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Chap. I. - James Tyrrell, Patriarcha non monarcha. The Patriarch unmonarch’d 
Patriarcha non monarcha. The Patriarch unmonarch’d: Being Observations on a late treatise and divers other miscellanies, published under the name of Sir Robert Filmer Baronet. In which the falseness of those opinions that would make monarchy Jure Divino are laid open: and the true Principles of Government and Property (especially in our Kingdom) asserted. By a Lover of Truth and of his Country (London: Richard Janeway, 1681).
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THE reason why I chuse to begin these Observations with this Treatise of the natural Right of Kings, rather than with any of the rest, though published long before it, is, because being (as I suppose) writ after the rest, and on purpose to assert Monarchy to be Jure Divino, is likely to contain the Authors most mature thoughts; and being written with better connection than his other Tracts, contains the substance of them all; which were designed not so much to establish an Hypothesis, as to observe the weakness of other mens: and being published at several times, and on divers occasions, give us but the same Notions repeated, according as the Tenets in the Authors he writ against needed (as he thought) a Confutation: Which how far they do deserve it, I leave to the Reader to judge; and therefore shall not take upon me to defend any mans Opinions, though never so great or learned, farther than I conceive them agreeable to right Reason. Nor shall I trouble my self to criticize on every small Errour or Mistake in this Author’s Writings, but onely set my self to consider such main Arguments as appear to be founded on false or meer precarious Principles; not concerning my self with his other Treatises, but as they contain some other Reasons or newer Matter than I finde here.
Page 2. The designe of this Treatise, is against an Opinion maintained by some Divines, and several learned men, That Mankind is naturally endowed and born with Freedom from Subjection, and at liberty to chuse what form of Government it please; and that the Power which any one man hath over others, was at first bestowed according to the discretion of the Multitude. Page 3. This Opinion, he says, is not to be found in the Fathers of the Primitive Church: that it contradicts the Doctrine and History of the Holy Scriptures, the constant practice of all ancient Monarchies, and the very Principles of the Law of Nature. And upon this Doctrine the Jesuits, and favourers of the Geneva Discipline, have built this perilous Conclusion: That the People or Multitude have power to punish or deprive the Prince, if he transgress the Laws of the Kingdom. And for this quotes the Writings of divers Jesuits.
How far this Tenet deserves the Author’s Censure, and is liable to the Conclusions he says some have drawn from thence, since the truth or falshood of Propositions does not depend upon the men that have made use of them, I shall consider hereafter; now confining my self onely to examine the Reasons he brings either in this or any other of his Treatises to overthrow this Opinion. And if they prove weak, and insufficient for the end the Author designed them, some Friend of his, or his Tenets, had best finde out others; which if they prove and appear evidently true, I shall then rest satisfied, and acknowledge my self absolutely convinced. In the mean time I shall now give you the Author’s Hypothesis all at once, in his words, that you may judge whether I deal fairly with him or no.
P. 5. To pass over therefore his Cautions (which are honest and sober) I shall come to what he observes upon several passages of Bellarmine. And though he does not quote the places from whence he took them, yet I hope he hath dealt fairly with him: Though I shall not take upon me to defend the contradictions or false consequences either of this or any other Author, since I onely observe the onely Answer which (p. 11.) Sir R. F. gives Bellarmine’s Argument for the natural Liberty of the People, is out of Bellarmine himself, whose words are these: If many men had been created together out of the Earth, they ought all to have been Princes over their Posterity. In which words (the Author says) we have an evident confession, that Creation made Man Prince of his Posterity. And indeed not onely Adam, but the succeeding Patriarchs had by right of Fatherhood, Royal Authority over their Children. Nor dares Bellarmine deny this. That the Patriarchs (saith he) were endowed with Kingly power, their deeds do testifie; for as Adam was Lord of his Children, so his Children, under him, had a Command and Power over their own Children:but still with a subordination to the first Parent, who was Lord Paramount over his Childrens Children to all Generations, as being the Grandfather of his People. Which conception of Bellarmine, though it may destroy his Argument for natural Freedom, yet I conceive that it does not destroy the necessity of supposing all the Kingdoms and Commonwealths now in being in the world, to have had their beginning from Conquest, or else from the Consent or Institution of the People who began it; as I shall endeavour to prove more at large.
But from this concession of Bellarmine’s, the Author taking this as a yielded point, proceeds thus: P. 12. I do not see how the Children of Adam, or any man else, can be free from Subjection to their Parents; And this Subjection of Children being the Fountain of all Regal Authority, by the Ordination of God himself, it follows, That Civil Power not onely in general is by Divine Institution, but even the Assignment of it specifically to the eldest Parents: Which quite takes away that new and common distinction which refers onely Power Universal and Absolute to God; but Power Respective, in regard of the special Form of Government, to the Choice of the People.
P. 13. This Lordship which Adam by command had over the whole World, and by right descending from him, the Patriarchs did enjoy, was as large and ample as the absolutest Dominion of any Monarch which hath been since the Creation. For Power of Life and Death, we finde that Judah the Father pronounced sentence of death against Thamar his Daughter-in-law for playing the Harlot; Bring her forth (saith he) that she may be burnt. Touching War, we see that Abram commanded an Army of 318 Souldiers of his own Family; and Esau met his brother Jacob with 400 men at Arms. For matter of Peace, Abraham made a League with Abimelech, and ratified the Articles with an Oath. These Acts of judging in capital Crimes, of making War, and concludingPeace, are the chiefest Marks of Soveraignty that are found in any Monarchy.
And not onely until the Flood, but after it, this Patriarchal power did continue, as the very name Patriarch doth in part prove. The three Sons of Noah had the whole World divided amongst them by their Father; for of them was the whole World overspread, according to the Benediction given to him and his Sons: Be fruitful, and multiply, and replenish the earth.
Then he proceeds upon a vulgar Opinion, p. 14, 15. That at the Confusion of Tongues, there were 72 distinct Nations erected, not as confused Multitudes, without Heads or Governours, but they were distinct Families which had Fathers for Rulers over them: whereby it appears, that even in the Confusion, God was careful to preserve Paternal Authority, by distributing the diversity of Languages according to the diversity of Families. And for this he quotes the Text, Gen. 10. v. 5. Speaking of the division of the Isles of the Gentiles among the Sons of Japhet, it follows, v. 5. These are the Families of the Sons of Noah, after their Generations in their Nations; and by these were these Nations divided in the Earth after the Flood. So that though the manner of this Division be uncertain, yet it is most certain the Division it self was by Families from Noah and his Children.
P. 16. As for Nimrod’s being King over his own Family by Right, and over other Families by Usurpation and Conquest, and not by Election of the People or Multitude, he gives us Sir Walter Rawleigh’s opinion that it was so; (which I think is no better a proof than if he had given us his own:) but if it were true, it proves no more, than that this Patriarchal Right could not long continue, since it was usurped in the Grandchild of Ham, the fourth discent from Noah. But he proceeds thus:
As this Patriarchal Power continued in Abraham, Isaac, and Jacob, even unto the Egyptian Bondage; so we finde it amongst the Sons of Ismael and Esau: it is said, These are the Sons of Ismael, and these are their names by their Castles and Towns, Twelve Princes of their Tribes and Families, &c.
P. 18. He owns this Paternal Government was intermitted during their Bondage in Egypt, because they were in subjection to a stronger Prince: But after the return of the Israelites out of bondage, God, out of a special care of them, chose Moses and Josuah successively to govern as Princes, instead of the supream Fathers: And after them, God raised up Judges to defend his People. But when God gave them Kings, he re-established the ancient and prime Right of Lineal-succession to Paternal Government: And whensoever he made choice of any special person to be King, he intended that the Issue also should have the benefit thereof, as being comprehended sufficiently in the person of the Father, although the Father onely was named in the Grant.
P. 19. The Author proceeds to obviate an Objection that he sees may be made to his Hypothesis, That it may seem absurd that Kings now are Fathers of their People, since Experience shews the contrary. It is true (says he) all Kings are not the natural Parents of their Subjects, yet they all either are, or are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People; and so in their right succeed to the exercise of Supream Jurisdiction: and such Heirs are not onely Lords of their own Children, but of their Brethren, and all others that were Subjects to their Fathers. And therefore we finde that God told Cain of his brother Abel, His desires shall be toward thee, and thou shalt rule over him. Accordingly when Jacob bought his brothers Birthright, Isaac blessed him thus: Be Lord over thy brethren, and let the sons of thy mother bow before thee.
P. 20. As long as the first Fathers of Families lived, the name of Patriarch did aptly belong unto them; but after a few Descents, when the true Fatherhood it self was extinct, and onely the right of the Father descended upon the true Heir, then the Title of Prince or King was more significant to express the power of him who succeeds onely to the right of Fatherhood which his Ancestors did naturally enjoy. By this means it comes to pass that many a Child, by succeeding a King, hath a right of a Father over many a gray-headed Multitude, and hath the Title of Pater Patriæ.
It may be demanded, What becomes of the Right of Fatherhood, in case the Crown does escheat for want of an Heir; whether doth it not then devolve to the People? The Answer is, It is but the negligence or ignorance of the People to lose the knowledge of the true Heir: for an Heir there is always. If Adam himself were still living, and now ready to die, it is certain that there is one man, and but one in the world, who is next Heir, although the knowledge who should be that one man, be quite lost.
P. 21. This ignorance of the People being admitted, it doth not by any means follow, that for want of Heirs the Supream Power is devolved to the Multitude, or that they have power to rule, and chuse what Rulers they please. No, the Kingly power in such cases escheats to the Princes and independent Heads of Families: for every Kingdom is resolved into those parts whereof at first it was made. By the uniting of great Families or petty Kingdoms, we finde the greater Monarchies were at first erected; and into such again, as into their first matter, many times they return again. And because the dependancy of ancient Families is oft an obsure and worn-out knowledge, there the wisdom of many Princes have thought fit to adopt those for Heads of Families, and Princes of Provinces, whose Merits, Abilities, or Fortunes, have enabled them, or made them fit and capable of such Royal Favours. All such prime Headsand Fathers have power to consent in the uniting or conferring of their Fatherly Right of Soveraign Authority on whom they please: And he that is so elected, claims not his power as a Donative from the People, but as being substituted by God, from whom he receives his Royal Charter of an Universal Father, though testified by the Ministry of the Heads of the People.
P. 22. In all Kingdoms or Commonwealths in the world, whether the Prince be the Supreame Father of the People, or but the true Heir of such a Father, p. 23. or whether he come to the Crown by usurpation of the Nobles, or of the People, or by any other way whatsoever; or whether some few or a multitude govern the Commonwealth; yet still the Authority that is in any one, or in many, or in all these, is the onely Right and natural Authority of a Supream Father. There is, and always shall be continued to the end of the world, a natural Right of a Supream Father over a multitude, although by the secret Will of God, many do at first most unjustly obtain the Exercise of it.
To confirm this natural Right of Regal Power, we finde in the Decalogue, that the Law which enjoyns Obedience to Kings, is delivered in the Terms of, Honour thy Father and thy Mother: as if all Power were originally in the Father. If Obedience to Parents be due immediately by a natural Law and Subjection to Princes, but by the mediation of an humane Ordinance, what reason is there that the Laws of Nature should give place to the Laws of Men? as we see the power of the Father over his Child, gives place, and is subordinate to the power of the Magistrate.
P. 24. If we compare Rights of a Father with those of a King, we finde them all one, without any difference at all, but onely in the latitude or extent of them: As the Father over one Family, so the King as Father over many Families, extends his care to preserve, feed, clothe, instruct,and defend the whole Commonwealth. His War, his Peace, his Courts of Justice, and all his Acts of Soveraignty, tend onely to preserve and distribute to every subordinate and inferiour Father, and to their Children their Rights and Priviledges; so that all the Duties of a King are summed up in an Universal Fatherly Care of his People.
I have been so just to the Author as to transcribe as much of his first Chapter as tends to prove the original power of Kings, as well that you might see the Hypothesis which he builds his Divine Right of Absolute Monarchy in his own words; and so be the better able to judge whether I understand and answer him or not; as because it contains the substance and strength of all that the Author had to say in defence of it.
So that I shall now fall to examine whether his Foundations will bear so weighty a Structure as he hath raised upon it. His first Argument against the natural Freedom of Mankinde is drawn from Scripture, and from Bellarmine’s own Concession, That Adam was (and consequently every other Father ought to be) a Prince over his Posterity. And as Adam was Lord over his Children, so his Children, under him, had a power over their own Children, suberdinately to the first Parent, who was Lord Paramount over his Childrens Children to all Generations, as being the Grandfather of his People.
So that neither the Children of Adam or any else, can be free from subjection to their Parents; and this subjection to Parents being the foundation of all Legal Authority, by the Ordination of God himself: therefore no man can be born in a state of Freedom or Equality.
In answer to which, I shall not concern my self what Bellarmine or any other have granted; but would be glad to know where and how God hath given this Absolute power to Fathers over their Children, and by what Law Children are tyed to an Absolute Subjection or Servitude to their Parents, since the Author in another place affirms, that at first a Childe, a Slave, and a Servant, were all one without any difference.Vid. Preface to his Observations on Aristotle’s Politicks. 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 loft 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 to rule over his Wife, and her desire was to be subject to his; and that as hers, so all theirs that should come out of her: First, all Expositors look upon these words as respecting only a Conjugal, and not Filial Subjection. Neither were they spoke in the state of Nature or Innocence, but after the Fall. Neither for all that, did Adam, or any other Husband, by these words acquire an absolute Authority over the Life of his Wife, in the state of Nature, so that she hath no right left her to defend herself from the unjust violence or rage of her Husband. Therefore since this Power of Adam over Eve and her Children, cannot be pretended to belong to him as a Father, but as a Master of a Slave, and those that shall be descended from her; it were worth while to enquire, what Power a Father, if Master of a Family can claim separate from any commonwealth, (as we will suppose these Patriarchs were.) For this will serve toward the solving those examples he puts of Abram’s power of Peace and War, and of Judah’s power of Life and Death over his Daughter-in-law Thamar. We will first then consider the power of a Father by the Law of Nature over his Children, and then that of a Master of a Family over his Wife, Servants, or Slaves. To begin with that of a Father, as the most worthy; I shall endeavour to search into the Original of the Father’s power over the persons of his Children, and how far it extends.
It is evident, that this Power of Fathers over their children, can only take place in the state of Wedlock; so as to Children got out of Marriage, it is uncertain who is their Father; who can only be known by the declaration of the Mother; and she sometimes cannot certainly tell herself. 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 of 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, to whose care and courage she must owe the greatest part of her provision and protection; yet she is not without an Interest in the Children, since she is under an obligation to perform her part (and that the most laborious and troublesome) in their Education; though her Power and Right in them be still subordinate to that of the Man, to whom by force of the Marriage she hath already subjected herself. Some Writers therefore think they have done sufficiently when they tell us, that the Father hath an absolute Dominion over his Child, because he got it, and is the cause of its being. By this Argument the Mother hath greater Right over the person of the Child, since all Naturalists hold the Child partakes more of her than of the Father; and she is besides at greater pain and trouble, both in the bearing, bringing it forth, nursing and breeding it up. But if it be answered, that the Man being Master of his Wife, is by the Contract so likewise of her Issue: Then it follows, that this power of the Father does not commence barely from Generation, 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, who are always supposed to be in the state of Nature, in respect to each other.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. 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 the Second Point proposed, and consider what kinde of Right this is, and how far it extends. Since therefore the Father’s greatest interest in his Child proceeds from his having bred it up, and taken care of it, and that this Duty is founded on that great Law of Nature, that every Man ought to endeavour the common good of Mankinde, which he performs, as far as lies in his power, in breeding up, and taking care of his Child; it follows, that this right in the Child, or power over it, extends no farther than as it conduces to this end, that is, the good and preservation thereof: and when this Rule is transgressed, the Right ceases. For God hath not delivered one man into the power of another, merely to be tyrannized over at his pleasure; but that the person who hath this Authority, may use it for the good of those he governs. And herein lies the difference between the Interest which a Father hath in his Children, and that property which he hath in his Horses or Slaves; since his right to the former extends only to those things that conduce to their Good and Benefit; but in the other he hath no other consideration, but the profit he may reap from their labour and service, being under no other obligation but that of Humanity, and of using them as becomes a goodnatur’d and merciful man; yet still considering and intending his own advantage, as the principal end of his keeping of them. Whereas in his Children he is chiefly to design their good and advantage, as far as lies in his power, without ruining himself; and though he justly may make use of their labour and service while they continue as part of his Family; yet it is not for the same end alone that he uses his Horses or Slaves, but that his Children being bred up in a constant course of Industry, may be the better able either to get their own living, or else to spend their time as they ought to do, without falling into the Vices of Idleness or Debauchery. So that it is evident, the Father has no more right over the Life of his Child than another man; being as much answerable to God if he abuse this Right of a Father, in killing his innocent Son, as if another had done it. Neither hath he from the same Principles any right to maim or castrate his Child, (as this Author allows him to do, in his Directions for Obedience;) much less fell him for a Slave: Therefore it is no part of the Law of Nature, (unless he cannot otherwise provide for it) but of the Roman, or Civil-Law, that a Father should have power to sell his Son three times. For the Father is appointed by God to meliorate the condition of his Child, but not to make it worse; since it is not himself, but God that properly gave him his being. So that I hope I have sufficiently proved there is a great difference between a Child and a Slave, or a Servant for Life, though this Authour will have them in the state of Nature to be all one.
But, for the better clearing of this point, how far the power of Parents over their Children extends, I think we may very well divide (as Grotius does) the life of the Child into three periods or ages.De J. B. l. 2. c. 5. § 2. The first is the time of imperfect judgment, or before the Child comes to be able to exercise his Reason. The second is the period of perfect Judgment, yet whilst the Child still continues part of his Fathers Family. The third is after he hath left his Father’s, and either enters into another Family, or sets up a Family himself. In the first Period, all the actions of Children are under the absolute dominion of their Parents: for since they have not the use of Reason, nor are able to judge what is good or bad for themselves, they could not grow up nor be preserved, unless their Parents judged for them what means conduced to this end; yet this power is still to be directed for the principal end, the good and preservation of the Child. In the second Period, when they are of mature Judgment, yet continue part of their Fathers Family, they are still under their Fathers command, and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns; and in both these Ages the Father hath a power to set his Children to work, as well to enable them to get their own Living, as to recompence himself for the pains and care he hath taken, and the charge he may have bin at in their Education. For though he were obliged by the Law of Nature to breed up his Children, yet there is no reason but he may make use of their labour, as a natural recompence for his trouble. And in this Period the Father hath power to correct his Son, if he prove negligent, or disobedient; since this Correction is for his advantage, to make him more careful and diligent another time, and to subdue the stubbornness of his Will: But in other actions the Children have a power of acting freely, yet still with respect of gratifying and pleasing their Parents, to whom they are obliged for their Being and Education, since without their care they could not have attained to that age. But since this Duty is not by force of any absolute Subjection, but only of Piety, Gratitude and Observance, it does not make void any act, though done contrary to those Duties, as Marriage, and the like; for the gift of a thing is not therefore void, though made contrary to the Rule of Prudence and Frugality. In the third Period, they are in all actions free, and at their own dispose; yet still under those obligations of Gratitude, Piety and Observance toward their Parents as their greatest Benefactors, since if that they have well discharged their Duty toward their Children, they can never in their whole lives sufficiently recompence so great benefits as they have received from them.
But it seems the Authour is not satisfied with these distinctions, but saies, He cannot conceive, how in any case Children can ever naturally have any power or moral Faculty of doing what they please, without their Parents leave; since they are always bound to study to please them.Observations on Grotius de J. B. p. 62.And though by the Laws of some Nations, Children when they attain to years of discretion, have Power and Liberty in many actions, yet this Liberty is granted them by positive humane Laws only, which are made by the Supreme Fatherly Power of Princes, who regulate, limit, or assume the Authority of Inferiour Fathers, for the publick benefit of the Commonwealth: So that naturally the Power of Parents over their Children never ceaseth by any separation, but only by the permission of the transcendent Fatherly Power of the Supreme Prince, Children may be dispensed with, or priviledged in some cases from obedience to subordinate Parents.
For my part, I see no 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, farther than the Father pleases.Vid. Bodin de Rep. l. 1. c. 4. 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. laudar. 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 justific 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 his Parents Commands, pretending they are mad or drunk, when really they are not, he is without doubt doubly guilty both, of Hypocrisie and Disobedience. But this does not hinder Children in the state of Nature from judging of the reasonableness or lawfulness of their Parents Commands, and of the condition they are in when they gave them: for otherwise a Child ought to be of his Fathers Religion, though it were Idolatry, if he commanded it; or were obliged to break any of the Laws of Nature, if this Obedience were absolute. And it is a lesser evil that the Commands of Parents should be disobeyed, nay, sometimes their persons resisted, than that they should make a Right to command or do unreasonable and unlawful things in a fit of madness, drunkenness, or passion, destroy either themselves or others.
But it may be replied, that though Fathers in the state of Nature have no Right to act unjustly or cruelly toward their Children, or to command such unlawful or unreasonable things; yet however they are onely answerable to God for so doing; and there is out of a Commonwealth no superiour power that can question the Fathers actions: for since his Children are committed by God to his care, he onely is answerable for them, and for his actions towards them, since no other man hath any interest or concern in them but himself. So that if he kill, maim, abuse, or sell his Son, there is no man that hath Right to revenge, punish, or call him to an account for so doing; and if no others that are his equals, much less his Wife and Children, who are so much his Inferiours, and who ought in all things to be obedient to his Will. Therefore this Power, though it be not absolute in respect of God, yet is so in respect of his Wife and Children: and so in all cases where the Children cannot yield an active Obedience to their Fathers commands, they are notwithstanding obliged (by the Law of God; See Ephes. 6. 1. Colos. 3. 20.) to a passive one; and patiently to submit to whatever evils or punishments he pleases to inflict, though it were to the loss of Life itself.
To which I answer, That though it is true, a Father in the state of Nature, and considered as the head of a separate Family, hath no Superiour but God, and consequently no other person whatsoever hath any Authority or Right to call him to an account, and punish him for this abuse of his paternal Power; yet it doth not follow, that such absolute submission is therefore due from the Children, as does oblige them either to an active or a passive Obedience in all cases to the Fathers Will, so that they neither may, nor ought to defend themselves in any circumstance whatsoever. There is a great deal of difference (in the state of Nature) between calling a man to an account as a Superiour, and defending a mans self as an equal. For a man in this state hath a right to this latter against all men that assault him, by the principle of Self-preservation: But no man hath a right to the former, but onely in respect of those over whom he hath an Authority, either granted him by God, or conferr’d upon him by the consent of other men. So that the evils which an Aggressor, or Wrong-doer, suffers from him he injured, though in respect of God the Supreme Lawgiver they may be natural Punishments ordained by him, to deter men from violating the Laws of Nature, yet they are not so in regard of the Person who inflicts them. For God may sometimes appoint those for the Instruments of his Justice, who otherwise do injury to the person punished; as in the case of Absalom’s Rebellion against his Father David. So that in this case the evils the wrong-doer suffers are not properly Punishments, but necessary Consequences of his Violence and Injustice; and in respect of the Inflicter, are but necessary means of his preservation. So that if a Son have any Right to defend himself in what belongs to him from the unjust violence of his Father, he doth not act as his Superiour; but in this case as his Equal, as he is indeed in all the Rights of Nature, considered only as a Man; Such as are a Right to live, and to preserve himself, and to use all lawful means for that end. Therefore since, as I have already shown, that a Father hath no higher Right or Authority from God over the person of his Child, but as it tends to his good and preservation, or as it conduces to the great end of Nature, the common Good and preservation of Mankinde: So when the Father transgresses this Authority, his Right ceases; and when that ceases, the Sons Right to preserve himself (and in that, to pursue that great end) begins to take place. Therefore out of a Civil state, if a Father will endeavour evidently, without any just cause, to take away his Sons Life, I think the Son may in this case, if he cannot otherwise escape nor avoid it, and that his Father will not be pacified neither with his submission nor entreaty, defend himself against his Father, not with a design to kill him, but purely to preserve his own Life; and if in this case the Father happen to be kill’d, I think his Blood is upon his own head. But if any object to me the Example of Isaac’s submission to his Father, when he intended to sacrifice him: To this I answer, that as this act of Abraham’s is not to be taken as an Example for other Fathers, so neither does the Example of Isaac oblige other Sons. For as Abraham had no right to offer up his Son, but by God’s express Will; so it is rational to suppose, that Isaac being then (as Chronologers make him) about nineteen or twenty years of Age, and able to carry wood enough upon his back to consume the Sacrifice, and of years to ask where the Lamb was for the Offering; was also instructed by his Father of the cause of his dealing so with him: and then the submission was not paid to his Father’s, but to God’s Will, whom he was perswaded would have it so. But if any man yet doubts, whether resistance in such a case were lawful, I leave it to his own Conscience, whether if his Father and he were out of any civil estate, whose assistance he might implore, he would lie still, and suffer his Father to cut his throat, only because he had a minde to it, or pretended revelation for it.
So likewise if a Father in this state should go about to violate his Sons Wife in his presence, or to kill her, or his Grandchildren, I suppose he may as lawfully use the same means for their preservation, (if he cannot otherwise obtain it) as he might for his own; since they are delivered to his charge, and that he only is answerable for them. For since the Father doth not acquire any property in the Sons person, either by begetting or educating him, much less ought he to have it over those the Son hath begotten.
But though Children may have this Right of defending their own Lives, or those of their Wives and Children, from their Fathers unjust violence, when they can by no means else be preserved; Yet I would not be here understood to give Children this right of resisting upon any less occasion; as if the Father should only go about to correct his Son, though without just cause, it were therefore lawful for him to resist or beat his Father. For we are obliged by the Law of Christ to bear smaller Injuries from others, much more from a Father; neither yet would I give them any right to continue this state of War, and to revenge upon their Parents the Injuries they have formerly received at their hands. For all Revenge, taken in this sence, as a satisfaction of the minde in returning of an evil or injury already received, without any respect to a mans own preservation, or the good of the person that did the wrong, is unlawful even in the state of Nature. Therefore this returning Evil for Evil, which some improperly call Revenge, is only justifiable for one or both of these ends; either to make the party that hath done the Injury sensible of his Errour, and seeing the Follies and Inconveniences of it, to alter his minde, and resolve to do so no more; or as it may conduce to a mans own preservation for the future, and be a warning to others not to injure him in like manner, since they see he will not take injuries tamely. But all this is still left to a mans own prudence, how far he will pass them by: And he is certainly obliged to leave off returning them, assoon as he can be safe without it; since otherwise quarrels would be perpetual. Neither ought one, who hath been highly obliged to a man perhaps for his life, to return him evil for evil, since scarce any Injury being great enough to cancel so great an Obligation. Therefore since a Father, who hath truely performed his Duty, is the greatest Benefactor we can imagine in this life; so no man ought to revenge an Injury, though never so great, upon him; since it is not only undutiful, but ungrateful, and cannot serve either of those two ends for which alone this returning evil for evil is allowable. For first, it cannot make the Father see his fault; since this correction being from a Son whom he looks upon as one highly obliged to him, and so much his inferior, will rather serve to exasperate than amend him. Secondly, Neither can this bearing of the Injury encourage others to attempt doing the like; since all that know the case, will likewise consider the person that did the wrong. So that Patience alone is the only lawful means to make the Father see his Errour, and be reconciled to his Child, who ought to embrace it assoon as the Father offers it.
But as for the places of Scripture brought for absolute Obedience to Parents; viz. the fourth Commandment, Honour thy Father and thy Mother. Children, obey your Parents in the Lord, Ephes. 6. 1, 2. and Children, obey your Parents in all things, Col. 3. 20. God did not intend here to give us any new Law or Precept concerning this Duty, but to confirm and explain the fifth Commandment; as that was but a confirmation of the Law of Nature, by which men were obliged to reverence and obey their Parents, long before that Law was given. Therefore since the Laws of Nature (which are but Rules of right Reason for the good of Mankinde) are the foundation of this Commandment, and of all those commands in the New Testament, they are still to be interpreted according to that Rule. Neither are other places of Scripture understood in any other sence; such as are those of turning the right Cheek, of giving away a mans Coat to him that would go to Law, and the like: all which we are not to Interpret Literally, but according to Reason.See Grotius and Dr. Hammond’s Annot. upon these places. And so are likewise these words of St. Paul to be understood, Children, obey your Parents inall things; that is, in all things reasonable and lawful. And this sence must be allowed of, or else Children were bound to obey all commands of their Parents, whether unlawful or lawful; being comprehended under this general word All. Nor will the distinction of an active or passive Obedience help in this case; for passive Obedience cannot be the end of the Fathers command, and consequently his will is not performed in suffering; since no Father can be so unreasonably cruel, as to command a thing meerly because he would have occasion to punish his Son whom he thinks must not resist him. Neither do these places appoint a Son when an infant, a man of full age, and perhaps an old man of threescore, to be all governed the same way, or that the same Obedience is required of them all.
And this brings me to a fuller Answer to the Author’s Argument, and to shew that though Children are indeed always bound in Gratitude to please their Parents (as far as they are able without ruining themselves) and to pay a great reverence to them; yet that this submission is not an absolute subjection, but is to be limited according to the Rules of right Reason or Prudence. And to prove this, I will produce instances from the case of Adam’s Children, since the Author allows no Father to have had a larger authority than himself: We will therefore consider in the first place, Adam’s power as a Father, in respect of his Sons marriage. Suppose then that he had commanded one of his Sons never to marry at all, certainly this command would have been void, since then it had been in Adam’s power to have frustrated Gods Command to mankind of increase and multiply, and replenish the Earth; which was not spoken to Adam and Eve alone, since they could not do it in their persons, but to all mankind represented in them. And likewise Adam had been the occasion of his Sons incontinency, if he had lain with any of his Sisters before marriage. Secondly, Suppose Adam had commanded Abel to marry one of his Sisters (that being the onely means then appointed to propagate mankind) which he could not love, can any man think that he had been obliged to do it? Certainly no: for it would have been a greater sin to marry a wife he knew before-hand he could not live with, than to disobey his Father; for else how could this be true, Therefore shall a man leave Father and Mother, and cleave to his Wife? Since then Adam could not force his Sons affections, but onely recommend such of his Sisters as he thought would best suit with his humour, therefore if the Son could not live without marriage, and that Adam could not force a Wife upon him, it was most reasonable that he should chuse a Wife for himself. And to come to that other great point, that the Son can never separate himself from his Fathers Family nor subjection, 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 Childs 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 in Reuben to have spoke thus, since he knew his Father had power to slay his Sons, if he thought fit, whether he gave him such an authority or not. But if it be replied, that Jacob when his Sons married might set them at liberty, and so give them power of Life and Death; that is, make them absolute in their respective Families: This is gratis dictum, and no proof brought of it out of Scripture, and therefore may as well be otherwise: Nor is it likely that Jacob should thus manumit his Sons, since it is apparent they did not then set up distinct Families; for we finde Jacob still commanding them, as Head of the Family, to go down and buy Corn in Egypt, saying, Go down and buy us (that is, the whole Family, whereof they were Members) a little food. And yet these Sons did not think their Fathers command so absolute, but that they tell him plainly, they will not go down unless he send Benjamin with them.
As for the other Examples of Abram’s exercising the full power of a Prince in making War and Peace, I will not deny that the Heads of separate Families, being out of Commonwealths, have many things analogous to them, though they are not Commonwealths themselves: And the reason why I do not allow them to be so, is, because the ends of a Family and a Commonwealth are divers: and so many parts of a Monarchical Empire are not to be found in Families, yet the Heads of such Families may notwithstanding exercise a power of Life and Death in great Offences, and also of making War and Peace: And this being for the good of the Family they govern, and by their implyed consents, no body will contradict him in the exercise of this power. But this being matter of fact, does not prove an absolute and unquestionable Right in the Father of such a Family, of doing whatsoever he please, and that no Member of the Family hath power in any case to contradict his will; for it is rational to conceive that this Father of a Family having had an authority over his Children and Servants (born perhaps in his house) from their very Infancy, and if he be a wise and a good man, and hath carried himself as a good Father or Master ought to do toward them, should even by their consents (as knowing none more worthy than himself) retain the exercise of that Authority after they are gown up to be men; in which he cannot be contradicted, without disorder and mischief to the whole Family: So that indeed this submission of the Children and Servants, is by a tacite consent to obey the Father or Master in all things tending to the common good of the Family. But this proves not this absolute despotick power the Author contends for, but onely the most reasonable way of acting for the Families good, and whilst the Father exercises this Authority onely for that end, which when he transgresses, his Right to govern ceases: for if this Author would have but considered the state of some parts of Africa, he should have found, that where the Father will exercise this absolute power, and sell his Children for slaves, the Children make as little scruple (where they are strong enough) to put the same trick upon their Fathers: Nor can they be justly blamed for so doing, until any man can shew me that the Father hath some better Right than meer Custom or Power.
I shall now proceed to the consideration of those other places he produces out of Scripture, for the natural Right of Fathers to be Kings over their Descendants.Patriarcha, p. 16.First, As for the example of Nimrod, that makes against him; for here the Grandson of Ham, who ought to have been a Servant to the Children of Shem and Japhet, interrupting this Paternal Empire, domineers and tyrannizes not onely over his own Family, but the Descendants of the elder Brethren. But Sir Walter Rawleigh (of which opinion the Author himself is) will have him to be Lord over his own Family, by Right of Succession; but to enlarge his Empire against Right, by seizing violently on the Rights of other Lords of Families.
But however, after the confusion of Tongues, the Author will have it revive again; and the distinct Nations thereupon erected, were not confused Multitudes without Heads or Governours, and at liberty to chuse what Governours they pleased; but they were distinct Families which had Fathers for Rulers over them: whereby it plainly appears, that even in this confusion God was careful to preserve the Fatherly Authority, by distributing the diversity of Languages according to the diversity of Families. For so it appears by the Text, Gen. 10. 5. 20. 22.
But these places will not prove what the Author quotes them for, viz. the Monarchical or Kingly power of Fathers: for neither does the Scripture or Josephus mention, that this division of the World by Noah’s Posterity was performed by the Fathers of these Families as absolute Monarchs; but it rather seems that their Children and Descendants followed them as Volunteers, as retaining a Reverence and Affection to their persons for their great age, experience, and care of their Families: Which **Sir Will. Temple’s Essay of Government, p. 67. an ingenious modern Author conceives to be the natural original of all Governments, springing from a tacite deference to the Authority of one single person. And of this opinion is excellent Pufendorf.
And of this kind were those first Kings which Aristotle calls Heroical, whom the People did obey of their own accord, because they deserved well of them, and eitherby teaching them Arts, or by warring for them, or by gathering them together when they were dispersed, or by dividing Lands among them. Secondly, If it were true that these Fathers of Families were so many absolute Kings, yet it quite destroys the Author’s Hypothesis, who will have but one true Heir to Adam, who if he could be known, had a natural Right to be Monarch of the whole world. And though Kings now (Patriarch. p. 19.) are not the natural Parents of their Subjects, yet they all either are, or are to be reputed Heirs to those first Progenitors, who were at first natural Parents of the People, and in their right succeed to the exercise of Supreme Jurisdiction; and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers. Whereas we see here no such right of Eldership observed, neither among the Sons of Noah nor their descendants; but every one, as appears from the words of the Text, was an independant Head & Leader of his own Family: by these were the Isles of the Gentiles divided, &c. and by these, viz. the descendants of Shem, were the Nations divided, &c. So likewise the other places he brings concerning the Sons of Ishmael and Esau, do destroy the Authours notion of an Heir to the Authority of the Father, or that any Son is more Lord of his Brethren than another. For all the 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, ’twas 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.See Patriarcha, p. 38. chap. 2.Such were (those the Author instances in) the Persians, 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 Authour) is to be Servant to his Eldest Brother, or to whomever else his Father pleased to bequeath him. Is not the case the same? And as for the quiet of the Family, which is supposed to be preserved by the Sons absolute submission, rather than his resistance in any circumstance, I think it would rather increase Dissentions, by encouraging of Fathers to use their Power over their Children, not as Reason, but Drunkenness or Passion may impel them: Whereas this Right of Children in defending their Lives, and not being obliged to give them up at their Fathers pleasure, will rather make Parents act moderately and discreetly towards their Children, when they know they are not obliged to stay or bear with them upon other conditions, than that they may enjoy their Lives in safety, and the ordinary means thereof with some comfort. Not that I give Children any Right, as I said before, to disobey their Parents, or resist them upon every slight occasion; but rather to bear with their Infirmities, as far as it is possible; And to suffer divers Hardships and Inconveniencies from them, rather than to resust or leave them; considering the great obligation they owe them. So that I do not allow this Remedy, but in case of extreme Necessity, yet of which the Sufferer only in the state of Nature can be Judge; since in that state where there is no Umpire, (without both their consents) but God only, every man is Judge when his Life is in danger.
And if the Peace of Mankinde were to be procured merely by a mans Sufferance and Submission, without any respect to this Right, then it would be his duty to give himself up to be robb’d or kill’d by any one who had the wickedness to attempt it; because himself being innocent, may go to Heaven; and the other being guilty of an intent to rob or murder, may be damned if he be killed. And besides, it would more conduce to the preservation of Mankinde, that but one man should be lost, whereas by resistance they may both perish. Yet I suppose no man is so sottish, as to hold he ought quit his own preservation in these cases; or if he do hold it for discourse sake, I am sure he would not be so mad as to observe it. For this were such an Argument, as to hold, Because some men may abuse that Law of Self-preservation to another mans destruction; Therefore it were unlawful to defend a mans self at all.
As for the Examples of those Nations and Commonwealths who have permitted Fathers to exercise a Despotick Power over their Children; The Law of Nature or right Reason, is not to be gathered from the Municipal Laws or Customs of any particular Nation or Commonwealth, which are often different and contrary to each other. Therefore as to the Jewish Law, though I will not say it was contrary to the Law of Nature, yet it was extremely rigorous and severe in all its dispensations, and does not now oblige Christian Commonwealths in this particular, as in divers others, much less in the state of Nature. And as for the Romans, they saw the inconveniencies of this Absolute Power, and retrenched it by degrees, until it came to be no more than now with us, and in most Countreys of Europe. So likewise the Arguments which Bodin brings for the absolute power of Parents over their Children, depending upon the Roman and Jewish Law, may be easily answered from these grounds.
Having, as I hope, clear’d this main point of Paternal Authority, and of Natural Obedience, without giving an extravagant power to Parents on the one hand to abuse their power, or a privilege to Children on the other side to be stubborn or disobedient to their Parents; If then this Paternal Authority extend farther than I have seated it, I shall own my self beholding to any Friend of the Authour’s, or his Opinions, to shew me my errour. But if they cannot, I desire they would consider, whether this natural Right of Kings which the Authour asserts precedent to any compact or civil constitution, can extend farther than the natural Authority of Fathers, from whom they are supposed to derive it, and on which it is founded. And if it appear that Princes have such Power as our Fathers, then all that the Authour hath writ on this subject signifies just nothing.
Therefore I shall now proceed to examine the rest of his Principles; and shall I hope prove, that (supposing this Fatherly Power as absolute as the Authour fancies) yet that his Divine Absolute Monarchy cannot however be derived from thence.
The Authour seems to think it a Question very easie to be answered. If any one asks what comes of this Right of Fatherhood, in case the Crown, Fatherly power, escheat for want of an Heir, whether it fall to the People, or what else becomes of it?Patriarch. P. 20. To which his Answer is, That it is but the Negligence or Ignorance of the People to loose the knowledg of the true Heir; for anHeir there is always. If Adam were still living, and now were ready to die, it is certain that there is but one Man, and but one in the world, who is next Heir; although the knowledge who should be that one Man be quite lost.
So that this fine Notion signifies nothing now, for Adam being dead, and his right Heir not to be known, it is all one as if he had none; since, for ought I know to the contrary, the Authors Footman may be the Man.Directions for Obedience, p. 69. But to help this, the Author hath found out a couple of Expedients, (such as they be;) The first is, That an Usurper of this Power, where the knowledge of the right Heir is lost, being in by possession, is to be taken and reputed for the true Heir, and is to be obeyed by them as their Father.Patriarch. p. 21. And if this will not do, he gives us another, and tells us, The Government in this case is not devolved upon the multitude; but the Kingly power escheats in such cases to the Fathers and independent Heads of Families: For every Kingdom is resolved into those parts of which it was first made.
Each of which we will examine in their turn. To begin with the former, let us see if it be so easie a thing as the Authour makes it, to know who was Adam’s, or any Monarch’s right Heir (setting the Municipal Laws of the Country aside;) so that the People cannot be excused of wilful Ignorance or Negligence, if they loose this knowledg. Where by the way I observe, that as easie a thing as it was to know who was Adam’s right Heir, and upon whom by the Laws of God and Nature the Crown is to descend, upon the Death of the Monarch; yet he no where positively answers this important Question: For sometimes he is to claim by descent, as in this instance of the Heir of Adam; sometimes by his Father’s last Will, as in the case of Noah’s Sons, according as the Examples out of 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.Observat. on Grotius, p. 49, 50. For first, this Right was not given, as it ought to have been, over the Person of Ham the Offender, 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, but 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 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 Commonwealth, 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, but the Custom of the Ottoman Empire?Vid. Mezeray Abregé Chron. An. 1317. Phil. le Long. And what is this Custom, but (as the Author himself acknowledges in the case of England) the Commom Law of the Country, 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:Freeholders Inquest. p. 62. 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 in 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 have survived his Father?) If he say that Adam might leave it to Seth by Will, this is gratis dictum; and it lies upon him to prove that Adam made a Will; or if he did, how it could bind his true Heir. If he say that Seth ought to succeed and govern his Brethren, as being nearer in bloud to Adam, what reason was there that the eldest Son’s son should be punished and lose his Birthright for that which was not his fault, but misfortune, viz. that his Father was murdered before his Grandfather died? Nor could Seth claim, being elder and consequently wiser than his Nephew: for his Nephew must be older, since Seth was not born until after Abel was killed. But if it be affirmed, that the eldest Son of Abel ought to succeed and represent his Father; I ask, by what Law? If it be replied, that it is to be supposed that Adam, if he had made a Will, would rather have had his Grandson succeed him than his younger Son; this is gratis dictum, and were to affirm that the Right of governing is bequeathable; which I have already confuted. But if it be said, that this Son of Abels should succeed because he represents his Father; I would ask them, by what Law this Right of Representation should take place before propinquity of Bloud? or how could the Fathers expectation onely confer a Right to his Son, in that which the Father was never possessed of? So that there being equal Reasons on both sides, and neither Law nor Precedent in the case, there remained no way to decide this Controversie, but either Combate, or the Judgment or Arbitration of the rest of Adam’s Descendants. I suppose the Author will not allow the former sufficient to confer a good Title, since the best Title might have the worst success in that Appeal to the Sword. If he allows the latter, then this hereditary Monarchy of Adam became Elective, and depended upon the Will of all the Heads of the Families which descended from Adam: (For it is not likely in so doubtful and material a point as who should govern, any of them would lose the priviledge of giving his Vote.) And if so, this Right of Succession depended upon their Wills, which might give it to which of the two Competitors they liked best; and this being once done, might for quietness pass into a Custom or Law for the future. And that this Right of Representation, where the Son dies before his Father, cannot be decided by the Law of Nature or Reason alone, is evident, in that divers Nations or distinct Tribes of People have had different Customs about it, and have established this Right of Succession divers ways: For though the Roman or Civil Law allow of this Right of Representation, yet the Germans and all Nations descended from them, did not admit it until very lately; which shews there is nothing but Custom in the case.See Grotius de J. B. Li. cap. 7. And upon this pretence the League in France admitted the Cardinal of Bourbon King, by the name of Charles the X, before his Nephew the King of Navar, his elder Brothers Son, who died before him. And that this difficulty who shall succeed, the Uncle or the Nephew, hath still perplext mankind in all Countries where the Succession hath not been settled by positive Laws or long Custom, (which is but the continued Will of the People) may appear by those different Judgments that have been in all Ages made on this matter: for when there arose a Controversie between Areus, Son of Acrotatus, eldest Son to Cleomenes King of Lacedæmon, and Cleomenes the second Son of the said Cleomenes, the Senate adjudged the Royalty for Areus against Clomenes.Mariani, l. 13. c. 3. But in Spain, after the death of Alphonso the V, King of Castile, the States of Spain acknowledged his younger Son Sancho to be King, and put by Ferdinand de la Cerda the Grandson to the late King by his eldest Son, though he had the Crown left him by his Grandfathers Will.Vicerius in Vita Henry 7. And when Charles the II, King of Sicily died, and left a Grandson behind him by his eldest Son, surnamed Martel, and a younger Son called Robert; the matter being referred to Pope Clement V, he gave judgment for Robert the younger Son of Charles; who was thereupon proclaimed King of Sicily. And it seems Glanvil, who was Lord Chief Justice under Henry II, makes it a great Question who should be preferred to the Crown, the Uncle or the Nephew. So that it was no strange thing for King John to make himself King before his Nephew Arthur, since it was a moot point among the Lawyers of that Age, who ought to succeed. And where no Power could intervene, it was decided by War, and sometimes single Combats, which Historians mention to have been waged between Uncles and Nephews contending for the Principality; and not onely in this case, but in all others where the Succession of the Empire is not settled by such Laws or Customs, it lies continually liable to be disputed between the Sons or Grandsons of the last Prince, nor can ever be decided but by the Sword: Of which there is an Example in one of the greatest and most absolute Monarchies in the world, viz. the Empire of the Mogul, where for want of settling the Succession at first by a positive Law, and making the Raias,See Bernier’s Travels, 1 part. and Tavernier Lib. Sir Tho. Row’s Embassie, Purchas part. Terrey’s Relation of Indostan.Omrahs, or great Lords give their consent to it, and swear to observe it, and so have made and ascertained it as an inviolable Custom (as it is in the Ottoman Empire;) now upon the death of an Emperour, though he declare by his Will who shall be his Successor, yet the Grandees (who are so many petty Princes, and lead the People under their Command after them as they please) do not think themselves at all obliged to observe it, much less to set the Crown upon the eldest Sons head; but every man is for that Son of the last Mogul whom they like best, that is, him they conceive will suit best with their interests and designes: Nor do the Brothers think themselves at all obliged to yield to their eldest Brother, whom they are assured will put them to death, or make them perpetual Prisoners. So that every one provides for himself, and makes his Party as strong as he can by Gifts and Promises among the Grandees, against his Fathers death. Nay, lately this prize hath been played among the Sons even in their Fathers lifetime, as in the case of the late Sha-Jehan, who lived to see all his Sons killed, and his person made a prisoner by his youngest Son Aureng Zebe, who is for ought I know, Mogul at this day. And if any man thinks this onely an Evil peculiar to this Empire, and not to others, let him but read the Histories of the several Revolutions and Changes in all Moorish and Eastern Monarchies, and he shall find them managed much after the same rate. Nor hath these differences onely divided these Monarchies where the Succession was never well settled at first, but even those that have been better constituted, and where one would belieev the Discent of the Crown had been sufficiently settled by a long Discent of Kings for many hundreds of years. And of this, Scotland hath been a famous Example; where after the death of King Alexander III, and his Grandaughter Margaret of Norway, two or three several Competitors claimed a Right to succeed: But omitting others, it was agreed that it lay between John Baylliol, and Robert Bruce Earl of Carick; both of them drawing their Discent from David Earl of Huntingdon, Great Uncle to the last King (in whom they all agreed the Right to the Crown would have been, had he survived.) Baylliol claimed, as eldest Son to Dornagilla, Grandaughter to Margaret the eldest Daughter of the said Earl David. Robert Bruce claimed, as eldest Son of Isabel the second Daughter of the said David. So that if Baylliol alledged his Discent from the eldest Daughter, Bruce was not behind-hand; but pleaded, though it was true he was descended but from the second Daughter, yet he being a Grandson, and a degree neerer, ought to succeed; (whereas Baylliol was but great Grandson to Earl David:) And though Dornagilla, Baylliol’s Mother, was in the same degree with himself, yet he being a man, ought to be preferred before a woman in the same Line; and that if the Laws of Scotland would have given it to Dornagilla, if it had been an ordinary Inheritance, yet Discent of the Crown was not to be ruled by the Common Laws of other Inheritances. In short, this Dispute did so divide the Nobility into Factions, and puzzle the Estates of the Kingdom, that not being able to decide it, they and all the Competitors agreed to refer the Controversie to Edward I. King of England, one of the wisest and most powerful Princes of his time; who upon long advice and debate with twelve of the learnedest men of both Kingdoms, at last adjudged the Crown to Baylliol; or, as the Scotch Historians relate, because he would do him Homage for it: which, Bruce being of a higher spirit, refused. Yet this did not put an end to this great Controversie; for though Baylliol was thereupon admitted King, yet falling out not long after with King Edward, to whom he owed all his greatness, and having the worst of it, the Nobility and States of Scotland revived Bruce’s Title, and declared him King; who after a long War with England, enjoy’d the Crown quietly at last, and left it to his Issue, whose Posterity (in our present King) enjoy it to this day.
To this I shall adde one Example more from Portugal within these hundred years. King Henry called the Cardinal dying without Issue, there was a great Controversie who should succeed; (for he died suddenly just as the States of the Kingdom were assembled to settle the Succession, for he declared himself unable to decide it:) So that he onely left by his Will twelve Governours of the Kingdom, who should govern during the interregnum, but that the Crown should descend to him that should appear to them to have the best Title. Four eminent Competitors put in their claims: 1. Antonio called the Bastard, who nevertheless pretended that he was lawful Son to Don Lewis, second Brother to Henry the last King: So that he had no more to do but to prove himself Legitimate. 2. Alexander Duke of Parma, who claimed as Grandson to Mary, eldest Daughter to Don Duarte, youngest Brother to the last King Henry, and Son to King Emanuel. 3. The Duke of Braganza, who claimed as Son to Katherine, second Daughter of the said Don Duarte, yet alledged his Title to be best, because he was the next of the Bloud-Royal who was a Native of Portugal (as the Heir of the Crown, as he pretended, ought to be, by a Fundamental Law of that Kingdom:) yet it seems that Law was not then so well known, or otherwise there was no reason why these Governors should not have admitted him King as soon as ever they met. 4. Philip the second, King of Spain, who claimed as Son to Isabella Daughter of Emanuel King of Portugal, and so a degree nearer than the rest to Henry the last King. The States and Governours differing, the States were dissolved; and during their recess, the Governours not agreeing among themselves, the King of Spain raised an Army, and entering Portugal, seiz’d the City of Lisbon, and consequently all the rest of the Kingdom submitted to him, and so made himself King by force. And yet we have seen in his Grandson’s time, the Estates of Portugal declare this Title void, and the Crown setled in the Posterity of the Duke of Braganza, who still enjoy it by vertue of this Fundamental Law. And that this Fundamental Law could not be altered but by the consent of the Cortes or States, appears by the late Alteration of this Constitution upon the Treaty of Marriage of the present Prince Regents Daughter with the Duke of Savoy. And how much even Kings themselves have attributed to the Authority of their Estates, appears by the League made between Philip the Long King of France, and David King of Scots; wherein this Condition was exprest, That if there should happen any difference about the Succession in either of these Realms, he of the two Kings which remained alive, should not suffer any to place himself on the Throne, but him who should have the Judgment of the Estates of his side; and then he should with all his power oppose him who would after this contest for the Crown. So that our Author, without cause, lays the fault upon the wilful ignorance of the People in not remembring or acknowledging the right Heir of the Crown; when the ablest and wisest men of the Age they lived in could not by the meer Laws of Nature and Reason, determine which was he: And our Author should have done well to have set down some certain Rules, how the People might be assured, without a positive Law before made, that they acknowledge the right Heir, and not an Usurper to his prejudice.