CHAPTER IX.. Of the Right of Parents Over Their Children, and

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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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