust cause; shall do a wrongfull, and a sinfull act as some pretend to make it.

I confesse, that euery act in it self, or by Circumstance euill, and which vpon no occasi­on [Page 31]can be iustified, is both before God, and man sinne; and is by no means to be executed by a Christian. But that the parting of an inheritāce, or the disinheriting of an eldest sonne, vpon iust cause, and according to course of Law, is an act of that nature, doth not appeare. For I do not fynd, that either the Law of Nature, or grace, nor yet the Lawes of man, common, ciuil, or Canon, euer forbad such acts, whereby sinne may be imputed to those who do them on good considerations. Sure I am, that the Can­non, and Ciuill Law, are so far from forbidding them, that they commaund, as a thing in equity, the Father either to deuide his inheritance, or allow him, according to his affection, to giue to one, more then to another: yet with this pro­uiso; that he who hath the least haue his childes part, which the Law doth also assigne, except on iust desert he do disinherit any one; which at this day may, yea must be by will, with the cause of disinherision named therein. Of which causes the Imperiall Lawes haue set downe fourteene, as it shall well appeare to them who are desyrous to vnderstand more thereof. So it is euident, that by these two Lawes, no sinne can grow vpon such acts, being done vpon their warrant, and vpon such consideration, as hath bene before often by me set downe.

As for the cōmon Lawes of our Realme sure it is, that they allow no lesse, and with a greater preuiledge. For a man may by this law, giue his [Page 32]landes 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, the Custome giues the whole estate to the eldest: yet in some parts of our Country, the youngest Brother by Custome is to haue the land, held by some kind of tenure, if the Father in his life tyme do not dispose thereof.

As yet therefore I cannot see how any sinne is commited, or contracted by the former acts, being neither done against the law of God, or man, as we haue proued; except it should be said to be sinne, not to leaue it to the power of a custome; which cannot be except the former law shalbe proued not to be of force, and no way to be executed, which can no way bee done. For though I must confesse, that the custome of leauing the child-estate to the eldest sonne, hath of later times bene much imbraced by our Gentry, for the preseruation of their families, for which it was inuented: For the tymes haue so ruled, that men of sort being either idle, or not possessed with a couetous humor, haue con­tended themselues with their Fathers fortunes, and haue preferred their younger sonns by those means, which the tymes did affoard; which pre­ferments were thē better then now they are na­mely by many cōmendable courses; as either by seruice of spirituall men, whereby many were [Page 33]raised or by professing a spirituall life, where­by the younger brother hath oftentimes in hō ­nor stept before the elder. But this manner of life is not so gratefull to our English gentlemens Natures as it hath bene.

The trade of the Merchant, the Military profession, the Courtyers life, aduanced many more, then now they do; and lastly, the elder brothers were the of better temper in spending: and if they had no humour to get, yet had they a care to keep what was left vnto them; and euer held themselues bound by religion to pro­uide for their younger brothers and sisters, left to their dispose, which now is far otherwise. For an elder brother is found to spend more in a yeare idlie, then would prefer, or maintaine a whose familie noblie; and to suffer their bro­thers and sisters to shift, which as these times shape, is oftentymes to liue either lewdly, or most miserably: being forced either to forget their good education, or to lay aside all badges of gentrie, who otherwise with some reasonable helps, might do God, their Countrey, and Fa­mily much honour.

Since wee haue gone so far, let vs see on what grounds this custome first hath risen. Surely for the maintenance of a family, yet led with, an ambition, at the example of princes, who finding some difficulties in the admitting of many to a gouernement, and feling what in­conueniences the parting of an estate brought, [Page 34]deuised that one should gouerne; sometimes the worthiest, sometimes the eldest was elected, according as the order was agreed vpon, and yet the other brothers were mainteyned like Princes. And thus, custome also among them hath bene broken, without imputation of sinne. For to go no further then our later times; it is well knowne that Ferdinand (Charles the fifth his brother) being setled in the Empyre, deui­ded his estate. To Maximilian his eldest sonn, he left the Empyre, with Austria, Hungaria, and Bohemia. To Charles his second sonne, Styria, Carinthia, and other dominions, And to Ferdi­nand the youngest, he gaue the Earldome of Tyrol. All which, if in his life tyme he had not disposed of, had come to the eldest. Philip the second, late king of Spaine, gaue to his Daugh­ters the 17. Prouinces, which were of right to haue descended to his sonne after his death, if he had not disposed thereof in his life tyme. This is, and was deemed lawfull by the Diuines of this age, otherwise surely they would neuer haue done it.

But doth this custome in meaner degrees work that effect which it hath done in them? No truely. For as wee haue proued, it is rather the ouerthrow then the preseruation of many fa­milies. And let vs see withall, whether families florithed not as much and more then now they do, before this custome was receiued. Liuic saith that three hundred of the Faby, being all of one [Page 35]name and family, issued out of Rome gates at one tyme on their owne cost, to the defence of their citty, which was done before this cu­stome was dreamed of.

In Scotland 300. of the name and fa­mily of the Frasers, gentlemen, were at one tyme slaine in a fight by their enemies neighbors; and 140. gentlemen of one name in Yorkshire wai­ted vpon their chiefe, or principall man of their house being at that time high Sheriffe. In other countreys many Noble families, from the Ro­mans downward, haue cōtinued where this cu­stōe hath beene deemed vniust, as by their lawes it is manifest: whereas in our contrey, in these our tymes, if there be one familie in a Shire, which is of three hundred yeares continuance, verie many others are scarce of fiue descents in a bloud.

Why should our age then, seing the fruit of this custome to be so small, imbrace it with such zeale, as to deeme the breach thereof, being warranted for good and iust by the Law of God, of Nature, and of man to be a sinne? Is it possible that it is held both lawfull, and expedient, for the preseruation of a family, that degrees of kindred should be dispensed with to mary, being knowne contrary to the general practise of gods Church: and can it be lawfull before God and man, for preseruation of our goods, to venture our liues, and to kill a Theife who shall assault vs, and that perhaps for a trifle: and yet that [Page 36]for preseruation of our whole estate, and main­tainance of a family, it shalbe held sinne to break a bare custome, vnder no penalty obliga­tory, yea alwaies allowed by law? I haue neuer heard, that a custome was of force, to abiogate a law so far that it should be deemed a sinne to follow the said law; though it haue power to dispense with the law, which other wise to break were sinne, especially, when as the law is both more pious, and more naturall then the custom is. For how far is it from the law of Nature, and from the practise of Fatherlie piety, the Father dying intestate, the eldest sonne to become absolute Lord of all his Fathers lands, and not to be bound by law to prouide for brother or si­ster, but at his owne good liking. Aliud tempus alios mores postutat. Men of vertue, men of lear­ning & vertue, both now, and in former ages in this our countrey haue broken this custome, as the world knowes, vpon good consideration, and iust causes; not vpon spleene, or false sup­positions perswaded to leaue their fortunes to strangers, or to a lustsuil issue, as some haue done.

CHAP. VII. That Fathers being tenants in Fee-tayle, may likewise without scruple of Conscience, discontinue the state-taile vpon cause, and deuise the same at their reasonable plea­sure.

HAVING treated largely, and (as I presume) proued suffici­ently, that lands held in fee-simple, may either be parted, or vpon iust cause wholy giuē away to a younger sonne; I intend now to speak of the lawfull freedome of a Father in like sort, and on the same causes; moued to dispose of his lands intailed: of which there seemes more doubt then of the former.

Euery humane act, which of it self is not forbidden by the law of God or Nature, is to be iudged good or euill, lawfull or vnlawfull; either by the lawe of the place where the act is done or by intention of him who shall do the act. For, as the law of God commaunds some­things to be done, & other things to be auoided, vnder paine of sinne: so the third sort of actions are left free (by the said authority) from sinne; [Page 38]except the law of man shall forbid them, and so make them sinne; or els euill intention make thē (being of themselues lawfull) to be a sinne, and vnlawful; according to that principle of Moral Philosophy, Finis specifical actum. For as an act of it self lawful, being done against law is sinne: so a good act comaunded by law, yet done with an euill intention, may be sinne.

Out of these grounds let vs see, whether the Common law of our Countrey, and the in­tention of a Father, which are to be the Iudges of our Cause, can allow the cutting offan entaile, the parting of an inheritance, or (vpon propor­tionable cause) the disinheriting of a sonne. First, it is cleere, that the act of it self, by law, may be done; but whether such an act be summū ius, which may be summa iniuria, that is the doubt. What shalbe the triall? By other lawes, it is either made lawfull, or left indifferent. Our law which makes this tye, giues leaue to vndo it without any exception. Ergo, to a good end, and vpon iust cause it may be done. But it may be said, that the eldest sonne during this entaile, is quasi Dominus, yet hauing neither Dominium directum, nor indirectum, he, during his Fathers life, hath only ius ad rem, and not in re. Wher­by no chaunge 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 clayme, if the Father shall create no new estate in his life. For it is lawfull for euery man [Page 39]to dispose of his owne, as far as the law shall permit him; if it be not forbidden by some other law; but such an act is not forbidden by any other law; Ergo it is lawfull and no sinne.

But it may be said, that the intention of him who entailed the land was, that it should not be vntyed, or the state changed. To which I answere. That no act done by law, can be free from chaung, further, or longer, thē the law that made it a bynding act shall allow. And it is well knowne to the learned in our lawes, that euery mans intention is to be construed according to law, by which his act, and intentions are directed. Whereupon the Ciuilian saith in like Cases, valeat quantum valire potest. Neither is it thought, that any man, who conuayeth his lands by entaile, can intend an act beyond law; or desyre that his sonne, whom he makes tēnant entaile (as our lawyers tearme him) shall in no case no, not for the preseruation of his family, or relief of many others of his Children, haue power to cut off this entaile, and to be able to alien, sell, or giue his lands, as reason, law, and religion shall permit. For it may be iudged, that he who doth an act to a good end, as namely to preserue his family, wil alwaies assent to another act, which shall with better assurance then his owne, strengthen his intention. To the former considerations we may add, what incoueniences may follow of this generall position. For if in Conscience the whole inheritance of the Father, [Page 40]is to come without comtroule to the eldest sonne, then must it of necessity be inferied, that the Father, without this consent, cannot giue to pious vses, or set out for the aduancement of his other Children any other 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 pious intentions should be prouided for only at his sonnes, or heyres courtesy. Which how absurd it is all men know. For hereupon 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 tymes, when the land is let to the Heyre generall, to alter the estate, if the land so conueyed shall come to Daughters, and to leaue it to a Brothers sonne, or to some other of the same name, though per­aduenture many degrees remoued, for preserua­tion of the name and family. If this may be deemed lawful and no sinne, being done against a well deseruing child, for whom Nature, and her deserts plead her worthy to be her Fathers heyre: then without all compare, if the pre­seruation of a name and family, might not iustly be laboured for, according to power giuen by the law of God and man: what may be lawfully acted against an vnthrifty heyre, who in any reasonable mans iudgment is likly in his shrowd, to bury the memory of all his Ancestors vertues, which should liue in him, and his ofspring, as [Page 41]his forefathers haue done in theirs.

It is neyther new, nor straung, in the practise of our tymes, in causes of this Nature, to ouerthrow in tended perpetuities, and by act of parliament to giue leaue vpon som good con­siderations to sell lands, which otherwise by no lawes can be sold from the heyre, the Father being but tennant only for tearme of his life. Which surely by no power vnder God could be done, if the thing in it self be vnlawful & sinne. Out of which it may be argued a fortiori: If power may be giuen to a Father being tennant for tearme of life, to sell his sonnes lands, onely to pay his owne debts (peraduenture idly made) though it be to the ouerthrowe of his Familie; because naturall equity (say they) doth wil, that euery one should be relieued with his owne, for so it may be deemed, though in loue to his child hee hath passed the estate, yet that he ought to be preserued from thraldome therewith in his necessity: which if it be so (as all men do confesse it) how reasonable a thing, yea how comendable, and farre from sinne is it, for a Father truely Lord of his owne, without all tye of law, either deuine, or humane (as I haue proued) to dispose of his lands, to the honour of God, and comfort of his family, to a yonger sonne, when as it is most probable that the elder will neither vse it to the one, nor the other, but rather to nourish sinne and sensua­lity.

CHAP. VIII. That vnthriftines is one knowne name of many hidden sinns, and is alone a sufficient cause of disinherison, proued by the Law of God and Man.

HAVING thus vpon good consideration beyond my first intention (as it appeareth by my Preface) enlardged this my discourse with the prece­dent Chapter; I haue resolued my selfe, vpon my Readers fa­uour, and on the former grounds, to argue one question more, which I hold verie necessary for the perfecting of this small work: which is; whether a Father may disinherite his eldest sonne, or heire at common law, for such an vnthriftines as in most mens iudgements, is like to be the ruine of his family?

Though many foule sinnes, besydes the abusing of gods blessings, be concomitant to vnthriftynes, yet because they are not apparant to the world, and de abscondit is non iudicat Praetor, I will only breifly argue, whether in reason, or conscience a desperate vnthrift may be disin­herited.

It is well knowne to all the wise, and [Page 43]temperate, whose iudgments passion doth not ouersway, how great an enemy prodigality, or vnthriftynes is to all manner of goodnes; and how cunningly she not onely hinders the in­crease of all vertues in those in whome she reig­neth: but also vniustly oftentymes cuts off the vertuous reward of many a worthy predecessor, yea, giues occasion to the euill 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 be many sinns in a man, which in the sight of God, and iudgment of men, of them­selues are more heynous, and deserue afar greater damnation then Prodigality doth: yet, since that sins in this world are to be punished,Those sinnes more pu­nishable which are more off­ensiue to common society, though lesse hei­nous in their par­ticuler Nature. not as they are in themselues, but as they by circum­stance are offensiue to the society, peace, and honour of mankind, which God and Nature, euer as the reward to all morall vertues, and as the chief end of mans life, intended. For other­wise vsury, detraction, forgery, adultery, forni­cation, swearing, and drunkennesse, all which and many more, which are as greiuous offences in the eye of heauen, as theft, should be punished with death, as theft is. But since they do not offend so much the peace of a publique weale (at which the Ciuill magistrate aymes) as theft doth; they are not censured with such seuere punishment at it is. All which shewes directly, that offences by circumstance are made in a [Page 44]Ciuill society against which they are commit­ted, either great error lesser; and are accordingly to be punished: and no lesse doth the reason, and righ rule of state commaund.

Out of which grounds it is euident, that all formes of gouernement do most punish that offender, who directly or indirectly seeks to di­sturbe the peace, or ouerthrow the liberty, or disgrace the state wherin he liues: yet many greater offences then these may be committed, as Incest, and Apostasy, which are not so shar­pely punished by the Ciuill Magistrate. For euery one, to whome God hath giuen power on earth, doth chiefly seek the end, for which his power from aboue is giuen vnto him; and doth censure and punish in the highest degree those offences, which tend to the ouerthrowe of a well setled state, and by good and lawfull power confirmed.

Now to come vpon these premisses to the matter in question, & to apply that which hath beene sayd to our purpose. It is well knowne to the world, that a family is a ciuill society, yea the only common weale which God and Nature first ordayned, and from which all societyes, Common-wealths, & species of Gouernement first tooke their originall. For the mantainance of which society, there is no question, but God hath giuen many priuiledges to a Father, as well to reward the well-deseruing, as to punish an euill child, or member of his body: not onely, [Page 45]by depriuing them of their expected fortunes; but by cutting them of from his body, either by banishment, or by death it selfe. For it is eui­dent by the Ciuill law, that a Father had for many yeares, not onely free power to disinherit, but also power of life and death our his children, who should greiuously offend him or his, liuing vnder his Ciuill gouernement. But since that things vnknowne are growne out of vse, and may seeme as well incredible as straunge: I cannot in discretion passe ouer the matter in question so lightly, as that it may worthily be subiect to sharpe censure, or rashly be branded with the mark of vntruth.

Therefore laying aside the testimony of the old Roman lawes, in the case of a Fathers soueraigne power ouer the life of his child, giuē to him by the lawes of the twelue Tables, where it is written, thatLeg. 12. Tabular. cap. 3. Dionys. Halicar­nass. Lib: 2. Anti­quitat. Paterfamilias haberetius vitae; yea more: ter (que) filium venundandi potestatem, I will briefly, and effectually proue what I affirme herein, out of the sacred Text it selfe. There thē it plainely appeares, that Fathers had power among the Iewes, to cause their children for riot, disorder, or vnthriftines, to be stoned to death. Ergo power to disinherit.Deuter. 21. For the grea­ter doth euer include the lesse. And not to seeme to speake without booke, it shall not be amisse to set downe Moyses words, which are as follow.

If a man shall beget a stubborne, and vnruely [Page 46]sonne, who shall not heare the commaundement of his Father, and Mother; and being chastised shall contemne to obay, they shall apprehend and bring him to the seniours of that Citty, and to the gate of iudg­ment. And they shall say to them: This our sonne is headstrong, and disobedient, contemns to heare our admonishments, giues himselfe ouer to rioutous excesse, and is a drunkard. The people of that Citty shall ouer­whelme hini with stones, and he shall dye, that yee may take euill from among you; and that all Israell bearing it may feare.

Out of which place in Gods word, wee may gather how odious a vice vnthriftines was among the people of God; & what ample power a Father had to punish the same in his child. For if wee do well obserue the manner of the processe, betweene the Father and the child in this case, we shall fynd that the Father was accu­ser, witnesse, and as it were iudge of his owne cause. For we fynd not, that the Seniours of the Citty did giue sentence, or further examyned the proofes of the Fathers accusation, but their presence giuing as it were allowance to a Fa­thers power, and intention to punish his sonne, the people might without more inquiry, stone to death so euil a deseruing child. Which being by my reader well considered, my hope is, that it will neuer heerafter seeme vnlawfull, though somwhat straung, that a Father should disinherit his eldest, or any other sonne of his, for the cause only of vnthriftines.

And although the world, of men is grown [...] to that greatnes, that it is necessary, that one generall Father, or politique head should be in a Kingdome, or State, which may iustly abridge some of those priuiledges, and abate a Fathers power; all Fathers being become children to the Father of all Fathers, their Lord and King vnder God: yet the power to raise and maintaine a family by good and lawfull means, is still both allowable, and commendable in a Parent. Who may from tyme to tyme reward, according to distributiue iustice, al those who liue vnder him, by leauing his fortunes to them, as in iustice they shall deserue, and law shall allow. So that there is no question, but he may still disinherit, accor­ding to the power of that law vnder which he liues. For no other tye is ouer him; God and Nature allowing that, at this day, and for euer, which once they gaue vnto him. Which autho­rity he not only may, but ought also to execute, as far as the law of man shall permit; otherwise he shal erre in his Paternall iustice.

For a Father is not only to beget and nou­rish his Children in his life, but by Natures law must prouide to his power, that they liue both in his life, & after his death to the honour of God the seruice of their Country, and Comfort of their family: which were the only ends for which God created man a ciuill & a reasonable Creature. All which, if it shall assuredly be thought by a Father, that any Child of his will [Page 48]wholy neglect, or rather execute the cōtrary; thē no question, a Father is not bound to leaue him any more then shall honestly suffice the necessi­ties of Nature. For as I haue said before, no man may giue, or lend his goods to any one, who will in all mens iudgments assuredly abuse them.

But let vs see, whether a desperate vnthrift may be arraigned, and adiuged guilty of these accusations. Surely it is cleere; that all vnthrifty courses are displeasing to God, and contrary to his honour. And how can he be able to serue his Countrey, who in short tyme will not be able to serue himselfe with necessaries wherewith to liue, but must of force be mainteyned like a Droane in a Common wealth, out of others la­bours. As for his family, what greater discom­fort can it haue, then an absolute ouerthrow: whereby the Noble acts and honour gotten to it by their Predecessors vertues, are buried in obli­uion; and the present, and future hopes of all worldly and lawfull honour (vertues temporall rewards) are taken away. And shall not all this deserue disinherison? Can there be a greater sinne committed against the honour, and essence of a family, as it is a family, then to be spoyled of her honour, & life it self? For in these our tymes welgotten goods, and vsed as they ought, are the only soule, by which a family, and all the vertuous acts which it hath done, may liue.

Since therefore the highest is sought and [Page 49]aymed at in this sinne, surely according to the proportion of distributiue iustice, the greatest punishment is in equity due to the same, accor­ding to the reason of the precept, [...]us suum vnicui­que tribuere. Nature teartheth the silly Bees in their Common wealth, to do to death their Droanes, who liue of others labours; and shall it then be thought vnlawfull for a Father so to punish an incorrigible vnthrift, who will not only liue of others labours; but also subuert the honorable endeauours of his Noble Ancestors?

Thus if sonnes may be deemed & domed by the offended, hauing power to do both, according as the offence done against them shall by circumstance be of quality (as we haue pro­ued they may and ought;) then certainely it is lawfull for a Father so to do, as I haue formerly set downe But because example in all doubtfull questions, do make their side the stronger; it shal not be amisse, for the cleering of all the pre­mises, to add some few to the former, drawne as well from Kinges (by whose patterns totus componitur orbis) as from inferiour persons, whose qualities best fit the condition of our present subiect. And if kingdomes and Cōmon wealths haue fauored it, then certainly by all arguments à maioriad minus, it may much rather be done, and ought to be suffered in priuate families.

CHAP. IX. The maine points of the Premisses exemplified in diuers particuler Facts, aswell of Prin­ces, as of priuate Men.

It is not fit perhaps to vrge the better acceptance with God, of Abels offering aboue Cayns the elder Brother, but of that estate which Abel had in A­dams Patrimony.Abel. Nor will I reinforce the memory of Iaphets share in his Fa­thers right to the whole world, though he being the youngest sonne of three, had Europ for his inheritance, which in all arts, and vses of life, far excelleth Affrick, Asia, and all the rest of the earth. Whereas, according to the pretenses of those customary challenges,Iaphet. Sem should either haue had all, or byn Lord Paramount of all, & Cham, and Iaphet with their posterity but Far­mers, or Fre-holders vnder him.

I will not also (as if there were penury of resemblances) againe vse for example Esaus disinherision, though that were inough for our present purpose. For if it had bene sinne (which Iosiphus the Iew, neither in his Antiquities, or Scripture faith) the Mother could not haue pro­cured it, God would not haue prospered it, nor [Page 51] Iacob himselfe, being a good man, haue accepted it, nor Esau (whose anger Iacob feared) haue left it vnreuenged. Neither is there in Scripture, nor in any writen Law vnder heauen, any com­maundement to restraine the Fathers power, but rather the contrary. For such is the law of Nature that they who are, exaequo, one mans children, should, if not exaequo, yet not exini­quo, be prouided for.

Against which partiality, the Imperiall Lawes admit so forcible a remedy, vnder the title of an inofficious Testament, as it shal inable the yonger childe, to a certaine proportion of estate, whether the deceased Father would or no if he had no iust reason for omission, or disa­uowment in his last will. The example certai­nely of the same holy Patriarch Iacob, in prefer­ring Ephraim before Manasses, Ephraim. the younger son before the elder, being his grandchildren, against the set purpose of Ioseph their Father, seemes vn­āswerable on behalfe of the power of parents for transferring, or distributing their blessings. Of which it may truely be said, Qui prior in bene­dictione est potior in iure.

Of Salomon I haue spoken before, who was not the eldest sonne of Dauid, Salomon. but Adonai after Absalom was slaine: as Dauid himselfe was not the eldest sonne of lesse his Father, but the youngest, and yet chosen by God (who sees not as man doth, for with him there is resp [...]ctus per­sonarum) to gouerne Israel, though he was not [Page 52]set before his brothers in the priuate inheritance of his familie. And in the Ghospell it is apparent by the Parable of the workmen, who came at vnequall houres into the vineyard, and yet had equal wages, that first and last are to him a like, who though he created thinges in number, weight, and measure, yet he squares not his fauors by priority of being, but of well-deser­uing.

Augustus Caesar, the most renowned of all the first Emperours, setled the succession of his Empire, not vpon his onely G [...]andchilde Agrippa Posthumus, Agrippa Posthumus the sonne of his daughter & sole heyre the lady Iulia, though Tacitus sayth that he was nullius stagitij comp [...]rtus (then what if he had indeed byn a notorious vnthrift) but vpon Tiberius a stranger in bloud, and his sonne by no other, but by a ciuill title of Adoption, because he reputed him far the fitter to gouerne.

Chosroas King of Persia, Medarses. made Medarses his younger sonne companion in his Empire, and left out his eldest sonne Sinochius.

But let forraine examples passe for briefnes sake, wherwith of all tymes, & places books are full.

In our Country wee might alledg the fact of Brutus, Brutus. the reputed foūder of our Nation, who diuided Albion, afterward called Brittaine, to his three sonnes, leauing onely the best por­tion to Locrinus, anciētly called Loegres; Albania (now Scotland) to Albanact; and Cambria, or [Page 53] Wales to Camber.

Leir, long after, knew he had so much power in himselfe as a Father, euen against the euidence of his owne act of partition, by the originall law of Nature; as for the ingratitude of his owne children, to confer the kingdome wholy vpon his younger child Cordeilla in pre­iudice of his grandsōnes M [...]rgan and Cunedage, Cordeilla borne of his eldest daughters.

I knowe that some will deny credit to Brutus history, which in this case they might with the more reason do if the ancient Weale, or Brittish Custome, did not answere in the practise thereof, to that act of Brutus. For, not onely king Roderick deuided his kingdome of Wales to his three sonnes, according to that di­stinctiō of the countrey into Northwales, South­wales, and Po [...]island, but others since haue done the like among them.

As for Brutus History,Brutus History, an it hath some enmies so also hath is many friends, and those of speciall worth and note Henry Archdeacon of Huntington, Matthew of Westminister, & others a­mong the ancient. And of later tymes, Syr Iohn Price, William Lambert, Humphrey Lloyds, Doctor White of Basingstoke Count Palatine in right of the Ciuill law Chaire (an honour due to the iust number of years by him passed) & innumerable others. Aboue all the rest, Edward the first King of England, with all the Earles & Barons of this Realme, by their authentick deed or instrument, [Page 54]confirmed in Parliament. But let vs proceed.

They who know the old fashions of Ireland, either by report, or by the printed Statutes of that Nation, may testify of their most ancient Tenure,Irish. Tauistry. or Fundament custome, which there is called Tauistry. By which the land and chiefest of a Name, after the predecessors death, is not a warded to the eldest sonne but to the worthiest (if I misremember not) the iudgment wherof is left with the people and such Tenants about as haue interest and right of voyce. As Alexander the great though (as it is apparent in the Macha­bees) very falsly is said to haue left his Empire. And the custome of equal shares may be in other places also, which neuer borrowed their equall partitions from Gauelkind: A custome, I graunt, which some haue very lately altered in their priuate families by Parliament.

In Scotland, there is scarse any thing in their most ancient Records, more often found concerning their succession to the Crowne ther­of, then Vncles to reigne before Nephewes, euer by Nationall Custome, as is auerred. But the abundance of forraine examples must not carry me from home.

Arthur? Arthur the Great was left heyre to the crowne by his Father King Vther, surnamed Pendragon, or Dragons head, though begotten in Bastardy, rather thē the sōnes of Lot king of Pic̄tland, being borne of Vthers sister or, as some write, of his daughter Anne: an history which euen Buchanan [Page 55]relateth out of the Scottish Monuments, on Arthurs behalf, for very true. To come neerer in the same kynd.

Athelstane, that victorious king of England, Athelstane being a Bastard, was notwithstanding prefer­red before the lawfull eldest sonne, euen by his Father King Edward, surnamed Sinior, to whom (saith Florentius Wigornienss, an authour aboue 500 yeares old) R [...]gni gub? rnacula reliquit, and not to any of his sonnes by his wife & Queence. Little cause is there to seeke examples so far off. William the Conquerour preferred William his youngest sonne, before Robert the eldest in the Kingdome of England: and Henry the first was surrogated to Rufus his Brother:VVilliam Rufus. and still kept Robert out.

The title of more sufficiency, not of more propinquity made Stephen, K. Stephen as being then a man growne, to step in before Matildes the Empresse, and her Infant sonne Henry Plantagenet.

I will not speake of King Iohns succes­sion before his nephew Arthur, the sonne of Gef­fr [...]y, the elder brother to Iohn. Henry the 4.K. Iohn. King of England, did in open Parliament pretend a descent from Edmund Earle of Lancaster, Edmund Earle of Lancaster. sōne of Henry the third king of England, in preiudice of king Richard 2. auering that Edmund was disin­herited for deformity, and his brother Edward (afterward by the name of king Edward 1.) pre­ferred. Which, though it were not so, yet is it sufficient to shew that Henry 4. did hould, that [Page 56]his ancestour king Henry 3. might haue done such an act, if the cause had bene sufficient.

And what interest had Henry of Ri [...]hmoud to his Diademe, being neyther of the right bloud nor of the Royall Name, when neuerthelesse of the true: Plantagenets sundry Males were aliue; and one of them at that very tyme king of En­gland also in possession.

But to leane Kings affaires. If all must necessufily haue gone to one, how came it then to passe, that in this kingdome there were at one tyme, so many great and honorable families of one bloud; disinyned in their seats, and di­stinguished in their Annories by different argu­ments? Our whous to meanly seeme in our anti­quities and stories, as not to knowe it was so? And that many renowned houses (to speake as de magis notis [...]) Plantag [...]nets, Sundry grint Fa­milies of one [...] at a tyme. Mortiniers, Beaufords, B [...]champ [...], 1 Disla-Poles, Neuill, Grayes, and the like, haue growne and flourished out of one common Ancestour? It can neuer be refel­led.

Of disinherisions in worthy Families, M. William Camden [...] L [...]renceaux King of Arnies giues vs two eminent examples. And who is he that remembers not one or other, in this owne knowledge, or acquaintance?

Ianc, Daughter of Hugh Courtney, and heyre to her Mother▪ Carewes wife of Nirold Lord Carew, disinaerited her eldest sonne Thomas, cùm mirùs reuerenter matrem haberet; and parted her lands [Page 57](which were goodly) among her three younger sonnes, of whom are sprung three seuerall wor­shipfull bouses of the Carewes, called Haccombe, Anthony, and Bury. So that God hath by the successe confirmed the lawfulnes of the fact. And this is the first of Maister Caindens ex­amples.

The other is this. Bryand Lile, or Fitz-Earle, Lord of Abergeuenny hauing two sonnes,Brientius de insula. both leprous, built for them a Lazaretto, or spittall, & gaue to Miles Earle of Heresord far the greatest part of his patrimony from his Children. The one of these exāples is in the descriptiō of Deuon­shire, and this other in Monmouthshire. And this Chapter may suffice for the illustration, and clearing the former Doctrine, and the subiect of this whole discourse by examples.

CHAP. X. That the Law of Naturall Equity & Reason confirme iust Disinherision. & that the rio­tous liues of Elder Brothers deserue that vehement reproofe with which the Author closeth vp this Treatise.

LET vs now looke into the Nature of equity, and examine whether in Naturall reason, which is the law of all lawes, the temperate ought to be subiect to intemperate. Fooles & Madmen, to whom no law imputes sinne, are not punished for theft, or murther, or for any other offence which they do, being mad, or vnreasonable. For though humanely they cannot offend: yet in this sort, according to equity, they many be punished. The reason is; That all law being grounded on Naturall equity (for otherwise it is no law) doth not only punish offences cōmitted; but also pre­uents offēces which may be done, by reasonable or vnreasonable creatures. And since that Fooles and Madmen cannot offend to be punished, or by punishment can be reformed; and yet they with whom they shall liue, shall surely be offen­ded, [Page 59]if not ouerthrowne by them hauing power, as Namely Brothers, Sisters, and all their whole family put in daunger of misery and ruine: the law, according to all Natural equity takes al power from them.

I haue inserted this clause according to Na­turall equity, for that it is against Nature, that men should be subiect to beasts, or insensible creatures. Heerupon Aristotle disputing the na­ture of rule and subiection, saith: That none are borne slaues, but such as Nature hath abridged of the vse of reason, who being truly slaues, are altogether vnfit to gouerne. Vpō which ground also the same great Philosopher; disputing whe­ther a Monarchy or Comonweale is the better forme of Policy; he saith, a Comonweale: Be­cause the wisest & best mē are admitted to sway therein.

But, it may be said, What is all this to our purpose? Yes; thus far it may be well applied. If Nature, intent to make al mankind reasonable according to their species, being hindered by some ineuitable accident, shall so blemish and maime those, in whom such want, and Natural weaknes shalbe found, that they, according to diuine, and humane law, may and ought to be depriued of all right and clayme to any thing more then to sustaine Nature; as other creatures may do, and not to giue vnto them any souerai­gnty, rule, or gouernement, which by law, or custome might otherwise haue falne on them: [Page 60]Because, according to naturall & diuine equity, neither man, nor yet the creature made for mans vse, ought to be gouerned by Beastes: and such do fooles and madmen seeme.

If this be so (as according to Natures rule it cannot be otherwise) what punishment shall we think due to that reasonable creature, borne in a ciuill society of men, vnto whom Nature hath not bene a Stepdame in bestowing of her blessings; & whose name and Family hath bene ennobled, and enriched by the industry and vertue of many worthy Predecessors, who shall through disorder, and inordinate desires, habi­tuated in him by custome & euill conuersation, become vnreasonable, yea a sinfull-creature a wilfull, and most punishable madman, and a thing vnworthy the name of man, a Prodigall; who contrary to all rule law, or order of the most barbarous society of men, takes away the soule (as I haue said before) of all his Ancestors, who being dead, yet long might liue in their posterity; and consumes the womb (his family I meane) wherein he was borne: and without all remembrance of his obligation to the dead, (whom as hauing his being from them, he ought to honour) or respect to the huing (to whome he should be a comfort) deuoures in some sort, them of his owne species, society, and bloud. All which the Anthropophages do not.

For though they feed on their species, which are men like to themselues; yet they hunt [Page 61]after straungers, and nourish then nearest bloud with others flesh, obseruing still some law of society among themselues, which our ciuill monster doth not. For he, contrary to all course of Nature sucks out oftentimes the b [...]oud of his nearest, and dearest friends; namely his children, brothers, and sisters:Ariotous heyre is a ciuill Monster. yea some haue brought their all-tender-harted parents to the greatest of all woes, [...]b [...]ary in, their old age: And all this to maintaine by force, of fraud, a damned crew of Diuells in the shapes of men.

Nature hath giuen, yea she so strongly hath inhabituated a laudable desire in all crea­tures to preserue them species, that directly, or in directly, to vndergo the contrary, wore not onely vnnatural and mo [...]rous, b [...]worthy also of seuerest punishment, Families, let them be Princely, Noble, Gentle or Vulgar, are in a manner particuler kindes; or species allowed of by Natures law to be raised; or maintaine of, vnder, or in their cheife genus, mankind vni­uersall: which to ouerthrow either directly, or indirectly, let the Philosopher either Naturall, or Morall: the Lawier either Ciull or Ca [...]; the Diuine, Scholeman, or Casuist, iudge how punishable.

Morall Law-makers for many ages, pretermitted to make lawes, against this sort of oftenders: being asked why? they answeared: That no man could be so ingratefull or inhu­mane.

By which wee see how grieuous the of­fence was deemed by them, and how seuere punishment (were they to make lawes in these our corrupted times) they would prescribe for such offenders. Thus much for our present matter in question. In the arguing whereof, if what I write in defence of younger Brothers, as here the case is put, I seem to haue taken vpon trust, rather then vpon knowledge, or reading: the wiser sort will (I hope) not blame me. For my intent was nor, but onely as at first I pro­mised, to set downe a Table-discourse, and not a Controuersy discussed in Schooles.

If I haue spoken according to dialecticall reason as I belieue) then may I safely think; that my discourse is armed with strong Authority. For what hath bene spoken heretofore truely, which reason hath not dictated to all Authors pens? If therefore I were able to cite a thou­sand great Writers for what I haue said; yet should they be no more, but that which Natu­rall reason hath, or may teach daily. All which, with my self, I intrust to the gentle and equall Censure of my Courtuous Reader.