OF PATERNAL POWER.
Sect. 52. IT may perhaps be censured as an impertinent criticism, in a
discourse of this nature, to find fault with words and names, that have
obtained in the world: and yet possibly it may not be amiss to offer new
ones, when the old are apt to lead men into mistakes, as this of
paternal power probably has done, which seems so to place the power of
parents over their children wholly in the father, as if the mother had
no share in it; whereas, if we consult reason or revelation, we shall
find, she hath an equal title. This may give one reason to ask, whether
this might not be more properly called parental power? for whatever
obligation nature and the right of generation lays on children, it must
certainly bind them equal to both the concurrent causes of it. And
accordingly we see the positive law of God every where joins them
together, without distinction, when it commands the obedience of
children, Honour thy father and thy mother, Exod. xx. 12. Whosoever
curseth his father or his mother, Lev. xx. 9. Ye shall fear every man
his mother and his father, Lev. xix. 3. Children, obey your parents, &c.
Eph. vi. 1. is the stile of the Old and New Testament.
Sect. 53. Had but this one thing been well considered, without looking
any deeper into the matter, it might perhaps have kept men from running
into those gross mistakes, they have made, about this power of parents;
which, however it might, without any great harshness, bear the name of
absolute dominion, and regal authority, when under the title of paternal
power it seemed appropriated to the father, would yet have founded but
oddly, and in the very name shewn the absurdity, if this supposed
absolute power over children had been called parental; and thereby have
discovered, that it belonged to the mother too: for it will but very ill
serve the turn of those men, who contend so much for the absolute power
and authority of the fatherhood, as they call it, that the mother should
have any share in it; and it would have but ill supported the monarchy
they contend for, when by the very name it appeared, that that
fundamental authority, from whence they would derive their government of
a single person only, was not placed in one, but two persons jointly.
But to let this of names pass.
Sect. 54. Though I have said above, Chap. II. That all men by nature are
equal, I cannot be supposed to understand all sorts of equality: age or
virtue may give men a just precedency: excellency of parts and merit may
place others above the common level: birth may subject some, and
alliance or benefits others, to pay an observance to those to whom
nature, gratitude, or other respects, may have made it due: and yet all
this consists with the equality, which all men are in, in respect of
jurisdiction or dominion one over another; which was the equality I
there spoke of, as proper to the business in hand, being that equal
right, that every man hath, to his natural freedom, without being
subjected to the will or authority of any other man.
Sect. 55. Children, I confess, are not born in this full state of
equality, though they are born to it. Their parents have a sort of rule
and jurisdiction over them, when they come into the world, and for some
time after; but it is but a temporary one. The bonds of this subjection
are like the swaddling clothes they are wrapt up in, and supported by,
in the weakness of their infancy: age and reason as they grow up, loosen
them, till at length they drop quite off, and leave a man at his own
free disposal.
Sect. 56. Adam was created a perfect man, his body and mind in full
possession of their strength and reason, and so was capable, from the
first instant of his being to provide for his own support and
preservation, and govern his actions according to the dictates of the
law of reason which God had implanted in him. From him the world is
peopled with his descendants, who are all born infants, weak and
helpless, without knowledge or understanding: but to supply the defects
of this imperfect state, till the improvement of growth and age hath
removed them, Adam and Eve, and after them all parents were, by the law
of nature, under an obligation to preserve, nourish, and educate the
children they had begotten; not as their own workmanship, but the
workmanship of their own maker, the Almighty, to whom they were to be
accountable for them.
Sect. 57. The law, that was to govern Adam, was the same that was to
govern all his posterity, the law of reason. But his offspring having
another way of entrance into the world, different from him, by a natural
birth, that produced them ignorant and without the use of reason, they
were not presently under that law; for no body can be under a law, which
is not promulgated to him; and this law being promulgated or made known
by reason only, he that is not come to the use of his reason, cannot be
said to be under this law; and Adam’s children, being not presently as
soon as born under this law of reason, were not presently free: for law,
in its true notion, is not so much the limitation as the direction of a
free and intelligent agent to his proper interest, and prescribes no
farther than is for the general good of those under that law: could they
be happier without it, the law, as an useless thing, would of itself
vanish; and that ill deserves the name of confinement which hedges us in
only from bogs and precipices. So that, however it may be mistaken, the
end of law is not to abolish or restrain, but to preserve and enlarge
freedom: for in all the states of created beings capable of laws, where
there is no law, there is no freedom: for liberty is, to be free from
restraint and violence from others; which cannot be, where there is no
law: but freedom is not, as we are told, a liberty for every man to do
what he lists: (for who could be free, when every other man’s humour
might domineer over him?) but a liberty to dispose, and order as he
lists, his person, actions, possessions, and his whole property, within
the allowance of those laws under which he is, and therein not to be
subject to the arbitrary will of another, but freely follow his own.
Sect. 58. The power, then, that parents have over their children, arises
from that duty which is incumbent on them, to take care of their
off-spring, during the imperfect state of childhood. To inform the mind,
and govern the actions of their yet ignorant nonage, till reason shall
take its place, and ease them of that trouble, is what the children
want, and the parents are bound to: for God having given man an
understanding to direct his actions, has allowed him a freedom of will,
and liberty of acting, as properly belonging thereunto, within the
bounds of that law he is under. But whilst he is in an estate, wherein
he has not understanding of his own to direct his will, he is not to
have any will of his own to follow: he that understands for him, must
will for him too; he must prescribe to his will, and regulate his
actions; but when he comes to the estate that made his father a freeman,
the son is a freeman too.
Sect. 59. This holds in all the laws a man is under, whether natural or
civil. Is a man under the law of nature? What made him free of that law?
what gave him a free disposing of his property, according to his own
will, within the compass of that law? I answer, a state of maturity
wherein he might be supposed capable to know that law, that so he might
keep his actions within the bounds of it. When he has acquired that
state, he is presumed to know how far that law is to be his guide, and
how far he may make use of his freedom, and so comes to have it; till
then, some body else must guide him, who is presumed to know how far the
law allows a liberty. If such a state of reason, such an age of
discretion made him free, the same shall make his son free too. Is a man
under the law of England? What made him free of that law? that is, to
have the liberty to dispose of his actions and possessions according to
his own will, within the permission of that law? A capacity of knowing
that law; which is supposed by that law, at the age of one and twenty
years, and in some cases sooner. If this made the father free, it shall
make the son free too. Till then we see the law allows the son to have
no will, but he is to be guided by the will of his father or guardian,
who is to understand for him. And if the father die, and fail to
substitute a deputy in his trust; if he hath not provided a tutor, to
govern his son, during his minority, during his want of understanding,
the law takes care to do it; some other must govern him, and be a will
to him, till he hath attained to a state of freedom, and his
understanding be fit to take the government of his will. But after that,
the father and son are equally free as much as tutor and pupil after
nonage; equally subjects of the same law together, without any dominion
left in the father over the life, liberty, or estate of his son, whether
they be only in the state and under the law of nature, or under the
positive laws of an established government.
Sect. 60. But if, through defects that may happen out of the ordinary
course of nature, any one comes not to such a degree of reason, wherein
he might be supposed capable of knowing the law, and so living within
the rules of it, he is never capable of being a free man, he is never
let loose to the disposure of his own will (because he knows no bounds
to it, has not understanding, its proper guide) but is continued under
the tuition and government of others, all the time his own understanding
is uncapable of that charge. And so lunatics and ideots are never set
free from the government of their parents;
/#
children, who are not as yet come unto those years whereat they may
have; and innocents which are excluded by a natural defect from
ever having; thirdly, madmen, which for the present cannot possibly
have the use of right reason to guide themselves, have for their
guide, the reason that guideth other men which are tutors over
them, to seek and procure their good for them,
#/
says Hooker, Eccl. Pol. lib. i. sec. 7. All which seems no more than
that duty, which God and nature has laid on man, as well as other
creatures, to preserve their offspring, till they can be able to shift
for themselves, and will scarce amount to an instance or proof of
parents regal authority.
Sect. 61. Thus we are born free, as we are born rational; not that we
have actually the exercise of either: age, that brings one, brings with
it the other too. And thus we see how natural freedom and subjection to
parents may consist together, and are both founded on the same
principle. A child is free by his father’s title, by his father’s
understanding, which is to govern him till he hath it of his own. The
freedom of a man at years of discretion, and the subjection of a child
to his parents, whilst yet short of that age, are so consistent, and so
distinguishable, that the most blinded contenders for monarchy, by right
of fatherhood, cannot miss this difference; the most obstinate cannot
but allow their consistency: for were their doctrine all true, were the
right heir of Adam now known, and by that title settled a monarch in his
throne, invested with all the absolute unlimited power Sir Robert Filmer
talks of; if he should die as soon as his heir were born, must not the
child, notwithstanding he were never so free, never so much sovereign,
be in subjection to his mother and nurse, to tutors and governors, till
age and education brought him reason and ability to govern himself and
others? The necessities of his life, the health of his body, and the
information of his mind, would require him to be directed by the will of
others, and not his own; and yet will any one think, that this restraint
and subjection were inconsistent with, or spoiled him of that liberty or
sovereignty he had a right to, or gave away his empire to those who had
the government of his nonage? This government over him only prepared him
the better and sooner for it. If any body should ask me, when my son is
of age to be free? I shall answer, just when his monarch is of age to
govern. But at what time, says the judicious Hooker, Eccl. Pol. l. i.
sect. 6. a man may be said to have attained so far forth the use of
reason, as sufficeth to make him capable of those laws whereby he is
then bound to guide his actions: this is a great deal more easy for
sense to discern, than for any one by skill and learning to determine.
Sect. 62. Common-wealths themselves take notice of, and allow, that
there is a time when men are to begin to act like free men, and
therefore till that time require not oaths of fealty, or allegiance, or
other public owning of, or submission to the government of their
countries.
Sect. 63. The freedom then of man, and liberty of acting according to
his own will, is grounded on his having reason, which is able to
instruct him in that law he is to govern himself by, and make him know
how far he is left to the freedom of his own will. To turn him loose to
an unrestrained liberty, before he has reason to guide him, is not the
allowing him the privilege of his nature to be free; but to thrust him
out amongst brutes, and abandon him to a state as wretched, and as much
beneath that of a man, as their’s. This is that which puts the authority
into the parents hands to govern the minority of their children. God
hath made it their business to employ this care on their offspring, and
hath placed in them suitable inclinations of tenderness and concern to
temper this power, to apply it, as his wisdom designed it, to the
children’s good, as long as they should need to be under it.
Sect. 64. But what reason can hence advance this care of the parents due
to their off-spring into an absolute arbitrary dominion of the father,
whose power reaches no farther, than by such a discipline, as he finds
most effectual, to give such strength and health to their bodies, such
vigour and rectitude to their minds, as may best fit his children to be
most useful to themselves and others; and, if it be necessary to his
condition, to make them work, when they are able, for their own
subsistence. But in this power the mother too has her share with the
father.
Sect. 65. Nay, this power so little belongs to the father by any
peculiar right of nature, but only as he is guardian of his children,
that when he quits his care of them, he loses his power over them, which
goes along with their nourishment and education, to which it is
inseparably annexed; and it belongs as much to the foster-father of an
exposed child, as to the natural father of another. So little power does
the bare act of begetting give a man over his issue; if all his care
ends there, and this be all the title he hath to the name and authority
of a father. And what will become of this paternal power in that part of
the world, where one woman hath more than one husband at a time? or in
those parts of America, where, when the husband and wife part, which
happens frequently, the children are all left to the mother, follow her,
and are wholly under her care and provision? If the father die whilst
the children are young, do they not naturally every where owe the same
obedience to their mother, during their minority, as to their father
were he alive? and will any one say, that the mother hath a legislative
power over her children? that she can make standing rules, which shall
be of perpetual obligation, by which they ought to regulate all the
concerns of their property, and bound their liberty all the course of
their lives? or can she inforce the observation of them with capital
punishments? for this is the proper power of the magistrate, of which
the father hath not so much as the shadow. His command over his children
is but temporary, and reaches not their life or property: it is but a
help to the weakness and imperfection of their nonage, a discipline
necessary to their education: and though a father may dispose of his own
possessions as he pleases, when his children are out of danger of
perishing for want, yet his power extends not to the lives or goods,
which either their own industry, or another’s bounty has made their’s;
nor to their liberty neither, when they are once arrived to the
infranchisement of the years of discretion. The father’s empire then
ceases, and he can from thence forwards no more dispose of the liberty
of his son, than that of any other man: and it must be far from an
absolute or perpetual jurisdiction, from which a man may withdraw
himself, having license from divine authority to leave father and
mother, and cleave to his wife.
Sect. 66. But though there be a time when a child comes to be as free
from subjection to the will and command of his father, as the father
himself is free from subjection to the will of any body else, and they
are each under no other restraint, but that which is common to them
both, whether it be the law of nature, or municipal law of their
country; yet this freedom exempts not a son from that honour which he
ought, by the law of God and nature, to pay his parents. God having made
the parents instruments in his great design of continuing the race of
mankind, and the occasions of life to their children; as he hath laid on
them an obligation to nourish, preserve, and bring up their offspring;
so he has laid on the children a perpetual obligation of honouring their
parents, which containing in it an inward esteem and reverence to be
shewn by all outward expressions, ties up the child from any thing that
may ever injure or affront, disturb or endanger, the happiness or life
of those from whom he received his; and engages him in all actions of
defence, relief, assistance and comfort of those, by whose means he
entered into being, and has been made capable of any enjoyments of life:
from this obligation no state, no freedom can absolve children. But this
is very far from giving parents a power of command over their children,
or an authority to make laws and dispose as they please of their lives
or liberties. It is one thing to owe honour, respect, gratitude and
assistance; another to require an absolute obedience and submission. The
honour due to parents, a monarch in his throne owes his mother; and yet
this lessens not his authority, nor subjects him to her government.
Sect. 67. The subjection of a minor places in the father a temporary
government, which terminates with the minority of the child: and the
honour due from a child, places in the parents a perpetual right to
respect, reverence, support and compliance too, more or less, as the
father’s care, cost, and kindness in his education, has been more or
less. This ends not with minority, but holds in all parts and conditions
of a man’s life. The want of distinguishing these two powers, viz. that
which the father hath in the right of tuition, during minority, and the
right of honour all his life, may perhaps have caused a great part of
the mistakes about this matter: for to speak properly of them, the first
of these is rather the privilege of children, and duty of parents, than
any prerogative of paternal power. The nourishment and education of
their children is a charge so incumbent on parents for their children’s
good, that nothing can absolve them from taking care of it: and though
the power of commanding and chastising them go along with it, yet God
hath woven into the principles of human nature such a tenderness for
their off-spring, that there is little fear that parents should use
their power with too much rigour; the excess is seldom on the severe
side, the strong byass of nature drawing the other way. And therefore
God almighty when he would express his gentle dealing with the
Israelites, he tells them, that though he chastened them, he chastened
them as a man chastens his son, Deut. viii. 5. i.e. with tenderness and
affection, and kept them under no severer discipline than what was
absolutely best for them, and had been less kindness to have slackened.
This is that power to which children are commanded obedience, that the
pains and care of their parents may not be increased, or ill rewarded.
Sect. 68. On the other side, honour and support, all that which
gratitude requires to return for the benefits received by and from them,
is the indispensable duty of the child, and the proper privilege of the
parents. This is intended for the parents advantage, as the other is for
the child’s; though education, the parents duty, seems to have most
power, because the ignorance and infirmities of childhood stand in need
of restraint and correction; which is a visible exercise of rule, and a
kind of dominion. And that duty which is comprehended in the word
honour, requires less obedience, though the obligation be stronger on
grown, than younger children: for who can think the command, Children
obey your parents, requires in a man, that has children of his own, the
same submission to his father, as it does in his yet young children to
him; and that by this precept he were bound to obey all his father’s
commands, if, out of a conceit of authority, he should have the
indiscretion to treat him still as a boy?
Sect. 69. The first part then of paternal power, or rather duty, which
is education, belongs so to the father, that it terminates at a certain
season; when the business of education is over, it ceases of itself, and
is also alienable before: for a man may put the tuition of his son in
other hands; and he that has made his son an apprentice to another, has
discharged him, during that time, of a great part of his obedience both
to himself and to his mother. But all the duty of honour, the other
part, remains never the less entire to them; nothing can cancel that: it
is so inseparable from them both, that the father’s authority cannot
dispossess the mother of this right, nor can any man discharge his son
from honouring her that bore him. But both these are very far from a
power to make laws, and enforcing them with penalties, that may reach
estate, liberty, limbs and life. The power of commanding ends with
nonage; and though, after that, honour and respect, support and defence,
and whatsoever gratitude can oblige a man to, for the highest benefits
he is naturally capable of, be always due from a son to his parents; yet
all this puts no scepter into the father’s hand, no sovereign power of
commanding. He has no dominion over his son’s property, or actions; nor
any right, that his will should prescribe to his son’s in all things;
however it may become his son in many things, not very inconvenient to
him and his family, to pay a deference to it.
Sect. 70. A man may owe honour and respect to an ancient, or wise man;
defence to his child or friend; relief and support to the distressed;
and gratitude to a benefactor, to such a degree, that all he has, all he
can do, cannot sufficiently pay it: but all these give no authority, no
right to any one, of making laws over him from whom they are owing. And
it is plain, all this is due not only to the bare title of father; not
only because, as has been said, it is owing to the mother too; but
because these obligations to parents, and the degrees of what is
required of children, may be varied by the different care and kindness,
trouble and expence, which is often employed upon one child more than
another.
Sect. 71. This shews the reason how it comes to pass, that parents in
societies, where they themselves are subjects, retain a power over their
children, and have as much right to their subjection, as those who are
in the state of nature. Which could not possibly be, if all political
power were only paternal, and that in truth they were one and the same
thing: for then, all paternal power being in the prince, the subject
could naturally have none of it. But these two powers, political and
paternal, are so perfectly distinct and separate; are built upon so
different foundations, and given to so different ends, that every
subject that is a father, has as much a paternal power over his
children, as the prince has over his: and every prince, that has
parents, owes them as much filial duty and obedience, as the meanest of
his subjects do to their’s; and can therefore contain not any part or
degree of that kind of dominion, which a prince or magistrate has over
his subject.
Sect. 72. Though the obligation on the parents to bring up their
children, and the obligation on children to honour their parents,
contain all the power on the one hand, and submission on the other,
which are proper to this relation, yet there is another power ordinarily
in the father, whereby he has a tie on the obedience of his children;
which tho’ it be common to him with other men, yet the occasions of
shewing it, almost constantly happening to fathers in
their private families, and the instances of it elsewhere being rare,
and less taken notice of, it passes in the world for a part of paternal
jurisdiction. And this is the power men generally have to bestow their
estates on those who please them best; the possession of the father
being the expectation and inheritance of the children, ordinarily in
certain proportions, according to the law and custom of each country;
yet it is commonly in the father’s power to bestow it with a more
sparing or liberal hand, according as the behaviour of this or that
child hath comported with his will and humour.
Sect. 73. This is no small tie on the obedience of children: and there
being always annexed to the enjoyment of land, a submission to the
government of the country, of which that land is a part; it has been
commonly supposed, that a father could oblige his posterity to that
government, of which he himself was a subject, and that his compact held
them; whereas, it being only a necessary condition annexed to the land,
and the inheritance of an estate which is under that government, reaches
only those who will take it on that condition, and so is no natural tie
or engagement, but a voluntary submission: for every man’s children
being by nature as free as himself, or any of his ancestors ever were,
may, whilst they are in that freedom, choose what society they will join
themselves to, what commonwealth they will put themselves under. But if
they will enjoy the inheritance of their ancestors, they must take it on
the same terms their ancestors had it, and submit to all the conditions
annexed to such a possession. By this power indeed fathers oblige their
children to obedience to themselves, even when they are past minority,
and most commonly too subject them to this or that political power: but
neither of these by any peculiar right of fatherhood, but by the reward
they have in their hands to inforce and recompence such a compliance;
and is no more power than what a French man has over an English man, who
by the hopes of an estate he will leave him, will certainly have a
strong tie on his obedience: and if, when it is left him, he will enjoy
it, he must certainly take it upon the conditions annexed to the
possession of land in that country where it lies, whether it be France
or England.
Sect. 74. To conclude then, tho’ the father’s power of commanding
extends no farther than the minority of his children, and to a degree
only fit for the discipline and government of that age; and tho’ that
honour and respect, and all that which the Latins called piety, which
they indispensably owe to their parents all their life-time, and in all
estates, with all that support and defence is due to them, gives the
father no power of governing, i.e. making laws and enacting penalties on
his children; though by all this he has no dominion over the property or
actions of his son: yet it is obvious to conceive how easy it was, in
the first ages of the world, and in places still, where the thinness of
people gives families leave to separate into unpossessed quarters, and
they have room to remove or plant themselves in yet vacant habitations,
for the father of the family to become the prince of it;* he had been a
ruler from the beginning of the infancy of his children: and since
without some government it would be hard for them to live together, it
was likeliest it should, by the express or tacit consent of the children
when they were grown up, be in the father, where it seemed without any
change barely to continue; when indeed nothing more was required to it,
than the permitting the father to exercise alone, in his family, that
executive power of the law of nature, which every free man naturally
hath, and by that permission resigning up to him a monarchical power,
whilst they remained in it. But that this was not by any paternal right,
but only by the consent of his children, is evident from hence, that no
body doubts, but if a stranger, whom chance or business had brought to
his family, had there killed any of his children, or committed any other
fact, he might condemn and put him to death, or other-wise have punished
him, as well as any of his children; which it was impossible he should
do by virtue of any paternal authority over one who was not his child,
but by virtue of that executive power of the law of nature, which, as a
man, he had a right to: and he alone could punish him in his family,
where the respect of his children had laid by the exercise of such a
power, to give way to the dignity and authority they were willing should
remain in him, above the rest of his family.
(*It is no improbable opinion therefore, which the archphilosopher was
of, that the chief person in every houshold was always, as it were, a
king: so when numbers of housholds joined themselves in civil societies
together, kings were the first kind of governors amongst them, which is
also, as it seemeth, the reason why the name of fathers continued still
in them, who, of fathers, were made rulers; as also the ancient custom
of governors to do as Melchizedec, and being kings, to exercise the
office of priests, which fathers did at the first, grew perhaps by the
same occasion. Howbeit, this is not the only kind of regiment that has
been received in the world. The inconveniences of one kind have caused
sundry others to be devised; so that in a word, all public regiment, of
what kind soever, seemeth evidently to have risen from the deliberate
advice, consultation and composition between men, judging it convenient
and behoveful; there being no impossibility in nature considered by
itself, but that man might have lived without any public regiment,
Hooker’s Eccl. Pol. lib. i. sect. 10.)
Sect. 75. Thus it was easy, and almost natural for children, by a tacit,
and scarce avoidable consent, to make way for the father’s authority and
government. They had been accustomed in their childhood to follow his
direction, and to refer their little differences to him, and when they
were men, who fitter to rule them? Their little properties, and less
covetousness, seldom afforded greater controversies; and when any should
arise, where could they have a fitter umpire than he, by whose care they
had every one been sustained and brought up, and who had a tenderness
for them all? It is no wonder that they made no distinction betwixt
minority and full age; nor looked after one and twenty, or any other age
that might make them the free disposers of themselves and fortunes, when
they could have no desire to be out of their pupilage: the government
they had been under, during it, continued still to be more their
protection than restraint; and they could no where find a greater
security to their peace, liberties, and fortunes, than in the rule of a
father.
Sect. 76. Thus the natural fathers of families, by an insensible change,
became the politic monarchs of them too: and as they chanced to live
long, and leave able and worthy heirs, for several successions, or
otherwise; so they laid the foundations of hereditary, or elective
kingdoms, under several constitutions and manners, according as chance,
contrivance, or occasions happened to mould them. But if princes have
their titles in their fathers right, and it be a sufficient proof of the
natural right of fathers to political authority, because they commonly
were those in whose hands we find, de facto, the exercise of government:
I say, if this argument be good, it will as strongly prove, that all
princes, nay princes only, ought to be priests, since it is as certain,
that in the beginning, the father of the family was priest, as that he
was ruler in his own houshold.