OF THE RIGHT OF PARENTS OVER THEIR CHILDREN, AND
OF HEREDITARY GOVERNMENT.
1. Paternal dominion ariseth not from generation. 2. Dominion over
infants belongs to him or her who first hath them in their
power. 3. Dominion over infants is originally the mother’s. 4.
The exposed infant is his, from whom he receives his
preservation. 5. The child that hath one parent a subject, and
the other a sovereign, belongs to him or her in authority. 6. In
such a conjunction of man and woman, as neither hath command
over the other, the children are the mother’s, unless by compact
or civil law it be otherwise determined. 7. Children are no less
subject to their parents, than servants to their lords and
subjects to their princes. 8. Of the honour of parents and
lords. 9. Wherein liberty consists, and the difference of
subjects and servants. 10. There is the same right over subjects
in an hereditary government, which there is in an institutive
government. 11. The question concerning the right of succession
belongs only to monarchy. 12. A monarch may by his will and
testament dispose of his supreme authority: 13. Or give it, or
sell it. 14. A monarch dying without testament, is ever supposed
to will that a monarch should succeed him: 15. And some one of
his children: 16. And a male rather than female: 17. And the
eldest rather than the younger: 18. And his brother, if he want
issue, before all others. 19. In the same manner that men
succeed to the power, do they also succeed to the right of
succession.
[Sidenote: Paternal dominion ariseth not from generation.]
1. SOCRATES _is a man, and therefore a living creature_, is right
reasoning; and that most evident, because there is nothing needful
to the acknowledging of the truth of the consequence, but that the
word _man_ be understood; because _a living creature_ is in the
definition itself of _a man_, and every one makes up the proposition
which was desired, namely this, _man is a living creature_. And
this, _Sophroniscus is Socrates’ father, and therefore his lord_, is
perhaps a true inference, but not evident; because the word _lord_
is not in the definition of _a father_: wherefore it is necessary,
to make it more evident, that the connexion of _father_ and _lord_
be somewhat unfolded. Those that have hitherto endeavoured to prove
the dominion of a parent over his children, have brought no other
argument than that of _generation_; as if it were of itself evident,
that what is begotten by me is mine; just as if a man should think,
that because there is a triangle, it appears presently, without any
further discourse, that its angles are equal to two right. Besides,
since dominion, that is, supreme power is indivisible, insomuch as
no man can serve two masters; but two persons, male and female, must
concur in the act of generation; it is impossible that dominion
should at all be acquired by generation only. Wherefore we will,
with the more diligence, in this place inquire into the original of
_paternal government_.
[Sidenote: Dominion over infants belongs to him who first hath them
in his power.]
2. We must therefore return to the state of nature, in which, by
reason of the equality of nature, all men of riper years are to be
accounted equal. There _by right of nature_ the conqueror is lord of
the conquered. By the right therefore of _nature_, the dominion over
the infant first belongs to him who first hath him in his power. But
it is manifest that he who is newly born, is in the _mother’s_ power
before any others; insomuch as she may rightly, and at her own will,
either breed him up or adventure him to fortune.
[Sidenote: Dominion over infants is originally the mother’s.]
3. If therefore she breed him, because the state of nature is the
state of war, she is supposed to bring him up on this condition;
that being grown to full age he become not her enemy; which is, that
he obey her. For since by natural necessity we all desire that which
appears good unto us, it cannot be understood that any man hath on
such terms afforded life to another, that he might both get strength
by his years, and at once become an enemy. But each man is an enemy
to that other, whom he neither obeys nor commands. And thus in the
state of nature, every woman that bears children, becomes both a
_mother_ and a _lord_. But what some say, that in this case the
_father_, by reason of the pre-eminence of sex, and not the _mother_
becomes _lord_, signifies nothing. For both reason shows the
contrary; because the inequality of their natural forces is not so
great, that the man could get the dominion over the woman without
war. And custom also contradicts not; for women, namely Amazons,
have in former times waged war against their adversaries, and
disposed of their children at their own wills. And at this day, in
divers places women are invested with the principal authority;
neither do their husbands dispose of their children, but themselves;
which in truth they do _by the right of nature_; forasmuch as they
who have the supreme power, are not tied at all (as hath been
shewed) to the civil laws. Add also, that in the state of nature it
cannot be known who is the _father_, but by the testimony of the
_mother_; the child therefore is his whose the mother will have it,
and therefore her’s. Wherefore original dominion over _children_
belongs to the _mother_: and among men no less than other creatures,
the birth follows the belly.
[Sidenote: The exposed infant is his that preserves him.]
4. The dominion passes from the mother to others, divers ways.
First, if she quit and forsake her right by _exposing_ the child. He
therefore that shall bring up the child thus exposed, shall have the
same dominion over it which the mother had. For that life which the
mother had given it, (not by _getting_ but _nourishing_ it), she now
by _exposing_ takes from it. Wherefore the obligation also which
arose from the benefit of life, is by this exposition made void. Now
the preserved oweth all to the preserver, whether in regard of his
education as to a _mother_, or of his service as to a _lord_. For
although the mother in the state of nature, where all men have a
right to all things, may recover her son again, namely, by the same
right that anybody else might do it; yet may not the son rightly
transfer himself again unto his mother.
[Sidenote: The son of a subject and chief, is his that commands.]
5. Secondly, if the mother be taken prisoner, her son is his that
took her; because that he who hath dominion over the person, hath
also dominion over all belonging to the person; wherefore over the
son also, as hath been shewed in the foregoing chapter, in the fifth
article. Thirdly, if the mother be a subject under what government
soever, he that hath the supreme authority in that government, will
also have the dominion over him that is born of her; for he is lord
also of the mother, who is bound to obey him in all things.
Fourthly, if a woman for society’s sake give herself to a man on
this condition, that he shall bear the sway; he that receives his
being from the contribution of both parties, is the _father’s_, in
regard of the command he hath over the _mother_. But if a woman
bearing rule shall have children by a subject, the children are the
_mother’s_; for otherwise the woman can have no children without
prejudice to her authority. And universally, if the society of the
male and female be such an union, as the one have subjected himself
to the other, the children belong to him or her that commands.
[Sidenote: In such a conjunction of male and female, as neither hath
the commanding power over the other, the children are the
mother’s; except by pact or civil law it be otherwise
determined.]
6. But in the state of nature, if a man and woman contract so, as
neither is subject to the command of the other, the children are the
mother’s, for the reasons above given in the third article, unless
by pacts it be otherwise provided. For the _mother_ may by pact
dispose of her right as she lists; as heretofore hath been done by
the Amazons, who of those children which have been begotten by their
neighbours, have by pact allowed them the _males_, and retained
_females_ to themselves. But in a civil government, if there be a
contract of marriage between a man and woman, the children are the
_father’s_; because in all cities, to wit, constituted of _fathers_,
not _mothers_ governing their families, the domestical command
belongs to the man; and such a contract, if it be made according to
the civil laws, is called matrimony. But if they agree only to lie
together, the children are the _father’s_ or the _mother’s_
variously, according to the differing civil laws of divers cities.
[Sidenote: Children are no less subject to their parents, than
servants to their lords, and subjects to their city.]
7. Now because, by the third article, the _mother is originally lord
of her children_, and from her the father, or somebody else by
derived right; it is manifest that the children are no less subject
to those by whom they are nourished and brought up, than servants to
their lords, and subjects to him who bears the supreme rule; and
that a parent cannot be injurious to his son, as long as he is under
his power. A son also is freed from subjection in the same manner as
a subject and servant are. For _emancipation_ is the same thing with
_manumission_, and _abdication_ with _banishment_.
[Sidenote: Of the honour due to parents and lords.]
8. The _enfranchised son_ or _released servant_, do now stand in
less fear of their _lord_ and _father_, being deprived of his
natural and lordly power over them; and, if regard be had to true
and inward honour, do honour him less than before. For _honour_, as
hath been said in the section above, is nothing else but the
estimation of another’s power; and therefore he that hath least
power, hath always least _honour_. But it is not to be imagined,
that the _enfranchiser_ ever intended so to match the _enfranchised_
with himself, as that he should not so much as acknowledge a
benefit, but should so carry himself in all things as if he were
become wholly his equal. It must therefore be ever understood, that
he who is freed from subjection, whether he be a _servant_, _son_,
or some _colony_, doth promise all those external signs at least,
whereby superiors used to be honoured by their inferiors. From
whence it follows, that the precept of _honouring our parents_,
belongs to the law of nature, not only under the title of
_gratitude_, but also of _agreement_.
[Sidenote: Wherein liberty doth consist; and the difference between
subjects and servants.]
9. What then, will some one demand, is the difference between a
_son_, or between a _subject_ and a _servant_? Neither do I know
that any writer hath fully declared what _liberty_ and what
_slavery_ is. Commonly, to do all things according to our own
fancies, and that without punishment, is esteemed to be _liberty_;
not to be able to do this, is judged _bondage_; which in a civil
government, and with the peace of mankind, cannot possibly be done;
because there is no city without a command and a restraining right.
_Liberty_, that we may define it, is nothing else but _an absence of
the lets and hindrances of motion_; as water shut up in a vessel is
therefore not at liberty, because the vessel hinders it from running
out; which, the vessel being broken, is made _free_. And every man
hath more or less _liberty_, as he hath more or less space in which
he employs himself: as he hath more _liberty_, who is in a large,
than he that is kept in a close prison. And a man may be free toward
one part, and yet not toward another; as the traveller is bounded on
this and that side with hedges or stone walls, lest he spoil the
vines or corn neighbouring on the highway. And these kinds of lets
are external and absolute. In which sense all _servants_ and
_subjects_ are _free_, who are not fettered and imprisoned. There
are others which are arbitrary, which do not absolutely hinder
motion, but by accident, to wit, by our own choice; as he that is in
a ship, is not so hindered but he may cast himself into the sea, if
he will. And here also the more ways a man may move himself, the
more _liberty_ he hath. And herein consists civil _liberty_; for no
man, whether _subject_, _son_, or _servant_, is so hindered by the
punishments appointed by the _city_, the _father_, or the _lord_,
how cruel soever, but that he may do all things, and make use of all
means necessary to the preservation of his life and health. For my
part therefore I cannot find what reason a mere _servant_ hath to
make complaints, if they relate only to want of _liberty_; unless he
count it a misery to be restrained from hurting himself, and to
receive that life, which by war, or misfortune, or through his own
idleness was forfeited, together with all manner of sustenance, and
all things necessary to the conservation of health, on this
condition only, that he will be ruled. For he that is kept in by
punishments laid before him, so as he dares not let loose the reins
to his will in all things, is not oppressed by servitude, but is
governed and sustained. But this privilege free subjects and sons of
a family have above servants in every government and family where
servants are; that they may both undergo the more honourable offices
of the city or family, and also enjoy a larger possession of things
superfluous. And herein lies the difference between a _free subject_
and a _servant_, that he is _free_ indeed, who serves his city only;
but a _servant_ is he, who also serves his fellow-subject. All other
liberty is an exemption from the laws of the city, and proper only
to those that bear rule.
[Sidenote: There is the same right in an hereditary, which there is
in an institutive government.]
10. A _father_ with his _sons_ and _servants_, grown into a civil
person by virtue of his paternal jurisdiction, is called a _family_.
This _family_, if through multiplying of _children_ and acquisition
of _servants_ it becomes numerous, insomuch as without casting the
uncertain die of war it cannot be subdued, will be termed an
_hereditary kingdom_. Which though it differ from an _institutive
monarchy_, being acquired by force, in the original and manner of
its constitution; yet being constituted, it hath all the same
properties, and the right of authority is everywhere the same;
insomuch as it is not needful to speak anything of them apart.
[Sidenote: The question concerning the right of succession belongs
only to monarchy.]
11. It hath been spoken, by what right supreme authorities are
constituted. We must now briefly tell you, by what right they may be
continued. Now the right by which they are continued, is that which
is called the right of _succession_. Now because in a _democracy_
the supreme authority is with the _people_, as long as there be any
subjects in being, so long it rests with the same person; for the
people hath no successor. In like manner in an _aristocracy_, one of
the nobles dying, some other by the rest is substituted in his
place; and therefore except they all die together, which I suppose
will never happen, there is no succession. The query therefore of
the right of succession takes place only in an _absolute monarchy_.
For they who exercise the supreme power for a time only, are
themselves no _monarchs_, but _ministers_ of state.
[Sidenote: A monarch may dispose of the command of his government by
testament:]
12. But first, if a monarch shall by testament appoint one to
succeed him, the person appointed shall succeed. For if he be
appointed by the _people_, he shall have all the right over the city
which the _people_ had, as hath been showed in chap. VII. art. 11.
But the people might choose him; by the same right therefore may he
choose another. But in an _hereditary kingdom_, there are the same
rights as in an _institutive_. Wherefore every monarch may by his
will make a _successor_.
[Sidenote: Or give it away, or sell it.]
13. But what a man may transfer on another by testament, that by the
same right may he, yet living, give or sell away. To whomsoever
therefore he shall make over the supreme power, whether by gift or
sale, it is rightly made.
[Sidenote: A monarch dying without testament, is ever understood to
will that a monarch should succeed him:]
14. But if living he have not declared his will concerning his
successor by testament nor otherwise, it is supposed, first, that he
would not have his government reduced to an anarchy or the state of
war, that is, to the destruction of his subjects; as well because he
could not do that without breach of the laws of nature, whereby he
was obliged to the performance of all things necessarily conducing
to the preservation of peace; as also because, if that had been his
will, it had not been hard for him to have declared that openly.
Next, because the right passeth according to the will of the father,
we must judge of the _successor_ according to the signs of his will.
It is understood therefore, that he would have his subjects to be
under a _monarchical_ government, rather than any other, because he
himself in ruling hath before approved of that state by his example,
and hath not afterward either by any word or deed condemned it.
[Sidenote: And some one of his children:]
15. Furthermore, because by natural necessity all men wish them
better, from whom they receive glory and honour, than others; but
every man after death receives honour and glory from his children,
sooner than from the power of any other men: hence we gather, that a
father intends better for his children than any other person’s. It
is to be understood therefore, that the will of the father, dying
without testament, was that some of his children should succeed him.
Yet this is to be understood with this proviso, that there be no
more apparent tokens to the contrary: of which kind, after many
successions, custom may be one. For he that makes no mention of his
_succession_, is supposed to consent to the customs of his realm.
[Sidenote: And a male rather than female:]
16. Among children the males carry the pre-eminence; in the
beginning perhaps, because for the most part, although not always,
they are fitter for the administration of greater matters, but
specially of wars; but afterwards, when it was grown a custom,
because that custom was not contradicted. And therefore the will of
the father, unless some other custom or sign do clearly repugn it,
is to be interpreted in favour of them.
[Sidenote: And of the males, the eldest rather than the younger:]
17. Now because the sons are equal, and the power cannot be divided,
the eldest shall succeed. For if there be any difference by reason
of age, the eldest is supposed more worthy; for nature being judge,
the most in years (because usually it is so) is the wisest; but
other judge there cannot be had. But if the brothers must be equally
valued, the succession shall be _by lot_. But _primogeniture_ is a
natural lot, and by this the eldest is already preferred; nor is
there any that hath power to judge, whether by this or any other
kind of lots the matter is to be decided. Now the same reason which
contends thus for the first-born son, doth no less for the
first-born daughter.
[Sidenote: And his brother, if he want issue, before all others.]
18. But if he have no children, then the command shall pass to his
brothers and sisters; for the same reason that the children should
have succeeded, if he had had them. For those that are nearest to us
in nature, are supposed to be nearest in benevolence. And to his
brothers sooner than his sisters, and to the elder sooner than the
younger; for the reason is the same for these, that it was for the
children.
[Sidenote: In the same manner that men succeed to the power, do they
also succeed to the right of succession.]
19. Furthermore, by the same reason that men succeed to the power,
do they also succeed to the right of succession. For if the
first-born die before the father, it will be judged that he
transferred his right of succession unto his children; unless the
father have otherwise decreed it. And therefore the nephews will
have a fairer pretence to the succession, than the uncles. I say all
these things will be thus, if the custom of the place (which the
father by not contradicting will be judged to have consented to) do
not hinder them.
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