Proof I. Out of the Law of Nature for the younger brother.

THat all communicable things were common amongst men, for many ages after the Creati­on: in all which time, no man laid proper claim to any thing, as due to himself alone, whereby it well appears, that hereditary succession, or title to a fathers lands, or goods, could not be then in use; or so much as thought of.

Answer. It ir more then the Apologer; or any man can prove, that all things were enjoyed in common, for so many ages as he surmises. But the contrary is manifest; for we find, that immediately after the Cre­ation, and for many ages together, the ge­nerations of Seth and Cain, did neither communicate, nor so much as marry the one with the other; and it is not unpro­bable to think, that Cain and Abel, (the first Sons of our first Parents) as they had[Page 2]several vocation, so they had (as a curse for sin) a several propriety in their goods, because they agreed no better.

But admit all things were enjoyed in common, for many ages after the Creati­on, what is this to purpose; for if there were no proprieties or estates, there could be no inheritance then in use; though (que­stionless) the right of inheritance was then in eldest sons, as now it is: unto whom (as the Apologer sayes) there is a natural reve­rence due from his younger brothers; and if there be a natural reverence due, there ought also to be a natural right to inherit the greatest part of the fathers estate, for how else should that natural reverence be maintained, with such a due respect as it ought to be.

Proof 2. That all sorts of people, as well Christians as others, who have perfection in natural society, or a perfect and religious life, in a natural or wordly conversation of men, have, and do daily imbrace, this natu­ral and blessed community.

Answ. This blessedness of community, which the Apologer so much contemplates, takes away his pretended free power of Pa­rents, for if there were no estates, they[Page 3]would have nothing to dispose. And it is the Anabaptists and Eamelists so much ad­mire, and prophanely practice, for they enjoy all things in common, even as much as their wives, and in that are more beasts then many of the unreasonable creatures: for amongst many of them there is a kind of conjugal contract, and a constancy ob­served between the males and females. It is true, that all good Christians should so live, and love, and help one another, as though they enjoy'd all things in common: But I would fain know, what other people be­sides Christians, the Apologer means, who have, and do, (as he sayes) daily imbrace this blessed community, and in the way of a perfect and religious life.

Proof 3. That the Law of God is never contrary to the Law of Nature, and that fathers have, by the Law of Nature, a free power to dispose of their estates and chil­dren.

Answ. It is true, that there is no Law of God, against the Law of undepraved Na­ture, or as Nature was in her first purity; yet (as our nature now is) there are many things in the Law of God, which are seem­ingly against Nature, or meerly preterna­tural [Page 4]as is the loving of our enemies, the doing of good to them that hate and hurt us, Matth. 5. Luke 6. 1 Pet. 2. But as there is no Law of God, contrary to the Law of Nature; so there can be no good or warrantable Law of Nature, which doth not agree with all the divine admoni­tions, and precepts, both of the Old and New Testament; and therefore the pre­tended free power of Parents, cannot be grounded upon the Law of Nature, for it is directly against the divine precepts, as appears, Numb. 27. Deut. 21.

Proof 4. That the happy Law of Na­ture, which indured so many ages and, with­out doubt had longer continued, had not sin, which breaks all union, and depraves all natural perfection, gotten such domini­on in the minds of men, that in natural e­quity all things could not longer be used in common: for as some men, being possest with an insatiate desire to get rule, and raign, sought the oppression of others, by taking from them that freedom which Na­ture had given them; so others given to sensuality, and idleness, sought to live of other mens labours, whereas by Natures Law, every one ought to live by his proper [Page 5]industry, within the rules of justice and ho­nesty: whereupon Natural reason per­swaded, that all things being divided, eve­ry man should know his own, otherwise no peace or concord could be maintained in humane society.

Answ. The Apologer is so transported, with the imagination of the happiness of community, that he flutters up and down, and even loses himself in impertinent dis­courses, to what he undertook to treat on. But admit sin were the cause of dividing lands, and making laws, he will not say (I hope) though he seems to infer it, that it is a sin to observe the laws, because sin was a cause of making laws.

Proof 5. That Nature never set it down as a law, that the estate should be left to the elder brother, or younger, or to any one in particular, or to all; but to whom, the father (being true and free Lord there­of) should best devise by will, guided by reason.

Answ. Neither the Apologer, nor any man whosoever, can prove (or so much as make it probable) that Parents have that free and absolute power, by the Law of Na­ture, as is pretended; neither can they[Page 6]prove that the right of inheritance, in el­dest sons, is not grounded upon the Law of Nature: But if the Apologer would have fathers to have that free power, by the Law of Nature, as is pretended, he must first prove how fathers are become the true and absolute Lords, and masters of their estates by the Laws of Nature: for it is absurd to say, that Nature gives a power to dispose of that which the her self gives not, and this is more, I believe, then the Apologer, or any man else can prove.

It is true, that every man hath his seve­ral way of understanding, which is unto him, his natural reason, though the thing conceived be never so absurd and foolish. The Apologer sayes, that fathers have such a free power by the Law of Nature, and that eldest sons have no right of inheritance by the Law of Nature: and this is the di­ctamen of his nature, or his natural rea­son, for which he gives no reason, nor can alledge any convincing or satisfying autho­rity to prove it.

And that you may see, how unnatural, and unreasonable, his pretended free power of Parents is, I pray you consider a little, & tell me whether any thing can be more un­probable,[Page 7]then that a father should be more free; and absolute then Adam was, when he was in Paradise, and in the state of In­nocency: for Adam, was under a command or Law, but the Apologer would make fa­thers lawless, Stat pro ratione voluntas.

And what I pray you can be more rea­sonable and necessary, then that there should be a chief son, or heir, amongst our children: for there must necessarily be an order and subordination in all things, other­wise there will be a confusion in all things, and what follows confusion, may easily be conceived in any understanding, for it is in­deed the mark of hell, or rather hell it self, where no good order, but an everlasting horrour doth inhabitate, Job. 10.

And it is no less necessary, for the preser­vation of peace and concord, amongst Bre­thren, that this cbief son or heir should be generally known, by a native, natural, and undoubted right; for otherwise, all the other sons would malign, and envy that son, who should be preferred to the inheritance, unless the son so prefer­red, had an undoubted and native right thereunto, and had his right also confirm­ed (as is now in the case of eldest sons) by[Page 8]the generall practise of all good Parents, which general consent and practice, can proceed from no other cause or ground then from the instinct of nature, and conse­quently, from the will, providence, and or­dinance of Almighty God.

Proof out of the Common Law and Civil Law, for the younger brothers right.

THat divine precepts are not so abso­lutely binding, but that they may in some cases lawfully be broken; for though the commandement is, Thou shalt not steal, nor, Thou shalt not kill; yet one may, in extream want of food, steal, or violently take from another man, and may lawfully kill any man in defence of his own life, and goods: so though there were a divine precept (as there is none) that eldest sons should inherit, it could not in­tend that such eldest sons, who are natural fools, or madmen, should inherit.

Answ. It is true, that natural fools and madmen (though eldest sons) do not de­serve to inherit: but what doth this make against the rights of eldest sons, who are no fools or madmen. Surely it concerns[Page 9]the pretended free power of Parents, as much as the disinheritance of eldest sons: for if the father, (according to the Apolo­ger) turn idiot, or madman, the Apologer will not deny, but that he is made thereby incapable of the management and disposure of his estate.

Proof 7. That if the effect of elder­ship, were such by the Law of God, as some passionately defend; that is, that the whole inheritance should of right pertain to the eldest son, then it followeth by good consequence, that there should, nor ever could have been, but one temporal Lord of all the world, for of necessity Adams inhe­ritance should have gone still to the next in blood.

Answ. It is absurd, and no consequence at all, that there should be any such tempo­ral Lord, for the eldest son is not to inherit all the estate, but only the greatest part of it, fathers being to provide for all their children; and the Apologer knows, though Adam had the whole world to himself be­fore he had his wife and children (who were partners with him by a coequal right) though he had a kind of superiority and so­veraignty over them) yet he had it not by way of inheritance.

[Page 10] Proof 8. That it was never yet averred by any sound divine Philosopher, or Lawyer, that nature makes immediately heirs, but men: They talk idlely who say, that God and nature make heirs, upon which ground our Common Lawyers say, that no heirs are born, but men and Law make them.

Answ. It is more then the Apologer, or any man can prove, that eldest sons are not born heirs: eldest sons, as soon as born, are heirs apparent by the laws: King James was born a King, and crowned in his cra­dle, and is there a native and natural right in Kings, and not in others: howsoever it cannot be denied, but that Esau had a na­tive, and therefore a natural right, as ap­pears by the word Birthright: and the A­pologer cannot but know, that it is God only, who gives and makes heirs, which heirs are the eldest sons, as plainly ap­pears by his divine precepts, Deuternom. 21. &c.

Proof 9. That God, requiring obedience of children to Parents, promised a reward; saying, Honour thy father and mother, that thy dayes may be long in the land, which the Lord shall give thee; which surely was not spoken to one, but to all the sons of men, [Page 11]for with God there is no exception of per­sons, but as a just and pious father, he gives to every one according to his deserts, ter­ram autem dedit filiis hominum.

Answ. I know not what the Apologer should intend hereby, unless he would have it thought, that as all children are equally commanded to honour their Parents, so all children who equally honour their Parents, should be equally rewarded by their Pa­rents, though the Laws, both divine, and humane, give a superiour right of inheri­tance to eldest sons: and concerning his terram dedit, I know what he should mean thereby, unless he would have every man to be thought an unnatural tyrant, and an usurper. who hath a particular and proper estate unto himself, because the words are terram dedit filiis hominum, God gave the whole earth to the sons of men: that is, not to any one in particular, but to all in general. You may see here, how bold he is with the Laws, for he strikes at the very root of them; and you may see what a boundless and liberal mind he hath, for he would have every man a freeholder, and no less then the whole world his inheritance; But Mr. Apologer, if this should be so,[Page 12]what would become of your pretended free power of Parents, for they would have nothing to dispose of.

Proof 10. That there is no divine pre­cept, that eldest sons should inherit, that it is well known to all Divines, that holy Writ hath not prescribed any direct form to the children of God, whereby they are bound in conscience to dispose of their lands and goods, but hath absolutely left them to the customes of their countrey, where any act of that kind shall be execu­ted; that there is neither in Scripture, nor in any other written Law under Heaven, any command to restrain the fathers pow­er, but rather the contrary.

Answ. The Apologer cannot but know, that there are diverse plain, and divine pre­cepts, concerning the inheritance of eldest sons, one of which he himself doth often cite, but never fully relate, and these are the divine words: if a man have two wives, one beloved, and the other hated; and they have born him children, both the be­loved and hated, and if the first born be hers that was hated, then shall it be, when he maketh his sons to inherit that which he hath, that he may not make the son of the[Page 13]beloved the first-born, and prefer him be­fore the son of the hated, which is indeed the first born, but he shall acknowledge the son of the hated, the first born, by giving him a double portion of all that he hath; for he is the beginning of his strength, the right hand of the first-born is his, Deut. 21. Parents therefore are not to think them­selves so absolute, as that they may make choice of what heir they will, according as the wind of their affection shall blow; for affection is here excluded, we live un­der a Law grounded upon Divine Ordi­nances, which we are bound in conscience to observe, and inviolably keep: and though the letter of the law is, that eldest sons should have a double portion above their younger brothers; it is no where said, that eldest sons should have but a double porti­on, as though Parents should be concluded from giving them more: for so we should condemn our national Laws, and the gene­ral practise of all good Parents, who usu­ally leave the greatest part of their estates to their eldest sons.

But sayes the Apologer (or seems to in­fer it) neither this, nor any other divine precept, doth any way restrain a fathers [Page 14]free power: for the words are, when he maketh, or is to make, his sons inherit: that is, when he is disposed, or minded so to do; and if he be not so minded, he may chuse, for he hath a lawful power and free­dome to do otherwise. But Mr. Apologer, shall I in answer propose a question to you, and concerning your own profession, (for they say, you are a learned Divine) suppose there were this saying in Scripture, that when a minister makes, or is to make his prayers or a Sermon, he is to demean him­self in a zealous and sober manner; will you say that a minister, is not oblig'd at all, but may chuse whether he will pray or preach, or demean himself soberly; indeed, I could wish (being your self, as you say, a young­er brother,) that you would demean your self a little more soberly, and mannerly, towards elder Brothers, who are your ma­sters; and not to question their ever yet undeniable rights, but rather to conform your self to the admonition of the Apostle, Tit. 3. Stultas autem quoestiones & Geneolo­gias, & pugnas legis deuita, sunt enim in­utiles & vanae.

Preof. 11. That the prodigal son menti­oned in the Gospel, Luke 15. being weary[Page 15]of his fathers house, came to his father and boldly said, pater da mihi portionem substantiae meae, quae me contingit; this child, of which the Gospel speaks was the young­er brother, yet you see how boldly he said, Give me that portion of goods, which belongs to me: by which words it is evident, that a devision or partition of a fathers goods was then in use; and that any child, as well younger as elder, had power by law to de­mand his Legitimate, or childs part, accord­ing to the nature of thd Civil and Cannon Laws; for the words following in the sa­cred Text are these, & divisit substantiam illis; and he divided unto them his living. thus we see that the priviledge of elder­ship was then excluded, which now in our coutrey, by custome only, is gotten to be of such force.

Answ. The parable of the Prodigal, so much advanced by the Apologer, makes nothing against the rights of eldest sons, for though the words are, & pater divisit, and the father divided; yet it was movable goods, or money, and not lands which he divided; and it cannot be understood that the father gave half the estate to the younger son; for then he should leave but[Page 19]one half for himself, his wife, and eldest son.

But this parable clearly overthrows the pretended free power of Parents; for the prodigall demanded his portion of his fa­ther, as of right, (which the Apologer sayes, all children may do) and had it paid him.

Proof 12. That it is invincibly proved out of the book of Job, who was contem­porary with Moses, by attestation of judi­cious Theologians, that there was in those times, and countreys, no such Law, or cu­stome, that the eldest son should play at sweepstake, and all the rest left to the mer­cy of the four winds, for it is expresly re­corded in the last chapter and fourteenth verse, that Job gave his daughters inheri­tance among their brethren, which comes home to the point in question, and irrepli­ably evinces a fathers power and right to make partition of his estate among his children.

Answ. The Apologer sayes, he is now home to the point in question; but I know not what can be further off from the mat­ter in question; if he be no better an ar­cher, then an arguer, the safest place for a[Page 17]man to stand in when he shoots, would be at the mark, as Diogenes was said to do to, one who used to rove at randome; for the question he is here come home to, is, that Iob gave some inheritance to all his sons and daughters; and he did well, and as all good Parents ought to do: for neither the Levitical law, nor any other good law, doth allow fathers to leave their whole estates to their eldest sons, but only the greatest part of it, for they are with Iob, to provide for all their children: this, I grant, is a que­stion without question, but Mr. Apologer, if it please you to remember the main que­stion, which appears in the mighty charge of your Treatise, is, whether eldest sons have a superiour right to inherit above o­ther sons, or rather have any right at all; and whether fathers may lawfully and reli­giously, give their lands, and goods, to which of their children they please, or to whom they will.

Proofs out of the Cannon and Civil Law.

THat God in his commandements, did but second his former Ordinances given by nature; for so long as mankind lived, in a sort, after the innocency, which Gods grace in his first creation had wrought in him: God gave him no other Law, but when as by sin, those sparks which remained, after his fall, were quite extinguished, God gave him new Laws, yet agreeable to nature; and Laws, which ever had but the name and credit of Law, do derive their Original from the Law of Nature, whereupon Ci­cero, many hundred years since, said, that the ground of all Law-making, is to be ta­ken from the chief Law, which was made before any Law was written, or City builded

[Page 20] Answ. The Apologer, to gain the more credit, doth flyly cover himself with the Law of Nature; and would perswade his easie Readers, that all the Laws, he alledges, are grounded upon that Law. I deny not, but that the same was in the Law of Na­ture, as is delivered in the holy Tables of the Law; but neither the Apologer, nor any man can know, which were all the Laws of Nature, nor what Laws are ground­ed upon that primary Law; it is the duty of every good Christian, and good subject, to conform himself to the Laws he lives under; and not to wretch and stretch them to wicked ends, by their false constructi­ons, nor yet too curiously to search into them, which is alwayes an argument of a proud and rebellious spirit: So, that in all this fair flourish, the Apologer hath proved nothing to purpose, but only shewed the antiquity of Cicero, who lived (he sayes) many hundred years ago.

Proof 14. That by the Civil Law Parents had at first, a power of life and death given them over their children: and a free dis­position of all their fortunes to any of them in his life, but if he died intestate, then the estate was to be divided among the [Page 21]children egually, as well sons as daugh­ters.

Answ. I might here answer him with his own two sayings, Cessante ratione, cessat lex, & summū jus, est summa injuria; and he also sayes, that it is no Law, but tyranny, which wholly disagrees with the Law of Nature, & what can be more against Nature and na­tural equity, then that Parents should have a power to destroy their own flesh and blood, which are their children: and he sayes, that these Laws were first invented and practis'd by the Romanes when they were heathens, and he needs no other an­swer then this: that it was very heathenish­ly done of them; but why should the A­pologer urge this, himself saying, that this Law was rigorous, and afterwards altered upon good grounds. And concerning the division of the estate equally amongst the children, for so, sayes he, the Civil Laws ordain; It is well known, that the practise is much otherwise where the Civil Laws are in most force; as in Spain, France, Germa­ny, Italy, &c. for there the chief house and the greatest part of the inheritance is usu­ally conferred upon the eldest son, and it is a Maxime amongst them, Seniores, honores,[Page 22]juniores labores; the Arts, Arms, A muni­ties, and the more noble trades, as Mer­chandize, and the like, and not lands of inheritance are the more proper portions for younger brothers.

Proof 15. That in natural justice, chil­dren, during their fathers lives, have jus ad rem, not jus in re, to their fathers goods: Whereupon the Law calleth them quasi bo­norum, patris dominos, which their right on­ly takes effect after their fathers death; for during life, he hath power to alter, alien, sell, and give, as it shall please him, accord­ing to form of Law, but being dead with­out will or disposition thereof, they fall up­on his children according to the Law of Nations; hat the Cannon and Civil Laws command it, as a thing in equity, the father either to divide his inheritance amongst his children, or allow his children according to his affection, by giving to one more then unto another, as it shall please him.

Answ. The Apologer speeks generally, and cites neither authority nor Authour, and so deserues to be neither credited nor answered; but I will not deal so unkindly with him. There is no question, but that children have not only jus ad rem, but jus in [Page 23]re, to their fathers goods in his life time, as plainly appears, by the claim which Esau made, and by the parable of the prodigal; for the prodigal came to his father, and boldly said, Pater da mihi portionem, sub­stantiae meae— give me that portion of goods which belongs to me; & pater divi­sit, and the father gave him his portion: and Esau came as boldly to his father, and de­manded the due of his Birthright, because he was the eldest son.

And for all the large soveraignty, which (as the Apologer sayes) the Civil Laws give Parents over the children, the Apo­loger confesseth, that fathers (unless they can give a just cause to the contrary) are bound by the Civil Laws, to leave every child a portion, called a Legitimate, or Pa­trimony, which makes clearly against his so absolute a power of Parents, for if they are bound, how can they be said to be free?

Proof 16. That even to this present day, the engrossing all by primogeniture, hath not been so much as heard of, or at least­wise never admitted in the Civil Law, as by many Text in the same Law, it well ap­pears.

[Page 24] Answ. The Apologer is still upon his ge­neralities, and gives neither reasons nor authority, but the best is we may believe him as we list; I confess that no good Law, either Civil or Cannon, or any other Law whatsoever, allows the engrossing all by Primogeniture; as that the eldest son should have all the estate, & the other children no­thing; but it is false that there is no mention at all in the Civil Law of the rights of Pri­mogeniture: for the great Lawyer Baldus, in his Book De justitia, & jure, faith, semper fuit, & semper erit, it alwayes hath been, and alwayes shall be, that the first-born doth succeed and inherit.

And the arcient Historian Herodotus, in his Polihim, thus saith, it is the general cu­stome amongst all men, that the first born doth succeed and inherit. And if we will believe Sir John Heywood, a late, and learn­ed Doctour of the same Laws; he tells us, that all the best, and most approved inter­preters of the Civil, and Cannon Laws, do jointly hold, that Parents have no lawful power to invert, or pervert, the due course of inheritance, unless there be some such great cause, as was in the case of Ruben, and the word Senior (say they) which[Page 25]signifies priority of birth, is often times taken for Lord; and not without cause, for sayes on Apostle 1 Timoth. 5. Senio­rem ne increpaveris, sed obs [...]cra ut patrem, Do not disrespect thy elder, but honour him and treat with him, as if he were thy father; and indeed the Senior, or eldest of our sons (as is manifest, Gen. 27.49. Gal. 4. &c.) is to be as a Lord over the rest of his brethren.

But the Apologer it may be (being him­self a Divine cannot rellish any other au­thority, but from Divines; I will therefore, for his better instruction, and satisfaction (if it can be) present him with the opinions of two very authentique Divines, and of great antiquity S. Chrysostome, and S. Je­rom. S. Chrysostome, in his fift Sermon a­gainst Iulian, saith, that the first-born is is to be esteemed more honourable then the other children; and S. Jerom, in his Epistle to Onogron, and upon the 49. Gen. saith, that the right of inheritance is only due to the first begotten, or eldest son living.

Proof out of the Common Law.

THat our Common Laws give power to a father, and free will to dispose of his own, as far as reason shall guide his will, with­out all obligation to his heir; all Lawyers agree, that such Parents who have estates in Fee simple, may alien, sell, and give, by power of our Law, their lands to whom they will, without respect of person, or Eldership: for it is lawful for every man to dispose his own, as far as the Law shall per­mit him.

Answ. You see here how the Apologer layes down the Law against elder brothers, and indeed against all children; for fathers may (as he sayes) do what they will with their own, for so the Laws permit. I might here answer him with his own two sayings; that Laws without reason are no Laws at all, and that extream Law is extream inju­ry; but he shall have a fair answer, and I hope, a full one.

It is well known, that it is impossible for any Law (though there were a thousand Solons to compose it, and the wisdome of a[Page 27] Solomon to assist them) that could prevent all inconveniencies, and those are the best Laws politick, that prevent most. And I am so far from thinking the Laws to be faulty herein, that I must ever approve the goodness and wisdome of them, in allow­ing Parents so absolute a soveraignty over their estates and children: for it is most necessary and just, that Parents should have this free power permitted them, be­cause it is a great means to keep their sons in a due obedience, and make them strive, by a noble emulation, who should best de­serve their fathers love.

And the Apologer knows that usury is permitted by the Laws, and usury (as him­self sayes) is as grievous a sin in the eye of Heaven, as theft is; and he may as soon prove, that usury or theft is lawful, as he can prove, that an eldest son, who is wise and dutiful, may lawfully and religiously be disinherited; for he cannot deny, but that the intention, justice, and equity of the Law is, that eldest sons should inherit; so, that upon the matter, fathers are but Feof­fees in trust of their estates and children, and this great power is only lent them to prevent inconveniences:

[Page 28] Proof 18. That the Common Laws are of most force, to sway the point in questi­on, which I have therefore purposely re­served to treat on in the last place. That by the Common Laws, a man may give his lands in Fee, either by deed in his life, or will at his death, to any of his sons; yea, to a stranger, without rendring a reason why he doth so: That it is no offence to part an inheritance amongst children, or to disinherit an eldest son, upon just and evi­dent cause of incapacity, if it be done ac­cording to course of Law.

Answ. If the Apologer supposes by his just and evident cause of incapacity, that the eldest son be a natural fool, or madman, we will not much dispute the matter; but if he means, as he every where pretends, that the want of the fathers affection and will, is a just and evident cause of incapaci­ty, he is in a gross and shameful errour; and I cannot but marvel, why the Apolo­ger should so much urge the authority and force of our Laws, on the behalf of his younger Brothers: for there is nothing so sacred in our Laws, as are the rights and priviledges of Primogeniture or eldership: old Bracton, and divers others of our great­est[Page 29]Lawyers, do plainly aver, and prove, that our Laws are herein divinely ground­ed, and they give their Text, Numb. 27. A perpetual Law, as the Lord commanded Moses.

And though the eldest son should be a natural fool, or madman; yet if the fa­ther do not otherwise dispose of the estate in his life time (and it may be a question whether he may lawfully and religiously so do, for it would be a wrong to all the suc­ceeding posterity) yet this natural fool or madman, and his eldest son after him, or the next in blood who should succed him, is by the power and ordinance of our Laws to inherit.

And such is the indulgence of our Laws, towards eldest sons and their rights, that the Law takes even natural fools, and mad­men, (if eldest sons) into its bosome and protection; and the estates are preserved that they may run in the right course of in­heritance, which is, to the next in blood, or from one eldest son unto another. And surely Mr. Apologer, I know not why you should be much commended for your inte­grity, in perswading Parents, that all is well done which is done by the power and per­mission[Page 30]of the Laws; if you had aimed (as you say in your Epistle) at the general good of great Brittain, you would have told Pa­rents, what they might lawfully do, and not what they could do; but suppose there were so absolute a power in Parents as you would have them believe, what would your younger brothers get thereby, for whom you apologize: why forsooth, nothing at all, but what pleases the Parental Mo­narch, for fathers may give their lands, and goods, to a stranger, or to whom they will, with rendring a reason why they do so; I would fain know, whether any thing can be more inhumane and monstrous, and whether there was ever such a desperate John an oaks as this wild man: for though he would a little hide himself under the words of a just and evident cause of inca­pacity; yet he confidently avers, or seems to infer it, that it is a sufficient warrant for any mans conscience to do, as the Laws shall enable him; currat lex, valeat quan­tum valere potest.

Proof 29. That though the use and cu­stome be, that eldest sons inherit; yet the breach of this custome is no sin, for it is such a customs, which rather invites then[Page 31]commands or binds; that customes against Law are void by the Civil Law, and that it was never yet heard that custome was of such force, that it should be deem'd a sin, not to follow a custome, especially when the Law is more pious and natural then the custome is.

Answ. It is true, that no good Christi­an ought to observe any bad custome, and no custome is to be kept, which is against the Laws; if the Law be more pious and natural then the custome is; but that it is against Law and Christian piety for eldest sons, who are wise and honest, to inherit the greatest part of their fathers estates, or that a father may lawfully, and religious­ly, disinherit such a son: I cannot think him a wise or honest man who can believe it.

And whereas the Apologer sayes, that it is but by way of custome that eldest sons inherit; he cannot but know, that next to the Divine commands) there is not any thing can more bind the conscience, or more satisfie and settle the judgement, then a general practise or custome, if the custome be good and just, as it is in this case of inhe­ritance.

[Page 32]And he knows also, that our Laws are divided into three parts, Statute Law, Common Law, and Custome Law: and Custome is a second Nature: the Apologer sayes, that it is the more general practise, or custome, for eldest sons to inherit; and how can we better repose our consciences and judgements, then in a general practise, or custome; and how can any man think otherwise, but that Parents do thus, and have done thus, even from all antiquity, moved only by right reason, and out of con­science, in obedience to to the Laws.

Proof. Of the Law of Nature.

THat many younger brothers and si­fters, for want of due means from their fathers and elder brothers, are forced to shift, which, as these times shape, is either to live lewdly, or miserable. That the trade of Merchandize, the Mili­tary profession, the Courtiers life, the service of Noble men, and the like; have advanced more in former times then now they do: and this kind of life, is not so grateful to our English Gentlemens na­tures,[Page 33]as anciently it hath been: Ergo, fa­thers are to allow, and leave more largely to their younger children.

Answ. The Apologer having used the Laws at his pleasure, begins to tax the times: for, sayes he, younger brothers for want of means, are forced to live, either lewdly, or miserable, as the times shape. He next falls upon the Camp, Court, and City; for, sayes he, neither Merchandize, Souldiery, nor service of the King, will serve now adayes to prefer, and help younger brothers; and he gives this reason, and very wisely, because such courses of life are not so grateful to our English Gen­tlemens natures, as anciently they have been; and younger brothers being careless to encrease their small Patrimonies, by thrift, and honest industry, do by his own reasons deserve no Patrimony at all: for (sayes he) interest Reipublicae, ut quilibet re sua bene utatur, it concerns the Common­wealth, that men be good husbands, and imploy their goods in such a manner as shall make most for the good of the Com­monwealth.

Yet I deny not, but that it is a great er­rour in Parents who have great estates, to[Page 34]leave so little as they usually do to younger sons: for such younger sons, who have small Amunities, and have never been in­ured to labour, nor have any other means to get their living by, when their necessi­ties make them say with the Steward, in Matth. I cannot dig, and I am ashamed to beg: it doth often force them to dishonest courses, and is a cause of numberlesse mis­chiefs; and no marvel, for it is a hell to the minds of most men to decline to more inferiour courses, then those have been bred up with: and therefore it were much better that Parents themselves would have a better respect to their younger children, and not leave them (as too many do) to the courtesie of their eldest son, whom they endeavour to advance, by making the rest of their children beggers; or by leav­ing them so little, that they are not able to maintain the place and credit of their Birth. I heartily wish it were otherwise, and that Parents would be better advised: But Mr. Apologer, you are clean beside the matter in question, for you undertook to prove a fathers free power, in disposing of the estate at his pleasure, and that eldest sons, have no superiour right to inhe­rit above other sons.

[Page 35] Proof 21. That the custome of eldest sons to inherit, hath rather been the over­throw, then the preservation of Families: for, when such custome was not in use, we find in Livy, that three hundred of the Fa­bii, all of one name and Family, issued out of Rome gates, at one time, on their own cost, for the defence of their City, who were all slain: In Scotland also, three hun­dred of the name and Family of the Fra­zers, all Gentlemen, were at one time slain in fight by their enemies; and no lesse then an hundred and fourty Gentlemen, of one name in Yorkshire, waited on the chief, or principal man of their house, at that time high Sheriff.

Answ. It is true indeed, that the Fabii issue out of Rome gates, on their cost, and to their cost, for it cost them their lives, Ʋna dies Fabios, ad bellum miserat omnes, sayes Ovid: And if the Apologer would have it thought, that the custome was then to divide the estate amongst the sons equal­ly, for the enlarging and preservation of Families; the best he can make of it, is, that it was but a heathenish custome, for the Romans were then heathens. And con­cerning his story of the Frazers, I know[Page 36]why he should make any mention of it, un­lesse he would have his Reader to consider how much the Fabii and the Frazers did sympathize, because their names began both with a letter; as also, because they were both of a number, and both of a for­tune, for they were all slain by their ene­mies: and the Yorkshire Sheriff (as him­self sayes) was the chiefest or principal man of that House, that is, that he was of the eldest, or noblest House; and therefore by his own saying, there was no such custome then in use as he speaks of.

Proof 22. That the custome of eldest sons to inherit, hath been in use but of late times; for how else could it come to passe, that in this Kingdome there were at one time so many great and honourable Fami­lies of one blood, disjoyned in their seats, and distinguished in their Armories, by dif­ferent arguments; or who is so meanly seen in our Antiquities and Stories, as not to know it was so: and that many renowned Houses (to speak as de magis notis) Planta­ginates, Mortimers, Beaufords, Beau [...]hamps, De la Poles, Nevils, Grays, and the like, have grown and flourished from one com­mon Ancestour, it cannot be refelled. But [Page 37]in these our times, we find so great a decay of ancient families, that if there be one Family in a shire of three hundred years continuance, very many others are scarce five descents in blood.

Answ. The Apologer needs not think it so strange, that there should be so great a decay of Families, for being so well vers'd in History, as he would seem to be, he must needs know, that many great Nations and Peoples, are not only decayed, but have utterly lost their names: what I pray you is become of the twelve Tribes of Israel, who were a thousand times more glorious then then the Families he recites? and our very next neighbours the French, do not know where their Germane Ancestours cal­led Franci did inhabit; only our Cambro-Britanni can derive their descent from the Moon, but other Nations are not so happy.

And concerning those honourable names mentioned by the Apologer, as Plantagi­nets, Mortimers, Beaufords, &c. it cannot be thought (as the Apologer would have it) that the custome was then to divide the estate amongst the sons equally; for when a Family is gotten to an eminent height and[Page 38]power, it is an easie matter to advance younger sons, by making some of them Bishops (as the use then was) who should help the rest, or by preferring them to of­fices and imployments of state; or by mar­rying them to heirs general, and we see at this [...] day, that the honourable name of Howard, is as largely spred into as many several branches, as any of the rest were then, and yet I never heard of any disin­heritance practis'd by them, or that they used to make an equal division of the estate amongst their children.

It is true, I think, that there are not ma­ny Families in one shire of three hundred years descent, though (doubtless) some are of much greater continuance; but the cause is not (as the Apologer would have it suppos'd) because eldest sons inherit; but it is rather the meer act, and ordinance of God; for it is only God who gives chil­dren, and if there be no children, the Fa­mily must needs extinguish; and we find in Mr. Camden, and in our ancient records and deeds of conveyance, that many hundreds of names, of noble and ancient Gentry, are either lost for want of children; or by marrying of the heirs general, and the Apo­loger [Page 39]knows, that the Civil wars, treasons, manslaughters, felonies, and the like: have been the ruine of many noble houses, which could not have been prevented with all the Apologers natural reason; or by any free power, or care of fathers.

Proof 23. That it is far from the Law of Nature, or Paternal piety; the father dy­ing intestate, the eldest son to become Lord Paramount of the estate, and not to be bound by Law to provide for brother, or sister, but at his own good liking, aliud tempus alios mores postulat; when we have a wiser age, we shall have better customes: and men both of learning and virtue, have broke this custome upon good considerati­ons, and just causes, not upon spleen, by leaving their fortunes to strangers, or to a lustful issue, as some have done.

Answ. The Apologer cannot be igno­rant, that if the father dies intestate (which the Laws suppose he will not do) being so much bound in conscience to provide for all his children) our Courts of equity do rectifie, and regulate the Laws in such ca­ses: and the Civil Laws (as sayes he) or­dain, that every son and daughter, shall have a legitimate or childs part, whether[Page 40]the father dies intestate or no. And surely, I cannot think, but the Law does well, in leaving such a large and absolute right in eldest sons; for were the estate (as the A­pologer would have it) to be equally divi­ded amongst all the children, and the Law­yers and Neighbours should be called upon to make the division: every of the chil­dren would think his own part least, and trouble the Courts for a new and better di­vision, until they had divided and brought the estate to nothing.

But I pray you mark the uprightnesse of the man: it is, he sayes, against natural reason, and paternal piety, that eldest sons should inherit the estate; but he no where sayes, that it is against natural reason, and paternal piety, for fathers to disinherit their lawful children, and give their estates to strangers and Bastards: Nay, he seems to incourage them what he can; for they shall (sayes he) not want presidents, nor do any more then others have done before them, and will do after them.

Proof 24. That it is against natural rea­son (which is the grandmother of all Laws) that the temperate should be sub­ject to the intemperate, the sober and wise[Page 41]to fools and franticks: That servitude pro­ceeds not from the Law of Nature, but from Nature corrupted: That it is against natural equity, and against Nature her self, that men should be subject to beasts, or in­sensible creatures: whereupon Aristotle disputing the nature of rule and subjection, saith, that none are born slaves, but such as Nature hath abridged of the use of rea­son; who being truly slaves, are utterly unfit to govern: upon which ground the same great Philosopher prefers that form of policy, where the wisest, and best, are admitted to the mannage of state affairs; and therefore if it be Natures intent (as it is) to make all mankind reasonable: how reasonable is it, that they who are unrea­sonable ought to be deprived of all right, and claim to any thing (more then to su­stain nature) and debarred all superiority, or seniority, which by Law, or custome, might otherwise have faln on them; because according to divine ahd humane Laws, man ought not to be govern'd by beast, such as Idiots, and Franticks seem to be.

Answ. Here is a note beyond Elah, but he cannot want his answer, for he hath it already: the effect of all this fair flourish,[Page 42]being but this; that such eldest sons, or a­ny sons, who are natural fools and mad­men, or extreamly and desperately vitious, are not fit nor worthy to inherit.

But I know not what the Apologer should mean by his alledging Aristotle; that none are born slaves, but such as na­ture hath abridged of the use of reason; and that servitude proceeds not from the Law of Nature, but from Nature corrupt­ed: if by the word servitude he means subjection, he grosly errs: for it as natu­ral for a son to obey his father, as it is na­tural and pious for a father, to relieve, to instruct, and govern his son; but the words slave and slavery, are of so ill a sound, and bad a sence, that as no man is born a slave, so no man (methinks) should either be, or be made a slave. Natural subjection does well, both in son and subject; but slavery is unnatural, and monstrous, both in him that forcibly, and undeservedly, inflicts it; and in him that suffers it, unlesse it be for the cause of religion, and then it is an ho­nour.

But, sayes he, it is against natural rea­son (which is the grandmother of all Laws) that the temperate should be subject to the [Page 43]intemperate, the wise to the foolish: and therefore in natural reason, that son who is the wisest and worthiest ought to be heir, if it so please the father: for he is Lord pa­ramount, and he must be the Oracle. But, Mr. Apologer, what if this your Oracle, the father (which is no very strange thing) should be foolish: for fools can get chil­dren as well as wise men; there is little dif­ference betwixt either of them that way. Suppose, I say, that the father himself be foolish: why? what if he be? may the Apologer answer, fools are Christians as well as other folks; and he may (by chance) for all that, make as good a choice of an heir, as a wiser man; and this answer of his would be as solid, and as much weigh­ty, as any other authority, or reason, he hath yet alledged, for his pretended free power of Parents, or against the rights of eldest sons.

Proof 25. That it is no sin, nor offence for a father, who hath estate in Fee simple, to disinherit his eldest son, or any of his sons, for he hath a lawful power so to do: Ergo, fathers may with a good consci­ence.

Answ. It is a hard matter to perswade [Page 44]some men what is sin: our precise Separa­tists, and new Anglians, will acknowledge no sin but infidelity: and some others there are of the Diabolical Sect, of ede, bibe, & lude. who think there is no sin at all: but the Apologer is none of these; for he ho­nestly sayes, Natura Divinitatis fulgor, that Nature is a bright beam, or shining lamp of the Divinity: and he sayes also, Omne peccatum est Divinitati injuria; that eve­ry sin is a wrong, or an affront to God him­self. And what can be more against Na­ture, then that a father should disinherit his own flesh and blood, which are his chil­dren, and give his estate to strangers: and what can be a greater affront to God, then that a father should disaffect and reject his children? whom God hath not only given him, but given them for his honour: for it is said, Eccl. 3. and Prov. 17. that fathers are honoured in their children. and that the Crown, or glory of old men, are their chil­drens children.

The Apologer sayes, that it is a mon­strous immanity in any man, not to have care to preserve his Species, that is, not to have care to preserve, and provide for his children: and can it be a monstrous imma­nity,[Page 45]and not a sin? he also sayes, that eve­ry act in it self, or by circumstance, evil; is before God and man a sin, and no way to be executed by a Christian: That an act of it self lawful, done against Law, is sin; and that no Law is valid, where the thing it self is unlawful and a sin: and is it not then a sin to disinherit an eldest son, unto whom, the Laws, both Divine and humane, give the right of inheritance, and which we also see confirmed by the general practise of all good Parents.

Proof 26. That we cannot in conscience sell, or give a weapon, to one whom we know intends to murder. Excommunicati­ons are imposed on them who sell armours or weapons to Turks. The rule of con­science, not only commands a man to use well those fortunes, which God hath be­stowed on him; but forbids him, either for affection or gain, to part with them to o­thers who will abuse them, lest he partake of others sin, which a Parent may do after his death, who parts from his estate, to a desperate unthrift.

Answ. It is true, that if we can assured­ly know, that our goods will be spent to the dishonour of God, the harm of the [Page 46]Commonwealth, or to the hurt, or wrong of any man, we are neither to sell nor give them to such persons as will so use them; and if an heir be desperately vitious, there is no question but his father may lawfully and religiously disinherit him; but how can a desperate sinner, or unthrift, be known? We are divinely commanded, not to judge any man, Rom. 14. which is so to judge him, but by Gods grace he may be otherwise, and be hereafter a glorious Saint in heaven: when he that judgeth him (for ought as he knows, or can know) may him­self be an abhorred reprobate; qui stat, vi­deat ne cadat, he who presumes most of his sure footing, is in most danger of fal­ling.

And though a son be vitious and an un­thrift, doth it necessarily follow, that he that is once an unthrift musty alwayes be so: We have daily experience to the contrary; many unthrifts prove the best husbands, for such men commonly run out of one ex­tream into another, and from prodigallity, fall to penury.

But if the eldest son be a natural fool, or mad man, he is not capable to mannage the estate; or, if (according to the Apo­loger) [Page 47]he turns Turk, and tramples upon all Laws, divine, and humane; I will say with the Apologer, that he is so unfit to inherit, that he is not worthy to live: but I cannot conceive how in conscience an el­dest son can be disinherited, meerly for his unthriftinesse: for we may so estate our land (and yet suffer him and his heirs to in­herit) that it shall not be in his power to hurt, or to overthrow his family.

Proof 27. That if in conscience the whole inheritance of the father, is to come, without controul, to the eldest son; then must it of necessity be inferred, that the fa­ther, without his consent, cannot give to pious uses, or set out for his other children after his death. So, that if God should blesse a father with many children, and crosse him with as many misfortunes, his other children, and all his other charitable intentions, should be provided for, only, at his sons or heirs courtesie: for thereupon all donations to pious uses, and to younger brothers for their portions, may be called in question.

Answ. Eldest sons are not to inherit all the estate, but only the greatest part of it, fathers being to provide for all their[Page 48]children. And I deny not, but that every man is bound in his Christian duty, to do what good he well can to his neighbour, or Christian brother: for sayes an Apostle, Rom. 14. No man is born to himself; and the Apologer hath a good saying, Da quae non potes retinere, ut consequaris ea quae non potes amittere. Give of those things which thou canst not keep, that thou maist gain such things as cannot be taken from thee.

But Mr. Apologer, I must tell you, cha­rity begins at home: Proximus quisque sibi, we must first look upon our selves and chil­dren, and then upon our neighbour, or Christian brother; but i'le come nearer to you: put the case, that a father were to make the Church, or Commonwealth, or children his heir; which of all these may he the more lawfully do?

The Apologer it may be would be on the Commonwealths side, for then the estate would be divided, and he might chance to have a share amongst the rest; but I must ever be on the childrens part, and will give a plain Text for it: S. Paul, in his fifth E­pistle to Timothy, saith, that he who hath not care to provide for his family, doth deny[Page 49]the faith, and is worse then an Infidel; but it is no where said, that he who hath not care to build Churches, Colledges, and Hospitals, doth deny the faith, and is worse then an Infidel.

Proof 28. That it plainly appears out of the sacred Text it self, that fathers had a power amongst the Jews, to cause their children, for riot, disorder, and unthrifti­nesse, to be stoned to death: Ergo, they had power to disinherit, for the greater ever includes the lesse; and that I may not seem to speak without book, I will set down Moses words, which are as follow: If a man have a stubborn and rebellious son, that will not obey the command of his father; and being chastised shall be unreclaimable, they shall apprehend and bring him to the Seniors of the city, and to the place of justice, and shall say to them, This our son is incorrigible, and disobedient: contemns or monitions, aban­dons himself to riotous excess, and is a drun­kard. The citizens shall then overwhelm him with stones, and he shall die: That you may take evil from among you, and that all Is­rael hearing it may fear, Deut. 21.

Whence we may collect how odious a crime unthriftinesse, & riot, was among the[Page 50]people of God, and what ample power the father had, to punish the same in his child: for if we observe well the manner of the processe, between the father and the child in this case, we shall find, that the father was witnesse, accuser, and judge of his own cause: for we read not that the Senators of the city did give sentence, or further exa­mined the proofs of the fathers accusation; but their presence, giving as it were allow­ance to a fathers power and intention to punish his son; the people might, without more inquiry, stone to death, so evil a de­serving child; which being well consider­ed, my hope is, that it will never hereafter seem unlawful, or against conscience, that a father should disinherit his eldest, or any of his sons, for the cause only of unthrifti­nesse and riot.

Answ. It is (they say) a shame to bely the devil, then much more to bely Gods chosen people; for had the Israelites been so much merciless, as the Apologer would make them: would Moses himself (and from the immediate mouth of God him­self) would he have said, Deut. 8. that as a father disciplineth his children, so doth God discipline his people: and would the royal [Page 51]Prophet (who was a man according to Gods own heart) would he have said, Psal. 102. and 118. that the mercies of God are infinite, and far above all his works: and that as a father hath compassion of his children, so hath God compassion of them that fear him.

And would he have done so to his trai­terous and inhumane son Absolon, whose villanies were so transcendent, that they have out gone all example. Would he have pardoned and compassionated such a son; and wished he could have died for him, if the Law and practise of the Israe­lites had been put to death their riotous and unthrifty children, which are offences so mean, that in respect of Absalons inhuma­nities they deserve no mention.

It is true, the Jews had a power permit­ted them to bring their riotous and rebelli­ous sons to the Seniors of the city, and to the place of judgement; but these Sena­tors were not to take the bare word of the father, and so to proceed to judgement: for what can be more unnatural and impi­ous, then that a person accused should not be heard speak: and that Judges, upon a bare allegation, without and examination[Page 52]or proof, should immediately give sentence of death.

And surely, we may well believe, that this Law was only permitted the Jews (as was their Law of divorce, Matth. 19.) or rather that it was made in terrorem, for ter­rour, and not for execution; for the words are, that all Israel hearing it might be a­fraid; and we find not that any son, meerly for his riot and obstinacy to his father, and by the procurement of his father, did ever yet suffer death.

And we may piously believe, that our blessed Saviour had himself some reference to this stoning Law, when he said (speak­ing to the Jews) Matth. 7. Luke 11. Which of you is it? of whom, if his child shall ask bread, will he reach him a stone? Which of you is it? as if that Divine mouth should say, is there any such man amongst you? or, if there be such a man, what man is he? or is he, or may he be called a man? who can find in his heart to reach stones, wherewith to kill his own children.

And concerning his inference, that fa­thers have a free power to disinherit their eldest sons for unthriftiness and riot; be­cause by this Law, Deut. 21. the Jews had a[Page 53]free power over their childrens lives, and the greater includes the lesse: his reason is to as much purpose, as his was, who being asked, whether great heads or little heads had the more wit; made answer little heads: because, omne majus continet in se minus: meaning, Omne majus caput continet, in se minus ingenim.

For the Apologer cannot but know, that disinheriting, and putting to death, are two distinct things; and if they be unjustly done, it is hard to say whether is the great­er injustice or wrong: for it is said, Ecccl. 34. He that taketh away his neighbours li­ving, killeth him: And surely it is much more foul and sinful, for a father to disin­herit and undo his children, then for one neighbour to defraud and undo another; and especially to disinherit his eldest son, whom the Laws, both divine and humane, have made the heir, or the chief Lord and Governour of the family.

Proof 29. That because examples in all controversies of fact, are the best fortifi­cations, I will therefore in illustration of the premises, add some few to the former; drawn as well from royal presidents (by whose patterns, totus componitur orbis) as[Page 54]from inferiour persons, whose qualities best fit the condition of our present subject: and if Kingdomes and Commonwealths have favour'd it, then certainly by all ar­guments, à majori ad minus, it may much rather be done, and ought to be suffered in private Families.

The offering of Abel, was better accept­ed of God, then the offering of Cain. Japhet the youngest son of Noah, had Eu­rope allotted to him for his inheritance, which in all arts and uses of life, far excels Affrick and Asia, and all the rest of the earth.

Answ. Examples are, indeed, the light and life of natural reason; experientia do­cet, hath ever been, and will ever be, the most sure rule of rational judgement. And surely, Mr. Apologer, your examples will want both in weight and number: if you will go that way to work for your younger brothers, we shall be able to out-vy you, at a thousand to one.

The sacrifice of Abel, sayes he, was bet­ter accepted of God, then the sacrifice of Cain: he confesses that it is not fit to urge this, and I confesse it is to no purpose: for it concerns neither inheriting nor disinhe­riting,[Page 55]there being then, and for many ages after (as himself sayes) no ptoprie­ties, or estates in the world at all.

And concerning Japhets large portion, which was no lesse then Europe; for so (sayes he) all authentique Histories do wit­ness: he will have much ado, to get any man of authentique reason to believe him; for he must first prove, whether Europe were then known by that name or no; and whethet it was then so divided, and bound­ed, as now it is: as also, which of his sons had America. It may be he will say the el­dest son, which if he had, having a third part of the world beside (whereof Eu­rope is the least) and therefore the fittest for the youngest son: he had no reason to find fault with his father; for (next to A­dam and Noah) he was the greatest Mo­narch for territory, and one of the least for dominion, or people, that the world ever had.

Proof 30. That the disinheritance of Is­mael, the eldest son of Abraham, and of Reuben the eldest son of Jacob, are invin­cible arguments of a Fathers free power.

[Page 56] Answ. It is true, that Ismael, who was the eldest son, did not inherit; and the rea­son was, because he was begotten on a handmaid, and not on a wife: and if the Apologer would make this an invincible ar­gument (as he calls it) of a fathers free power; he must get new Laws made, and remove lawful issues, to make room for ba­stards: though Ismael, (as the Law then was) is not to be reputed illegitimate.

Reuben did deservedly forfeit his birth­right, for he dishonoured his fathers bed; which had he not done, he had not been disinherited: for his father termed him, prior in donis, & maior in imperio; as also, his dignity, his power, and his strength.

Proof 31. That the examples of Esau and Jacob, and of Ephraim and Manasses, where the younger brothers were by divine election preferred before the elder, are un­answerable proofs of a fathers freedome in disposing of his estate.

Answ. These examples of Jacob and E­phraim, so much and often advanced by the Apologer, make more for the advantage of eldest sons, then for the pretended free [Page 57]power of Parents: for Esau demanded the prime blessing of his father (and his fa­ther intended to give him the blessing) be­cause he was the eldest son: which his right, he freely and willingly (and volenti non fit injuria) had before sold to his brother.

And when Jacob had put his right hand upon the head of Ephraim, intending to give him the prime blessing; their father Joseph was much troubled, that his father should do so unjust a thing; and thinking that Jacob was mistaken, by reason of his blindness, he endeavoured to remove his hand to the head of Manasses, saying, this is my eldest son, put therefore thy right hand upon his head; but Jacob refused say­ing, I know my son, I know: and therefore unless fathers can infallibly know the di­vine will, by divine revelation (as Jacob did) or have such as Jacob had, concerning his eldest son Ruben, they ought not to dis­inherit their eldest sons at all.

To conclude, these examples so much ur­ged by the Apologer, do plainly show an apparent and undeniable right, belonging to eldest sons: and make nothing at all for the pretended free power of Parents; but do, indeed, chiefly concern the divine pro­vidence, [Page 58]and eternal predestination, and did prefigure the conversion of our fore­fathers the Gentiles, according to the di­vine word, and divine Ordinance, Gen. 25. Malaoh. 1. The elder shall serve the young­er: and will not the Apologer give God leave to dispose of his gifts and graces, as himself best pleases.

Proof 32. That it appears by Solomon, his succeeding his father David, that Da­vid had power both of the Laws of God and man, to give his kingdome to the wor­thiest, which he deeming to be Solomon, did (upon the entreaty of his wife) give him the Kingdome, though he was the young­est son.

Answ. The preferring of Solomon to the crown, doth no way impeach the rights of eldest sons: for as David was himself di­vinely chosen, being the youngest son; so we may assuredly believe that he elected Solomon, who was his youngest son, to suc­ceed him, moved only (thereunto by divine revelation, for it cannot be thought (be­ing as he was) a man according to Gods own heart) that he would otherwise have[Page 59]done it. And this good King had more reason, and more freedome to dispose of the Kingdome, then any other King hath since had: for there had been no successi­on of Kings before him to establish a right, nor any Laws made by the general votes of the people, to erect a course of inheri­tance, concerning the Crown; and Da­vid himself did not inherit, but was divine­ly elected and created King.

But I would have the Apologer tell us, how many other Kings there were of Israel or Juda, who were younger brothers; and if he would make this an argument of dis­inheritance, he shall much abate his pre­tended free powers of fathers, and leave it in wives (for David was entreated by his wife) which will make more work for wo­men, who are already too busie and such actions, and others that belong not to them.

Proof 33. That Augustus Caesar did not settle the imperial succession upon his Grandson Agrippa Posthumus; but upon Tiberius, who was no kin to him; because he thought him more fit to govern. Chos­ros, King of Persia made Medarses his[Page 60]younger son consort with him in the Em­pire, leaving out Sinochius who was his el­dest son.

The Emperour Ferdinand left the Em­pire, with Austria and the Kingdomes of Hungary and Bohemia, to Maximilian his eldest son: unto his second son Stiria and Carinthia; and to his third son, the Earldome of Tirol. Philip King of Spain, gave unto his daughter the seventeen Pro­vinces.

Answ. The Apologer, having done with his divine, and (as he calls them) invin­cible examples; bestows upon us some o­ther presidents, as little invincible as the former, which also shall be answered.

Augustus came in by conquest, and there­fore might the better appoint his Successor; and he made so good a choice of one, that instead of Tiberius, Nero: he was for his intemperance called Biberius mero.

Chosros, the Persian King, made his younger son consort with him in the Em­pire, but it cost him dear: for the people detesting so unjust an act, took arms against him, expelled both him and his usurping consort; and put the Scepter into the[Page 61]hands of Sinochius, who was the eldest son.

The Emperour Ferdinand did well, in leaving his younger sons so well; but he did better, in leaving his Kingdomes and Empire unto Maximilian his eldest son.

And Philip King of Spain, rather lent then gave the seventeen Provinces unto his daughter, the late Arch Dutchess; for she was not then likely to have children, being so far in years; and his gifts were no lesse prodigal then politick: for he gave her more then he had to give, or was able to keep.

But doth this make any thing against the rights of eldest sons, or for the pretended free power of Parents: It is well known, that no heriditary King can (as meerly of himself) disinherit his eldest son, the Prince; nor (as I have credibly heard) do any act, (as meerly of himself) which can impeach the rights and prerogatives of the Crown: by which it is clearly evident, that eldest sons have the only right to inherit; and that fathers cannot have such a free power, that they may at their pleasure, lawfully, and religiously, disinherit them: for, Re­gis [Page 62]ad exemplum—Subjects should follow the examples of their Soveraigns.

Proof 34. That our Proto-parent Brute, divided this Island amongst his three sons: Loegria, or England: to Locrinus, Alba­nia, or Scotland, to Albanact; and Cam­bria, or Wales, to Camber. King Leir gave his kingdome to his youngest daughter Cor­deilla: and King Roderic divided Wales a­mongst his three sons, which divisions are still called to this day, North-Wales, South-Wales, and Powes-Land.

Answ. The Apologer may do well to make it first appear there was such a man as that noble Trojan: The times are grown incredulous and critical, and bare words gain little credit; and our grand Historian, Mr. Camden, whom the Apologer terms the singular ornament of England, is al­most an Infidel concerning this Histo­ry.

As for King Leir, the story declares that his elder daughters were rebellious and un­dutiful, and (as Rebels) were fit to be de­posed and disinherited, and the story also[Page 63]tells, that the youngest daughter, who was the Queen, was a most infortunate Prin­cesse: for her Nephew Morgan, who was the eldest son of her eldest sister, took arms against her, discomfited her, and forced her to kill her self.

And for the divisions of King Roderic, it is alledged to as little purpose as the o­ther: for neither Bruce nor Roderic did disinherit their eldest sons; but gave them a better and greater part then unto the rest: and surely, no man can think they did well; to make such divisions, because their acti­ons did not prosper; but now (God be thanked) they are again reunited into one glorious Monarchy; and may they ever so continue (as long as the world shall con­tinue) in the Koyal Line of our Gracious Soveraign, who is descended to his Imperi­al Diadem, by the most noble, and only rightful way of inheritance: which is, from the next of blood, to the next of blood; or from one eldest son unto another.

Proof 35. That there is a Law, or cu­stome in Ireland, called Tanistrie: by which the land, and Chiefty of a name after the[Page 64]Predecessours death, is not awarded to the eldest son, but to the worthiest: the judg­ment whereof is left to the people, and such Tennants as have interest and right of suffrage; as Alexander the great (though as 'tis apparent in the Macchabees) very falsly said to have left his Empire: And that the tenure or custome of Gavell kind, allows every son to have an equal share in the estate.

Answ. It is marvel that the Apologer will acknowledge the Book of the Macha­bees to be Apocrypha, because it seems to make something for his pretended free power of Parents: and it is marvel he doth not condemn this Irish custome to be Apo­crypha; for there is nothing can make more against his power, because upon the matter, the futhers authority, and the for­tunes of the family, are in the power of the Tennants: he sayes, that all customes which are against Law, are void by the ci­vil Law; and he knows also, that a great part of this prople are still called the wild Irish; and surely, such customes are fitter for wild Savages, then for civil Christians:

[Page 65]And concerning the tenure, or custome of Gavell kind; it is true, that it gives an equal share of the estate to every son: but, as I take it, this custome was chiefly, and I think only, in Kent: and the Apologer grants, that some have altred it in their private Families, by Act of Parliament; and (doubtless) the cause hath been for the preservation of their Families, which, by such divisions, could not chuse but come in short time to nothing; and level the best and greatest of our Gentry, to the degree of the meanest Vulgars.

Proof 36. That Briand Lyle, or Fitzt earl, Lord of Abergavenny, having two sons, both leaprous, built for them a La­zaretto or Spittle; and gave to, Miles, Earl of Hereford, the greater part of his Pa­trimony from his children.

Jane, daughter of Hugh Courtney, and heir to her Mother, wife of, Nicholas, Lord Carew, disinherited her eldest son Thomas; quoniam, minus reverenter matrem haberet: and parted her lands, which were goodly among her three younger sons, of whom are sp [...]ng three worshipful Families of the[Page 66] Carews, called Haccomb, Ancony, and Bu­ry: So, that God by the success crowned the fact, and confirmed the lawfulnesse of partage.

Answ. The Lord Abergavenny did well in giving away a great part of his lands a­way from his two sons: for a Spittle was more fit for such sons then an inheritance; yet he left them a great part of his lands, and (doubtless) would have left them all, had they not been leprous and unfit.

And the Lady Carew did well in giving her lands to her younger sons: her eldest son being heir to his father, and having (as may be thought) a sufficient competency of e­state; but the true cause was, because he was undutiful, which had he not been, it is likely she had given him the greatest part, if not all of her inherited lands.

And you know Mr. Apologer, there is a different case betwixt an eldest son, who in­herits an estate from his father, and a daughter, who is an inheritrix: for the son is to do that which hath been done to him; and as he received an inheritance from his father, because he was the eldest[Page 67]son: so is he bound conscience not to dis­inherit his eldest son, because he would have been loth to have been disinherited himself; and that which we would not that others should do to us, we are not to do to any other, Matth: 7. Luke 6.

This is the very corner stone (as I may well call it) of the Law of Nature, and of the Law of Grace: especially, for so much as concerns morality and distributive ju­stice; but women (who are no fit presi­dents for men) have a greater freedome then men in this case: for they inherit by way of Parcenary, and every daughter hath an equal share in the estate, though the eldest, by reason of her Seniority, hath the priviledge to chuse first. and an inhe­ritrix hath the name of her Family extinct in her self; and therefore may at her plea­sure disperse her lands amongst her sons, the better to preserve the memory of her self, and Ancestours, from whom she is descend­ed: and no marvel, though God did bless with good successe the good acts of this Lady, for she did both justly and wisely.

But who hath known an estate long pro­sper, where a dutiful and deserving eldest[Page 68]son was disinherited by his father; I must confesse, I never did: such unrightful and lawlesse heirs, may be likened to the Ba­stard plants (which the Wise man speaks of, Wisd. 3. and 4.) that cannot take deep root, nor lay sure foundation: So that all these examples, by the Apologer alledged, are like his other arguments; they either make against himself, or serve to no pur­pose.