Jus primogeniti, or, The dignity, right, and priviledge of the first-born inquisited and defended against the impious practice of some fathers in disinheriting their first-begotten son in a letter to a friend in the country / by B.J., Esq.

JƲS PRIMOGENITI. OR, THE Dignity, Right, and Priviledge OF THE FIRST-BORN.

Inquisited and Defended against the Impious Practice of some Fathers, in Disinheriting their First-Begot∣ten Sons. In a LETTER to a Friend in the Country.

BY B. J. Esq

Most Worthy SIR,

I Have Received and Read your Letter, wherein you are pleased to tell me, that there is a Person (a Neighbour of yours) of good Quality, and of a very plentiful Estate in Lands, who is a Biga∣mist, or one that has had two Wives: By the former Wife he had a Son, now Living; and by the latter, another Son: And that he has been so profuse in his Love towards this last Wife and her Son, that he has settled all his Estate of Inheritance, after his own Decease, on this Younger Son, to the absolute Exclusion and Exhaeredation of his

* 1.1 First Begotten Son, that has been in his Life and Conversation no way guilty of any Filthy and Dishonest Acts, as to forfeit his Birth-Right and Inheritance; yea, he has not only, you say, deprived the Eldest Son of the Inheritance, but also denies to allow him any present Suste∣nance, to preserve that Life, which his Father hath given him; which kind of Behaviour in a Father you look upon as Prodigious and Unna∣tural; and so indeed do I, as well in respect of the Abdication or Ex∣haeredation, as of the Father's Denial of allowing the Son a present Subsistance.

As for Aliment or Sustenance, you must know, all Divines, Lawyers and Casuists do hold, that Parents do owe it to their Children by the Law of Nature, and do pronounce it to be a Debt, though not strictly taken, for that which by Commutative Justice we are obliged to do;* 1.2 〈◊〉〈◊〉 largely, and in a looser Sense, for that which cannot with Ho∣nour and Honesty be left undone; in which looser Sense, it is concei∣ved, that of Val. Maximus is to be understood, Our Parents, by Nou∣rishing us, have laid this Obligation upon us to Nourish our Children. And that also of Plutarch, in his Elegant Oration concerning the Love of Parents towards their Children, Our Children look for our Estates as due unto them after our Death: So great was the Equity of this, That St. Augustine would not admit that the Goods of such as had Exhaeredated their own Children, should be received by the Church. And as Procopius in his Persian Wars observes, Though Humane Laws do in other things ex∣tremely differ one from another, yet all Nations, as well Romans as Barba∣rians in this agree, That Children should succeed to their Parents, as the right Owners of what they leave.

* 1.3 But farther yet Sir, It is an Established Maxime among Philoso∣phers, He that gives the Form, gives things necessary to that Form. Therefore he that gives Man his Existence, ought as much as in him lies, to provide for him all things necessary for a Natural and Socia∣ble Life, for hereunto he was Born. There needs no Law to bind us to this Duty; for all other Creatures, even by Natures Instinct, do* 1.4 feed their Young: Hence it is, that the Ancient Civilians do refer the Education of Children to the Law of Nature. And Euripides compre∣hends all Creatures under one and the same Law; Which, saith he, is common as well to Men among themselves, as to them, with all other Sen∣sible Creatures. For that which Natural Instinct commends to them,* 1.5 the same doth Reason unto us. Of such force is Natural Affection, that it easily perswades us to Nourish our Children, saith the Emperor Justini∣an. These two Things, saith Cicero, cannot agree together, to wit, that Nature would have Procreation, and it would not have the Creature, when it is Born, to be Beloved and Conserved, the which appeareth, quoth he,

evidently in Brute Beasts, whose Labour and Care in the Conservation of* 1.6 that which is Born of them, is such, that we may acknowledge the force and voice of Nature therein. Wherefore it is manifest, saith he, that as we Naturally shun and abhor all kind of Grief; so also we are Naturally moved to Love the Issue of our Bodies. The same Cicero other where ex∣presses* 1.7 himself thus; Whereas it is common to all Living Creatures to have a Care of those things which they have brought forth, Nature has given especially to Man a Love to his Children, and a Care to provide them things necessary. To be short, Salust Condemns that Testament as Impious and Unnatural, by which the Son is excluded from his part of the Inhe∣ritance. And because this is a Debt that we owe to Nature, therefore* 1.8 the Mother is bound to Nourish the Child that hath no certain Fa∣ther. These forementioned Authorities being sufficient to prove, That Parents owe a part of their Goods to their Children, by the Law of Nature: I shall here subjoin what Foreign Legislators have enacted for the en∣forcing the Piety of Fathers towards their Children; and I will begin with those Texts that I have met withal in Justinians Digests, Code and Authenticks. * 1.9

In the Digests▪ there is a Purveyance made, whereby both the Fa∣ther is compelled to acknowledge his Child, (if there be any Vari∣ance between the Husband and the Wife, upon any Jealousy or Suspi∣cion of Adultery, if the same cannot be proved by the Womans own Confession, by Witnesses, by the Act it self, or some other violent Presumption) and to Nourish and Maintain the same; but if the Fault appear against her, and it be so Sentenced by the Judge, then may he as well refuse the one as the other; but for other Children, upon whom there is no such doubt, the Parents may be constrained to Main∣tain, Cloath and Feed them, and to set them out a Portion of their Goods, so that either the State and Faculty of the Parents will bear it, or the Children have not deserved to the contrary, wherefore they should not in that sort be provided for.

* 1.10 In the Code of Justinian, there is an Ancient Law extant, made by Gratianus, Valentin and Theodosius, to this purpose,

That neither the Woman Surviving her Husband, neither the Man Surviving his Wife, having Issue between them, during the Matrimony, have the pro∣perty of those Goods, which either of them brought one to the other, and are left behind by the Defunct; but the property is the Childrens of the Deceased, and the Use or Benefit his or hers only, which doth Survive, during his or her Natural Life; and for the return thereof to the Children that are the right Owners, the Civil-Law is so scru∣pulous, that if the Husband or Wife do Marry, it will have him that is to Marry the Widow, bound with good Sureties for due Restituti∣on

of the Defuncts part, unto the Children of the former Marriage.

In the Authenticks there are several Constitutions made for the pre∣servation of Childrens Properties, and Portions, whereof take these* 1.11 following Examples.

That it shall not be lawful for a Widow, coming to a Second Marri∣age, after her first Husband is Dead, to Sequester one of her Children from the rest; upon whom she will bestow such things as her first Hus∣band gave her before Marriage, but that the Benefit thereof shall be common to them all: Neither that she convey it over to her Second Husband, or his Children, and so defraud her first Husbands Children. And that a Man in like sort Surviving his Wife, shall do the like to∣wards his first Wifes Children; as concerning such Dowry as the first Wife brought to her Husband.

* 1.12 If Parents give profusely to one of their Children, the other not∣withstanding shall have their lawful Portions, unless they be proved unkind towards their Parents.

A man shall not have the property of his Wifes Dowry, neither the Woman the property of that which is given her before Marriage;* 1.13 but the property of either of them shall come unto their Children, yea, though they Marry not again. From the Civil Law of the Romans let us come to other Foreign Laws and Customs.

* 1.14 It was a Law among the Mexicans, to give all the Antient Inheri∣tance to the Eldest Son, and nothing to the rest, but Sustenance only; And not much better are second Marriages in Brabant, where the Chil∣dren by the second Venter, have no propriety in the Estate which the Father held at the Death of his former Wife. The like Law we find among the Antient Burgundians.

* 1.15 There is (saith a Learned Divine, Doctor Hammond, I mean) a Cu∣stom of Matrimonium Morgengabicum in some Countries, as Den∣mark, &c. at this day, where the second Wife and her Children that come from her, are not taken into a right of the Husbands Estate; she to have any part of it for her Iointure, or they for their Inheri∣tance, but only some Gifts or Portions, Assigned them by Compact, which are called Morgengab, or Marriage-Gift; with which they are to content themselves, without any part of the Inheritance. Hitherto of the Impiety and Unnaturalness of such Parents as shall deny their Children Aliment; as also of the Provision Foreign Laws have made for the Maintaining, Clothing, and Feeding Children, during the Lives of their Parents; and for preserving after their Deaths the property of either of them, for the benefit of their Children: I come now (Sir) to vindicate the Dignity, Right, and Priviledge of Primo∣geniture, against that Impious and Unnatural Practice of Disinheriting

First-born Sons; and that the practice of your Neighbour, can be no other than such, appears in this, that he has not Exhaeredated his Son by the former Venter, upon the account of any horrid Crime the Son has committed, but only to serve his own Foolish Fantacies, private Passions, and indirect Fondness: And therefore let him hear what Philo and others say to the point of Exhaeredation;a 1.16 Fathers (saith he) do sometimes pass Sentence of Exhaeredation on their own Sons, there∣by cutting them off from their own Families and Kindred, but never un∣til they grow Shameless and Incorrigibly Wicked, and that their Hatred of their Childrens Vices have quite overcome that great and unparallel'd Love which Nature had at first imprinted in them. Not much different is that of Phinehas in Diodorus, no Father doth willingly Punish his Sons, unless the measure of their Wickedness do very much exceed the measure of his Natural Affection: Nor that of Andronicus Rhodius, no Father can be so unnatural as to cast off his Son, if he be not extreamly Wicked. I cannot here pass over in Silence, the Famous and Heroical Behaviour of two Heathen Fathers towards their Wicked Sons; but propound it to all Christian Parents, as a Pattern for their Imitation. * 1.17

Valerius Maximus, saith thus of Quintus Hortentius; His Honour he bequeathed to his Blood, for though he detested the Wicked Life of his Son, yet Dying, To preserve the Order of Nature, be made his Son,* 1.18 and not his Nephews, Heir to his Estate; thinking it enough, that he had declared his dislike of his Sons Ill Manners whilst he Lived: And therefore Dying, he left him the Honor due to his Blood. The like he records of Fulvius, who causing his own Son to be Apprehended for Conspiring his Death; did not only forbear to Prosecute him whilst he Lived, but-Dying, made him Heir of all he had, regarding his Birth* 1.19 and Blood, and not his Crimes. Besides what has been by me Cited, in favour of the First Born; from the Pious Practice of meer Heathen Parents towards their Wicked Sons; I shall endeavour for the Confu∣tation of all Exhaeredators, to demonstrate unto you, that the Prefe∣rence and Prerogative of Primogeniture in point of Dignity, Right, and Possessions, which the First-born Son Claims to himself, is deri∣ved from the Law of Nature, Instituted by God, and highly approved, very much Regarded and Countenanced by our most Eminent Divines.

I. The Right, and Priviledge of Primogeniture, is derived from the Law of Nature

That this Precedency, both in Honor and Right appertains to the First-born by the Law of Nature, appears in this, That Primogeni∣ture is not only preferred where Gods Revelation of himself in the

Scriptures are received, but where they are not received; the Right therefore of Primogeniture is from the Law of Nature: Again, If Pri∣mogeniture had not been a Sacred Thing, and Inheritance annexed to it by the Law of Nature, then could not Esau have been pronounced a Prophane Person for Selling his Birth right, Heb. 12. 16. Altho' he did it to save his Life, Gen. 25 34. But being done by the Law of Nature, I say, Esau by his Sale could not transfer it to Jacob; yet, because Esau did despise it, Gen. 25. 34. it was just with God to transfer it to Jacob; neither can it be shewed any where in Sacred Writ, but that always Primogeniture in Descents, was a good Title, where God did not interpose; which is consonant to that which Ni∣cholas Conjates utters:a 1.20 Nature indeed observing her own Order, gives the greatest Honour to the First-born; but God (says he) hath a Prerogative above Nature, and acts not always by her Order: And there∣fore, though Primogeniture be preferred by the Law of Nature, andb 1.21 immutable by the Will of Man; yet is not God, as 'tis said before, subject thereunto; but before the Flood he rejected Cain, though the First-born of Adam, and made him a Vagabond, and none of the Pa∣triarchs. So in the First Age, after the Flood, God subjected Canaan, altho' the Son of Ham, Japhets Eldest Brother, to Japhet: And so* 1.22 did God prefer Jacob before Esau, and Ephraim before Manasses, and Solomon before Adonijah: Yet where and when God did not reveal himself to Man otherwise, was ever Primogeniture preferred.

II. The Preference, and the Prerogative of Primogeniture, in point of Dignity, Possessions and Consecration, is of Divine Institution.

This is manifestly evidenced by several places of the Holy Scrip∣tures.

I. In respect of Dignity and Power, as where God said to Cain of his Younger Brother Abel, His desires shall be subject to thee, and thou shalt have Dominion over him, Gen. 4. 7. So when Old Jacob called his Sons to Bless them, he expresseth himself in this wise to his Eldest Son Reu∣ben; Reuben, saith he, Thou art my First born, my Might, and the be∣ginning of my Strength, the Excellency of Dignity, and the Excellency of Power, Gen. 49. 31. Which kind of Excellency is acknowledged by the Good King Jehoshaphat, to be annexed to Priority in Birth; For he gave to his Younger Sons great Gifts of Silver and Gold, with Fenced Cities in Judah; but the Kingdom gave he to Jehoram, because he was the First-born, 2 Chron. 21. 3.

2. In respect of Possessions, As, where God forbiddeth the Father to Disinherit the First-Born of his double Portion, because by Right of Birth it is Due unto him, Deut. 21. 17.

3. In Respect of Divine Consecration, As, where God maketh Choice of the First-Born to be Sanctined and Consecrated to himself. Exod. 13. 2. and 22. 29. and 34. 19. Levit. 27. 26. Numb. 3. 13. and 8. 16. and 18. 15. Neh. 10. 36. Luke 2. 23. Sir, Any Reasonable Man would think that such Respects or Considerations as these should be enough to deter a Father from Depriving his Eldest Son of his Prerogative of Birth, and from preferring his Younger Son, which he has by another Wife, in Succession before him.

III. Priviledges of Primogeniture are highly Approved, and very much Countenanced, by the Divines of our Church.

What Respect and Care the Eminent Divines of our Church have had for the Preservation of the Order of Nature, and of Divine Insti∣tution, in the Right of Primogeniture, as to the Dignity and double Portion of the First-Born; shall be Apparanted (amongst many others) by a Triumvirate of Witnesses, to wit, Ʋsher, Taylor, and King.

I. What special Regard is to be had by Parents to the Eldest Son, hear what Dr. Ʋsher, Arch-Bishop of Armagh utters,

Since God (saith be) hath Honoured him with that Dignity, as to be their Strength, he should be also Honoured by them, (at the least) with a double Portion, as by the rest of the Brethren with Honour, yet so as he fall not from his Honour by some Horrible Sin.

Body of Divinity, or, The Sum and Substance of the Christian Religion, Page 262. Edit. 1648.

2. Dr. Taylor, Late Bishop of Down and Connor, touching The Sick∣mans Practice of Charity and Justice, speaks in this wise,

Let him make his Will with great Justice, and Piety, that is, that the Right Heirs be not defrauded, for Collateral Respects, Fancies, or Indi∣rect Fondness, but the Inheritance Descend in their Legal and Due Channel,

Holy Dying, Chap. 4. Sect. 9. Pag. 231. Edit. 1660.

3. My Third and Last Witness in Favour of the First-Born, is Dr. King, Late Bishop of Chichester, who expresseth himself in these very words following.

There be (saith he) but Two Great Rights, which you find in Scripture. 1. Jus Primogeniturae, The Right of Primogeniture. 2. Jus Regni, The Right to a Kingdom. In the First of these all Domination was Originally Founded; For the Elder Brother in his Tribe, was Princips Familiae, The Prince of his Family. And not only the Ex∣cellence

of Dignity which was his Birth-Right, but the Inheritance is so fastned to him, as if God intended no separation either by the Hatred, or Affection of the Parent.

The Text is most Remarkable, (* 1.23 and I wish all Parents would lay it to heart,) If a Man have two Wives, one beloved, and another hated, and they have Born him Children, both the beloved and the hated; and if the First-Born Son be hers that was hated:* 1.24 Then it shall be, when he maketh his Sons to Inherit that which he hath, that he may not make the Son of the beloved First-Born, before the Son of the* 1.25 hated, which is indeed the First Born: But he shall acknowledge the Son of the hated for the First-Born, by giving him a double Portion of all that he hath: For he is the beginning of his Strength, the Right of the First-Born is his.

Therefore, Tho' the Law hath been over Curious to un-rivet this Birth-Right, by God's and Man's Law Entailed upon the Elder, by bringing in Feigned Persons, and false Vouchers, and Formal Pro∣clamations to divest it. I must only say thus much, Sic non fuit ab Initio, (as Christ said of Divorce) It was not so from the Beginning; but out of the hardness of Mens Hearts did this Invention spring. How ill an Inheritance Wrested from the Right Heir, to be placed upon another, hath Prospered, let the Example of so many Unhappy Families Ruined upon this Account Testify,

Sermon on Ezech. 21. 27. Page 19. 20. Preached at White-Hall, on the 29 of May. 1661.

Thus, Dear Sir, having offered to your View, my Sentiments of your Neighbors unnatural Deportment, and Carriage towards his First-Born Son, as well in point of his Abnegation of present Suste∣nance, as of his Exheredation, I Humbly take my Leave of you, with this Assurance attending on it; that I am never more pleased, than when I have the opportunity of Subscribing my self,

Your most Affectionate Friend, and very Humble Servant.

Notes

• * 1.1

  Grotius tells us, that if a Person Disinhe∣rited, did not by his Crime de∣serve to be put to Death, he was to be allowed sufficient to su∣stain Nature. Lib. 2. 1. 7. Sect. 7.
• * 1.2

  Parentes nos ale••do, nepotum nutriendorum debito alliga∣runt. Liberi haeredi∣tatem ut Sibi debitam exspe∣ctant. Lib. 2. de vita Cler. & Ser. 52. adfrat. in Eremo.
• * 1.3

  Qui, dat for∣mam, dat quae ad formam sunt necessaria. Ari∣stotle.
• * 1.4

  Instit. 1. 2. in princ. D. 1. 1. 3. Bracton. L. 1. c. 5. num. 7.
• * 1.5

  Ipse Naturalis Stimulus pa∣rentes ad Libe∣rorum Educa∣tionem horta∣tur. c. 5. 13. Sileat.
• * 1.6

  Cicero Lib. 3. de Finibus.
• * 1.7

  Cicero Offic. Lib. 1.
• * 1.8

  D. 25. 35. 4.
• * 1.9

  D. 25. 3. de Ag∣noscendis, & a∣lendis Liber. &c. C. 5. 25. de A∣lendis Liberis, ac parentibus. D. 25. 4. de inspi∣ciendo ventre custodiendoque partu. Ridley's View of the Ci∣vil and Eccle∣siastical Law. Part 4. cap. 2. sect. 1 pag. 376. edit. 1675.
• * 1.10

  L. 3. c. de se∣cundis nuptijs.
• * 1.11

  Novella Constit. 2. de non eligen∣do secundo nu∣bentes muli∣eres; & alie∣natione, & lu∣cro ante Nupti∣alis donationis; & de successioni∣bus earum filiis suis.
• * 1.12

  Novella constit. 92. de im∣mensis donati∣onibus in filios factis.
• * 1.13

  Novella Consti∣tutio 98.
• * 1.14

  Grotius de jure belli & pacis lib. 2. c. 7. Sect. 8.
• * 1.15

  Hammond in his Annotation on Gal. 4. v. 30.
• a 1.16

  Patres Ab∣dicationis tristia verba pronunti∣ant, filios{que} a domo sua et omni cognati∣one abrumpunt ita demum, ubi amorem illum, quem ingentem ac super omnia eximium natura parentibus indi∣dit, foliorum improbitas vi∣cit.
• * 1.17

  lib. 5. v. 9. Sanguini ho∣norem reliquit.
• * 1.18

  Ne ordinem Naturae con∣funderet non nepotes, sed fi∣lium haeredem scripsit.
• * 1.19

  Dominum om∣nium esse voluit, quem genuerat haeredem insti∣tuens, non quem fuerat expertus.
• a 1.20

  Natura quidem suum se∣quens ordinem primum natos honorat, at de∣us non semper in maximis privilegiis eum ordinem insistit.
• b 1.21

  D. 4. 5. 8. D. 50. 17. 8. D. 38. 7. 6. Inst. 1. 15. 3. & 3. 1. 11.
• * 1.22

  Let there be an Inquiry made, whither your Neighbour has had any divine Revelation for what he has done.
• * 1.23

  Deut. 21. 15.
• * 1.24

  ver. 16.
• * 1.25

  ver. 17.