2.20. CHAP. XX
Of Dominion PATERNAL, and DESPOTICAL
A COMMONWEALTH by acquisition is that where the sovereign power is
acquired by force; and it is acquired by force when men singly, or
many together by plurality of voices, for fear of death, or bonds,
do authorise all the actions of that man, or assembly, that hath their
lives and liberty in his power.
And this kind of dominion, or sovereignty, differeth from
sovereignty by institution only in this, that men who choose their
sovereign do it for fear of one another, and not of him whom they
institute: but in this case, they subject themselves to him they are
afraid of. In both cases they do it for fear: which is to be noted
by them that hold all such covenants, as proceed from fear of death or
violence, void: which, if it were true, no man in any kind of
Commonwealth could be obliged to obedience. It is true that in a
Commonwealth once instituted, or acquired, promises proceeding from
fear of death or violence are no covenants, nor obliging, when the
thing promised is contrary to the laws; but the reason is not
because it was made upon fear, but because he that promiseth hath no
right in the thing promised. Also, when he may lawfully perform, and
doth not, it is not the invalidity of the covenant that absolveth him,
but the sentence of the sovereign. Otherwise, whensoever a man
lawfully promiseth, he unlawfully breaketh: but when the sovereign,
who is the actor, acquitteth him, then he is acquitted by him that
extorted the promise, as by the author of such absolution.
But the rights and consequences of sovereignty are the same in both.
His power cannot, without his consent, be transferred to another: he
cannot forfeit it: he cannot be accused by any of his subjects of
injury: he cannot be punished by them: he is judge of what is
necessary for peace, and judge of doctrines: he is sole legislator,
and supreme judge of controversies, and of the times and occasions
of war and peace: to him it belonged to choose magistrates,
counsellors, commanders, and all other officers and ministers; and
to determine of rewards and punishments, honour and order. The reasons
whereof are the same which are alleged in the precedent chapter for
the same rights and consequences of sovereignty by institution.
Dominion is acquired two ways: by generation and by conquest. The
right of dominion by generation is that which the parent hath over his
children, and is called paternal. And is not so derived from the
generation, as if therefore the parent had dominion over his child
because he begat him, but from the child's consent, either express
or by other sufficient arguments declared. For as to the generation,
God hath ordained to man a helper, and there be always two that are
equally parents: the dominion therefore over the child should belong
equally to both, and he be equally subject to both, which is
impossible; for no man can obey two masters. And whereas some have
attributed the dominion to the man only, as being of the more
excellent sex, they misreckon in it. For there is not always that
difference of strength or prudence between the man and the woman as
that the right can be determined without war. In Commonwealths this
controversy is decided by the civil law: and for the most part, but
not always, the sentence is in favour of the father, because for the
most part Commonwealths have been erected by the fathers, not by the
mothers of families. But the question lieth now in the state of mere
nature where there are supposed no laws of matrimony, no laws for
the education of children, but the law of nature and the natural
inclination of the sexes, one to another, and to their children. In
this condition of mere nature, either the parents between themselves
dispose of the dominion over the child by contract, or do not
dispose thereof at all. If they dispose thereof, the right passeth
according to the contract. We find in history that the Amazons
contracted with the men of the neighbouring countries, to whom they
had recourse for issue, that the issue male should be sent back, but
the female remain with themselves: so that the dominion of the females
was in the mother.
If there be no contract, the dominion is in the mother. For in the
condition of mere nature, where there are no matrimonial laws, it
cannot be known who is the father unless it be declared by the mother;
and therefore the right of dominion over the child dependeth on her
will, and is consequently hers. Again, seeing the infant is first in
the power of the mother, so as she may either nourish or expose it; if
she nourish it, it oweth its life to the mother, and is therefore
obliged to obey her rather than any other; and by consequence the
dominion over it is hers. But if she expose it, and another find and
nourish it, dominion is in him that nourisheth it. For it ought to
obey him by whom it is preserved, because preservation of life being
the end for which one man becomes subject to another, every man is
supposed to promise obedience to him in whose power it is to save or
destroy him.
If the mother be the father's subject, the child is in the
father's power; and if the father be the mother's subject (as when a
sovereign queen marrieth one of her subjects), the child is subject to
the mother, because the father also is her subject.
If a man and a woman, monarchs of two several kingdoms, have a
child, and contract concerning who shall have the dominion of him, the
right of the dominion passeth by the contract. If they contract not,
the dominion followeth the dominion of the place of his residence. For
the sovereign of each country hath dominion over all that reside
therein.
He that hath the dominion over the child hath dominion also over the
children of the child, and over their children's children. For he that
hath dominion over the person of a man hath dominion over all that
is his, without which dominion were but a title without the effect.
The right of succession to paternal dominion proceedeth in the
same manner as doth the right of succession to monarchy, of which I
have already sufficiently spoken in the precedent chapter.
Dominion acquired by conquest, or victory in war, is that which some
writers call despotical from Δεσπυτης,
which signifieth a lord or master, and is the dominion of the master over his
servant. And this dominion is then acquired to the victor when the vanquished,
to avoid the present stroke of death, covenanteth, either in express
words or by other sufficient signs of the will, that so long as his
life and the liberty of his body is allowed him, the victor shall have
the use thereof at his pleasure. And after such covenant made, the
vanquished is a servant, and not before: for by the word servant
(whether it be derived from servire, to serve, or from
servare, to
save, which I leave to grammarians to dispute) is not meant a captive,
which is kept in prison, or bonds, till the owner of him that took
him, or bought him of one that did, shall consider what to do with
him: for such men, commonly called slaves, have no obligation at
all; but may break their bonds, or the prison; and kill, or carry away
captive their master, justly: but one that, being taken, hath corporal
liberty allowed him; and upon promise not to run away, nor to do
violence to his master, is trusted by him.
It is not therefore the victory that giveth the right of dominion
over the vanquished, but his own covenant. Nor is he obliged because
he is conquered; that is to say, beaten, and taken, or put to
flight; but because he cometh in and submitteth to the victor; nor
is the victor obliged by an enemy's rendering himself, without promise
of life, to spare him for this his yielding to discretion; which
obliges not the victor longer than in his own discretion he shall
think fit.
And that which men do when they demand, as it is now called,
quarter (which the Greeks called Ζωγρυα,
taking alive) is to evade the present fury of the victor by submission,
and to compound for their life with ransom or service: and therefore he
that hath quarter hath not his life given, but deferred till further
deliberation; for it is not a yielding on condition of life, but to
discretion. And then only is his life in security, and his service due,
when the victor hath trusted him with his corporal liberty. For slaves
that work in prisons, or fetters, do it not of duty, but to avoid the
cruelty of their task-masters.
The master of the servant is master also of all he hath, and may
exact the use thereof; that is to say, of his goods, of his labour, of
his servants, and of his children, as often as he shall think fit. For
he holdeth his life of his master by the covenant of obedience; that
is, of owning and authorising whatsoever the master shall do. And in
case the master, if he refuse, kill him, or cast him into bonds, or
otherwise punish him for his disobedience, he is himself the author of
the same, and cannot accuse him of injury.
In sum, the rights and consequences of both paternal and
despotical dominion are the very same with those of a sovereign by
institution; and for the same reasons: which reasons are set down in
the precedent chapter. So that for a man that is monarch of diverse
nations, he hath in one the sovereignty by institution of the people
assembled, and in another by conquest; that is by the submission of
each particular, to avoid death or bonds; to demand of one nation more
than of the other, from the title of conquest, as being a conquered
nation, is an act of ignorance of the rights of sovereignty. For the
sovereign is absolute over both alike; or else there is no sovereignty
at all, and so every man may lawfully protect himself, if he can, with
his own sword, which is the condition of war.
By this it appears that a great family, if it be not part of some
Commonwealth, is of itself, as to the rights of sovereignty, a
little monarchy; whether that family consist of a man and his
children, or of a man and his servants, or of a man and his children
and servants together; wherein the father or master is the
sovereign. But yet a family is not properly a Commonwealth, unless
it be of that power by its own number, or by other opportunities, as
not to be subdued without the hazard of war. For where a number of men
are manifestly too weak to defend themselves united, every one may use
his own reason in time of danger to save his own life, either by
flight, or by submission to the enemy, as he shall think best; in
the same manner as a very small company of soldiers, surprised by an
army, may cast down their arms and demand quarter, or run away
rather than be put to the sword. And thus much shall suffice
concerning what I find by speculation, and deduction, of sovereign
rights, from the nature, need, and designs of men in erecting of
Commonwealths, and putting themselves under monarchs or assemblies
entrusted with power enough for their protection.
Let us now consider what the Scripture teacheth in the same point.
To Moses the children of Israel say thus: "Speak thou to us, and we
will hear thee; but let not God speak to us, lest we die."(1)
This is absolute obedience to Moses. Concerning the right of kings, God
Himself, by the mouth of Samuel, saith, "This shall be the right of
the king you will have to reign over you. He shall take your sons, and
set them to drive his chariots, and to be his horsemen, and to run
before his chariots, and gather in his harvest; and to make his
engines of war, and instruments of his chariots; and shall take your
daughters to make perfumes, to be his cooks, and bakers. He shall take
your fields, your vineyards, and your olive-yards, and give them to
his servants. He shall take the tithe of your corn and wine, and
give it to the men of his chamber, and to his other servants. He shall
take your man-servants, and your maidservants, and the choice of
your youth, and employ them in his business. He shall take the tithe
of your flocks; and you shall be his servants."(2)
This is absolute power, and summed up in the last words, you shall be
his servants. Again, when the people heard what power their king was to
have, yet they consented thereto, and say thus, "We will be as all other
nations, and our king shall judge our causes, and go before us, to conduct
our wars."(3) Here is confirmed the right that
sovereigns have, both to the militia and to all judicature; in which is
contained as absolute power as one man can possibly transfer to another.
Again, the prayer of King Solomon to God was this: "Give to thy servant
understanding, to judge thy people, and to discern between good and
evil."(4) It belonged therefore to the sovereign
to be judge, and to prescribe the rules of discerning good and evil: which
rules are laws; and therefore in him is the legislative power. Saul
sought the life of David; yet when it was in his power to slay Saul,
and his servants would have done it, David forbade them, saying,
"God forbid I should do such an act against my Lord, the anointed of
God."(5) For obedience of servants St. Paul
saith, "Servants obey your masters in all things";(6)
and, "Children obey your parents in all things."(7)
There is simple obedience in those that are subject to paternal or despotical
dominion. Again, "The scribes and Pharisees sit in Moses' chair, and therefore
all that they shall bid you observe, that observe and do."(8)
There again is simple obedience. And St. Paul, "Warn them that they subject
themselves to princes, and to those that are in authority, and obey
them."(9) This obedience is also simple. Lastly,
our Saviour Himself acknowledges that men ought to pay such taxes as are by
kings imposed, where He says, "Give to Caesar that which is Caesar's"; and
paid such taxes Himself. And that the king's word is sufficient to take
anything from any subject, when there is need; and that the king is
judge of that need: for He Himself, as king of the Jews, commanded his
Disciples to take the ass and ass's colt to carry him into
Jerusalem, saying, "Go into the village over against you, and you
shall find a she ass tied, and her colt with her; untie them, and
bring them to me. And if any man ask you, what you mean by it, say the
Lord hath need of them: and they will let them go."(10)
They will not ask whether his necessity be a sufficient title; nor whether
he be judge of that necessity; but acquiesce in the will of the Lord.
To these places may be added also that of Genesis, "You shall be
as gods, knowing good and evil."(11) And,
"Who told thee that thou wast naked? Hast thou eaten of the tree, of which
I commanded thee thou shouldest not eat?"(12)
For the cognizance or judicature of good and evil, being forbidden by the
name of the fruit of the tree of knowledge, as a trial of Adam's obedience,
the devil to inflame the ambition of the woman, to whom that fruit already
seemed beautiful, told her that by tasting it they should be as gods, knowing
good and evil. Whereupon having both eaten, they did indeed take upon them
God's office, which is judicature of good and evil, but acquired no
new ability to distinguish between them aright. And whereas it is said
that, having eaten, they saw they were naked; no man hath so
interpreted that place as if they had been formerly blind, and saw not
their own skins: the meaning is plain that it was then they first
judged their nakedness (wherein it was God's will to create them) to
be uncomely; and by being ashamed did tacitly censure God Himself. And
thereupon God saith, "Hast thou eaten," etc., as if He should say,
doest thou that owest me obedience take upon thee to judge of my
commandments? Whereby it is clearly, though allegorically, signified
that the commands of them that have the right to command are not by
their subjects to be censured nor disputed.
So that it appeareth plainly, to my understanding, both from
reason and Scripture, that the sovereign power, whether placed in
one man, as in monarchy, or in one assembly of men, as in popular
and aristocratical Commonwealths, is as great as possibly men can be
imagined to make it. And though of so unlimited a power, men may fancy
many evil consequences, yet the consequences of the want of it,
which is perpetual war of every man against his neighbour, are much
worse. The condition of man in this life shall never be without
inconveniences; but there happeneth in no Commonwealth any great
inconvenience but what proceeds from the subjects' disobedience and
breach of those covenants from which the Commonwealth hath its
being. And whosoever, thinking sovereign power too great, will seek to
make it less, must subject himself to the power that can limit it;
that is to say, to a greater.
The greatest objection is that of the practice; when men ask where
and when such power has by subjects been acknowledged. But one may ask
them again, when or where has there been a kingdom long free from
sedition and civil war? In those nations whose Commonwealths have been
long-lived, and not been destroyed but by foreign war, the subjects
never did dispute of the sovereign power. But howsoever, an argument
from the practice of men that have not sifted to the bottom, and
with exact reason weighed the causes and nature of Commonwealths,
and suffer daily those miseries that proceed from the ignorance
thereof, is invalid. For though in all places of the world men
should lay the foundation of their houses on the sand, it could not
thence be inferred that so it ought to be. The skill of making and
maintaining Commonwealths consisteth in certain rules, as doth
arithmetic and geometry; not, as tennis play, on practice only:
which rules neither poor men have the leisure, nor men that have had
the leisure have hitherto had the curiosity or the method, to find
out.