The Debt Book, Chapter 3
CHAP. 3. The diuiſion of debts, and of the first kinde of debts, impoſed by others, namely, Haereditary.
foreign, Owe nothing.] That our proceeding may be ſuch, as hee that runnes may read it. Let mee here propound in a ſhort diuiſion, the ſubſtance of the enſuing diſcourſe, touching civill and mixt debts, which fal firſt to be handled. Debts are either impoſed by others, or procured by our ſelues. Impoſed by others, are hereditarie, or legall. Legall are of three ſorts, to the Magiſtrate, to the Miniſter, or to the Poore. Debts procured by our ſelues, are either neceſſary, or voluntary. Voluntarie are either caſuall and tranſient, or permanent and ſtanding debts: The remedies whereof are either ſuch as preuent, or ſuch as remoue the diſeaſe: Of all which in their order. The ſacred debt of LoueLove is alſo to be handled in the ſecond propoſition. But firſt of Hereditary debts, which are the firſt kinde of ciuill debts impoſed by others.
Theſe are ſuch as Parents impoſe vponupon their Heires, or Teſtators vponupon their Executors by will and teſtament; or which neceſſarily fall vponupon the ſtate of the deceaſed. A Teſtament or Will, is; Voluntatis Vlpian in d. lib. 1.noſtrae iuſta ſententia, de eo quod poſt mortem noſtram fieri voluerimus. A Teſtament is a iuſt declaration of our will, touching that which we would hauehave done after our death. By this a man may hauehave a calling to the paiment of debts and legacies; & conſequently vntounto debts which cannot perhaps with comfort, perhaps not without loſſe to himſelfe and others bee auoided.
Now if a man, in regard of the truſt repoſed in him, and of the meanes alotted for performance of the ſame (without which, and his owne acceptation concurring, no man ſtands charged) will vndertake the execution of any mans Will, then muſt he accompliſh what is enioyned and preſcribed, by the true meaning of the Will, according to Auſtins rule; Aut Teſtatoris voluntas ſeruanda, aut haereditale carendum. Either muſt the Will of the Teſtator be obſerued, or the inheritance muſt be loſt. In debts then thus impoſed, this remaineth to be done; We muſt pay them ſpeedily at the time prefixed, leſt they loſe their acceptation, by hanging too long in our hands: Wee muſt alſo pay them faithfully and fully, without keeping backe from any that which is intended to them.
Among things which paſſe by Will, beſides that which is giuen to kindred and friends, there are ſometimes ſummes of money and yearely penſions alotted to Colledges, and Schooles of learning, to Hoſpitalls, and High-waies, to the poore of certaine pariſhes, and to other godly vſes, and then the debt ſo to bee paide, is not meerely ciuill, but a mixt debt: of a common nature in reſpect of the matter, as money or goods; but in reſpect of the godly & pious vſe, of a higher ſtraine. In all theſe we muſt deale truely and worthily, both with the dead, and with the liuing: For as the counterfetting and forging Lege Corn. de falſis.of a falſe Will, was puniſhable anciently in ſome caſes by death, in ſome by baniſhment and publication of goods: ſo the ſuppreſſing of a true will, by not publiſhing or not performing it, to thoſe whom it doth concerne, is a ſinne and an iniquity, not much inferior to the other: the one iuſtifies a dangerous lye, the other conceales a neceſſary truth, not without periury perhaps in both. It was ſometimes Dauids complaint; Defecerunt veraces Pſal. 12. 1.a filiis hominum. The truſtie are failed frō among the ſons of men. The complaint is ſtill iuſt, in this particular as much as in any. I am perſwaded very few Wills are executed by the common ſort of men, in eſtates of any value, without ſome notable fraud, partly by alledging (when paiments ſhould be made) defect in the ſtate, and partly by concealing legacies from thoſe who cannot demand them, out of ignorance of the Will; to whom I ſay, that ſo long as wrong reckoning is no paiment, that the debt remaineth in the ſight of God, how euer it bee croſſed out of their accounts. They ſhall alſo finde, that *Luk. 16. 11.for being vnfaithfull in the diſpenſation of earthly talents, they ſhall neuer bee truſted with the true treaſure. It may alſo one day be their owne caſe, that as they hauehave cancelled and made void the Will of the dead, by deteining debts and legacies from the right owners, ſo by the iuſt iudgment of God, the like *Mat. 7. 2.meaſure may be meated to their widowes and fatherleſſe children, by thoſe whom they ſhall vnworthily put in truſt: wee may not thinke an account diſcharged, when a fraud and a deceit is cunningly contriued. A debt cannot bee paid but by reall ſatiſfaction, without which the obligation remaineth in full ſtrength and force; vponupon the conſcience whereof, an honeſt heart cannot but bee tenderly ſenſible: And therefore I am not of Cyprians minde, who tooke order; Ne quis Clericum tutorem Cyp. Epiſt. 66.aut curatorem teſtamento conſtitueret. That none ſhould appoint a Clergie man Guardian or Executor by Will, leſt hee ſhould bee moleſted with the affaires of this life. I rather thinke that men ſhould bee choſen out of all vocations and callings whatſoeuer, of moſt vnſtained conuerſation and conſcience moſt alienated from couetouſneſſe, leaſt intangled in worldlineſſe, for the diſpenſation of our eſtate to whom it is intended.
Before I leaue this point, let mee ad one caueat to Parents and Teſtators, not to charge their Wills with that which their ſtate cannot diſcharge; for this is the way either to hauehave nothing done at all, or to expoſe their executors or ſucceſſors to perpetuall ſuites and clamours. A man were better ſell all that he can ſpare, and pay his owne debts himſelfe, then out of an ambitious humour of leauing ſo much in lands to his Heire, lay withall vponupon him ſuch a maſſe of debts & legacies, as ſhall mancipate him to the ineuitable yoake of the Vſurer, till hee can redeeme himſelfe, by ſelling what is moſt precious in his patrimonie: which when one is compelled to doe, let him then conſider whether the great poſſeſſions which came to him by inheritance, were not partly the ſpoile of the Church, the prey of the poore, and the fruits of oppreſſion, which like Aurum Toloſanum, the gold of Toloſa, Aul. Gel. lib. 3.makes eueryevery hand vnfortunate, into which it comes: let him alſo well conſider, whether the intollerable maſſe of debt, be not that vnmoueable yoake, ſpoken of by Micah, and threatned to them Micha 2. 2. 3.who couet fields, and take them by force, who roote out men and their families, threatned, I ſay, to them, and their poſterity. Let them laſtly conſider, whether a ſmall thing to the righteous man be not Pſal. 37. 16.better, then great riches to the wicked and mighty; howeuer ſome of them floriſh till the meaſure of their iniquity be at the full. Thus of the firſt kinde of debts impoſed by others: the next are Legal.