CHAP. VI.

Of Paternal Power.

Sec. 52. IT may perhaps be censured as an impertinent
criticism, in a discourse of this nature, to find fault with
words and names, that have obtained in the world: and yet
possibly it may not be amiss to offer new ones, when the old are
apt to lead men into mistakes, as this of paternal power
probably has done, which seems so to place the power of parents
over their children wholly in the father, as if the mother
had no share in it; whereas, if we consult reason or revelation,
we shall find, she hath an equal title. This may give one reason
to ask, whether this might not be more properly called parental
power? for whatever obligation nature and the right of
generation lays on children, it must certainly bind them equal to
both the concurrent causes of it. And accordingly we see the
positive law of God every where joins them together, without
distinction, when it commands the obedience of children, Honour
thy father and thy mother, Exod. xx. 12. Whosoever curseth his
father or his mother, Lev. xx. 9. Ye shall fear every man his
mother and his father, Lev. xix. 3. Children, obey your
parents, &c. Eph. vi. 1. is the stile of the Old and New
Testament.
Sec. 53. Had but this one thing been well considered,
without looking any deeper into the matter, it might perhaps have
kept men from running into those gross mistakes, they have made,
about this power of parents; which, however it might, without any
great harshness, bear the name of absolute dominion, and regal
authority, when under the title of paternal power it seemed
appropriated to the father, would yet have founded but oddly, and
in the very name shewn the absurdity, if this supposed absolute
power over children had been called parental; and thereby have
discovered, that it belonged to the mother too: for it will but
very ill serve the turn of those men, who contend so much for the
absolute power and authority of the fatherhood, as they call
it, that the mother should have any share in it; and it would
have but ill supported the monarchy they contend for, when by
the very name it appeared, that that fundamental authority, from
whence they would derive their government of a single person
only, was not placed in one, but two persons jointly. But to let
this of names pass.
Sec. 54. Though I have said above, Chap. II. That all men
by nature are equal, I cannot be supposed to understand all
sorts of equality: age or virtue may give men a just
precedency: excellency of parts and merit may place others
above the common level: birth may subject some, and alliance
or benefits others, to pay an observance to those to whom
nature, gratitude, or other respects, may have made it due: and
yet all this consists with the equality, which all men are in,
in respect of jurisdiction or dominion one over another; which
was the equality I there spoke of, as proper to the business in
hand, being that equal right, that every man hath, to his
natural freedom, without being subjected to the will or
authority of any other man.
Sec. 55. Children, I confess, are not born in this full
state of equality, though they are born to it. Their parents
have a sort of rule and jurisdiction over them, when they come
into the world, and for some time after; but it is but a
temporary one. The bonds of this subjection are like the
swaddling clothes they art wrapt up in, and supported by, in the
weakness of their infancy: age and reason as they grow up, loosen
them, till at length they drop quite off, and leave a man at his
own free disposal.
Sec. 56. Adam was created a perfect man, his body and
mind in full possession of their strength and reason, and so was
capable, from the first instant of his being to provide for his
own support and preservation, and govern his actions according to
the dictates of the law of reason which God had implanted in him.
From him the world is peopled with his descendants, who are all
born infants, weak and helpless, without knowledge or
understanding: but to supply the defects of this imperfect state,
till the improvement of growth and age hath removed them, Adam
and Eve, and after them all parents were, by the law of
nature, under an obligation to preserve, nourish, and educate
the children they had begotten; not as their own workmanship,
but the workmanship of their own maker, the Almighty, to whom
they were to be accountable for them.
Sec. 57. The law, that was to govern Adam, was the same
that was to govern all his posterity, the law of reason. But
his offspring having another way of entrance into the world,
different from him, by a natural birth, that produced them
ignorant and without the use of reason, they were not presently
under that law; for no body can be under a law, which is not
promulgated to him; and this law being promulgated or made known
by reason only, he that is not come to the use of his reason,
cannot be said to be under this law; and Adam's children,
being not presently as soon as born under this law of reason,
were not presently free: for law, in its true notion, is
not so much the limitation as the direction of a free and
intelligent agent to his proper interest, and prescribes no
farther than is for the general good of those under that law:
could they be happier without it, the law, as an useless thing,
would of itself vanish; and that ill deserves the name of
confinement which hedges us in only from bogs and precipices. So
that, however it may be mistaken, the end of law is not to
abolish or restrain, but to preserve and enlarge freedom: for
in all the states of created beings capable of laws, where there
is no law, there is no freedom: for liberty is, to be free
from restraint and violence from others; which cannot be, where
there is no law: but freedom is not, as we are told, a liberty
for every man to do what he lists: (for who could be free, when
every other man's humour might domineer over him?) but a
liberty to dispose, and order as he lists, his person, actions,
possessions, and his whole property, within the allowance of
those laws under which he is, and therein not to be subject to
the arbitrary will of another, but freely follow his own.
Sec. 58. The power, then, that parents have over their
children, arises from that duty which is incumbent on them, to
take care of their off-spring, during the imperfect state of
childhood. To inform the mind, and govern the actions of their
yet ignorant nonage, till reason shall take its place, and ease
them of that trouble, is what the children want, and the parents
are bound to: for God having given man an understanding to direct
his actions, has allowed him a freedom of will, and liberty of
acting, as properly belonging thereunto, within the bounds of
that law he is under. But whilst he is in an estate, wherein he
has not understanding of his own to direct his will, he is
not to have any will of his own to follow: he that
understands for him, must will for him too; he must prescribe
to his will, and regulate his actions; but when he comes to the
estate that made his father a freeman, the son is a freeman
too.
Sec. 59. This holds in all the laws a man is under, whether
natural or civil. Is a man under the law of nature? What made
him free of that law? what gave him a free disposing of his
property, according to his own will, within the compass of that
law? I answer, a state of maturity wherein he might be supposed
capable to know that law, that so he might keep his actions
within the bounds of it. When he has acquired that state, he is
presumed to know how far that law is to be his guide, and how far
he may make use of his freedom, and so comes to have it; till
then, some body else must guide him, who is presumed to know how
far the law allows a liberty. If such a state of reason, such an
age of discretion made him free, the same shall make his son
free too. Is a man under the law of England? What made him
free of that law? that is, to have the liberty to dispose of his
actions and possessions according to his own will, within the
permission of that law? A capacity of knowing that law; which is
supposed by that law, at the age of one and twenty years, and in
some cases sooner. If this made the father free, it shall
make the son free too. Till then we see the law allows the
son to have no will, but he is to be guided by the will of his
father or guardian, who is to understand for him. And if the
father die, and fail to substitute a deputy in his trust; if he
hath not provided a tutor, to govern his son, during his
minority, during his want of understanding, the law takes care to
do it; some other must govern him, and be a will to him, till he
hath attained to a state of freedom, and his understanding be
fit to take the government of his will. But after that, the
father and son are equally free as much as tutor and pupil
after nonage; equally subjects of the same law together, without
any dominion left in the father over the life, liberty, or estate
of his son, whether they be only in the state and under the law
of nature, or under the positive laws of an established
government.
Sec. 60. But if, through defects that may happen out of the
ordinary course of nature, any one comes not to such a degree of
reason, wherein he might be supposed capable of knowing the law,
and so living within the rules of it, he is never capable of
being a free man, he is never let loose to the disposure of his
own will (because he knows no bounds to it, has not
understanding, its proper guide) but is continued under the
tuition and government of others, all the time his own
understanding is uncapable of that charge. And so lunatics and
ideots are never set free from the government of their parents;
children, who are not as yet come unto those years whereat they
may have; and innocents which are excluded by a natural defect
from ever having; thirdly, madmen, which for the present cannot
possibly have the use of right reason to guide themselves, have
for their guide, the reason that guideth other men which are
tutors over them, to seek and procure their good for them, says
Hooker, Eccl. Pol. lib. i. sec. 7. All which seems no more than
that duty, which God and nature has laid on man, as well as other
creatures, to preserve their offspring, till they can be able to
shift for themselves, and will scarce amount to an instance or
proof of parents regal authority.
Sec. 61. Thus we are born free, as we are born rational;
not that we have actually the exercise of either: age, that
brings one, brings with it the other too. And thus we see how
natural freedom and subjection to parents may consist together,
and are both founded on the same principle. A child is free
by his father's title, by his father's understanding, which is to
govern him till he hath it of his own. The freedom of a man at
years of discretion, and the subjection of a child to his
parents, whilst yet short of that age, are so consistent, and
so distinguishable, that the most blinded contenders for
monarchy, by right of fatherhood, cannot miss this
difference; the most obstinate cannot but allow their
consistency: for were their doctrine all true, were the right
heir of Adam now known, and by that title settled a monarch in
his throne, invested with all the absolute unlimited power Sir
Robert Filmer talks of; if he should die as soon as his heir
were born, must not the child, notwithstanding he were never so
free, never so much sovereign, be in subjection to his mother and
nurse, to tutors and governors, till age and education brought
him reason and ability to govern himself and others? The
necessities of his life, the health of his body, and the
information of his mind, would require him to be directed by the
will of others, and not his own; and yet will any one think, that
this restraint and subjection were inconsistent with, or spoiled
him of that liberty or sovereignty he had a right to, or gave
away his empire to those who had the government of his nonage?
This government over him only prepared him the better and sooner
for it. If any body should ask me, when my son is of age to be
free? I shall answer, just when his monarch is of age to
govern. But at what time, says the judicious Hooker, Eccl.
Pol. l. i. sect. 6. a man may be said to have attained so far
forth the use of reason, as sufficeth to make him capable of
those laws whereby he is then bound to guide his actions: this is
a great deal more easy for sense to discern, than for any one by
skill and learning to determine.
Sec. 62. Common-wealths themselves take notice of, and
allow, that there is a time when men are to begin to act like
free men, and therefore till that time require not oaths of
fealty, or allegiance, or other public owning of, or submission
to the government of their countries.
Sec. 63. The freedom then of man, and liberty of acting
according to his own will, is grounded on his having reason,
which is able to instruct him in that law he is to govern himself
by, and make him know how far he is left to the freedom of his
own will. To turn him loose to an unrestrained liberty, before
he has reason to guide him, is not the allowing him the privilege
of his nature to be free; but to thrust him out amongst brutes,
and abandon him to a state as wretched, and as much beneath that
of a man, as their's. This is that which puts the authority
into the parents hands to govern the minority of their
children. God hath made it their business to employ this care on
their offspring, and hath placed in them suitable inclinations of
tenderness and concern to temper this power, to apply it, as his
wisdom designed it, to the children's good, as long as they
should need to be under it.
Sec. 64. But what reason can hence advance this care of the
parents due to their off-spring into an absolute arbitrary
dominion of the father, whose power reaches no farther, than by
such a discipline, as he finds most effectual, to give such
strength and health to their bodies, such vigour and rectitude to
their minds, as may best fit his children to be most useful to
themselves and others; and, if it be necessary to his condition,
to make them work, when they are able, for their own subsistence.
But in this power the mother too has her share with the
father.
Sec. 65. Nay, this power so little belongs to the
father by any peculiar right of nature, but only as he is
guardian of his children, that when he quits his care of them, he
loses his power over them, which goes along with their
nourishment and education, to which it is inseparably annexed;
and it belongs as much to the foster-father of an exposed
child, as to the natural father of another. So little power does
the bare act of begetting give a man over his issue; if all his
care ends there, and this be all the title he hath to the name
and authority of a father. And what will become of this
paternal power in that part of the world, where one woman hath
more than one husband at a time? or in those parts of America,
where, when the husband and wife part, which happens frequently,
the children are all left to the mother, follow her, and are
wholly under her care and provision? If the father die whilst the
children are young, do they not naturally every where owe the
same obedience to their mother, during their minority, as to
their father were he alive? and will any one say, that the mother
hath a legislative power over her children? that she can make
standing rules, which shall be of perpetual obligation, by which
they ought to regulate all the concerns of their property, and
bound their liberty all the course of their lives? or can she
inforce the observation of them with capital punishments? for
this is the proper power of the magistrate, of which the father
hath not so much as the shadow. His command over his children is
but temporary, and reaches not their life or property: it is but
a help to the weakness and imperfection of their nonage, a
discipline necessary to their education: and though a father
may dispose of his own possessions as he pleases, when his
children are out of danger of perishing for want, yet his power
extends not to the lives or goods, which either their own
industry, or another's bounty has made their's; nor to their
liberty neither, when they are once arrived to the
infranchisement of the years of discretion. The father's
empire then ceases, and he can from thence forwards no more
dispose of the liberty of his son, than that of any other man:
and it must be far from an absolute or perpetual jurisdiction,
from which a man may withdraw himself, having license from divine
authority to leave father and mother, and cleave to his wife.
Sec. 66. But though there be a time when a child comes to
be as free from subjection to the will and command of his
father, as the father himself is free from subjection to the will
of any body else, and they are each under no other restraint, but
that which is common to them both, whether it be the law of
nature, or municipal law of their country; yet this freedom
exempts not a son from that honour which he ought, by the law
of God and nature, to pay his parents. God having made the
parents instruments in his great design of continuing the race of
mankind, and the occasions of life to their children; as he hath
laid on them an obligation to nourish, preserve, and bring up
their offspring; so he has laid on the children a perpetual
obligation of honouring their parents, which containing in it
an inward esteem and reverence to be shewn by all outward
expressions, ties up the child from any thing that may ever
injure or affront, disturb or endanger, the happiness or life of
those from whom he received his; and engages him in all actions
of defence, relief, assistance and comfort of those, by whose
means he entered into being, and has been made capable of any
enjoyments of life: from this obligation no state, no freedom can
absolve children. But this is very far from giving parents a
power of command over their children, or an authority to make
laws and dispose as they please of their lives or liberties. It
is one thing to owe honour, respect, gratitude and assistance;
another to require an absolute obedience and submission. The
honour due to parents, a monarch in his throne owes his mother;
and yet this lessens not his authority, nor subjects him to her
government.
Sec. 67. The subjection of a minor places in the father a
temporary government, which terminates with the minority of the
child: and the honour due from a child, places in the parents a
perpetual right to respect, reverence, support and compliance
too, more or less, as the father's care, cost, and kindness in
his education, has been more or less. This ends not with
minority, but holds in all parts and conditions of a man's life.
The want of distinguishing these two powers, viz. that which
the father hath in the right of tuition, during minority, and
the right of honour all his life, may perhaps have caused a
great part of the mistakes about this matter: for to speak
properly of them, the first of these is rather the privilege of
children, and duty of parents, than any prerogative of paternal
power. The nourishment and education of their children is a
charge so incumbent on parents for their children's good, that
nothing can absolve them from taking care of it: and though the
power of commanding and chastising them go along with it, yet
God hath woven into the principles of human nature such a
tenderness for their off-spring, that there is little fear that
parents should use their power with too much rigour; the excess
is seldom on the severe side, the strong byass of nature drawing
the other way. And therefore God almighty when he would express
his gentle dealing with the Israelites, he tells them, that
though he chastened them, he chastened them as a man chastens
his son, Deut. viii. 5. i.e. with tenderness and affection,
and kept them under no severer discipline than what was
absolutely best for them, and had been less kindness to have
slackened. This is that power to which children are commanded
obedience, that the pains and care of their parents may not be
increased, or ill rewarded.
Sec. 68. On the other side, honour and support, all
that which gratitude requires to return for the benefits received
by and from them, is the indispensable duty of the child, and the
proper privilege of the parents. This is intended for the
parents advantage, as the other is for the child's; though
education, the parents duty, seems to have most power, because
the ignorance and infirmities of childhood stand in need of
restraint and correction; which is a visible exercise of rule,
and a kind of dominion. And that duty which is comprehended in
the word honour, requires less obedience, though the obligation
be stronger on grown, than younger children: for who can think
the command, Children obey your parents, requires in a man,
that has children of his own, the same submission to his father,
as it does in his yet young children to him; and that by this
precept he were bound to obey all his father's commands, if, out
of a conceit of authority, he should have the indiscretion to
treat him still as a boy?
Sec. 69. The first part then of paternal power, or rather
duty, which is education, belongs so to the father, that it
terminates at a certain season; when the business of education is
over, it ceases of itself, and is also alienable before: for a
man may put the tuition of his son in other hands; and he that
has made his son an apprentice to another, has discharged him,
during that time, of a great part of his obedience both to
himself and to his mother. But all the duty of honour, the
other part, remains never the less entire to them; nothing can
cancel that: it is so inseparable from them both, that the
father's authority cannot dispossess the mother of this right,
nor can any man discharge his son from honouring her that bore
him. But both these are very far from a power to make laws, and
enforcing them with penalties, that may reach estate, liberty,
limbs and life. The power of commanding ends with nonage; and
though, after that, honour and respect, support and defence,
and whatsoever gratitude can oblige a man to, for the highest
benefits he is naturally capable of, be always due from a son to
his parents; yet all this puts no scepter into the father's hand,
no sovereign power of commanding. He has no dominion over his
son's property, or actions; nor any right, that his will should
prescribe to his son's in all things; however it may become his
son in many things, not very inconvenient to him and his family,
to pay a deference to it.
Sec. 70. A man may owe honour and respect to an ancient, or
wise man; defence to his child or friend; relief and support to
the distressed; and gratitude to a benefactor, to such a degree,
that all he has, all he can do, cannot sufficiently pay it: but
all these give no authority, no right to any one, of making laws
over him from whom they are owing. And it is plain, all this is
due not only to the bare title of father; not only because, as
has been said, it is owing to the mother too; but because these
obligations to parents, and the degrees of what is required of
children, may be varied by the different care and kindness,
trouble and expence, which is often employed upon one child more
than another.
Sec. 71. This shews the reason how it comes to pass, that
parents in societies, where they themselves are subjects, retain
a power over their children, and have as much right to their
subjection, as those who are in the state of nature. Which could
not possibly be, if all political power were only paternal, and
that in truth they were one and the same thing: for then, all
paternal power being in the prince, the subject could naturally
have none of it. But these two powers, political and paternal,
are so perfectly distinct and separate; are built upon so
different foundations, and given to so different ends, that every
subject that is a father, has as much a paternal power over his
children, as the prince has over his: and every prince, that has
parents, owes them as much filial duty and obedience, as the
meanest of his subjects do to their's; and can therefore contain
not any part or degree of that kind of dominion, which a prince
or magistrate has over his subject.
Sec. 72. Though the obligation on the parents to bring up
their children, and the obligation on children to honour their
parents, contain all the power on the one hand, and submission on
the other, which are proper to this relation, yet there is
another power ordinarily in the father, whereby he has a tie on
the obedience of his children; which tho' it be common to him
with other men, yet the occasions of shewing it, almost consich
tho' it be common to him with other men, yet the occasions of
shewing it, almost constantly happening to fathers in their
private families, and the instances of it elsewhere being rare,
and less taken notice of, it passes in the world for a part of
paternal jurisdiction. And this is the power men generally have
to bestow their estates on those who please them best; the
possession of the father being the expectation and inheritance of
the children, ordinarily in certain proportions, according to the
law and custom of each country; yet it is commonly in the
father's power to bestow it with a more sparing or liberal hand,
according as the behaviour of this or that child hath comported
with his will and humour.
Sec. 73. This is no small tie on the obedience of children:
and there being always annexed to the enjoyment of land, a
submission to the government of the country, of which that land
is a part; it has been commonly supposed, that a father could
oblige his posterity to that government, of which he himself was
a subject, and that his compact held them; whereas, it being only
a necessary condition annexed to the land, and the inheritance of
an estate which is under that government, reaches only those who
will take it on that condition, and so is no natural tie or
engagement, but a voluntary submission: for every man's children
being by nature as free as himself, or any of his ancestors ever
were, may, whilst they are in that freedom, choose what society
they will join themselves to, what common-wealth they will put
themselves under. But if they will enjoy the inheritance of
their ancestors, they must take it on the same terms their
ancestors had it, and submit to all the conditions annexed to
such a possession. By this power indeed fathers oblige their
children to obedience to themselves, even when they are past
minority, and most commonly too subject them to this or that
political power: but neither of these by any peculiar right of
fatherhood, but by the reward they have in their hands to inforce
and recompence such a compliance; and is no more power than what
a French man has over an English man, who by the hopes of an
estate he will leave him, will certainly have a strong tie on his
obedience: and if, when it is left him, he will enjoy it, he must
certainly take it upon the conditions annexed to the possession
of land in that country where it lies, whether it be France or
England.
Sec. 74. To conclude then, tho' the father's power of
commanding extends no farther than the minority of his children,
and to a degree only fit for the discipline and government of
that age; and tho' that honour and respect, and all that which
the Latins called piety, which they indispensably owe to their
parents all their life-time, and in all estates, with all that
support and defence is due to them, gives the father no power of
governing, i.e. making laws and enacting penalties on his
children; though by all this he has no dominion over the property
or actions of his son: yet it is obvious to conceive how easy it
was, in the first ages of the world, and in places still, where
the thinness of people gives families leave to separate into
unpossessed quarters, and they have room to remove or plant
themselves in yet vacant habitations, for the father of the
family to become the prince of* it; he had been a ruler from the
beginning of the infancy of his children: and since without some
government it would be hard for them to live together, it was
likeliest it should, by the express or tacit consent of the
children when they were grown up, be in the father, where it
seemed without any change barely to continue; when indeed nothing
more was required to it, than the permitting the father to
exercise alone, in his family, that executive power of the law of
nature, which every free man naturally hath, and by that
permission resigning up to him a monarchical power, whilst they
remained in it. But that this was not by any paternal right, but
only by the consent of his children, is evident from hence, that
no body doubts, but if a stranger, whom chance or business had
brought to his family, had there killed any of his children, or
committed any other fact, he might condemn and put him to death,
or other-wise have punished him, as well as any of his children;
which it was impossible he should do by virtue of any paternal
authority over one who was not his child, but by virtue of that
executive power of the law of nature, which, as a man, he had a
right to: and he alone could punish him in his family, where the
respect of his children had laid by the exercise of such a power,
to give way to the dignity and authority they were willing should
remain in him, above the rest of his family.
(*It is no improbable opinion therefore, which the
archphilosopher was of, that the chief person in every houshold
was always, as it were, a king: so when numbers of housholds
joined themselves in civil societies together, kings were the
first kind of governors amongst them, which is also, as it
seemeth, the reason why the name of fathers continued still in
them, who, of fathers, were made rulers; as also the ancient
custom of governors to do as Melchizedec, and being kings, to
exercise the office of priests, which fathers did at the first,
grew perhaps by the same occasion. Howbeit, this is not the only
kind of regiment that has been received in the world. The
inconveniences of one kind have caused sundry others to be
devised; so that in a word, all public regiment, of what kind
soever, seemeth evidently to have risen from the deliberate
advice, consultation and composition between men, judging it
convenient and behoveful; there being no impossibility in nature
considered by itself, but that man might have lived without any
public regiment, Hooker's Eccl. Pol. lib. i. sect. 10.)
Sec. 75. Thus it was easy, and almost natural for children,
by a tacit, and scarce avoidable consent, to make way for the
father's authority and government. They had been accustomed in
their childhood to follow his direction, and to refer their
little differences to him, and when they were men, who fitter to
rule them? Their little properties, and less covetousness,
seldom afforded greater controversies; and when any should arise,
where could they have a fitter umpire than he, by whose care they
had every one been sustained and brought up, and who had a
tenderness for them aII? It is no wonder that they made no
distinction betwixt minority and full age; nor looked after one
and twenty, or any other age that might make them the free
disposers of themselves and fortunes, when they could have no
desire to be out of their pupilage: the government they had been
under, during it, continued still to be more their protection
than restraint; and they could no where find a greater security
to their peace, liberties, and fortunes, than in the rule of a
father.
Sec. 76. Thus the natural fathers of families, by an
insensible change, became the politic monarchs of them too: and
as they chanced to live long, and leave able and worthy heirs,
for several successions, or otherwise; so they laid the
foundations of hereditary, or elective kingdoms, under several
constitutions and mannors, according as chance, contrivance, or
occasions happened to mould them. But if princes have their
titles in their fathers right, and it be a sufficient proof of
the natural right of fathers to political authority, because they
commonly were those in whose hands we find, de facto, the
exercise of government: I say, if this argument be good, it will
as strongly prove, that all princes, nay princes only, ought to
be priests, since it is as certain, that in the beginning, the
father of the family was priest, as that he was ruler in his own
houshold.