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CHAPTER V: Of the complex society called a family, and the duties to be observed in it. - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations [1738]

Edition used:

A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER V

Of the complex society called a family, and the duties to be observed in it.

SECTION LXXXIX

What a family is.We observed that lesser or more simple societies may coalesce or unite into larger and more compounded ones (§17): and of this the societies we have described afford us an example. For when these join and consent into a larger society, hence arises a family, which is a society compounded of the conjugal, the paternal and despotic society.* Whence the husband and wife, parents, masters and mistresses, with respect to this society, are called fathers and mothers, or heads of a family; the children are called sons and daughters of the family, and the men or women-servants are called domestics.

SECTION XC

To whom the direction or government belongs in this society.But because the larger a society is, the less practicable is it that so many members should find out necessary means for attaining the end of the society by common consent and suffrage (§18) it is evident that this society must be unequal and rectoreal; and therefore that the power of directing the rest to the end of the society, must be transferred to one of the members. Now, since the husband and father of the family has a certain authority or prerogative over the wife (§44) and his command, as father, ought to prevail over the mother’s when they disagree (§53); and since he hath, as master, undoubted power over his servants of whatever sort; (§81 and 83) the power of directing the actions of the whole family must belong to the father;* but in such a manner however, that the mother is obliged, as sharer of his good or bad fortune, to give him all the assistance she can of every kind (§42).

SECTION XCI

The end of this society in a state of nature, and in a civil state.Now, such a family is either in a state of nature, subject to none, or it is united with other families into one state. In the first case, the end of this society is not only to acquire the things necessary to its happy subsistence, but likewise to defend itself against all invaders or enemies; and therefore they judge right, who consider such a family as a species of the lesser states or republics.† In the latter case, because every family is protected against the injuries of their fellow citizens or subjects by judges, and against common enemies, by the common strength of the republic, its end can be no other but the acquisition of things necessary to its more comfortable and happy subsistence.

SECTION XCII

The power of the head or father in a state of nature.But since the end of this domestic society, in a state of nature, is not only to acquire the necessaries to convenient and comfortable living, but likewise to defend itself against injuries (§91) the consequence is, that the father of the family has all the rights necessary to attain to these ends; and therefore he may not only manage the family estate and interest as seems best to him, and allot to every one in the family his care and task, and call every one to an account for his management; but he has likewise all the rights of a prince or supreme magistrate in his family, and consequently can make laws, punish delinquents, make war and peace, and enter into treaties.*

SECTION XCIII

In a civil state.On the other hand, since the end of a family, coalited with other families into the same state, can be no other but the acquisition of necessaries and conveniencies (§91), it is very plain that such eminent rights do not belong to the heads of such families, but those only which we described (§92), without which the family cannot have a comfortable subsistence; and in this case the mother has some share; whereas the modesty and character of her sex does not permit her to partake of those rights which belong to the father of a family, as the supreme magistrate of the family.

SECTION XCIV

Simple societies ought not to be an impediment to this more complex society.Moreover, since in more complex societies the interest of the more simple or lesser ought not to be opposed to that of the larger (§23), it is plain, that the conjugal, the paternal, the domestic societies ought not to be an obstacle to the end and interest of the whole united family;* and hence arise certain duties peculiar to this complex society, some of which belong to the father and mother with regard to one another; others to both, with respect to the other members of the family; others to the members of this family, with respect to the father and mother of the family; and others, in fine, to the members with relation one to another. See Wolfius de vita sociali hominum, §194.1

SECTION XCV

The mutual duties of the father and mother of the family towards one another, and their duties to the family.Since the father hath the principal part or character in this society (§90); but so, that the mother is obliged to give him all possible assistance in every way (ibid.); it follows, that it belongs to the father of the family to command what he would have done, to maintain the whole family, and each member, as every one’s condition requires, to coerce and punish those who do any injury or dishonour to the family, suitably to what the rights of a more simple society permit, and to support the dignity and authority of the mother; and it is her duty to use her utmost care that the children and servants obey their orders;* to act in the husband’s room in his absence; and, in fine, to shew an example to the whole family of veneration and obedience, being sure to have so much the more authority in the family, in proportion as she studies to maintain and augment that of her husband.

SECTION XCVI

The duties of both with regard to the simpler societies.Now, if the simpler societies ought to be so managed, that they may not be a hindrance to the good of the whole family (§94), it is manifest that the father acts contrary to his duty, if he is an impediment to the mother in her care about the education of their children; and she is much less excusable, if she makes the rebellious children worse by her indulgence; and both are in the wrong, if they by their discords and jarrs, are a bad example to the children, or if they are negligent of their education and behaviour. In like manner it is evident, that a domestic society must be in a very bad state, if the children are left to the care of the servants, and are allowed to converse with them at their pleasure; or if, on the one hand, the servants give ill advice to children, and induce them to, or assist them in any crime; or if, on the other hand, the children are suffered to treat the servants rudely.†

SECTION XCVII

In a well regulated family all is in good order.Hence it is plain, that the whole matter lies in preserving good order in a family. But then are things said to be done in order, when all things are managed and done as the circumstances of each affair requires. And therefore in a family every one ought to have some business or task appointed to him, and to give a strict account of it; and each person ought to be inured to do his business, not only with due care and diligence, but also at a convenient time, and in a proper place; and, in fine, all the furniture, and every utensil ought to be kept neat, clean, and intire, and every thing ought to be found in the place appointed for it, or where it is proper and convenient it should be placed.*

SECTION XCVIII

The duties of the inferior members of a family.From what hath been said of the duties of the whole family, it is obvious, that since all the members expect aliment from the head, each suitably to his rank (§95) every one of them is obliged to take care of the common interest of the whole body, and of that part committed to his trust in particular, to render reverence and obedience to the father and mother of the family; and, above all, to do nothing that may tend to interrupt the conjugal harmony, or to hinder the education of the children; or to bereave the head of the profits he might justly expect from the labour, honesty, and diligence of his servants.

Remarks on This Chapter

Our Author hath treated very distinctly and fully of the duties of the simpler societies, as he very properly calls them. But because it is common in arguing about government, or the civil state, to which our author is now to proceed, especially among the defenders of absolute monarchy, to reason from the right of paternity, it will not be improper to consider domestic or family dominion in its natural causes. This will prepare the way for the consideration of civil government, or dominion in its natural causes; And it is the more necessary, because the defenders of absolute monarchy, in their reasonings to prove its jus divinum, from the right of paternity, or the government of families, conceal, as Mr. Harrington observes, one part of it. “For family government, says that excellent author (for it is from him, of his works p. 385. upon the foundations and superstructures of all kinds of government, I am now to transcribe) may be as necessarily popular in some cases, as monarchical in others. To shew now the nature of the monarchical family: Put the case a man has one thousand pounds a year, or thereabouts, he marries a wife, has children and servants depending upon him (at his good will) in the distribution of his estate for their livelihood. Suppose then that this estate comes to be spent or lost, where is the monarchy of this family? But if the master was no otherwise monarchical than by virtue of his estate, the foundation or balance of his empire consisted in the thousand pounds a year. That from these principles there may be also a popular family, is apparent: For suppose six or ten, having each three hundred pounds a year, or so, shall agree to dwell together as one family, can any one of them pretend to be lord and master of the same, or to dispose of the estates of all the rest? or do they not agree together upon such orders, to which they consent equally to submit? But if so, then certainly must the government of this family be a government of laws or orders, and not the government of one, or of some three or four of these men. Yet the one man in the monarchical family giving laws, and the many in the popular family doing no more, it may in this sense be indifferently said, That all laws are made by men; but it is plain, where the law is made by one man, then it may be unmade by one man; so that the man is not governed by the law, but the law by the man; which amounts to the government of the men, and not of the law: whereas the law being not to be made but by the many, no man is governed by another man, but by that only which is the common interest; by which means this amounts to a government of laws, and not of men. That the politicks may not be thought an unnecessary or difficult art, if these principles be less than obvious and undeniable, even to any woman that knows house-keeping, I confess I have no more to say. But in case what has been said be to all sorts and capacities evident, it may be referred to any one, whether without violence, or removing of property, a popular family can be made of the monarchical, or a monarchical family of the popular. Or whether that be practicable or possible, in a nation upon the like balance or foundation in property, which is not in a family. A family being but a smaller society or nation, and a nation but a greater society or family. That which is usually answered to this point is, That the six or ten thus agreeing to make one family, must have some steward, and to make such a steward in a nation, is to make a king. But this is to imagine, that the steward of a family is not answerable to the masters of it, or to them upon whose estates (and not upon his own) he defrays the whole charge: For otherwise, this stewardship cannot amount to dominion, but must come only to the true nature of magistracy, and indeed of annual magistracy, in a commonwealth; seeing that such accounts, in the year’s end at farthest, use to be calculated, and that the steward, body and estate, is answerable for the same to the proprietors or masters; who also have the undoubted right of constituting such another steward or stewards, as to them shall seem good, or of prolonging the office of the same.

“Now, where a nation is cast, by the unseen ways of providence, into a disorder of government, the duty of such particularly as are elected by the people, is not so much to regard what has been, as to provide for the supreme law, or for the safety of the people, which consists in the true art of law-giving. And the art of law-giving is of two kinds; the one (as I may say) false, and the other true. The first consists in the reduction of the balance to arbitrary superstructures, which requires violence, as being contrary to nature; the other in erecting necessary superstructures, that is, such as are conformable to the balance or foundation; which being purely natural, requires that all interposition of force be removed.”2

It is impossible to treat distinctly of family or of civil dominion, without considering it in its natural causes, or its natural generation. “The matter of all government is an estate or property. Hence, all government is founded upon an over-balance in propriety. And therefore, if one man hold the over-balance unto the whole people in propriety, his property causeth absolute monarchy: if the few hold the over-balance unto the whole people in propriety, their propriety causeth aristocracy, or mixed monarchy. If the whole people be neither over-balanced by the propriety of one, nor of a few, the propriety of the people, or of the many, causeth democracy, or popular government: The government of one against the balance is tyranny; the government of a few against the balance is oligarchy: the government of the many (or attempt of the people to govern) against the balance, is rebellion or anarchy; where the balance of propriety is equal, it causeth a state of war: To hold that government may be founded upon community, is to hold that there may be a castle in the air, or that what thing soever is as imaginable as what hath been in practice, must be as practicable as what hath been in practice. Hence it is true in general, that all government is in the direction of the balance.”3 All these truths, however much neglected by writers upon government, are of the greatest moment: They have the same relation to or connexion with theories about government, whether domestic or civil and national, whether consisting of one or many families, as the real laws of matter and motion have with theories in natural philosophy: For they are moral facts or principles upon which alone true theories in moral philosophy or politics can be built, as the other are the natural facts, laws or principles upon which alone true axioms in natural philosophy can be erected. They are all fully explained by the author already cited. And hence we may see, “That the division of a people into freemen and servants, is not constitutive, but naturally inherent in the balance. Freemen are such as have wherewithal to live of themselves, and servants such as have not: Nor, seeing all government is in the direction of the balance, is it possible for the superstructures of any to make more freemen than are such by the nature of the balance, or by their being able to live of themselves. All that could in this matter be done, even by Moses himself, is contained in this proviso, Lev. xxv. 29. If thy brother that dwells by thee be grown poor, and be sold to thee, thou shalt not compel him to serve as a bond-servant, but as a hired servant, and a sojourner shall he be with thee, and shall serve thee to the year of jubilee: And then shall he depart from thee, both he and his children with him, and shall return to his own family, and to the possession of hisfathers shall he return. Yet the nature of riches being considered, this division into freemen and servants, is not properly constitutive but natural.” See Mr. Harrington’s works, the art of lawgiving, p. 436, 437. Compare p. 248.4 I shall only add upon this head, that the defenders of absolute monarchy can never draw any conclusions to serve their purpose, either from paternal government, or from the power of masters over their servants. For with regard to the former, what relation can be stricter than that between parents and children: There cannot be stronger obligations to subjection upon any than there are upon children: This relation and obligation is not the effect of consent, children being incapable of giving their consent, but is the effect of the necessity of nature, and in a peculiar sense, an authority or power of the author of nature’s appointment: Yet let it be remembered, that our Author, and all writers on the laws of nature and nations allow, that the obligations of children do not contradict the powerful law of self-preservation and self-defence, in cases in which life, or any thing dearer than life, is concerned. But if this be true, how can one imagine, that when the ruin of the public happiness, which is as it were the life of the community, is attempted, the same law of self-defence is of no force, and ought not to be regarded? Suppose the right of dominion over men secured by an over-balance in property, and withal of divine appointment, in any conceivable sense of these words, yet, if it be as sacred as the right of a father, it cannot extend beyond the right of a father, which does not extend to the destruction of the right of self-defence, or to command immoral actions without contradiction or resistance: Or if it be more sacred than the right of a father (could that greater sacredness be conceived) it cannot be more sacred than the law of nature, and the right of God to exact obedience to that law, and to forbid the transgression of it in obedience to whatever other authority, and so extend to the demolishing of all the natural rights and duties of mankind: Power, whatever be its title, or whatever be its foundation and security, if it be exerced contrary to the laws of nature, contrary to the law of justice and love, it is not right; it is power indeed, but guilty criminal power, which it is, it must be a crime not to resist to the utmost of one’s power, if the law of nature, i.e. the law of God be immutable, universally and indispensably obligatory upon all men.

With respect to the power of masters over servants, or slaves conquered by just war, it is likewise true that such a master is a lawful superior, and hath no equal in his family, yet hath his family, his servants, his slaves a right to defend themselves against him, should he endeavour to ruin or murder them; and such a master has no right to command any thing in the smallest degree contrary to the law of nature; but every one in his family hath a right, or more properly speaking, is obliged to reject and resist such orders to the utmost of his power. None can have a right to injure any one in making acquisitions of property or dominion, and none can have a right to exercise his acquired power, property or dominion, in an injurious way to others, tho’ part of their property or dominion; because tho’ dominion and property be not contrary but agreeable to the law of nature, yet the more considerable part of the law of nature consists in limitations upon the exercise of dominion and property, or in prescribing duties to those who have dominion and property, with regard to the use and exercise of it. And (as our Author hath often observed) where there is duty incumbent upon any one, there is, ipso facto, a right vested in some other, who is the object of that duty, to claim the fulfilment of it towards him. But we shall have occasion to return to this subject afterwards. And it is sufficient at present to have observed, 1. The natural cause or source of dominion. And, 2. That there are boundaries set by the law of nature to the acquisition and exercise of dominion, which boundaries are, with respect to subjects of dominion, rights belonging to, and vested unalienably in them, by the same law which sets these limitations to power and dominion, and by setting them to it, imposes certain indispensable duties upon the possessors of power and dominion. This must be, if the law of nature is not an empty sound, the supreme law, with regard to those who have dominion, whether as fathers, masters or kings (according to this definition of a King by Grotius, de jure belli & pacis, l. 1. c. 3. “Paterfamilias latifundia possidens, & neminem alia lege in suas terras recipiens quam ut ditioni suae, qui recipiantur, se subjiciant.” “A master of a family, who having large possessions, will not suffer any one to dwell in them on other terms than being subject to him.”) viz. the greater good of their children, servants, family, or subjects. This being fixed as the fundamental law, particular duties are easily deducible from it. And this must be the supreme law, or man is subject to no law, but may exerce his power as he pleases, i.e. in other words, either the greater good of the whole society is the law, or strength is free from all law, and may do what it can, and there is no such thing as unlawful exercise of power.

[* ] Ulpian’s definition comes to the same purpose, l. 195. §2. D. de verb. signif. “We call a family, with its proper rights, as such, many persons subjected to one head, either by nature or by law, (ut puta patremfamilias, matremfamilias, filiumfamilias, filiamfamilias), and those who succeed into their room, as grandsons and granddaughters, &c. But we take the term in a somewhat larger acceptation. For, whereas he only comprehends husband and wife, parents and children, we comprehend servants as a part of a family; as he himself a little afterwards calls them, §3. ‘servitium quoque solemus vocare familiam,’ we also reckon servants a part of the family.” Besides, among the ancients family signified the servants, “quasi familia,” as Claud. Salmas. exercit. Plin. p. 1263. has shewn. [[Saumaise (Salmasius), Plinianae exercitationes in Caji Julii Solini Polyhistora. And the parents and children were called by them domus, the house, as in Apuleius Apolog. p. 336. “ipse domi tuae rector, ipse familiae dominus.” Apuleius, Rhetorical Works 98.7, p. 116: “In your house he and none but he is the man in charge, the one who issues orders to the staff.” We shall therefore use the word family, to denote what the ancients called domus and familia.

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[* ] But this is to be understood of what ordinarily or regularly happens. For that it is sometimes otherwise, we have already shown (§46). Who will deny that a queen who marries a stranger is still head of her family, and that in this case, no other part belongs to the husband but what regularly belongs to the wife, viz. to give all manner of assistance to his queen-wife? We have very recent examples of this.

[† ] Thus Aristotle considers it, Polit. 3. 6. where he says, that segregate heads of families, living by themselves, are with their families as states, and defend themselves by the members of their families against all injurious invaders. Nor does Hobbes philosophize about the manner differently. Leviath. c. 20. Tho’ properly indeed such a family be not a state, as Aristotle acknowledges a little after, where he says, “Yet if we accurately consider the matter, it is not properly a city or state”; yet it is very like to one, and when it grows up into a great multitude of persons, it becomes a state or republic, as Plato observes in Politic. t. 2. op. edit. Serrani. [[A reference to Jean Serres’ edition of Plato’s works (see Plato, Platonis opera quae extant omnia).

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[* ] We have examples of this in the patriarchs Abraham, Isaac, and Jacob, who, as princes, or heads of segregate families, exercised all the rights of sovereignty. Thus Abraham, when he heard his brother Lot was taken captive, armed his trained servants born in his own house, and joined with certain confederates, and made war against the enemy, Gen. xiv. 14. The same Abraham entred into an alliance with Abimelech, Gen. xxi. 22. which was afterwards renewed by Isaac, Gen. xxvi. 26. Jacob in like manner made a covenant with Laban, Gen. xxxi. 44. and his family made war (tho’ an unjust one) against Hamor and his son Shechem, Gen. xxxiv. 25. Jacob likewise gave a law to his houshold about putting away strange gods from among them, Gen. xxxv. 2. Judah, his son, condemned his daughter-in-law to be burnt, Gen. xxxviii. 24, 25. Of these facts Nicolaus Damascenus was not ignorant. Excerpt. Peiresc. p. 490. See likewise Justin. 36. 2.

[* ] Because, in this case, one and the same person sustains several different personages or characters, he is under so many respective obligations, and has so many respective rights correspondent to, and depending upon these different characters and relations of husband, father, and head of the family.

[1 ] Christian Wolff, Vernünftige Gedanken von dem gesellschaftlichen Leben der Menschen und insonderheit dem gemeinen Wesen.

[* ] Socrates says in Xenophon. Oecon. c. 3. §15. “I think a wife who is a good partner in a family, contributes as much to its interest as the husband. For very often wealth is brought by the husband’s industry into a house, and the greater part of it is at the management of the wife, which, if it be good, the family is enriched, if bad, it is ruined.” [[Xenophon, Memorabilia and Oeconomicus, p. 389.

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[† ] For most servants being of the very dregs of mankind, and therefore very ill educated, it is impossible but children must be corrupted by them. We see how justly they are represented in Plautus and Terence, as often corrupting the children by flattery, and exciting them to or assisting them in very bad practices. Plutarch upon education wisely observes, “If you live with a lame person, you will insensibly learn to halt.” And hence he infers, “That nothing can be more absurd and unreasonable than the very common practice, when one has many good servants, some fit for agriculture, some for navigation, some for merchandize, some for banking, others to be stewards, if he finds one slave that is idle, drunken, and unfit for every other business, to set him over his children.” [[Plutarch, “The Education of Children,” pp. 17–19 in Plutarch, Moralia: in Fourteen Volumes, vol. 1. But it is evidently much the same in effect, whether parents commit the care of their children to worthless persons, or suffer them to be familiar with them.

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[* ] All this Xenophon hath delightfully explained in his golden treatise of oeconomics, where he introduces Ischomachus discoursing with his wife about the management and oeconomy of a family. And cap. 8. she sums up all thus: That, as in a choir, in an army, or in a ship, so in a domestic society, there is a first, a second, and a last order, and that the perturbation of this order throws all into confusion, and renders the largest stock of furniture useless. In the 8. chapter she adds, “The disturbance of order seems to be like a farmer’s throwing wheat, barley, and legumes, all together in a heap; and then when he wants bread, kitchen-stuff, or any other thing, he must have the trouble of separating them, and to search through the whole confused mass for what he has present need of.” [[Xenophon, Oeconomicus, chap. VIII, pp. 429–33, in Memorabilia and Oeconomicus.

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[2 ] Harrington, “The Art of Lawgiving” (1659), bk. I, “The Preface,” in The Political Works of James Harrington, 602–3.

[3 ] With the exception of the last sentence this is from Harrington, “The Rota or a Model of a Free State or Equal Commonwealth” (1660), in Harrington, Political Works, 808.

[4 ] Harrington, “The Art of Lawgiving,” bk. III, chap. 1, in Harrington, Political Works, 665–66. The edition Turnbull appears to be using is that edited by John Toland (The Oceana and Other Works of James Harrington, Esq.). The reference to p. 248, therefore, is to bk. I, chap. 1 of “The Prerogative of Popular Government” and would correspond to pp. 409–10 in Pocock’s edition of Harrington’s political works.