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CHAPTER XX.

OF DOMINION PATERNAL, AND DESPOTICAL.

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A COMMONWEALTH by acquisition, is that, where PART II. the sovereign power is acquired by force; and it is acquired by force, when men singly, or many A common. together by plurality of voices, for fear of death, acquisition. or bonds, do authorize all the actions of that man, or assembly, that hath their lives and liberty in his power.

And this kind of dominion, or sovereignty, Wherein differdiffereth from sovereignty by institution, only in commonwealth this, that men who choose their sovereign, do it for by institution. 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

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PART 11. the actor, acquitteth him, then he is acquitted by

him that extorted the promise, as by the author of

such absolution. The rights of But the rights, and consequences of sovereignty, sovereignty the same in both, 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 belongeth 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 Dominion is acquired two ways; by generation, paternal how attained. and by conquest. The right of dominion by gene

ration, is that, which the parent hath over his children ; and is called PATERNAL.

And is not so Not by gene- derived from the generation, as if therefore the ration, but by contract; 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

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of the more excellent sex; they misreckon in it. PART 11. 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 Or education ; 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

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PART II. obey her, rather than any other ; and by conse

quence the dominion over it is hers. But if she expose it, and another find and nourish it, the 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. Or precedent

If the mother be the father's subject, the child, subjection of one of the is in the father's power : and if the father be the parents to the mother's subject, as when a sovereign queen marother.

rieth one of her subjects, the child is subject to the mother ; because the father also is her subject.

If a man and 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 The right of succession to paternal dominion, followeth the proceedeth in the same manner, as doth the right rules of the right of

of succession of monarchy; of which I have already possession. sufficiently spoken in the precedent chapter. Despotical · Dominion acquired by conquest, or victory in

war, is that which some writers call DESPOTICAL, from Aeonórns, which signifieth a lord, or master;

succession

doinin ion attained.

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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 Not by the vicright of dominion over the vanquished, but his own consent of the covenant. Nor is he obliged because he is con

vanquished. quered; 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 Zwypía, taking alive, is to evade the present fury

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