Right ceased before that of the Legatees could begin So that it seems to me at present that the power of bequeathing either the persons of men or goods was but a consequence of an absolute Propriety in things which arises from Compact in a Common-wealth as I shall hereafter prove Therefore out of this State a Will cannot bind the persons of the Children or Servants so bequeathed And for this cause we find Abraham Gen. 24. v. 2 3. binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Gen. 49. v. 29. Jacob taking an Oath of Joseph not to bury him in Egypt because they doubted whether they could oblige them to do it by their Testament But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been so bequeathable by their Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Law of God or Nature but proceeds purely from a continued Custom of the Kingdom or Civil Law thereof else why had not Henry VIII or Edward VI power to limit or bequeath the Crown to whom they pleased as well as William the Conquerour And to look into other Countries what now renders Women uncapable of succeeding to the Crown of France yet capable of inheriting that of England Spain and divers other Kingdoms of Europe but the Customs or particular Constitutions of the Estates of these Kingdoms which no Will or Testament can alter What else hinders the Grand Seignior that he cannot disinherit his eldest Son if he survive him Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. but the Custom of the Ottoman Empire And what is this Custom but as the Author himself acknowledges in the case of England the Commom Law of the Country Freeholders Inquest p. 62. which is said to be Common Custom Thus to protect the Customs which the Vulgar shall chuse is to protect the Common Laws of England So that it was the Will of the People and not the Prince alone that made this a Law for if this Law of the Succession of the Crown depended upon his Will then if he be an absolute Monarch that when sufficiently declared being the onely Law might alter it when he would 〈◊〉 and so he might bequeath the Crown to whom he pleased But every one that understands the present Laws of Descent of the Crown of France or the manner of Succession in the Ottoman Empire knows that i◠the King of France or Grand Seignior as absolute as they are should bequeath their Kingdoms to any other than the right Heir this Will would signifie nothing and no body would obey this Successor of their appointing And if any man think to evade this by saying That the Succession of the Crown is a Fundamental Law of the Government and that a Prince may be Absolute and yet not have a power to alter that as he may every thing else I would ask him who made this a Fundamental Law at first whether the King then in being or the King with the Consent of the People upon the first institution of the Government If the King made it alone since he is supposed to have made it at first for the good of the People of which he is the Judge and is supposed in Law never to die why then is not he as competent a Judge of what is good for the People now as a King that lived a thousand years agone was what was fit for the People then and consequently hath as much Right of altering the Succession for the Peoples benefit as he that established it at first since every Law may be altered by the same Power that made it But if he say it is a Fundamental Law because long custom hath made it so then it is apparent such a Law hath its force from the Consent of the People at first or since Custom being nothing else Or lastly if he will acknowledge that the Consent of the People was necessary to make this a Fundamental Constitution then it can neither be altered without their Consent and so consequently no Princes Testament is good as to that farther than the People or their Representatives give their assent thereunto And the same Law holds in the Father of a Family since this Author will have no difference between him and a King but onely secundum Magis Minus If then there be no Right in the state of Nature for a Father to bequeath his Dominion over his Children by his Testament let us return again to that of Descent and see if that will prove a better foundation to build this natural Right of Princes upon For my part I think that it is not onely impossible to know who was Adam's right Heir of his Fatherly Power now after five or six thousand years but might likewise be as uncertain as soon as ever the breath was out of his body For supposing Eve survived him why should not her natural Right of governing the Children which she her self brought forth and which out of Wedlock would have belonged to her revive and take place before any Right of her eldest Son to whom upon this ground she must have become subject if she would continue part of the Family or natural Commonwealth which she could not avoid there being none but her Children or Grandchildren in the world and it being against the nature of Government to allow two Absolute Heads in the same Family or Commonwealth So that for ought I see the Mother of the Family hath the best Right to the Government in the state of Nature after the Husbands death upon the Authors own grounds For if the Commandment of Honour thy Father and thy Mother signifie more than bare Reverence and Respect as appears by the Apostles Exposition of this Commandment Ephes 6. v. 1. Children obey your Parents in the Lord which he makes the same with Honour thy Father and thy Mother then this Obedience which was due to the Father belongs likewise to her when his power ceases But passing over this difficulty and allowing this Fatherly Authority to descend to Adam's next Heir it might have been a great Question who this next Heir was supposing Cain to have been disinherited for the murder of Abel and to have gone away and built a City and set up a Government by himself Yet let us suppose Abel left a Son behind him who survived Adam his Grandfather which he might very well do and yet the Scripture be silent in it since the intent of Moses in his Genealogies being onely to give us the Pedigree of the Jews and therefore says little of his other Children but by the by I would ask the Author or any man else who was Adam's Heir after his death whether this Son of Abel or Seth whom we will suppose likewise to
their Parents Vid. Preface to his Observations on Aristotle 's Politicks since the Author in another place affirms that at first a Childe a Slave and a Servant were all one without any difference I see no divine Charter in Scripture of any such absolute despotick power granted to Adam or any other Father The Author in his Observations on Grotius de Jure belli c. founds this dominion of Adam over the Earth and all Creatures therein on Gen. 1.28 and quotes Mr. Selden in his Mare Clausum where he says That Adam by donation from God was made the general Lord of all things not without such a private dominion to himself as did exclude his Children c. From which words I do not conceive that Adam's absolute power over his own Off-spring can be made out for the words are spoken as well to the Female as Male of Mankind Be fruitful and multiply and replenish the Earth and have dominion over the fish of the Sea c. and over every living thing that moveth in the Original creepeth upon the face of the Earth By which words Adam hath no power conferred upon him over his own Children when he should have them These words implying no more than a conferring of a power by God on Mankind under these words of Male and Female and was not at all personal to Adam or Eve alone whereby they might subdue or tame the Brute Creatures for their use not comprehending those of the same kind with themselves since the general words extend no farther than to every living thing that creepeth upon the Earth nor does Gods grant of the Creatures to Noah comprehend more than this Onely God there gives man a priviledge to kill the Creatures for Food which Adam had not Which shews that Adam was so far from having any such power of Life and Death over his own Children that he had it not so much as over Brute Creatures Since if he had this power as a Monarch it is highly probable that being the Father of all Men in the world and having by the murder of Abel not onely lost a Son but a Subject it had been his Right alone to have punished Cain the Murderer Whereas we finde Cain Gen. 4. v. 14. upon his conviction of the Murder telling God that every one that findeth him should slay him and therefore v. 15. God set a mark upon Cain lest any finding him should slay him From whence we may infer 1. That it was a Law of Nature then that Murder was to be punished 2. That this Right of punishing did not belong to Adam as a Father alone so as to have power of Life and Death over his Children since the Text does not mention that he was afraid his Father should put him to death but every one that met him Neither does God set a mark upon him to secure him from Adam but from any body else that should light on him From whence it follows that if Adam had no more right by Gods concession to take away his Sons life for the murder of his Brother which is one of the greatest offences he could commit than any other of his Brethren or Kinsmen there is no reason why he should have it in any other case And as for what the Author says That this Lordship which Adam had over the whole World the Patriarchs by a Right descending from him did enjoy which was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation I cannot understand how this Right derives it self from Adam For he tells us but a little before p. 12. That Civil Power not onely in general is by divine Institution but even the Assignment of it specifically to the eldest Parents Therefore granting that all the Patriarchs from Abraham to Jacob's twelve Sons inclusively assumed a power of Life and Death over their own Families 1. I desire to know how this Right can be derived from Adam for the Right of supream Monarch of the world descending upon the eldest Son of Adam whom we will suppose to have been Seth since Cain might forfeit his Birthright this power of Life and Death could onely be truly vested in the eldest Grandchild or descendant from Seth which I suppose the Author means by eldest Parents or else he talks nonsence And that Abraham was this eldest Grand-son of Seth will be hard to prove since it is not apparent from Scripture whether Shem or Japhet were the eldest Son of Noah or Abram or Nahor the eldest Son of Terah And the Fathers and ancient Commentators on this place are divided in their opinions concerning this point And it is plain from divers places in Scripture that the eldest Son is not always first named But supposing that Shem was the eldest Son of Noah it does not appear that Arphaxad from whom Abram descended was his eldest Son since the Scripture does not undertake to give us the names of all the Sons of Shem but onely of Arphaxad as his name was necessary for the deriving of the Genealogy of Abraham the Ancestor of the Jewish Nation But if any man will answer as the Author does p. 21. that this right Heir of Adam coming by length of time to be lost this supream Kingly power became devolved to all independent Heads of Families then this Right of Adam as Lord and King of the whole World as the first man must certainly be extinct since none but the true Heir could have a Right to that according to the Author's principles So that this power of Life and Death which the Author will have the Patriarchs to have exercised over those of their Family must belong to them either as Fathers or else as Masters or Heads of their particular Families and not as Heirs to Adam But since the Author seems to found this Power of Adam upon Mr. Hunton's concession See Anarchy of a limited Monarchy p. 264. That it is God's Ordinance that there should be Civil Government because Gen. 3.16 God ordained Adam â—o rule over his Wife and her desire was to be subject â—o his and that as hers so all theirs that should come â—ut of her First all Expositors look upon these words â—s respecting only a Conjugal and not Filial Subâ—ction Neither were they spoke in the state of Naâ—ure or Innocence but after the Fall Neither for all â—hat did Adam or any other Husband by these words â—cquire an absolute Authority over the Life of his â—ife in the state of Nature so that she hath no â—ght left her to defend herself from the unjust violence 〈◊〉 rage of her Husband Therefore since this Power 〈◊〉 Adam over Eve and her Children cannot be preâ—nded to belong to him as a Father but as a Master 〈◊〉 a Slave and those that shall be descended from her 〈◊〉 were worth while to enquire what Power a Father 〈◊〉 Master of a Family can claim separate from any â—ommonwealth as we will suppose
as his Lord and Master without his consent Suppose then that Adam had been so cruel and unnatural as some Fathers are and being sensible of the profit he received from his Sons labours would never have given them leave to have left his Family and have set up for themselves nor to have had any thing of their own but onely allowing them and their Wives a bare subsistance have kept them like slaves as long as they lived the Author I suppose would reply That he might have done so if he had pleased and that the Sons had no lawful means to help themselves since he onely was Judge when or whether ever it was fit to set them free or no. But I desire to know whether Adam had this power by a natural Right or an acquired not by the latter for I have already proved that neither Generation nor Possession can confer an absolute Right over the person of another Nor yet could he have it by the Sons consent for they would never give their consent to such an absolute slavish subjection Nor yet could he have any such Right by the revealed Will of God since I have also proved that such an absolute subjection is nowhere requir'd by him in Scripture But now to return to the acquired Right of Education neither can that confer so absolute a power over any mans person as that therefore he should be a slave to his Fosterer as long as he liv'd since admitting that the Father or other person that takes upon him that care may perhaps justly claim a Right in the service or labour of the Childe to satisfie them for their trouble and charge in bringing him up Yet it does not therefore follow that this service is due as long as the Childe lives but rather until such time as they can make his labour satisfie them for their charge and trouble in keeping him which may very well be by that time the Child attains to twenty five years of age at farthest And there are those that have offered to breed up and maintain all the Foundlings and Bastard-children in England if they may be bound to serve them until about that age So that I see no reason why a few years Education should give any man a Right over another person as long as he lived But if it be urged that the Childe owed his life to his Father or Fosterer since without his assistance he must have perisht and therefore the service of the Child 's whole life is but little enough to recompence it to this I answer That the Parents are under an absolute obligation by the Laws of God and Nature to breed up their Childe and they sin if they do not perform it as they ought the end of a Father not being chiefly for the breeding up and preservation of the Child and therefore there is no reason he should acquire such a property in him meerly because he did his duty and the intent of a Father being to better the condition of his Son and not to make it worse I doubt whether an absolute or perpetual Servitude or Death it self were the better bargain and if this Right will not hold for the Father himself much less will it for a Fosterer since he is likewise obliged by the Laws of Nature and Humanity if he be able to breed up the Child he finds and not to let it perish So that the advantage he may make of the Child ought not to be the principal end of his undertaking but the doing of good to mankind and the advantage is to be considered onely as an encouragement not as the onely motive to his duty since he is obliged to do the same thing though he were sure the Childe would either die or be taken away from him before it could be with him half long enough to satisfie him Neither does this reason hold true according to the Scripture-rules of Gratitude that a man hath Right to exact of one to whom he hath done a Courtesie or bestowed a Benefit a Return as great as the Benefit bestowed since this were not beneficence but meer bartering or exchange And a man who had his life saved by anothers assistance suppose by pulling him out of the water was obliged by this principle to leave his life at his disposal ever after Therefore I see no reason from all that hath yet been said why a Son when he comes to be a man able to shift for himself may not in the state of nature marry and separate himself from his fathers Family even without his Fathers consent if he cannot otherwise obtain his liberty by his entreaty and all fair means Not but that the Father may if he please disinherit his Son for so doing or for marrying without his consent since every man is free to dispose of his own upon what conditions he thinks fit And the Son was to have considered before-hand which he valued most his own Liberty or his Fathers kindness and the hopes of his share of his Estate after his death But I now come to the Author 's main Argument from Scripture-Examples That the Patriarchs by a Right derived from Adam did exercise as Heads of their respective Families a dominion as absolute as that of any Monarch And so instances in Thamar brought out to be burnt by her Father-in-law Judah Touching War Abram 's commanding an Army of 318 Souldiers of his own Family Esau 's meeting his Brother with 400 men at Arms For matter of Peace Abram 's making a League with Abimelech And that these acts of judging in capital Crimes of making War and Peace are the chiefest marks of Soveraignty that are found in a Monarchy All which I shall endeavour to answer First The instance of Judah rather makes against him for he confines this power before to the chief Father of the Family and will never have Children to be free from subjection to their Fathers whereas in this case Judah as Head of his own Family exercised an absolute power of Life and Death and so was free from subjection to his Father Jacob who was then living And suppose as the Text Gen. 38. expresses Judah went down from his Brethren to a certain Adullamite and there married and set up a distinct Family yet this will not help the Author since p. 33. he will not allow the Fatherly Authority to be confined to one Family if the Families were at such a distance as they might receive their fathers commands which lies upon him to prove And therefore this subjection was not perpetual Secondly I shall shew by another Example that the Head of a Family hath not absolute power of the lives of his Children and Grandchildren and that is from Reuben's pathetical Speech Gen. 42. to his Father Jacob when he refused to send Benjamin with him into Egypt Slay my two sons says he if I bring him not unto thee Now if Jacob had this absolute power as a Father it had been impertinent
Sons of Esau and Ishmael are reckon'd as so many independant Princes or Dukes and Lords of distinct Territories without any Superiority in the eldest Son who ought by the Authours Principle to have been absolute Lord over the rest And if these could divide themselves into as many distinct Governments as there were Sons Why might not they do so in infinitum And then there could never be any common Prince or Monarch set over them all but by Force or Conquest or else by Election either of which destroys the notion of the Natural Right of Eldership And as for the places he brings to prove it 1. Gods words to Gain concerning Abel will not do it His desires shall be subject unto thee and thou shalt rule over him For first this might be spoken only personally to Cain and not to give a Right to all Eldest Sons Secondly the words do not signifie an absolute Despotick Power but a ruling or governing by perswasion or fair means as when a man is ruled that is advised by another in his concerns Then as for the blessing upon Jacob by his Father Isaac Be Lord over thy Brethren and let the Sons of thy Mother bow before thee 't was never litterally fulfilled For Jacob was never Lord over Esau who was a Prince of Mount Seir in Jacob's life-time whilst Jacob was at best but Lord of his own family And as for bowing and other Rights of Superiority we read Gen. 33.3 that Jacob at his Interview with his Brother Esau called him Lord and bowed seven times to the ground before he came to him So that this Text is no more than a Prophecy to shew why the Jews or descendents of Jacob should have Right in After-times to rule over the Edomites or Posterity of Esau Lastly this Example makes against the Authour for it seems it is not the Eldest Son but whom the Father pleases to appoint is Heir after his death Since here Esau looses his Birth right by his own act but chiefly by his Fathers Will. Yet if after all some will urge from the Principles I have laid down that it seems more to conduce to the happiness and peace of Families and in that to the great end I have before laid down the common good of Mankinde rather to allow this absolute Power of Life and Death to Parents over their Children and an absolute Subjection to them as long as they live since Parents do usually take that care to breed up their Children and to have that tender Affection towards them that they will seldom take away their Lives or sell them for Slaves or keep them so themselves unless there be very great cause of which the Father only ought to be Judge since it being the nature of most Children to be apt to contradict and disobey their Fathers commands or perhaps resist them pretending they would kill them when they only go about to give them due correction And since most young people hate restraint and love to be gadding abroad they having a Right by these Principles to judge when they are able to shift for themselves would take any slight pretence to run away from their Father assoon as they were grown pretty big and so perhaps leave their Parents in their old Age when they had no body to take care of them whereby nothing but confusion and quarrels would happen in Families great mischief to the Parents and often ruine to the Children who being often opiniatred and self-will'd would think better of their own abilities than they really deserved And therefore divers Nations seeing these great Inconveniencies did by their Laws leave Parents the Power of Life and Death over their Children Such were those the Author instances in the Persians See Patriarcha p. 38. chap. 2. Gauls and many Nations in the West-Indies And the Romans even in their Popular State had this Law in force Which Power of Parents was ratified and amplified by the Laws of the XII Tables enabling of Parents to sell their Children three times And the Law of Moses gives full power to the Father to stone his disobedient Son so it be done in presence of a Magistrate And yet it did not belong to the Magistrate to inquire and examine the justness of the cause but it was so ordained lest the Father should in his Anger suddenly or secretly kill his Son To all which I answer that since this Argument quits the natural Power of a Father by Generation and only sticks to the acquired one of education and appeals to the common good of Mankinde I do acknowledge it is a better than any of the rest Yet I think it is not true that Parents in the state of Nature would more seldome abuse their power than Children would this Natural Liberty I here allow them of defending and providing for themselves in cases of extreme Danger and Necessity For this Temptation to do ill is greater on the Fathers side than that of the Children For they looking on themselves as having an absolute and unquestionable power over them and that they may deal with them as they please are apt to think themselves slighted and disobeyed by their Children perhaps on very light occasions and their Passion often rises to that height as not considering the Follies and Inconsiderateness of Youth that they may if Cholerick or Ill-natur'd strike them with that which may either kill them or else cripple or maim them and perhaps out of an immoderate Anger or being weary of them murder them on purpose And Fathers being more apt as having oftner occasion to be angry with their Children than their Children with them it is evident to me that in the state of Nature where there is no Magistrate to keep the Father in awe Fathers will be as apt to kill or maim their Children as Children their Parents And if the Fathers as I said before are intended for the good and preservation of their Child and that where their Right ceases the Childrens Right to preserve themselves takes place It seems to conduce more to the general good of Mankinde that the Children should make use of this last refuge of defending themselves when they cannot otherwise preserve their Lives and Members than that Fathers should have such an absolute Right to deal with them as they pleased without any power in the Children to resist or defend themselves So likewise Fathers being so much older understand their own advantage better than their Children and being somtimes more ill-natur'd and often by reason of their Age more covetous than they may be tempted to sell their Children for Slaves whereby they may fall into a condition worse than Death itself and may not the Son then endeavour to run away or use all lawful means possible to escape so great a misery Or if the Father will keep his Son as a Slave all the days of his life without any hopes of ever being free For when the Father dies the Son according to this
Scripture do best serve his turn So that I believe he did not either negligently or ignorantly avoid settling this point because he might still have a hole left to creep out at or else because he could do it no better than the Instances he brings would permit He says Direct for Obedience pag. 68. A Son is always to live under the subjection of his Father unless by Gods immediate appointment or by the Grant or Death of his Father he become himself possess'd of that Power to which he was subject By which words he seems to imply that this Power is to descend to the Eldest Son when his Father dies So likewise in this Treatise we are now upon P. 12. he says Civil Power not only in general is by Divine Institution but even the assignment of it specifically to the eldest Parents By which words I suppose he means if any thing eldest Sons though I know not why he should limit it to Parents for methinks it were very hard the eldest Son should forfeit his Right in case he were not a Parent when his Father died So likewise he tells us P. 19. That these Heirs of this Fatherly Power are not only Lords of their own Children but also of their Brethren and all others that were subject to their Father Yet tells us not plainly which of the Sons is Heir only says a little before That when God made choice of any special Person to be King he always intended that the Issue also should have the benefit thereof Though this general Rule was false in the case of Saul whose Children were disinherited by God to establish the Crown upon David and his Line So uncertain things are Instances drawn from Scripture without any due consideration of the Reason of them But to return to the subject I grant that it is not impossible but from the command of a Father of a Family who hath divers other Families under him there may spring a Civil Government though the Fatherly Authority doth properly regard the Education of the Children and the Masterly Power to encrease Riches And though it is not changed barely by the great number of Children or Servants yet the difference between them is not so wide that there can be no transition from one to the other unless a new Right of Soveraign Majesty be produced by God For if a Father of a Family being provided of a great stock of Children and Slaves will by way of Manumission permit them to enjoy their own Goods and Families apart on that condition that they submit to his Government for their common Security I do not see what is wanting to the making him a Prince if he have strength sufficient to perform the ends of a Commonwealth But he dying and nominating a Successour if his Sons will consent to him and confirm his Will they may if they please if not all of them as in an Interregnum may appoint what sort of Government they will have for the future Nor will the Law of Nature be violated if the youngest Son having most Votes should be elected in his Fathers stead I should be glad any man could demonstrate to me from the Laws of God and Nature that Adam's eldest Son was by the Right of Eldership to be Lord over his Brethren without their Election or Consent when their Father died Indeed the Jewish Law allow'd a preheminence to the Elder Brother and that he should have a double portion and be reverenced by all his Brethren exprest by this Phrase of Let thy Mothers Sons bow before thee But this proves not that as Eldest Son he had therefore a Right of exercising all that Authority upon the Death of their Father over his Brethren which his Father had before Neither had Jacob any such Right over Esau though he sold his Birthright or the eldest or any other Son of Jacob any such Right over his Brethren for certainly God would not have abrogated it if they had So that Jacob's Authority as a Father ended with his Life and for any Despotick Propriety or Dominion over them I have already proved that the Father has none in the state of Nature Yet admitting he had the Children notwithstanding would have been free at his Death For Servitude being a mere personal Duty due only to the person of him that acquired this Slave when the person dies to whom he owed this subjection the Slave is free in the state of Nature unless the Lord of this Slave transferr'd his Right in him to another in his life-time a mans Person not being like a brute beast to be seiz'd by whoever can lay hold of him he hath no longer any obligation to serve his Children unless he will make himself their Slave of his own accord But if it be answered that the Father may bequeath this Right of Dominion over his Children at his Death by his Will to which of his Sons he pleased and that he that is so constituted by their Father is Lord over all the rest of his Brethren and endeavour to prove this from Genesis the 9. vers 25 26 27. where Noah cursing Canaan because Ham his Father had derided his nakedness says He shall be a Servant unto his Brethren I desire you would take notice that this Answer quite gives up the Natural Right of the Heir or Eldest Son 2. I suppose this rather was a Prediction or Curse to be fulfilled in Canaan's Posterity than upon himself For first this Right was not given as it ought to have been over the Person of Ham the Offender Observat on Grotius p. 49 50. whom this Authour allows to have had an equal share with his Brethren in the division of the World and so to have been in all Prerogatives equal with them Neither doth he give this Right to one of them bâ—… to both alike saying both of Shem and Japhet that Canaan should be their Servant which could not be meant of his person since that could not be divided by them both who were like to live at so great a distance therefore it can onely signifie that his Descendants should be slaves to the others And several Commentators upon this place do suppose that Moses related this Curse of Noah upon Ham onely to shew the Jews the Right they had to make slaves of the Canaanites because they were descended from Canaan And as for the Right of bequeathing slaves by Testament it is much disputed whether by the Law of Nature Testaments have any force in this case those that have written of it being much divided about it in the state of Nature since all Propriety in that state being but Occupancy or Possession which ceases with the life of the Occupant Therefore since a Testament commences onely from the Testators death who as soon as he died lost his Right in the Goods bequeathed since the dead can have no interest in any thing neither can the Legatee sustain the person of the Testator since this
these Patriarchs â—ere For this will serve toward the solving those â—xamples he puts of Abram's power of Peace and â—ar and of Judah's power of Life and Death over 〈◊〉 Daughter-in-law Thamar We will first then conâ—er the power of a Father by the Law of Nature â—er his Children and then that of a Master of a Faâ—ly over his Wife Servants or Slaves To begin â—…th that of a Father as the most worthy I shall deavour to search into the Original of the Father's â—wer over the persons of his Children and how far extends It is evident that this Power of Fathers over their â—ildren can only take place in the state of Wedlock 〈◊〉 as to Children got out of Marriage it is uncertain â—o is their Father who can only be known by the declaration of the Mother and she sometimes cannot certainly tell her self So that no man is obliged to take care of or breed up a Bastard because the Mother if she had her liberty of keeping what company she pleased can never morally assure him that the Child is his therefore unless he take upon him the care and education of this Child it belongs to the Mother and not to him to provide for it So that the Right of the Father over his Child commences by vertue 〈◊〉 the Marriage which is a mutual Compact between a Man and a Woman for their Cohabitation the generation of Children and their joint care and provision for them So that though by the Law of Nature which is confirm'd by the Law of God the Woman as the weaker vessel is to be subject to the Man as the stronger stouter and commonly the wiser creature 〈◊〉 whose care and courage she must owe the greatest parâ— of her provision and protection yet she is not without an Interest in the Children since she is under 〈◊〉 obligation to perform her part and that the most 〈◊〉 borious and troublesome in their Education thougâ— her Power and Right in them be still subordinate 〈◊〉 that of the Man to whom by force of the Marriage shâ— hath already subjected herself Some Writers therâ— fore think they have done sufficiently when they 〈◊〉 us that the Father hath an absolute Dominion ovâ— his Child because he got it and is the cause of it being By this Argument the Mother hath greatâ— Right over the person of the Child since all Natâ— ralists hold the Child partakes more of her than of 〈◊〉 Father and she is besides at greater pain and troubâ— both in the bearing bringing it forth nursing anâ— breeding it up But if it be answered that the Maâ— being Master of his Wife is by the Contract so likâ— wise of her Issue Then it follows that this power 〈◊〉 the Father does not commence barely from Geneâ—… tion but is acquired from the Contract of Marriage which till I meet with some reason to the contrary I see not why it might not be so agreed by the Contracts that the Father should not dispose of the Children without the Mothers consent Since we see it often so agreed in the Marriages of Soveraign Princes Vid. Articles of Marriage between King Philip and Queen Mary in Godwin's Annals An. 1554. Thuanus Lib. IX So likewise where a Subject marries his Queen as the Lord Darnley's Marriage with Mary Qu. of Scotland the Soveraignty and consequently the Power over the Children to be born remained entirely in Her who are always supposed to be in the state of Nature in respect to each other Yet though I will not deny but some Gratitude and Acknwledgment is due from Children to Parents even for this that they did enter into the state of Marriage for their generation and were the occasion of their Being Yet I do not see how by this alone a Father acquires an absolute power and dominion over the person of the Child to dispose of it as he thinks fit Since Parents acting here only as Natural and not Moral Agents they are not the voluntary Causes of its generation Therefore I cannot found so great a Right as that of an absolute perpetual Dominion over the Children upon so slight a foundation We must therefore trace this Right of Fathers over his Children to a more true original than any of these Since then all the Laws of Nature or Reason are intended for one end or effect viz. the common good and preservation of Mankinde and that Marriage is no otherwise a Duty than as by the propagation of our Species it conduces to without the help and assistance of others and that the Parents entred into this state of Marriage for the procreation of Children both the Instinct of Nature and Law of Reason dictate that they are obliged to take care of and provide for that Child which they as subordinate Causes have produced as being those on whom God hath imposed this Duty which is much greater than that of Generation for now the world is sufficiently peopled it may be doubted whether any person is obliged to Marry further than it may consist with their conveniency or course of Life But Parents when they are Married are tyed by the Laws of Nature to take care of the Children Therefore I suppose the highest Right of Parents in their Children doth arise merely from their discharge of this great Duty of Education as may appear from this Instance Suppose the Parents not being willing to undertake the trouble of breeding up the Child do either expose it or pass over their Right in it to another assoon as it is born I desire to know if the person that finds this Child or he to whom it is assigned breed it up until it come to have the use of Reason what Duty this Child can owe his Parents if they are made known to him Certainly all the obligation he can have to them must be upon the score of their begetting him which how small that is you may observe from what hath been said before nor can the Parents claim any further Right in this Child since by their exposing and granting it away they renounced all the Interest they could have in it so that the Duty and Gratitude he should have owed them had they taken upon them the care and trouble of breeding him up is now due to his Foster-Father or Mother who took care of him until he was able to shift for himself From whence it is evident that the highest Right which Parents can have in their Children is not meerly natural from generation but acquir'd by their performance of that nobler part of their Duty And so the highest Obedience which Children owe their Patents proceeds from that Gratitude and Sense they ought to have of the great obligation they owe their Parents for the trouble and care they put them to in their Education Having now I hope found out the Original of Parents Right and Interest in their Children and the chief ground of their Gratitude and Duty to their Parents we will now proceed to
reason why these distinctions of Grotius may not be well enough defended against all the Reasons which the Authour gives us to the contrary For he only tells us He cannot conceive how in any case Children can ever naturally have any power or moral faculty of doing what they please without their Fathers leave and that naturally the Power of Parents never ceaseth by any separation c. but gives us no other reason than that they are always bound to study to please them As if this obligation of Gratitude and Complacency did likewise comprehend a full and perfect propriety of all Fathers in the persons of their Children and an absolute power over them in all cases whatsoever so that Children shall have no Right left to consult their own good or preservation in any case whatsoever Vid. Bodin de Rep. l. 1. c. 4. farther than the Father pleases As for Bodin and divers others that have writ on this subject they do no more than follow others who have asserted this Absolute Power upon no other grounds than the Jewish or Roman Municipal Laws but have never troubled themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Nature or Reason And most Treatises of this subject being commonly written by Fathers they have been very full in setting forth their own Power and Authority over their Children but have said little or nothing of the Rights of Children in the state of Nature towards their Parents Loc. sup laudat Therefore Bodin thinks he hath done enough in supposing that if a Father is wise and not mad he will never kill his Son without cause since he will never correct him without he deserve it and that therefore the Civil Law supposes that the Will of the Parents in managing the concerns of their Children is void of all Fraud and that they will rather violate all Divine and Humane Laws than not endeavour to make their Children both rich and honourable And from those instances out of the Roman Law supposes that Parents cannot so much as will any thing to their Childrens prejudice or so much as abuse this Fatherly Power of Life and Death And therefore thinks he hath sufficiently answered the Objection he makes that there have been some Parents who have abused this power so far as to put their Children to Death without cause He says They give us no Examples to the contrary And supposing this to have sometimes fallen out must therefore Legislators alter a wholsome Law because some persons may abuse it But if we consider what Bodin hath here said we shall finde every one of his Suppositions false For 1. he supposes it to be the Right of all Fathers by the Law of Nature to have an absolute power over the lives and persons of their Children 2. That the Jewish and Roman Law are most agreeable to the Laws of Nature in this point 3. That Fathers do seldom or never abuse this power 4. That if they do abuse it yet it is better to leave it in their hands than to abrogate it or retrench it The falseness of all which Assertions I either have already or else shall hereafter make manifest Only I shall remark thus much at present That upon Bodin's principle women that murder their Bastards would have a good time on 't because having no Husbands they have full power over the Life of their Children and there is no reason that it should be retrencht by any positive Laws because some offend against it But however this Argument of Bodin's would do our Author's cause no good for if Parents are to be trusted with this absolute power over their Children because of the natural affection they are always supposed to bear them then Princes ought not to be trusted with it since none but Parents themselves can have this natural affection towards their Children Princes as the Author grants having this power onely as representing these Parents Whereas Parentage is a natural Relation and neither can be created nor assigned farther than the Civil Laws of the Country have appointed and therefore there can be no adopted Son by the Law of Nature since Adoption arises chiefly from the promise and consent of the person adopted and partly from the Authority of the Civil Law or Municipal Law of the Commonwealth So that in relation to Princes upon this Reason of Bodin's cessante causa cessat effectus But indeed Bodin never dreamt of this fine Notion of our Author's that all Monarchs were not onely Heads but Fathers of their people or else certainly we should have had this as the chief Argument to prove his French Monarchy to be Jure Divino But I shall trouble my self no farther with him at present but shall proceed to consider this point of absolute Obedience a little farther I suppose the Author as any sober man else would grant that Children are not obliged so much as to attempt to perform the commands of their Parents in case they evidently appear impossible or extravagant such as a Father may give when he is in a fit of drunkenness madness or sudden rage which is all one with madness and of this who can judge but the Children who are to perform these Commands And in this case no man will deny but it is lawful for the Children to hold nay binde their mad or drunken Parents in case they cannot otherwise hinder them from doing mischief or killing either themselves their Mothers or Brethren So that though they may do this from that natural love charity which all men in the state of nature ought to shew toward each other yet they may likewise justifie the doing of it as Children who ought to have a greater concern for the good and preservation of their Parents than meer strangers and have therefore an higher obligation to prevent their doing any mischief either to themselves or neer Relations this being for the Fathers good and preservation and that for which he hath cause to thank them when he comes to himself And if it be said that the Son may then refuse his Fathers Commands or resist them pretending he is mad drunk or in a rage when he really is not and thereby take occasion to obey his Father no farther than he pleases to this I answer That the Son is either really perswaded that his Father is in some of those evil circumstances before mentioned or else onely pretends that he thinks so when really he does not If in the first case he erre in his judgment and the ignorance did not proceed from his own fault either of passion prejudice or too slight an esteem of his Fathers understanding he is not culpable though he make such a false judgment of his Fathers actions for God considering onely the sincerity of the heart does not require of any man more than he is able to perform But if on the other side the Son play the Hypocrite and refuse
ought to be subject to the Husband in all things tending to the good and preservation of her Children and Family or else the Family would have two Heads as I said before But it does not therefore follow that he hath such a despotick power over her that she may in no case judge when he abuses his Fatherly or Husbandly power For suppose the Father of a Family in the state of Nature should in a mad or drunken fit go about to kill or maim herself or one of his innocent Children can any body think this were Rebellion against the Monarch of the Family for the Wife to rescue her innocent Child or self out of his hands by force if she could not otherwise make him be at quiet Or suppose the Husband in such a fit should command his Wife to deliver him a sum of money which she had in her keeping when she was morally sure that he would presently play it or otherwise squander it away will any rational man affirm that a Wife may not deny to deliver her Husband his own money in such circumstances So that it is evident she never so absolutely submitted her will to his as not to reserve to her self the faculty of a rational woman as not to judge when her Husband would evidently destroy her self or Children or absolutely ruine the Family when he was not in a capacity â—o govern himself So likewise if the Husband command her to do any thing against her Conscience or â—he Laws of Nature she is not obliged to obey him For though the Wife in all matters peculiar to the Marriage-bed and in all other things that relate to the â—ell-ordering the Family is obliged to submit her will â—o that of her Husband yet it does not therefore folâ—ow that she is an absolute Slave to be commanded or â—ompelled in all actions not tending to this end And 〈◊〉 it be objected that as Commonwealths cannot be â—overned without some coactive Empire so Marriage â—annot well subsist by a bare Compact or the power â—f Friendship alone to oblige the Wife to her duty in â—ase she prove disobedient As I do not deny but persaps it may be lawful for the Husband as Head of the â—amily in some cases if the Wife prove palpably obâ—inate and disobedient to his reasonable commands â—nd will not hearken to Reason to compel her by corâ—ection and the rather since Christ hath taken away â—he liberty of Divorce whereby a man might be rid of 〈◊〉 cross Wife as of an ill Servant if she did not â—nend her manners and therefore he hath no way else â—… mend her if she will not do her duty by perswasion â—nd fair means Yet this Power is very rarely to be â—sed since it is onely some women that either need or â—ill endure to be so handled and all discreet and raâ—onal Wives as well as Servants will do their duty â—ithout it Yet this Example of the absolute Obediâ—ce of Subjects in a Commonwealth does not agree with that of a Wife to her Husband as Head of the â—amily since Families especially those who consist â—f a good number of Children and Servants may â—ave a twofold end the one peculiar to it self the oâ—her common with that of Civil Governmments The â—ommon end is considered in that defence and security resulting from the conjunction of many into one Body in which although an absolute Empire be necessary yet since the Wife being but one weak woman can contribute but very little to this end it may very well suffice to the peace and unity of the Family if she be tyed to her Husband onely by a simple Compact by way of Friendship without any despotick power over her But the peculiar ends of Matrimony which are the procreation and breeding up of Children and providing things necessary for the Family may well enough be obtained although the Husband be not invested with this despotick power which supposes that of life and death or other grievous punishments and though the Wife be tyed by her Compact only and the Bonds of Amity of which Compact the Husband being the Principal does imitate that of an unequal League between Civil States in which the Husband being the Head the Wife owes him all due respect and observance and he on the other side owes her maintenance and protection Therefore I am not of the opinion of some who will have the Husband in the state of Nature to be endued with an absolute power of life and death over his Wife and that in this consists the very quintessence of Marital power because forsooth that all Empire when it is in its proper subject and neither is exercised precariously by any man nor circumscribed by any superiour Power does always import jus vitae necis over the Subject But this is not so for a man in the state of Nature may become part of anothers Family and yet make iâ— in his Bargain that the Master of this Family shall not put him to death or misuse unless it be for Crimes that deserve death by the Law of God or Nature or become a publick Enemy And the Supposition is false which first supposes such an absolute Empire to be in the Husband as in the proper Subject neither is there any absolute power of life and death necessary to the ends of Marriage for if the woman commit small faults and will not be amended the Husband may correct her if greater as suppose Adultery he may put her away and likewise chuse whether he will provide for the Children which he hath reason to believe he did not get himself If she murder her Children or commit any other abominable sin against Nature she may justly be cut off from the Family and punisht as a common Enemy to Mankind and so she might be if she had not been his Wife but Servant or other Member of the Family Yet I do not affirm that this despotick Empire or power of life and death is against the Laws of Nature or inconsistent with the state of Matrimony any more than the absolute power of a good Prince should destroy the love of his Subjects towards him or the reverential fear we ought to have of God destroy our love of him Therefore as I have allowed that the woman may confer such a power on her Husband over her self in the state of Nature so I grant this absolute power may likewise be conferred on Husbands by the Civil Laws of particular Common-wealths Thus it is murder for a man in England to kill his Wife taken in the very act of Adultery but it is not so in Spain Italy and most other Countries if he kill his Wife if he find her alone in another mans company though it cannot be proved they have done any thing clse to deserve it Having now gone over the whole power of the Head of a separate Family as a Father Husband and Master and proved that no man is a Slave by Nature or without his