The Elements of Law Natural and Politic [57]
to perform it. And lastly, that servant that is no longer trusted, but committed to his chains and custody, is thereby discharged of the obligation in foro interno, and therefore if he can get loose, may lawfully go his way. 8. But servants subordinate, though manumitted by their immediate lord, are not thereby discharged of subjection to their lord paramount; for the immediate master hath no property in them, having transferred his right before to another, namely to his own and supreme master. Nor if the chief lord should manumit his immediate servant, doth he thereby release the servants of their obligation to him that is so manumitted. For by this manumission, he recovereth again the absolute dominion he had over them before. For after a release (which is the discharge of a covenant) the right standeth as it did before the covenant was made. 9. This right of conquest, as it maketh one man master over another, so also maketh it a man to be master of the irrational creatures. For if a man in the state of nature, be in hostility with men, and thereby have lawful title to subdue or kill, according as his own conscience and discretion shall suggest unto him for his safety and benefit; much more may he do the same to beasts; that is to say, save and preserve for his own service, according to his discretion, such as are of nature apt to obey, and commodious for use; and to kill and destroy, with perpetual war, all other, as fierce, and noisome to him. And this dominion is therefore of the law of nature, and not of the divine law positive. For if there had been no such right before the revealing of God's will in the Scripture, then should no man, to whom the Scripture hath not come, have right to make use of those creatures, either for his food or sustenance. And it were a hard condition of mankind, that a fierce and savage beast should with more right kill a man, than the man a beast.
Chapter 23
Of the Power of Fathers, and of Patrimonial Kingdom
1. Of three ways by which a man becometh subject to another, mentioned section 2. chap. ult., namely voluntary offer, captivity and birth, the former two have been spoken of, under the name of subjects and servants. In the next place, we are to set down the third way of subjection, under the name of children; and by what title one man cometh to have propriety in a child, that proceedeth from the common generation of two, (viz.) of male and female. And considering men again dissolved from all covenants one with another, and that (Part I. chap. XVII, sect. 2) every man by the law of nature, hath right or propriety to his own body, the child ought rather to be the propriety of the mother (of whose body it is part, till the time of separation) than of the father. For the understanding therefore of the right that a man or woman hath to his or their child, two things are to be considered: first what title the mother or any other originally hath to a child new born; secondly, how the father, or any other man, pretendeth by the mother. 2. For the first: they that have written of this subject have made generation to be a title of dominion over persons, as well as the consent of the persons themselves. And because generation giveth title to two, namely, father and mother, whereas dominion is indivisible, they therefore ascribe dominion over the child to the father only, ob praestantiam sexus; but they shew not, neither can I find out by what coherence, either generation inferreth dominion, or advantage of so much strength, which, for the most part, a man hath more than a woman, should generally and universally entitle the father to a propriety in the child, and take it away from the mother. 3. The title to dominion over a child, proceedeth not from the generation, but from the preservation of it; and therefore in the estate of nature, the mother in whose power it is to save or destroy it, hath right thereto by that power, according to that which hath been said Part I. chap. XIV, sect. 13. And if the mother shall think fit to abandon, or expose her child to death,
Chapter 23
Of the Power of Fathers, and of Patrimonial Kingdom
1. Of three ways by which a man becometh subject to another, mentioned section 2. chap. ult., namely voluntary offer, captivity and birth, the former two have been spoken of, under the name of subjects and servants. In the next place, we are to set down the third way of subjection, under the name of children; and by what title one man cometh to have propriety in a child, that proceedeth from the common generation of two, (viz.) of male and female. And considering men again dissolved from all covenants one with another, and that (Part I. chap. XVII, sect. 2) every man by the law of nature, hath right or propriety to his own body, the child ought rather to be the propriety of the mother (of whose body it is part, till the time of separation) than of the father. For the understanding therefore of the right that a man or woman hath to his or their child, two things are to be considered: first what title the mother or any other originally hath to a child new born; secondly, how the father, or any other man, pretendeth by the mother. 2. For the first: they that have written of this subject have made generation to be a title of dominion over persons, as well as the consent of the persons themselves. And because generation giveth title to two, namely, father and mother, whereas dominion is indivisible, they therefore ascribe dominion over the child to the father only, ob praestantiam sexus; but they shew not, neither can I find out by what coherence, either generation inferreth dominion, or advantage of so much strength, which, for the most part, a man hath more than a woman, should generally and universally entitle the father to a propriety in the child, and take it away from the mother. 3. The title to dominion over a child, proceedeth not from the generation, but from the preservation of it; and therefore in the estate of nature, the mother in whose power it is to save or destroy it, hath right thereto by that power, according to that which hath been said Part I. chap. XIV, sect. 13. And if the mother shall think fit to abandon, or expose her child to death,