The English works of Thomas Hobbes of Malmesbury, Volume 04 · Thomas Hobbes
CHAPTER IV.
1. The dominion over the child, &c. 2. Pre-eminence of sex giveth not the child to the father, rather than to the mother. 3. The title of the father or mother, &c. 4. The child of a woman-servant, &c. 5. The right to the child given from the mother, &c. 6. The child of the concubine, &c. 7. The child of the husband and the wife, &c. 8. The father, or he or she that bringeth up the child, have absolute power over him. 9. Freedom in subjects what it is. 10. A great family is a patrimonial kingdom. 11. Succession of the sovereign power, &c. 12. Though the successor be not declared, yet there is always one to be presumed. 13. The children preferred to the succession, &c. 14. The males before the females. 15. The eldest before the rest of the brothers. 16. The brother next to the children. 17. The succession of the possessor, &c. [Sidenote: The dominion over the child, &c.]
1. Of three ways by which a man becometh subject to another, mentioned section 2, chapter the last, 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; to wit, of male and female. And considering men again dissolved from all covenants one with another, and that (Part I. chap. IV. 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. [Sidenote: Pre-eminence of sex giveth not the child to the father, rather than to 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 præstantiam sexûs_; but they show 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. [Sidenote: The title of the father or mother, &c.]
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. chapter I. sect. 13. And if the mother shall think fit to abandon, or expose her child to death, whatsoever man or woman shall find the child so exposed, shall have the same right which the mother had before; and for this same reason, namely, for the power not of generating, but preserving. And though the child thus preserved, do in time acquire strength, whereby he might pretend equality with him or her that hath preserved him, yet shall that pretence be thought unreasonable, both because his strength was the gift of him, against whom he pretendeth, and also because it is to be presumed, that he which giveth sustenance to another, whereby to strengthen him, hath received a promise of obedience in consideration thereof. For else it would be wisdom in men, rather to let their children perish, while they are infants, than to live in their danger or subjection, when they are grown. [Sidenote: The child of a woman servant, &c.] 4. For the pretences which a man may have to dominion over a child by the right of the mother, they be of divers kinds. One by the absolute subjection of the mother; another, by some particular covenant from her, which is less than a covenant of such subjection. By absolute subjection, the master of the mother, hath right to her child, according to section 6, chapter III, whether he be the father thereof, or not. And thus the children of the servant are the goods of the master _in perpetuum_.
11. Having showed by what right the several sorts of commonwealths, democracy, aristocracy, and monarchy, are erected, it followeth, to show by what right they are continued. The right by which they are continued, is called the right of succession to the sovereign power; whereof there is nothing to be said in a democracy, because the sovereign dieth not, as long as there be subjects alive: nor in an aristocracy, because it cannot easily fall out, that the _optimates_ should every one fail at once; and if it should so fall out, there is no question, but the commonwealth is thereby dissolved. It is therefore in a monarchy only, that there can happen a question concerning the succession. And first, forasmuch as a monarch, which is absolute sovereign, hath the dominion in his own right, he may dispose thereof at his own will. If therefore by his last will, he shall name his successor, the right passeth by that will. [Sidenote: Though the successor be not declared, yet there is always one to be presumed.] 12. Nor if the monarch die without any will concerning the succession declared, it is not therefore to be presumed, it was his will, his subjects, which are to him as his children and servants, should return again to the state of anarchy, that is, to war and hostility. For that were expressly against the law of nature, which commandeth to procure peace, and to maintain the same. It is therefore to be conjectured with reason, that it was his intention to bequeath them peace, that is to say, a power coercive, whereby to keep them from sedition amongst themselves; and rather in the form of a monarchy, than any other government; forasmuch as he, by the exercise thereof in his own person, hath declared, that he approveth the same.
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