A TREATISE Concerning Estates Tail, and Descents of Inheritance.  
Written by N. N. and Published by I. SHERMAN, of Lincoln's Inn: Gen.  
LONDON: Printed for john Grove, and are to be sold at his Shop in Chancery Lane, over against the Subpaena Office. 1641.   

A Treatise concerning Estates Tail, and descents of Inheritance.  
YOu demand (good Sir) if Estates tail may be cut off? whereto I may shortly answer, that every Act for the lawful execution thereof requires power and will, without both which only things casual are accomplished; the will naming the work good or bad, the power giving hability to finish what the will freely intendeth. This power may truly be called possibility, enabled either by Nature, or by Law; for that which is unnatural or against our natures, is not judged possible or in our powers; no more is that which is to be done against the Laws: for we have no due power to do aught that is unlawful, all our powers being subject unto Law; for illud possumus quod jure possumus: Now touching the power and authority, to avoid estates tail, it is plain that as the making of them was authorized by the Stat. of West. 2. so by the Stat. of 4. H. 7. cap. 24, and 32. H. 8. cap. 36. Tenent in tail may lawfully cut them off: since therefore the power to create an estate tail, and the power to bar the Issue in tail are equally warranted by Law; for apari potestate par causatur effectus, the next doubt will be if our wills or affections to cut them off do sort to a lawful end; which end though it be last in execution, yet ought it to be first Censured; as the first part of all our actions: and touching this point, I must refer myself to every man his peculiar conscience, who can best make answer in this behalf what he intendeth: only I must note by the way, that such as avoid and cut off these estates to none other purpose but to enlarge their wanton expenses, and to give them more scope to live licentiously, as they unjustly spoil their Heirs of their due Inheritances, so shall not this my defence extend unto them; since my purpose only is to reduce estates tail to the most proper conveyance of the Common Law. And because sometime the effects produced of our actions are taken for their ends, whereby they are to be valued; And since the frustrating of estates tail disposeth itself to none other end then to set at liberty these fettered Inheritances: To prove therefore whether Inheritance at Common Law, or these Statutes, or conditional gifts are to be preferred; it behoveth me to show you what an Inheritance is, and what an estate tail is, that so you may more easily conceive their differences. In the Civil Law Inheritance is Successio in universum jus quod defunctus habebat, which definition doth well agree with our Common Law, which saith, that an Inheritance is such an estate as may be inherited by the Heir, which estate doth naturally descend to the Heir; as if it were joined and included in him by a violent motion of the Law: and this descent is that which the Civilians call succession, and our Common Lawyer's Inheritance: which so cleaveth to the Heir, as if the Father disseiseth a stranger, and dyeth seized; this Land shall descend to the Heir against his will, and he is Tenant to the praecipe though he never enters. And in like manner shall Lands purchased descend, except the Purchasor doth some Act to the contrary; and except in cases of Attainder: by this I gather that Inheritance is the Act of the Law; for Nemo est haeres viventis, no man is Heir of him that is living, and dead men have no power to choose their Heirs: therefore I say it must follow that this descent is the act of the Law, and disinheriting, or altering the course of Inheritances, the act of the party. The consultation now must be, if the Act of the person may justly make void the Act of the Law; wherein we must consider the force of the Laws, and the hability of persons: first therefore Law as St. Thomas saith, is Quaedam rationis ordinatio ad bonum commune, a certain disposition of reason to common good; which disposition is (by Frigius) called a Coercion of things voluntary, and not voluntary; whereby it seemeth that if we will be reasonable creatures, we must submit ourselves to the governance of the Law, which as it is said, is the disposition of reason, and the Coercion of our wills offending reason: the Law therefore as a mute Magistrate compelleth us to her obedience, warranteth us safety under her Target; and though Laws were made for men, yet were they not made to rule men, by which I gather, that Laws are superior to men, and men inferior to Laws; the Acts therefore of the Laws are paramount, or above the Acts of the party; and to draw this my present purpose, since the descent of Inheritance in Fee-simple is wrought only by the Law; and since these gifts entail are the natural issues of men's fantasies, why might I not here conclude that our estimation of estates tail ought to be much inferior to that estate which the Common Law createth? howbeit since this hath been spoken generally, and confusedly of all Laws, and since we are in this government subject to divers sorts of Laws in divers respects, it behooveth me to show you what Laws do principally concern this matter, and how Inheritances are respected in either of them; and since Fee-simples, and estates tail are opposite in their natures, and since likewise the Adage saith, Ferro aperire viam qui per contraria transit, I will prove unto you that the proper and natural descent of Fee-simple is good, and lawful in all Laws, by which means it will follow, that estates tail being contrary to Fee-simple are not good, nor lawful, for contraries agree not: Laws therefore are either Divine or humane, and divine Laws are either Laws of nature, or Laws deluded. But before I speak of humane Laws, I shall first show you that the form of Inheritance which the Common Law supporteth, agreeth with the Laws of nature; and so by consequence with the Laws of God: for proof whereof it were enough, considering the perspicuity of the Matter, if I should use the authority of Plowden, who saith that nothing in our Common Law is ordained against nature, and yet our Common Law will that Inheritances shall descend to the Heir: but to prove it more particularly, the first Act that nature requires is to procreate, the second to preserve, the third to provide for sustenance, which provision comprehendeth the whole effect of Inheritances: and in the Civil law it is called haereditas legitima, which is said to appertain most properly to the Father his office, as haereditas naturalis which consists in nourishing and education, belongs to the Mother, and though nature's laws which are only written in our hearts, have not expressed in any literal manner that this provision or Inheritance, belongeth more to the Heir then to the rest of our Children, or Kindred, yet hath the continual practice of all ages testified unto us, that the laws of nature would we should leave our Inheritances, first rather natis then agnatis, rather to our Children then to our Cousins, and rather to Sons then to Daughters; and if we have Sons, we have likewise a Rule that saith, Proximus excludit remotiorem, and in all governments the eldest Sons are admitted either to all, or most part of the Inheritance, and in want of Sons, Daughters, for whom nature enjoins us rather to provide then for more remote Cousins: and these general received Customs of all; times and places are the best means we have to interpret the laws of nature, which are only delivered to us in examples of times past. The second part of God his Laws are the laws written, wherein the omnipotent Maker of the world hath discovered unto us in his express Words, what his high pleasure is we should do concerning Inheritances: and though I be not so skilful in these laws as I ought to be, yet I have noted out of the Prophet, that he would not so much as suffer the first begotten son, even of the hated Wife to be disinherited; neither ought any man to take example of some Holy men, who have crossed this course of Inheritance, considering that it hath always happened either by the express Commandment of Almighty God, and so was Adonai disinherited by King David his father, and the Inheritance bestowed on Solomon a younger brother; or else it chanced for some notable crime by the Heir, and so was Reuben the Heir of Jacob disinherited, and his Inheritance given to the Sons of Joseph: and this I have repeated to none other purpose then to prove, first that Inheritances are agreeable to the laws of nature; and lastly that they are commanded by the express laws of God, and therefore ought not but upon special cause be violated: since I have showed you what I have gathered out of Divine laws concerning Inheritances, it followeth that I speak somewhat of humane laws, and namely of our common laws, for by them are Inheritances only managed in this government; except in some peculiar places, where Custom, often the daughter of error, hath indenized and made free degenerating forms of Inheritances, as of Gavel kind, and Burgh English, which custom I must here omit, as more fit for another place; to show you what our common law is, and what kind of Inheritance it produceth, that so by enquiring what entails are not, I may discover what they are: our Common law implieth his definition in his name, for it is called Commune jus, quasi Communis justitia; common Justice, and it is divided into two parts, old and new; the ancient are such as whereof we neither know beginning nor ending, and in these laws entails were utterly unknown, and our Inheritances were disposed in the act of the law, only by descent in Fee-simple, which as Mr. Littleton saith, is haereditas legitima vel pura, and this Fee-simple was settled on the Heir and his heirs by a perpetual operation of the law. Another sort of Fee-simples conditional there was likewise I confess, but this condition was no addition of the law, but only a restraint of the donor, which restraint was used by our forefathers instead of estates tail, tying thereby the Inheritance to the issue of the body of the Donee, but saving to the donor no Reversion, or at most but a Title, or possibility of a Reversion for want of Heirs of the body of the Donee, for Fee-simple admitteth no Reversion, yet could not the Donee alien his estate before he had issue, and by having issue settled the Inheritance in him; then was this Title, or right to this Reversion of no longer estimation in our law: and this appeareth by the Statute that saith post prolem habuit potestatem alienandi, which liberty of the alienation (after he had issue) in mine opinion was just and reasonable; and herein shall my opinion be easily ratified, if it shall be considered what mischiefs might otherwise happen to the tenant conditional, if he should still be detained from power to alien after he had issue, for so might he be compelled to admit one, peradventure none of his, or an unworthy heir of vile condition, which no extremity of law requireth: our Common-law therefore nothing mistrusting the father's care to preserve his Inheritance for his heir, gave to the father after he had issue power to alien at his pleasure, that so he might retain this power as a bridle to restrain the unruliness of Youth, who in his education would peradventure do better for hope of reward then for fear of punishment; or at least do best being compelled by them both, ●nd hereof I would only gather that Common law is common Justice; and that the ordinary sort of Inheritances commanded by the Law of God, & that though Fee-simple conditional somewhat swerveth from the purity of Fee-simple, yet that the restraint of the Donee his alienation for the benefit of the donor was just until the Donee had issue; and that likewise the Donee his liberty to alien after (by having issue) he had settled the Inheritance in himself was likewise most just, and herein only did Fee-simple conditionally differ from gifts in tail, which by the Stat. of West. 2. restrained the Donee either by Deed, or feoffment from prejudicing his issue.  

2 Section of Stat. Laws.  
ANd now I shall for a while cease to speak of our ancient Laws, to remember somewhat of our newer sorts of laws commonly called Statutes, which I have termed the newer sort, because we are assured of the times of their beginnings, and of these new laws the whole virtue consists, either in commanding things necessary, forbidding things hurtful, punishing things unjust, or permitting or making lawful things otherwise unlawful; concerning any of which when we call in doubt our necessity of obedience to them, we must consider that such as justly command, or justly forbid, are of more respect than those which only punish, since the price of the offence against Statutes punishing consists in the measure of the punishments; but such Statutes as only permits or gives liberty to do things unlawful, because they are but authorities to break the laws; therefore they are unworthily termed laws, and by consequence not so to be respected: with this doth St. Thomas well agree, saying, permissio non est officium legis quia lex adfert necessitatem, sufferance or permission is not the office of the law, because the law importeth a necessity, whereby I conceive that such statutes as neither command, forbidden, nor punish, are left in our discretions to be kept or broken, except the keeping of them impugn the laws Divine: it should seem therefore that since the making of estates tail was but a permission, and no commandment, (for no man is compelled to make them) that it remaineth as a thing indifferent to be done or undone for aught that appeareth in our Common Laws; and touching the cutting them off when they are made, I must say as I have said before, that as they were authorised by Statute, so hath later Statutes authorised the cutting them off, the making therefore of them (as now it stands) is but an act voideable, and therefore being made scarcely by good advice they merit only a void reputation: yea and when they were in their best force before 4. H. 7. or 32. H. 8. though the tenant in tail was so girt to his estate as a Fine levied by him was not able to bar his issue, yet our common law scarcely brooking this unnatural brood, carved out of men's imaginations, made divers incursions and breaches upon this knotty kind of Inheritance; sometime by dis-continuance, sometime by warranty lineal with assets, and sometime by collateral warranties, yea and when the statute of 4. H. 7. was after made and scarcely thought sufficient: in 19 H. 8. to bar the issue in tail by fine, the Sages of the Law perceiving that while they defended a Reversion in the Donor which in common presumption should never happen, they suffered so many mischiefs to creep into the body of the law, and so many discommodities to tenant in tail, as they were enforced in the 32. of H. 8. to put that ambiguity out of doors, and by Fine to give tenant in tail absolute power to bar his issue; and this I have only shown you to none other end then to acquaint you with the inception and progress of these entails, out of which I would note that they continued not long in any firm sort, and that a short experience had manifested so many encumbrances proceeding from them: as our forefathers sought all convenient means to avoid them; who therefore would adventure after so many sharp experiences to entail his land, because intailes are neither warranted by God his Law, nor by the ancient common laws of this Realm. Again, since intailes are only suffered to be made in such manner as we cannot assure ourselves that this permission will prove a general pardon for the offence committed, or a remedy for the mischief that happily will ensue; and considering that by entailing we disturb the common form of the most rightful and approved kinds of Inheritances, commanded by Almighty God, who cannot retractare suum decretum, and defended by our common law under which we live, and must of necessity therefore be good. I may well gather that these new fashioned gifts (being contrary and opposite to all purposes) are undoubtedly to be suspected vicious or very dangerous; what conscience therefore should any man make in undoing that which is all begun, or in avoiding that which is made voidable of purpose to be avoided as unprofitable? And yet I grant that some temporal laws are in conscience to be kept according to the rule in Saint Thomas who saith, lex que ad bonum commune referatur & potestatem non excedat ejus qui ipsam condit et secundum formam justitiae distributive servata ratione proportionis imponat subditis onera & denique utilis sit habeatque reliquas conditiones, such laws in conscience ought to be kept, but if we examine this our law of West. 2. we shall find it as I have said, no law, but a permission to break the law; we shall find that long and often proof hath taught us that it agreeth not with public good, we shall find likewise that since we are assured that this descent in Fee simple best pleaseth our Lord, we have some cause to doubt whether it lieth in man his power without special cause to permit by a new law the violation of so holy a law, and to be short, it faileth in all points that might press our consciences: but on the other side for the preservation of Inheritances we shall find good matter to touch our consciences, for quod naturalis lex et divina atque adeo etiam aeterna dictat esse faciendum, hoc necessario est in conscientia faciendum. Since therefore as I have showed you, nature's law, and the example of all Divine laws do warrant our common law, in the course of Inheritances, we ought fearfully to attempt the altering of them, and without fear reduce them to proper and natural course: But before I writ any more of the avoiding of estates tail, since the manner of doing by recovery is displeasing to some persons, I think it not amiss to show you mine opinion thereof: first therefore I confess that Recoveries are likewise instruments used to cut off estates-taile remainders and reversions, and the cause why the tenant in tail is barred, is in respect of the assets only which is or may be recovered in value; and though you may say that this recovery is but a fiction of the law, yet lex fingit ubi subsistit equitas, and though this value to be recovered is posted over to the common Crier, who in ordinary presumption shall never be able to answer all values recovered against him; yet if the father whom the law presumeth to be careful enough of continuing his Inheritance, shall be content to seek recompense where none is to be had, how doth the law offend in supposing this to be done for the best? and if it were done for the best, what injury should the Heir sustain, or the law offer? besides the recovery being but a feoffment of Record in his own nature changeth no use, except some new use be declared; neither should I be curious how these intailes were cut off (so as it were in form of law) since me thinks, it skills not whether an unthrifty twig be cut off with a sword, or with a hook, for Major est diversitas respectu materie quam form, and it is more reasonable or natural to accept a recompense of him that hath nothing, because he may have enough, then to provide for a possibility of escheat, whereto the aspect of our law hath never reached, because it is unnatural.  
Thus you have partly heard what Divine and humane laws esteem of Inheritances, and have entails preposterously altering the form of Inheritances are valued.  
And lastly that the cutting off by Recoveries is lawful enough, so as it be to a lawful end, and that to restore the common law to her proper and most ancient course is an Act well deserving; but this hath been gathered only out of the laws: and the next that follow in order are the persons, who of necessity must be either Donors, Donees or their heirs: the Donors are either parents, or strangers: by parents, I mean principally the father who is called so of pantater, quasi omnia servans, which etymology doth well express the office of a father to consist principally in providing and keeping for his Children, in respect of whom he is only a father; and this natural care and fatherly provision our common law seemeth to favour: for whereas feoffments made amongst strangers, if they be not clothed with good and valuable consideration, the use of the gift is not changed, but the donee remaineth seized to the use of the donor for want of reciprocal exchange of gain; yet if the father infeoffeth his child, the consideration of fatherly affection is prized recompense enough to change the use, and this holds true of all consanguinity: but the heir which is so called ab haerendo, quia haereditas sibi haeret, hath in law a more mutual valuation with his father, and a greater interest in the Inheritance than the younger sort; for if the heir endoweth his wife by the consent of his father, this endowment is good; and if the son dies, the wife shall have her dower though the father liveth, but this holdeth not of the younger sons, by which it appears that our law admits the heir an interest in his Inheritance during his father's life; but if this should seem strange, then may it be more plainly proved out of Mr. Glauvile, who putting some difference between quaestum, & haereditas, saith that the Common law would not suffer the father to give any part of his Inheritance to his younger sons without the consent of his heir, his words to that purpose are these, si quis plures habuerit filios mulieratos, non poterit de facili praeter consensum haeredis sui filio suo post-nato de haereditate suâ quantamlibet partem donare. If any man shall have divers sons lawfully begotten, he may not easily without his heirs consent give any part of his Inheritance to his younger son and yet after he granteth that the father may give part to a stranger, or to his bastard, which might seem hard, if he had not showed the reason thereof, viz. quia si hoc esset permissum, accideret inde frequens prius natorum filiorum exhaereditatio propter maiorem patrum affectionem quam saepe erga post-natos suos habere solent.  
Thus may you see how much our law esteemeth and defendeth the birthright of the heir, not only in giving him private power by the consent of his father to endow his wife, but likewise in restraining the father from following his peculiar affection in bestowing his Inheritance contrary to the meaning of the law, and this for ought I know remaineth law to this day; neither is it unreasonable that the heir whom the law only burdeneth with descents of warranties' debts, and such like, should by the law reap only the advantage of Inheritances.  
Much more equally therefore hath our common law provided for our heirs, than these abortive estates tail; and yet of entails I confess, that some are more tolerable than others, because they do less manacle the pure and natural course of Inheritances: for when lands are given to the eldest son, and to the heirs of his body, this varieth not much in the order of descent from fee-simple, because the immediate heir male or female shall by this gift enjoy the Inheritance otherwise due, and were it not for defrauding Creditors, and abasing the price when a sale is enforced, and some other inconveniences, I should think it just; but if lands be given to a man and to his wife, and the heirs of their two bodies, if the wife dying leave but a daughter, though afterwards the Husband marrying again hath issue a son and dies, by this gift entail the daughter shall disinherit the son against the express rule of all laws. Again if lands be given to the heir apparent, and to the heirs males of his body, with remainder over to the heirs male, by this gift the heirs generally are against all right rob of the birthright: which fashion of restraining of Inheritances from their due form doth seem to me most unjust; and this I affirm the rather because we find no such gift expressed in the statute of West 2. though I confess they are taken to be comprehended within the meaning thereof; but because this word heirs in his equivocate sense hath divers ways to be understood, it were meet I should discover my meaning thereby, which principally intendeth the first begotten son, who only can be heir according to master glanvil's primogenitus patri succedit in totum, ita quod nullus suorum fratrum partem inde jure petere potest, the first begotten son succeedeth the father in all, so as none of his brethren can lawfully claim any part thereof, in whose absence the second brother succeedeth, and so in order; and in want of brothers the sisters are heirs: for Mr. Glanvile likewise saith, that si non reperiantur fratres, vocandae sunt sorores quibus praemortuis eorum liberi vocantur. And this hath not only been a continual practice of the common law, but it is likewise well warranted by the Commandment of Almighty God, as may appear by his Answer 23. Numbers, when Moses delivered unto him the petition of the daughters of Salphaad, when after their father's death without sons they demanded possession of his Inheritance amongst their Cousins, which was, justam rem postulant filiae Salphaad; da jis possessioneminter cognatos patris sui, et ei in haereditatem succedant; ad filios autem Israel loquêris haec: homo cum mortuus fuerit absque filio, ad filiam transibit haereditas; si filiam non habuerit, habebit successores fratres suos. The daughters of Salphaad do ask that which is just, give them possession among their father's kindred, and let them succeed him in the Inheritance; and to the children of Israel these things shalt thou speak; when a man shall die without a son, the Inheritance shall pass to his daughter: if he hath never a daughter, his brethren shall succeed: and this hath not been only commanded, but practised in all ages, for women have succeeded in Kingdoms, and in the greatest Inheritances.  
If I have failed in the beginning of this discourse to prove that Inheritances at our common law do follow to all purposes their true pattern set forth in the laws Divine, let this I pray, serve for a full supply therein, since hereby you may perceive they agree to all intents, and lest we should take this as a law limited to continue some short time, it followeth, eritque hoc filiis Israel sanctum lege perpetuum: worthily therefore was lex Voconia in the civil law, which excluded women from their Inheriting, abrogated as unworthy of the reputation of a law, since it swarveth from the form of God his law; and to this purpose hath St. Augustine lib 3. De Civitate dei, lata est Romae lexilla Vocoium, ne quis haeredem foeim eam faceret, necunicam filiam: qua lege quid iniquius dici aut cogitari possit ignoro. The Voconian law is made at Rome, by which it is prohibited that daughters or a daughter shall inherit, than which law I know not what can be said or devised more wicked; who is he that understanding the high pleasure of Almighty God concerning the bestowing of his Inheritance, but would fearfully alter a law so everlastingly hallowed? and what son perceiving that his father through ignorance had offended this law, and knowing that he hath power to amend this fault, but he will without fear and with all speed endeavour to settle his Inheritance in such course as he undoubtedly knows shall best please Almighty God?  
But lest I dwell too long on this point, I must speak somewhat of the instrument or means whereby entails are made, which sometimes impair, sometimes amend that which is made.  
Entails therefore are either accomplished by feoffment, by deed, or by testament.  
Feoffment is a gift or grant performed by delivery of seizin.  
A deed is an instrument likewise constutitive, conveying some estate by enrolment.  
A testament is the just sentence of the mind. All which do agree in one point. viz. that our wills and consents are the causes without the which not any of them can be perfected; for as the testament is only the will of the testator, so is neither a feoffment nor deed worth aught, but by the consent and will of the feoffer or donor. And as they agree in this (which is all the substance of a testament) so do they differ in the solemnity or manner of accomplishing.  
For our law preventing rashness in passing so large an estate as a Lease for life, or an estate of Inheritance, have to feoffments and deeds knit a necessity of Livery, and enrolment to remain as pregnant witnesses that the feoffment or deed was made by good advice, but to wills though they be of no force during the life of the Testator, no other solemnity is required but the death of him that made them, which prevents all possibility to amend aught that is amiss.  
Another difference you may likewise note, (which I have, though to another purpose) touched before, viz. deeds and feoffments require recompense to make the use change, but wills do pass the estate they contain, and the use without regard of recompense; these imperfections and differences were the cause why wills were not entertained in our common law, or at most but in some customary places, as in Burgh English where because the Inheritances by those customs descended to the youngest son; the common law therefore in favour as I guess of the heir, permitted there the use of wills as a means to reduce the customary lands to th'heir at common law, and this I guess so, because in the common law they were utterly disabled to convey Inheritances before the statute of 32. H. 8. cap. 1. except as I have said, where custom had usurped on the common law.  
And well was it considered in my judgement, that Acts done at so unfit times as wills are usually made, should not dispose of matters of so great weight as Inheritances, for our forefathers thought it not lawful in extremes of sickness, by feoffments to pass their Inheritances, in extremis tamen agenti non est hoc cuiquam hactenus permissum, quia possit tuncimmodica fieri hereditatis distributio, si fuisset hoc permissum illiqui fervore passionis instantes et memoriam et rationem amittit. But to a man in extremity of sickness this is not permitted, because then an immoderate distribution of the Inheritance might be made, if this were lawful to him who looseth his memory, and reason by the fervour of his present passion. This was the common law in Mr. Glanvile his time, and yet remaineth for aught I have read, whose authority I do often remember as most worthy, being one of the most ancient judges of our law, who as he hath delivered this of feoffments, so of wills he saith, possit tamen huju smodi donatio in ultima voluntate alicui facta ita tenere, si cum consensu heredis, & ex suo consensu confirmaretur, yet saith he, such a gift made by will to any man may hold, so as it be made by the consent of the heir, and confirmed by his consent; most just therefore in my judgement is our common law herein, which suffereth not the father in extremity of sickness to dispose of his Inheritance, since few men pinched with the messengers of death can afford reason his proper use.  
Since therefore wills are for the most part made rather out of fervour of passion then by advised deliberation of the mind, and since some are made by compulsion, other by ignorance, and some to content the importunity of others, when yet they hope to live longer than they happen, in all which cases they are esteemed as no wills, for voluntas est que neque per vim neque per ignorantiam fit, since I say all these inconveniences are likely to happen, and may scarcely be avoided in wills; as few estates tail are much to be regarded, so none less than such as are composed by will: unworthy therefore shall I esteem this instrument to have power concerning Inheritances, though it be permitted by a late statute.  
But since the Civil Law is the true mother and maintainer of wills, it were not amiss to show you that therein the power of wills is not absolute in disposing of Inheritances, which any man that doubts may see in the Title of Querela inofficiosi, which is said to be subsidiarium remedium à quo petitur a iudice ut testamentum contra pietatis officium ex suo officio rescindat, et datur liberis et parentibus, fratribus vero et sororibus si turpes personae scriptae sunt.  
Thus you may see that even the Civil law hath compassion on Inheritances, and giveth the Children power as it were to Cancel their father's wills if they be against the office of piety, and what almost can be more impiety? on the father's part then to disinherit his first begotten Son, his issue, for none other cause then for that Almighty God who only maketh heirs, made his son's heir, a daughter or daughters, and rather to substitute another who can be no more his heir then puer supposititius, that is, a Changeling can be Child to her that never bore him, for nemo est heres viventis: how therefore should one that liveth make an heir, since there can be no heir till the father be dead.  
This act therefore as it is unnatural, so is it impious, for all sins are most grievous that are most unnatural; but because it may here be alleged that wills import a charge or Commandment of the division necessary to be observed, it behooveth me to prevent that objection.  
Which answer first therefore me thinks it were absurd to say generally, that all wills contain a necessity to be performed, since some wills are impossible, other unlawful, and many doubtful to all; which if we should tie a necessity of fulfilling, we should force things impossible, things unlawful, and things doubtful, which were very unmeet: but if some bind us, and some leave us at liberty, then must the difference proceed either of the persons, or of the things devised, or some other circumstances: touching the persons, I make no doubt but some will call in question the duty of the Child, that receives the benefit of the gift, to the father who bestows the gift, as a forceable argument against me, to which duty I could give great power and respect, if it were only spoken by the younger sons: for since they cannot claim any right in the Lands devised, but by the will, it were somewhat reasonable that the father having for them injured his Inheritance, should restrain them from doing more wrong, by plucking the Reversion out of the heir.  
On the other side, if the father deviseth his Lands to his heir, because if this devise had not been made, the Inheritance should notwithstanding have descended to the heir, as it were hard to clog his free right by improper condition, so it were reasonable for him to use any lawful means to cut off his unjust fetters; for the common law saith, that if the father deviseth Lands to his son and heir in Fee-simple, the heir may waive or forsake the devise, and hold himself in by descent, as if no will had been ever made: otherwise it is, if the devise be to a younger brother, or to a stranger, who are only tied to the power of the will, if they will enjoy their estates created by the will: this hath been said to prove unto you, that the father's will is not of force absolute to bind the heir where the Law investeth a former right in him, by which I could infer that the father's commandment being but an expressing of his will, cannot be of any better force than his will. As lawful therefore would I think it for the son and heir to cut off an entail devised by his father, notwithstanding his employed commandment to the contrary, as it is for him to seek remedy for a dangerous wound given to him by his father in his displeasure, though he should charge him to the contrary. But if this be not enough concerning imperium, or mandatum Patris, we have a rule that saith, verba imperativa ad privatum favorem prolata necessitatem non inferunt, sed consilium. If therefore some private favour hath bred this Commandment, as it appeareth most evidently that it hath, then doth it not infer necessity, but Counsel, which Counsel may either be followed or neglected, according to the conveniency of the cause. But since this counsel as I have showed you, tendeth to the crossing both of God's Laws, and the worlds, I would think that the heir should very weakly be compelled to obey it, especially if we remember that Mandatum est temporarium, hoc est, mandantis morte expirare, which seemeth reasonable, considering that a commandment being a thing merely personal, as given in the person of a father, must of necessity take his ending with the person, for quod personae coheret, morte extinguitur. And this holds against the greatest persons in the world, for mortuus est rebus humanis exemptus, and therefore not allowed to moderate amongst the living. If this therefore holdeth amongst Princes, much more doth it hold among private persons, between whom it hath no general force while they are living, for though the wife oweth obedience to her Husband, yet if he commands her to release her Dower, she is not bound to obey him. So likewise if the father commands his heir to give his Inheritance from his Children, neither was this commandment lawful in the father to give, nor in the son to obey, because it is unnatural in them both.  
But to weigh this matter more strictly, it shall not be amiss to look into the policies inducing us to make estates tails, and policies persuading the contrary, which policies are best judged by their intentions, the principal inspection whereof addeth or detracteth from either of them.  
In Baintons' case I have noted only one reason urged in the behalf of these entails especial: viz. 1. the Fame of the giver this is divided into two branches, Fame in continuing in his Name with advancement, and Fame in being founder of a house. And first concerning the manner, it is a thing wherein we have no property, for sometimes Dogs and Horses are called by our greatest Surnames, and so are other men, and perhaps such as are our enemies. And touching the founding of a House, though I confess it a thing worthy of memory, yet were this foundation much better hestowed on some of our nearest blood, and on such as the law persuades us so to do, and so may we assure ourselves, that this house, or houses thus founded are our own, being built upon our own ground, I mean such Children as are proceeding from our own Loins, by benefiting of whom we benefit ourselves, they being part of ourselves, and this course is most just and freest from offences; for if we leave our Inheritances to descend according to the motion of the Law, or bestow them on whom they belong in law, if any offence shall happen, it may only be imputed to the offence of the law, by whose Act it is done without any partial respect either of Names or other private affections, and who can be safer from offending than he which containeth himself within the compass and Buckler of the Law, since sub clypeo legis nemo decipi dicitur? And by this policy strangers, or remote Cousins, shall not more triumph of your greater affection than your natural and living Children; your Children shall neither tempt their charity, nor repine to see their Cousins enriched with that which is their right, nor repent their long observed duties to their fathers.  
But otherwise well may they think that father unkind who preferreth to a name which properly is none of his, before his own blood which assuredly is his; for it is plain, that another man his name cannot be mine, though pronounced and written to all purposes like mine, since every name (be they alike or unlike) is peculiar to distinguish every person, and cannot be common to another man and to me, as Homo is to all men. But this my meaning is more evidently declared in the Laws of Armoury; for though my second Brother his Son beareth a name like mine to all purposes, yet as nullum simile est idem, so in his Coat Armour which belongs to his name, he beareth a Crescent for his father's difference, which difference showeth the name and coat to be none of mine, since to my Arms due to my name no difference belongeth; whereas contrariwise my Daughters by quartering my Coat Armour with their Husbands, do most truly represent both my name and Arms, for as the Coat is known by the name, so mutually the name is known by the Coat.  
Since therefore we live in our heirs after our deaths, it were good policy that as we respect our estates while we live, so we should provide in like manner for those in whom we live after our deaths, viz. our lawful heirs. And he that disposeth his Inheritance otherwise, in my opinion doth like him that hath a Hat made for his head, and wears it on his heel; or like him that gives all to his Cousins or friends till he beg himself.  
Since therefore the Laws of nature (which cannot be dispensed withal) are contrary to estates in special tail, in that most entails convey unnaturally our Inheritances from our heirs to others, since the Divine written Laws have expressed a form of inheriting contrary to the form of all entails, which we ought not to alter, because praeceptum posuit, et non praeteribit, Psalm 144. and since the Common Laws of this Realm do expostulate their ancient forms of Inheritances, as most commodious for public good, and since the statutes of this present time have committed power into your hands, whereby you may either benefit or prejudice your heirs, for qui non defendit injuriam neque propulsat a suis cum potest,  facit, and since nemini vim et injuriam facere videtur qui suo jure utitur. Since the statute of West 2. neither commandeth, forbiddeth, nor punisheth, but is only a permissive authority to do that which before the Statute was unlawful. And to conclude with Laws, since as Saint Thomas saith, nituntur leges humana cognintione atque humana prudentia, per quam non potest satis certò constituere de futuris, and since succeeding inconveniences by their common events have compelled our forefathers to make breach into their conditional gifts, in acknowledging the errors of them that first craved this liberty, I cannot see why you should any longer continue that which deserveth to be altered, except you think inventions of men better than the Laws of God. And heresies in Law (which are said to be sometimes de immunitate) better then the ancient positive Laws of this Realm, except you think that nature have more bound you to advance others than your own Children, except you think that other men have begotten better Children than yourself, except you more respect a like name of another than the true descent of your own blood, except you mind to sow hatred among your consanguinity, except you intent to offer open wrong to your heir, for paria sunt malefacere, et malefacta non obviare, and except you would vainly and Babylonically erect a Tower against the omnipotent power of God himself, which building cannot long stand, nor prosper. Be not therefore I beseech you, misled with the bad example of many that have been negligent in cutting off entails, for non minùs ardebunt qui cum multis ardebunt, and multitudo delinquentium non excusat peccatum, and though therefore many do offend in this manner as offenders for company, let them remember the fearful curse pronounced by the Prophet Esa 24. terra infecta est ab habitatoribus suis qui transgressi sunt leges, mutaverunt jus, et dissipaverunt foedus sempiternum: propter hoc maledictio vorabit terram. And this I do the rather apply to my present purpose, because I could never (after long observation) find any family continue in the heirs male three descents after an entail made and continued to the heirs male, by which I guess they are not watered with heavenly blessings. And with this I will conclude, saying that I will add one doubt, viz. that though you will forbear to cut off the entail, yet are you not sure, that they to whom you will leave it will do so, and if they cut it off, you shall join hands with them in an unnatural act.   
FINIS.