consent a man hath over his adopted Son XXVII Of the right that Lords have over their Servants XXVIII How far this right extends as to life and death XXIX What the Law of Nature determines as to those that are born unto Servants XXX Of Servitudes there are divers kinds XXXI What power by consent one Nation hath over another that freely subjects it self XXXII What right is acquired over persons for some crime committed I. The Right of Parents over their Children A Kind of Right may be gained over Persons as well as things and that either by Generation by Consent or by way of Punishment for some delinquency By Generation so both the Parents have equal right over their Children yet so that if they differ in their Commands the Father as being of the more noble Sex is to be obeyed before the Mother Of this mind was St. Chrysostom 1 Cor. 11.3 It is expedient saith he that the Wife should be subject unto her own Husband for equality in honour begets quarrels And St. Augustine also A Son born in lawful wedlock Ep. 191. is more at the command of his Father than of his Mother II. This right differs according to the age and discretion of their Children In Children we must distinguish their three different times The first is that of their Infancy whilst they are of unripe judgment not able to know good from evil not to distinguish truth from error The second is When they grow to ripe judgment but yet continue in their Fathers Family The third period is this When they are separate from their Fathers and have Families of their own During the first of these all the actions of the Child ought to be regulated by the Parents for it is but equal that he that cannot govern himself should be governed by another Vide supra c. 3. §. 6. and naturally there is none so fit to govern the Child as the Parents And yet by the Law of Nations the Child is then capable of inheriting an estate though he be justly restrained from managing of it by reason of his immature judgment This was Plutarch's observation where he saith De fort Alex. lib. 2. That Children have a Right 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the Inheritance but not to the use of it Neither is it from the Law of Nature that all that is the Childs should be disposed of by the Parents but from the Laws of some people which do in this case sometimes distinguish the Father from the Mother as they do also between their bond and free children and between the natural issue and legitimate of which distinction the Law of Nature takes no Cognizance except only of the priviledges of Sexes where both Parents contend who shall command the Child III. The Second Period Whilest the Child is a part of the Parents Family In the second period when the Childs Judgement is ripened with his years yet abiding in his Fathers house those actions of the child only are subject to the commands of his Parents that are of moment to the well ordering of the estate of his Father or of his mothers Family For it is but reasonable that every part should endeavour the welfare of the whole But in his other actions he hath a moral power to do whatsoever his own judgement shall guide him to provided that in all things he endeavour as far as in him lies to please his parents But because this is a debt arising not by vertue of that moral faculty as those above but from the duty of piety reverence and gratitude it cannot make void those actions of his that are otherwise done no more than it will suffice to avoid any grant or gift given by the right owner to say That it was against the Rules of Parsimony IV. Of Parents coercive power During both these spaces of time Parents have a Right not to govern only but to punish and to enforce obedience from their children so far forth as they ought to be either compelled to their duty or to reform what is amiss But as to greater punishments we shall discourse elsewhere V. Their power to sell them Although the Paternal Right be so inherent in the Fathers person as that it can no ways be either taken from him or transferr'd to another yet naturally if the Civil Laws do not restrain the Father hath power to pawn or if necessity so require to sell his son Hist Goth. if he have no other way or means to maintain him Thus the Goths as Jornandes records solicitous of their Childrens safety chuse rather to preserve their lives than their liberties and therefore in Compassion thought it better to sell them to be kept and nourished as slaves than to suffer them to dye in defence of their freedome Which Right other Nations seem to have borrowed from that old Theban Law recited by Aelian which also seems to be derived from the Phoenicians Lib. 2. and also from the Hebrews and by them to the Grecians as Apollonius observes in his Epistle to Domitian For Nature it self is presumed to give us a right to all that without which that which she commands cannot be obtained VI. Their power over them when separate from them In the Third space or period that is when the Children are grown to maturity and in another Family by themselves then they are free to do what pleaseth themselves always paying the duty of piety and reverence to them which is an obligation never to be cancelled whence it follows that the acts of Kings are not therefore null'd because their parents are living VII The Rights of Parents are either Natural or Civil What power Parents have over their children more or less than this they derive from the positive Laws of men which in all Nations are not the same So by that right that God gave unto the Hebrews the power of a Father to null the vows of his Sons and Daughters was not perpetual but only during their abode in their Fathers family As may appear Numb 30.2 3 4 5 verses For otherwise the Son being parted from his Father had power at thirteen years of age to bind himself without the consent of his parents The Roman Citizens being Fathers had a peculiar power over their Sons though they were heads of their own Families The Romans gave as much power over their Sons as over Slaves Pyrrhoniorum 3. before they were made free which power they themselves confess that other people had not over theirs So saith Sextus Empericus The Roman Law-givers gave as much power to parents over their children as over their slaves for the goods of the Children were not reputed theirs but their Parents until they were manumitted in the very same manner as their slaves were Which other Law-makers rejected as Tyrannical The like doth Philo record of them All manner of power over the Son was by the Romans given to the Father
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
that they always preceded in such Councils as were called concerning Christian affairs who first profest themselves Christians as Aeneas Sylvius records in his History of the Council of Basil XXII Where divers societies claim unequal shares how Votes are to be reckoned But yet so often as the ground and main reason of entring into this Society was the preservation of something held by them in common but not in equal proportions As in an Inheritance or in a Field wherein one hath half another a third another a fourth part Then not only the order but the suffrages of that Assembly shall be not by the plurality of single Votes but by the proportions that they severally have in the thing held in common which as it is most agreeable to natural equity so it is approved of by the Roman Laws So Strabo tells us That when Lybica with three other adjoyning Cities did unite themselves as it were in one Body it was agreed that each of the three was to have one voice but Lybica two because it contributed much more to the common benefit than the rest And the same Author tells us that in Lycia there were twenty three Cities combined whereof some had three voices some two and some but one Fol. l. 3. c. 9. and accordingly all charges were divided and paid And this is but just saith Aristotle if the defence of their common possessions were the chief cause of their Consociation XXIII The right of societies over their Citizens Of all Societies that of divers Masters of Families embodyed in one City or Nation as it is the most perfect so it gives a greater right or power to the whole over every part thereof than any other Society whatsoever Neither is there any outward act done by any one Citizen but what either by it self doth or by circumstance may refer to the conservation of that Society For as Aristotle tells us The Laws do rule us in things of all sorts XXIV Whether Citizens may desert their City And here it may be questioned whether it be lawful for Citizens to forsake their City without leave given There was an ancient Custom saith Servius that he that transplanted himself into another Family or Nation did first renounce that wherein he formerly dwelt and then was received And true it is that in some Countries it is not lawful to forsake the City without leave as in the City of Mosco Mariana li◠28. c. 13. Neither do I deny that it is possible for a Civil Society to be entred into under some such Agreements and that Customs may introduce the force of such an Agreement Yet by the latter Roman Laws it was lawful for any Citizen to remove his Habitation yet not so but that he stood still obliged to execute such Offices in the City as should be imposed on him Neither were these to depart out of the Roman Territories and special care was taken by the Law it self that they should pay their Contributions But setting aside these municipal Laws and Constitutions let us discuss this question according to natural Right and that not of any one part but of the whole City though under the Supreme dominion of one Person And surely that they cannot recede by Flocks or great Companies is easily collected from the necessity of the end which in moral things is able to create a Right For if this should be lawful there might instantly follow a dissolution of that Civil Society Zonoras speaking of King Lazus who revolted from the Persians to the Romans makes it the cause of a just War between the Persians and the Romans that the Roman General had drawn unto himself the Subjects of the Kings of Persia But as touching the departure of some particular persons from a City it is much otherwise As it is one thing to draw water out of a River and another thing to turn the course of it Every Citizen saith Triphonius is free either to stay in or to depart from his own City And Cicero in his Oration for Baldus commends this Law That no man should be enforced to stay in a City against his will and this he lays down as the foundation of Liberty that every Freeman hath absolute power over himself To live where we please is the foundation of liberty either to remain in it or to recede from it And yet herein also we are to submit to natural equity which was the Rule that the Romans walked by in dissolving private Societies that it should not be lawful when the publick was damnified by it For as Proculus rightly observes Always not that which is profitable to some one of a Society is usually to be observed but what is expedient for the whole But it is expedient for the whole Society that in case any great publick debt be contracted no Citizen should forsake the City unless he have first paid his proportion of it Also if upon confidence of the number of their Citizens they have begun a War but especially if they are in danger to be besieged no Citizen ought to forsake the City till he have first provided a Person as able as himself to defend the Common-wealth But unless it be in these cases only it is probable enough that the people do give their consent that any Citizen may freely depart because even from this liberty they may make no less advantages to themselves some other ways XXV A City hath no power over her banished So likewise no City can have any Right over those whom she hath banished as we shall shew anon * The Heraclidae being banished Argos by Eurystheus and afterwards persecuted by him do thus plead by their Advocate Jolaus By what Right doth he prosecute us now whom he banished his City for now we are no Subjects of his And Alcibiades his Son speaking of the times of his Fathers banishment tells the Athenians Lib. 3. c. 20. §. 41. that The welfare of their City did nothing concern his Father So likewise Nicetas speaking of Isaac Angelus saith It is no new thing for any man to court and flatter his Enemy that is but sensible that his own Countrymen do persecute him as their Enemy But now the consociation of several Nations whether by themselves or their Governors are called Leagues of the nature and effects whereof we shall have occasion to speak when we shall treat of Obligations which arise from Contracts and Agreements XXVI What Right a man hath over his adopted Son There are also voluntary subjections and those either private or publick the private vary according to the several sorts of Government that which is most noble is that of Arrogation or Adoption whereby a man translates himself into the Family of another so as he behaves himself with that duty and reverence as a Son of mature Age should do rowards his own Parents No Father can possibly transfer his Paternal Right over his Son to another man so fully as to be
Parents to love their Children than for Children their Parents And that also of Aristotle That which begets is always better affected to the thing begotten than that which is begotten can be to the begetter For that is properly said to be our own which derives its being from us Whence it comes That without the favour of the Civil Law the first Succession to the goods of the Parents is transmitted to their Children it being presumed That next after themselves they would that those born of them as being part of their own body should be plentifully supplied with all things not only necessary for life but for a more honest and comfortable livelihood Insomuch that were all humane Laws asleep yet as Paulus the Lawyer observes would natural Reason which is as it were a silent Law adjudge the Fathers Inheritance unto his Children and invest them in it as their due by an undoubted Succession But yet as Papinianus notes cannot Parents claim the estates of their Children by the same Right as Children do the Inheritance of their Parents For Parents are admitted to their Childrens goods meerly out of Commiseration but Children to the estate of their Parents by the common vote that is both of Nature and of their Parents Philo in his third Book of the life of Moses gives this Reason why Moses made no provision for Parents out of their Childrens Estate Because seeing that the Law of Nature did provide that Children should succeed their Parents in their Estates and not Parents their Children therefore did Moses pass over in silence what was contrary to the desires of all Parents and might prove unlucky Hence we may observe That the Inheritance of Parents descends upon their Children by a twofold Right partly as a meer debt of Nature and partly out of a Natural Conjecture That it is the Will of their Parents that their own Children should be best provided for Lib. 5. c. 9. Sanguini honorem relinquit saith Val. Max. of Quintus Hortensius His honour he bequeathed to his Blood For though he detested the wicked life of his Son yet dying Ne ordinem naturae confunderet non nepotes sed filium haeredem scripsit To preserve the order of Nature he made his Son and not his Nephews heir to his Estate Thinking it enâ—ugh that he had declared his dislike of his Sons ill manners whilest he lived And therefore dying Ib. he left him the honour due to his Blood The like he records of Fulvius who causing his own Son to be apprehended for conspiring his death did not only forbear to prosecute him whilest he lived but dying Dominum omnium esse voluit quem genuerat haeredem iâ—â—â—ituens non quem fuerat expertus Made him heir of all he had regarding his Birth and Blood and not his Crimes And to this purpose is that of St. Paul Children do not lay up for their Parents 2 Cor. 12.14 but Parents for their Children VI. Of Representative Succession Now because it is thus natural and ordinary for Parents to take care of their Childrens Education therefore whilest they live there lyes no obligation upon the Grand Parents to give them maintenance Yet in case the Father or the Mother dye or be otherwise disabled then it is a duty which in all equity the Parents of the deceased Son or Daughter are obliged unto to see their Nephews or Neeces virtuously brought up And by the same reason is the same duty incumbent on the Parents of more remote degrees if these fail And from hence ariseth the Right of the Nephew to inherit the Estate instead of a deceased Son as Vlpian speaks Which gave occasion to that Hebrew saying Filius etiam in Sepulchro succedit That the Son succeeds though in his Grave Because Filii filiorum sunt quasi filii The Sons of that dead Son are reputed Sons And as Modestinus speaks Shall fill up the vacant place of their dead Father Justinian thought nothing more unreasonable than this That the Nephew should succeed instead of the deceased Father in the Estate of his Grand-father in case he dyed Intestate And this kind of Vice-succession our Modern Civilians do affectedly call Representative when the Sons claim an Estate by representing the person of their Father being dead And that that manner of Right was approved of amongst the Hebrews the division of the Land of Canaan amongst the Children of Israel doth sufficiently demonstrate As our Sons and Daughters are nearest unto us in blood so are those who are born of either of them as Demosthenes observes in his Oration against Macartatus VII Abdication or exheredation What we have hitherto said concerning the Right of Succession arising from our Conjectures at the Will of the Intestate is of force if there appear no certain sign that he was otherwise minded Such in the first place was among the Grecians an Abdication or a manifest renouncing or casting off of the person claiming And among the Romans an open disinheriting of him yet so that if that person did not by his crime deserve to be put to death he was to be allowed sufficient to sustain Nature for the Reasons aforesaid VIII The Right of Bastards And here we may add another exception to this general Rule that is If it do not sufficiently appear that such a Son or Daughter was begotten by him But yet we know that of such matters of fact there can be no certain knowledge But of such acts as are publickly done before men there may be some certainty upon the Testimony of such as beheld them In which sense the Mother may be certain that the Child is hers by those who were present at its Birth and Education but thus certain cannot a Father be Which Homer first and after him Menander thus intimates Know directly no man can From what stock himself first sprang And so in another place he thus distinguisheth between the Parents Fathers do love their Children Mothers dote She knows them hers but this he takes by rote Therefore some way was thought fit to be found whereby it might probably appear who the Father of every Child was And this was Marriage taken in its Natural terms that is for such a cohabitation as placeth the woman under the custody or safeguard of the man But whether by this or some other way the true Father of the Child be known or that any man doth own the Child as his by the Law of Nature that Child as well as that born in Marriage shall inherit Neither is this strange seeing that we see meer strangers being adopted for Sons to succeed in the Jnheritance only by conjecture at the owners will And the Nephew instead of the Father as old Jacob adopted Ephraim and Manasses into the number of his Sons in the stead of their Father Joseph But our Natural Issue is differenced from our Legitimate by Law only So Euripides Bastards no less than those in Wedlock born Are ours although by Laws
doth even the Ballance and which he there calls commutative But these require yet a more strict disquisition I say then that every punishment respects the good either of the person punished or of the person injured or of every man indistinctly The first of these aims at the reformation of the person punished and is called by Philosophers sometimes reformation sometimes satisfaction and sometimes admonition Paulus the Lawyer calls it a punishment ordained for reformation and Plato to teach us prudence Plutarch the Souls Emperick whereby she is amended and made better as by Physick which works by contraries For because all humane acts especially if they be frequent and deliberate do beget a proneness in nature unto the same which at length turns into a habit therefore if such an act be vicious we must as soon as we can take away all allurements and provocations thereunto which cannot by any means more properly be done than by allaying the sweetness of the sin by the sharpness of the punishment The Platonists as Apuleius testifies hold That there is no punishment so severe as to go unpunished Ann. 3. And Tacitus will instruct us That the Corrupter and the corrupted the sick and the distempered mind is to be restrained with no gentler medicines than are those very lusts that inflame them And therefore as a tender Mother imbitters the Nipple when she weans her Infant Sen. de ira lib. 2. or as a skilful Chirurgion lanceth burns and scarifies his Patient whom he intends to cure so it is the duty of a prudent Magistrate corrigendo mederi to reclaim and reform a Malefactor by sharp but seasonable punishments VII 1. To the offender Now the punishment that serves to this end may lawfully be inflicted by any man that is prudent and judicious and not guilty of the same or of the like fault especially if it be verbal only as will appear by that in Plautus Amicum castigare ob meritam noxiam Immune est facinus verum in aetate utile A Friend to chide for what unjust appears Is blameless sure but most in men of years But if it be by stripes or any other forceable means then is it not equally lawful for every man yet doth not this difference between persons lawfully or unlawfully punishing arise from the Law of nature neither indeed could it but that reason peculiarly commends the free exercise of this right to parents over their children because they are so dearly affected toward them but from the positive Laws of men which to preserve love among neighbours and to prevent strife and discord do restrain this common duty and confine it to the nearest of kinn as appears as well by the Codes of Justinian under this title de emendatione propinquorum as elsewhere Apposite hereunto is that of Xenophon to his Soldiers If I shall strike any man for his good I confess I thereby deserve a punishment but no other than parents do from their children or masters from their schollars for even Physicians sometimes lance cup and scarify their Patients when otherwise they cannot cure them God himself saith Lactantius commands us to keep a strict hand over our children that is to chastise them as often as they transgress lest by overmuch fondness and indulgence they prove ill nurtured and contract unto themselves vitious habits But this kind of punishment never reacheth unto death because death takes away all hopes of reformation unless it be by way of reduction whereby negatives are reduced to their opposite positives Mark 14.21 as in that speech of our Saviours It had been better for some that they had never been born that is it had been less evil for them the like may be said of incorrigible sinners it were better for them that is less evil for them to dye than to live De Ira. c. 5. interesse pereuntium ut pereant Jamblichus And of such it is that Seneca meant when he said that sometimes it is good for them that dye that they do dye As when a tumour or impostume is grown to suppuration better it is to burn an hole thereby to discharge part of that impostumated matter than longer to imprison it so for a man that is past hopes and desperately wicked it is better for him to dye than to live for as Plutarch speaks of such they are noxious to others but most to themselves so Galen when he had said that some men ought to be punished by death first to prevent the mischiefs they would do were they suffered to live next that by their death others may be forewarned adds in the last place that it is expedient even for themselves to dye being so wholly corrupted in mind and mannâ—rs that it is not possible to reclaim them Some there are who think that St. John spake of such men when he said that there was a sin unto death 1 John 5.16 1 John 5.16 And St. Chrysostome speaking of such saith that they are like men irrecoverably sick so Julian of Constantius seeing that there are two kinds of offences some that are corrigible as not despising the means of their cure others of men desperately wicked and incorrigible for these the Laws have found out a remedy by death to put an end to their wickedness not so much for their own as for the benefit of others But because no arguments can be brought to prove this but what are fallacious therefore in very charity we are not rashly to judge any mans case to be desperate and therefore this kind of punishment I mean by death is seldome inflicted to this end namely for emendation VIII To him against whom the offence is committed Some resemblance of this there is in some Beasts Pliny records it of the Lyon that in poenam Adulterae consurgit he riseth up to revenge himself of his Adulteress Nat. Hist. 8. 16. Three ways to provide for ones safety against him that hath injur'd us The benefit that accrues by punishment unto him against whom the offence is committed consists in this that it prevents the like mischief either by the same person or by others Gellius out of Taurus describes this kind of punishment thus when the authority or dignity of the person against whom the offence is committed is to be upheld and maintained then is the punishment necessary lest if it go unpunished that authority be held in contempt and the honour lost Now what is there said concerning authority is also to be understood of liberty or of any thing else wherein we may claim a just right for he that suffers one injury to go unpunished doth but invite another wherefore Tacitus concerning one of the Roman Emperours said well consuleret securitati justâ ultione he might have better provided for his own safety by a just revenge Now to the end that a man may secure himself against him that hath formerly injured him there are three means First By putting him to death that
than both the former namely That thereby he is compelled by the Law against his will to do good in a matter of the greatest concernment to a person whom he hates and whom he wisheth it were in his power everlastingly to vex and torment whereas the Servant for the wrong he hath suffered receives this double comfort first that he enjoys what of all things he most desires to wit his liberty and then that he is for ever freed from the commands of so cruel and severe a Master V. Nor to impose too hard labour upon him Neither are we to impose upon them too hard labour without regard had to their strength and health To this end with some others was the Sabbath by the Mosaical Law instituted namely That Servants as well as Beasts might enjoy some refreshment from their labours Do ye not observe saith Seneca * Ep. 47. how careful our fore-fathers were as well to prevent all occasions of envy to Masters as of reproach to Servants when they stiled the Lord Exod. 20.10.23.14 Deut. 10.14 Pater Familias The Father of the Family And his Servants Familiares His familiar Friends So in another place he bitterly inveighs against the too strict exaction of Servants labours where speaking of such he saith Ep. 107. Nos non tanquam hominibus sed tanquam jumentis abutimur Whom we abuse not as Men but as Beasts And Dion Prusaeensis describing a good King saith That he is so far from usurping the title of Lord over his Subjects being Freemen That he will hardly admit of it over his Servants Vlysses in Homer professeth Od. 1. That those of his Servants whom he found faithful were as dear unto him as his own Son Telemachus Gratius est nomen pictatis quam potestatis Tertul. Much more graceful is that name which imports Piety than Power and better it is to be called the Father than the Lord of a Family Neither is there any other reason saith Lactantius Lib. 5. c. 15. why we call each other Brethren but because we believe that we are all by nature equal For since we esteem all humane things not from or by their Bodies but their Spirits though the condition of the bodies be diverse yet are they not unto us Servants but we both esteem of them and call them in spirit Brethren but in Religion our fellow-servants De moribus Eccl. Thus also St Augustin concerning the customs of the Catholick Church Thou i. e. the Church teachest Servants to adhere to their Masters not as prest thereunto by necessity but out of delight they should take in doing their duty Thou teachest Masters in imitation of God who is the supreme Lord and Master of all to be gentle and merciful to their Servants and to be always more propense to exhort and admonish them than by force to compel them to do their duty And in case they transgress rather to correct them as Sons than to rage and tyranize over them as Slaves The like advice doth St Hierome or Paulinus give unto Celantia concerning Servants So order and govern thine House as though thou wert rather a Mother than a Master in it And invite thy Servants to reverence thee not by thy sharpness but by thy meekness and benignity De Civit. Dei l. 19. c. 16. And St Augâ—stin observed That in antient times good Parents governed their Families in this order As to temporal things the condition of their Children was much better than that of their Servants but as to Religious duties they made no distinction but Servants as well as Children were with the same affection instructed in the true worship of God From whence every Master was called Pater Familias which in time grew so common That even they that lorded it over their Servants with the greatest severity would not willingly be called Lords And for the very same reason were Servants called Children as Servius notes upon that of Virgil Claudite jam rivos pueri c. Tacitus commends the Germans That they made the same account of their Servants as they did of their Farmers or Tenants And Theano in an Epistle of his prescribes a just measure for Servants namely That they should neither be tired with over much labour nor weakned through want or poverty VI. The Stock of the Servants how far the Lords and how far his own To Servants for their Labour we owe Aliment So saith that wise Son of Syrach Bread correction and work are due to a Servant Of the same opinion was Aristotle * Oecon. l. 5. The reward of a Servants work is Aliment Neither are they much out who command us to use our Servants as we do Mercenaries Operam exigendo justa praebendo By exacting their work and withal paying what is their due So provide for thy family saith Cato that they be not pined through hunger nor starved through cold There is somewhat saith Seneca †De benef l. 2. that a Master owes unto his Servant that is Food and Rayment And in another place * Idem de tranquilitate Familia vestiarium petit victumque A Family requires Food and Rayment For this it is that the Roman Captives plead unto Bessus †Procop. Goth. 3. Give us say they at the least Food as we are thy Slaves not as much as sufficeth though our necessities require it yet so much as may keep us alive St Chrysostome gives this advice to the Master of a Family * In Eph. 5.2 If thy Servant perform his dayly labour for thee do thou feed him and besides his food provide that he be well clad and well shod and this is some kind of service that we owe unto our Servants for unless thou do this office for him neither will he do his duty to thee but will remain free Neque ulla eum lex constringit si non alatur operas praestare For there is no law to enforce him to perform his duty if thou neglect to perform thine The proportion allowed to every Captive amongst the Romans was four Roman Bushels of Corn for every Month Phorm Act. 1. scen 1. every such Bushel containing of our measure about three Pints and ten Ounces above our Peck as Donatus upon Terence informs us Thus also Martianus the Lawyer Some things there are which of necessity the Lord must do for his Servant namely to provide for him meat and cloathing 〈…〉 7. 〈…〉 11.1 Lib. 1. The Sicilians stand condemned by all Historians for their cruelty in famishing the Athenian Captives So also doth Isaacus Angelus for the like cruelty to the Sicilian Captives as Nicetas records who also recites an Epistle sent by the King of Sicily to the Grecian Emperour concerning this matter Besides Seneca in the place before quoted proves That Servants are in some sort free and in some things able to oblige their Masters by some courtesies as when they do more than is imposed on
notwithstanding the children do naturally owe reverence could not by her descent make the Marriage void no nor the father of a Free-man And if the Father himself be under the power of his own Father then the consents of both Father and Grand-father are required to the Sons Marriage But to the Marriage of a Daughter the Grand-fathers consent alone sufficeth Which differences being altogether unknown to the Law of Nature doth evidently prove that they arise not from the Natural but from the Civil Laws We find in Sacred story That many holy men and much more Virgins not to chuse Husbands for themselves 1 Cor. 7.36 Lib. 1. de Abrah c. ult women who by reason of their modesty and bashfulness ought especially in this case to be governed by others have in contracting Marriages submitted themselves to the authority of their Parents Non est virginalis pudoris eligere maritum It becomes not a Virgins modesty saith Ambrose †Grat. c. 32. q. 2. to chuse an Husband for her self And yet was not Esau's Marriage declared null nor his Children held as Illegitimate because in his Marriage he had not the consent of his Parent It is true That as to Daughters the chief power of disposing them is in the Father So in Euripides Hermione My Nuptial I to Parents care alone Commit for free choice therein have I none But as to Sons If we respect strict and Natural Right that of Quintilian will be found true That if it be lawful for a Son at any time to do things otherwise unreprovable without yea against his Fathers will surely that liberty is never more justifiable than in Marriage For as Cassiodore truly observes Durum est libertatem liberam non habere in Matrimonio Lib. 7. c. 4. unde liberi procreantur To be debarr'd of our free choice in Matrimony from whence our Children should be born is hard Ter. Andr. Act. 1. sc 5. nothing is more plain than that a Son in his Marriage should please himself XI It is a void Marriage that is contracted with anothers Wife or Husband That Marriage that is contracted with another mans Wife is doubtless null by the Law of Nature unless her former Husband have dismist her For so long doth his power last over her which by the Evangelical Law is not dissolved but by death The latter Marriage therefore is null for want of a moral power in the woman to dispose of her self which being lost by her former Marriage doth vitiate all those subsequent effects that attend it because every Act is but the invading of anothers Right So likewise on the other side by the same Law a Marriage contracted with the Husband of another Woman is alike void by reason of that power that Christ gives a chaste Wife over the body of her Husband XII Of Marriages between kindred Concerning Marriages between such as are nearly allied or of the same blood many difficult questions arise which are often with much zeal and animosity agitated on both sides Because he that shall undertake to assign certain and natural reasons why these Marriages that are by Law or Custome thus forbidden are unlawful should experimentally find how hard nay how impossible it is to effect it That alledged by Plutarch in his Roman Questions by St. Augustine in his Book De Civitate Dei by Philo in his Special Laws and by St. Chrysostome on 1 Cor. 13.13 as the contracting of new Friends and the strengthning our selves with new Alliances savours more of Policy than true Piety Nor are they of that force and energy as to conclude the contrary Acts to be either unlawful or void Whereunto may be added That some cases there may be wherein such prohibited Marriages may be more profitable and politick than others The Marriage of kindred sometimes profitable and politick as may be collected not only from that which God himself in his Law given to the Jews excepts of raising Seed to a deceased Brother having no issue But from that also of a Virgin left by her Father as sole heir of all his estate who by the Grecian and Hebrew Laws was to be Married to the next of kin to preserve the name and Estate in their own Tribe and Family and from many such like cases which do or may occur But yet from this general rule Incestuous Marriages forbid by the Law of Nature and why we must except the Marriages of Parents with their Children in what degree soever the reason whereof is sufficiently evident For neither can the Husband who by the Law of Matrimony is the head of the Wife pay that respect and reverence that Nature binds him to give to his Mother nor the Daughter to her Father For though she be subordinate to her Husband by Matrimonial Right yet doth her Marriage allow her so great a Familiarity with her Husband as is altogether inconsistent with the duty of a Child Paulus the Lawyer was in the right when having saâ—d before That in contracting Marriages the Law of Nature and Modesty were chiefly to be regarded he added That it was against modesty for a man to take his own Daughter to be his Wife And Philo in his Special Laws condemns it as an execrable wickedness to pollute the bed of his deceased Father which as a thing Sacred ought not to be toucht and without regard to either the age or the reverence of a Mothers name to make himself both Son and Husband to the same Woman and to make her both Mother and Wife to the same Man Wherefore such Marriages are doubtless not illegal only but void by reason of something that is vicious which perpetually cleaves to the effects of it Neither is that Argument of Diogenes and Chrisippus which is drawn from the practice of Cocks and such like dumb creatures sufficient to prove that such commixtures are not repugnant to the Law of Nature That is unlawful which is repugnant to Humane Nature Lib. 2. Contr. Jâ—â—it For as I have already said it is enough to conclude any thing unlawful That it is repugnant though but to humane nature This is that Incest which the Lawyers Paulus and Papinian wrote to be by the Law of Nations committed between the degrees ascendent and descendent And this is that Law of Nature which as Xenophon notes is no less a Law because it was contemned by the Persians Medes Indians and Aethiopians for which they were punished with perpetual Wars Parricides Fratricides as Philo first and after him St. Hierome observed For as Michael Ephesius well interprets it That is Natural which is of common use amongst such Nations as are uncorrupted And that live most agreeable unto Nature And therefore Hippodamus the Pythagorean calls these incestuous commixtures inordinate and unnatural lusts unbridled passions and abominable pleasures Such were those of the Parthians whereof Lucan thus complains Epulis vesana meroque Regia non ullos exceptos legibus horret Concubitus With