The six books of a common-weale (1.4)

THe right government of the Father and the children, consisteth in the good vse of the power which God (himselfe the Father of nature) hath giuen to the Father over his owne children: or the law over them whom any man adopteth for children unto himselfe: and in the obedience, loue, and reuerence of the children towards their Fathers. This word Power, is common unto all such as have power to commaund over others; either publickly or priuatly. So the Prince (saith Seneca) hath power over his subiects, the Magistrat over priuat men the Father over his children, the Maister over his schollers, the Captaine over his souldiers, and the Lord over

[*] his slaues. But of all these the right and power to commaund, is not by nature giuen to any beside the Father, who is the true Image of the great and Almightie God the Father of all things, as saith Proclus the Academick. Plato also hauing first in certaine chapters set downe lawes concerning the honour of God saith them to bee as a Preface to the reuerence which the child oweth unto the Father, unto whome next unto God he is beholden for his life, and for whatsoeuer thing els he hath in this world. And as the Father is by nature bound to nourish his children according to his abilitie and to instruct them in all ciuilitie and vertue: so the children also when they are once grown up are bound, but with a much more straiter bond, to loue, reuerence, serue, and nourish [*] their Father, and in all things to shew themselves dutifull and obedient unto them, and by all meanes to hide and couer their infirmities and imperfections, if they see any in them, and neuer to spare their lives and goods to saue the life of them by whome they themselves tooke breath. The which bond, albeit it bee sealed with the seale of nature, and engrafted in every one of our minds, and carrieth with it a readie execution: yet so it is neuerthelesse, that to show the greatnes thereof there can be no greater argument, than the first commaundement of the second table, which alone of all the[*] ten Commaundements propoundeth a reward unto children which honour their parents: although no reward be unto him due that doth but his dutie: and so much the lesse, for that there is no more religious a decree in all the lawes both of God and man; neither any curse greater in holy writ, than against him who wickedly laughed at the naked priuities of his Father. Neither is it maruell if wee in holy Scripture read[*] [*] of the contentions and strife of the sonnes among themselves, for the getting and foregaining their Fathers blessing; as they which feared more their curse than death: As young Torquatus who cast off by his Father, slew himselfe for sorrow. And that is it why Plato saith, that aboue all things we must have care of the cursings and blessings that the Fathers giue unto their children: for that there is no prayer that God doth more readily heare, than that of the Father towards his children. If children then bee so straitly bound to obey and reuerence their parents? what punishment then deserue they that are unto them disobedient, irreuerent, or iniurious? what punishment can be great enough for him which shall presume to lay violent hand upon his Father or Mother? for against him that shal murder either of them, there was neuer yet Iudge or law maker that could deuise torment sufficient for a fact so execrable: although that by the law Pompeia, a punishment be appointed rather new and strange, than fit for such a crime. And albeit that we have seene one in our memorie (who had caused his Father to be slaine) torne with hot yron tongs, afterwards broken upon the wheele, and so at last (being yet alive) burnt: yet was there no man which did not more abhorre the wickednesse of his villanie, than the horror of his punishment, and which said not that he had deserued more than he had yet suffered. Also the wise Solon; when hee had made lawes for the Athenians, being asked why he had appointed no punishment against him which had killed his Father; answered, That he thought there was no man so wicked as to commit so horrible a fact: which was grauely answered: for the wise law maker should neuer make mention of an offence which is not at all, or but very little knowne, for feare he should not seeme so much to forbid the fact, as to put the wicked in remembrance thereof. But if the crime be great and execrable, he must neither colour it by sufferance, as forgotten, neither point it out unto the eye with his finger; but by circumstances and propounding of the punishments of like facts, deterre the wicked from such hainous offences. As we see the law of God hath not appointed any punishment against him that murdereth his Father or his Mother, neither against him that beateth either the one or the other (as doth the law Seruia, which condemneth them to death for such a crime) yet giueth it full power and authoritie unto the Father and Mother to stone the disobedient child, so that it be done in the presence of the magistrat, to whome for all that it belongeth not to enquire of the truth thereof, or to examine the matter: which was so decreed least the Father should in his anger secretly kill his sonne. As was one in hunting slaine by his Father, whose wife he had defiled: which thing when Adrian the Emperour had vnderstood, said, That so to kill was not the part of a Father, but of a theefe or murtheret: for that the greatest profit of punishment is, that it be exemplarie unto all. Another part of the law of God [*] willeth,[*] That the child which reuileth his Father or mother should die the death: the examination whereof is not left unto the parents, but to the Iudges themselves, to the intent that the offence should not remaine vnpunished. For so great is the loue of the father[*] and of the mother towards their children, that they would neuer (if they might) permit the Iudges to determine of the life of their children, although they had bene of them mortally wounded. As not long agoe it happened with vs, that a Father hauing receiued a deadly wound of his sonne, whome he would have lightly corrected; and fearing least his sonne apprehended by the magistrat should die for it, ceased not euen to his last gaspe to crie out unto his son, by speedie flight to saue his life: whom for all that being afterward taken, and confessing the fact, the Iudges condemned to be hanged from an high beame for a time by the feet, with a great stone about his neck, and so afterwards to be burnt quicke. We have also another example of our time, of a Mother who would rather endure to be reuiled, wronged, beaten, and troden under foot by her owne sonne, than to complaine of him unto the Iudge; vntill that at length he in most beastly manner discharged his bellie into her pottage: with which fowle fact the Iudge moued, condemned him to make her an honorable amends, and to aske her forgiuenesse: from which sentence hee appealed unto the parlement of Toulouze, where the former sentence was reuersed as not iust, and the sonne condemned to be burnt quick; the most wretched mother in vaine complaining and crying[*] out against the rigor of the lawes and seueritie of the Iudges, protesting that she did pardon him, and that she had not of him receiued any iniurie at all. And Seneca speaking of a Father who but thrust his sonne out of his house; O with what griefe (saith hee) doth the Father cut off his owne limmes! what sighes doth he fetch in the cutting! how often doth he mourne for those limmes cut off! and how often doth hee wish to have them againe!

All this that I have said, and the examples of fresh memorie by me produced, serue[*] to show that it is needful in a well ordered Commonweale, to restore unto parents the power of life and death over their children, which by the law of God and nature is giuen them, the most auntient law that euer was common unto the Persians, unto the people of the upper Asia, as also unto the Romans, the Hebrews, the Celtes, and in vse in all the West Indies, vntill they were conquered by the Spaniards: otherwise wee

must neuer hope to see the good orders, honour, vertue, or antient glorie of Commonweals reestablished. For Iustinian the Emperour deceiueth vs in saying that no people had such power over their children as had the Romans: For we have the law of God, which ought to be holy and inuiolat among all people; wee have the testimonies of[*] the Histories both Greeke and Latine, whereby it is sufficiently to be vnderstood, the Hebrews, Celtes, and Persians to have had the same power over their children that the Romans had. The French men (saith Caesar) [*] have power of life and death over their wiues and children, as well as over their slaues. And although that by the law of Romulus power was giuen unto the husband, for foure causes onely to kill his wife: yet neuerthelesse by the same law, full power was giuen unto the Father to dispose of the life and death of his children, without condition or exception thereunto adioyned; and that whatsoeuer they got, was not theirs, but their Fathers: Which power the Romans had not only over their own children, but also over the children of other men by them adopted. Which power was about 260 yeares after ratified and amplified by the lawes of the xij Tables, which gaue power also unto the Father to sell his children: and in case they had afterward redeemed themselves, or were set at libertie by such as had bought them, they might yet sell them againe, and so the third time. The like whereof in all points is to be found in the Westerne islands, as we read in the Historie of the Indies. And yet at this present amongst the Moscouits and Tartars (whom the auncient Historiographers called the Asian Scythians) it is lawfull for the Father to sell his sonne foure times, after which if he shall redeeme himselfe he is for euer free. By meanes of this fatherly power the Romans long flourished in all honour and vertue; and oftentimes was their Commonwealth therby delivered from most imminent destruction, when the fathers drew out of the Consistories their owne sonnes being Tribunes, publishing laws tending to sedition. As amongst others Cassius threw his sonne[*] headlong out of the Consistorie, publishing the law Agraria (for the diuision of lands) in the behoofe of the people, and afterward by his owne priuat iudgement put him to death, the magistrats, Sergeants, & people standing thereat astonied, & not daring to withstand his fatherly authoritie, althogh they wold with al their power have had that law for the diuision of lands. Which is sufficient proofe, this power of the father not onely to have bene sacred and inuiolable, but also to have bene lawfull for him either by right or wrong to dispose of the life and death of his children, euen contrarie to the will of the magistrats and people. Also when [*] Pomponius the Tribune of the people, had for diuers causes accused Torquatus unto the people, and amongst other things had charged him that he too much oppressed his sonne with countrey labour: so it fell out that the sonne himselfe going unto the Tribune, and finding him in bed, setting his dagger unto his throat, caused him to sweare to desist from further prosecuting of the accusation against his father. So the Tribune comming againe into the Consistorie least he might seeme to vse collusion with Torquatus, whome he had before accused, now excused himselfe unto the people for not presenting his accusation, by the oath extorted from him: which the people understanding, would not suffer him to proceed therein any further. By which two examples a man may iudge that the Romans in their estate, made greater reckoning of the power of the father, than of the lawes themselves, which they called Sacred: by which the head of him was vowed to Iupiter, who had onely attempted in offensiue manner, but to touch the [*] most holy Tribunes bodie. For they were of opinion that domesticall iustice and power of fathers, were the most sure and firme foundation of lawes, honour, vertue, pietie, wherewith a Commonweale ought to flourish. Neither was it maruell if in the Roman Commonwealth we see such rare examples of reuerend dutie of children towards their parents, as are not els where to be read of: one I haue amongst a thousand alreadie[*] spoken of; and another such there is, as that Painters euen unto these times vse therewith to embellish their Tables: that is to wit, of the daughter which secretly gaue sucke unto her father condemned to be pined to death (which neuer suffereth the healthfull man to live past the seuenth day) which act of piety the Gaoler hauing perceiued, gaue the magistrats to vnderstand thereof; which by them reported unto the people, not onely obtained her fathers pardon, but also found such grace as that in the selfe same place in perpetuall remembrance of the fact, they built a Temple dedicated unto Pietie. Yea the very vnreasonable beasts have a naturall feeling of this kind dutie, and are seene to feed their parents now growne weake with age: but especially the Storke, which the holy tongue [*] (which nameth things according to their secret proprieties) calleth Chasida, that is to say, dutifull and charitable; for so much as shee nourisheth her father and mother in their age. And albeit that the father be in dutie bound to instruct his children in all vertues, but especially in the feare of God: yet if hee shall forget his dutie, are not the children therefore excused of theirs: albeit that Solon the lawmaker contrarie unto reason, hath by his lawes acquited the sonne from the nourishing of his father, if he have taught him no trade or occupation whereby to get his liuing. But the right instruction of children (than which nothing can be deuised more profitable or better in a Commonweale) dependeth of that fatherly power which I have before spoken of. For publick iustice taketh no knowledge of the disobedientnesse & vnreuerentnesse of children toward their parents, neither of their other vices, which disordered libertie bringeth their young years vnto, as dicing, drunkennesse, whoredome: and albeit that punishment be appointed against such offences, yet neuerthelesse the poore parents carefull of their reputation and credit, neuer are to complaine of their children unto the Magistrat, neither accuse them; and yet the power to punish them is taken from them: so that children now standing in no feare of their parents, and much lesse of God doe for most part escape the iudgement of the magistrat, who commonly punisheth but slaues and such others of base condition.

But impossible it is that the foundation of a Commonweale being euill laid, (that is

[*] to say, the bringing up of children ⋯nd families) any thing that is firme and sure should be thereupon built. Besides that, the contention, strife, and discord, which we daily see amongst brethren and sisters, were easily appeased and extinguished whilest the father yet lived, their marriages not taking from him this power over them: and albeit that he had set at libertie them that were maried, & departed out of his house, to keep house by themselves, (which they easily did not) yet neuerthelesse the remembrance of the reuerend duty they ought unto their parents for euer remained fast imprinted in the harts and minds of the children. Wherefore should wee then maruell the magistrat to be troubled with so many sutes, and those for most part betwixt the husband and the wife, betwixt brethren and sisters; yea and that more, is betwixt parents and their children? but that the wife, the children, and seruants, are all loased from the domesticall power of their ancestors. So the fatherly power being by little & little diminished upon the declination of the Roman Empire; so also shortly after vanished away their antient vertue, & al the glorie of their Commonweal: and so in place of pietie & ciuilitie, ensued a million of vices and villanies. The first staine, and beginning of taking away[*] the power of life and death from parents, proceed from the ambition of the Magistrats, who seeking to encrease their iurisdiction, & by little and little drawing unto them the deciding of all matters, extinguished all domesticall powers: which happened especially after the death of Augustus Caesar; at which time wee read the magistrats to have bene almost alwayes occupied in punishing of such as had murthered their parents. As we read in Seneca, who directing his speech unto Nero, saith, We have seene more murtherers of their parents executed in five yeares of thy father, than were euer in all ages accused since the foundation of Rome. Now to him that will looke neerer into the matter, it is no doubt, but that if one or two that have murthered their fathers have bene executed, ten others have escaped mans punishment; the health and life of parents being subiect to a thousand daungers, except their children either by the feare of God, or the goodnesse of their owne nature, be kept within the bounds of their dutie; neither ought it seeme straunge unto any man, that Nero made no conscience to kill his mother, neither repented him to have killed her, for that it was a thing common: the cause whereof Seneca giueth not, which was, for that the father to chastice his son must then go to the magistrat to accuse him, which the auntient Romans could neuer endure. For Quintus Fuluius the Senator in the time of Cicero, of his owne authority put to death his sonne, for taking part in the conspiracie of Cateline. And in the time of Augustus, Tatius the Senator being about to proceed against his sonne in a capitall crime, requested Augustus home to his house, who being come thither, tooke not upon him the place of a Iudge (as saith Seneca) but of a priuat man, as come onely to giue counsell. We see also that by the law Pompeia, made against parricides, all they which are next of kinne are bound to the penaltie of the law, except the father. Yet it sufficiently appeareth, that in the time of Vlpian and Paul the Lawyers, the power that fathers had of life and death ouer their children lay then in a sort buried and forgotten: for that one of them saith, The father must accuse his sonne before the Iudge: and the other, That the children are not of right to complaine, if they be by their fathers disinherited, considering that in auncient time (saith he) they might put them to death. Both of them flourished in the time of Alexander Seuerus. And yet is there no expresse law to be found which hath taken from parents the power of life and death, before the time of Constantine the great: neither did that law of Constantine directly in expresse tearmes abrogat the old lawes: Dioclesian the Emperour but a little before Constantine hauing decreed that the Iudge ought to giue such sentence against the sonne as the father was willing vnto. Now it is manifest by the law, that a positiue law cannot bee [*] abrogated by any custome, be it neuer so old; except it be repealed by a contrary law, carrying expresse derogation with it: otherwise being in force and readie to be againe put in vse: insomuch that it was necessarie that certaine lawes of the xij. tables by long custome out of vse, yet for all that should by a new law bee abrogated: which was done at the motion of Aebutius, in whose time the fathers power of life and death, yet kept their children with in the compasse of their dutie. But when the children in the time of Constantine had by the sufferance of their fathers by little and little shaken off that power and authoritie of their fathers, they obtained also of the same Emperour, That of their mothers inheritance their fathers should have but the vse and profit, and they themselves the proprietie, which their fathers might not alienate. And afterwards they likewise obtained of Theodosius the yonger, That the proprietie of all manner of goods in generall howsoever they came by them, should belong unto the sonnes, the vse and profit thereof onely being left unto the fathers; so that they could not alienat the proprietie, neither in any sort dispose thereof: yea and with vs not onely the vse and profit of such goods, but not so much as the bare vse is left unto the father, which hath so puffed up the hearts of the children, as that they oftentimes commaund their parents, by necessitie constrained to obey them, or to die for hunger.

Iustinian also would not that children should be set at libertie by their parents without[*] their owne consent, that is to say, without some bountie which the father ought to giue unto his sonne: when as yet for all that in old time emancipation or setting at libertie,

was the reward of the childs kindnesse and dutifulnes towards his parents. Hereof proceeded that filthie buying and selling of emancipation betwixt fathers and their children: insomuch that such things as the father had giuen unto the sonne in reward of his emancipation, remained unto him for gaine; neither was he bound to communicat the same with his brethren, or to have any whit the lesse therefore of his fathers inheritance, except the same were expressely comprehended in the lawfull act of emancipation: which they also yet vse amongst vs, which have the Roman decrees for lawes. But if the sonne hath learned any gainefull trade, or is by trafficke in marchandise become rich, and giueth something unto his father that setteth him at libertie, it is counted unto the father for the right he should have in the goods of his son dying before him, so that he can claime no part therein, although it be not at all expressed in the act of the sonnes emancipation; or yet be expressed that such gift unto the father yet liuing, should be not let wherefore he should the lesse have the whole right of the lawfull inheritance, his sonne dying before him. For why? that whatsoeuer it is that is giuen to the father, is accounted as giuen him for his lawfull part: so that by this means the father is in worse state than the sonne, who for all that both by the lawes of God and man is bound to nourish his parents so long as they live, the father not being bound by the law of Romulus to nourish his sonne, but vntill he be seuen yeares old. And although Lawyers goe farther, neuerthelesse to make it plaine that parents are not bound to feed their children, it was neuer by any law permitted for children to sue[*] their parents for their food, but by the leaue of the magistrat by humble request before obtained. Besides all these indignities, Iustinian hath exempted all Senators, Bishops, & Consuls from the power of their fathers: as in like case them also which enter into houses of Religion. And in countries also where we vse Statute laws, besides those we have spoken of, they have also exempted out of their fathers powers them that are married, or have beene out of their fathers houses by the space of ten yeares: which hath caused the Italian Lawyers to write that the French men are not in the power of their fathers: as in truth there remaineth nothing thereof, but the imaginarie shadow, when as the father authoriseth his children unto lawfull acts, as to redeeme lands of inheritance, which the father himselfe hath sold, or to take a possession doubtfull, or for the trade or traffique of marchandise: in which case the Iudge without the kings letters royall at the request of the father may set at libertie his sonne. And albeit that Philip of Valois set at libertie his sonne Iohn, to giue unto him the dutchie of Normandie: yet such his emancipation serued to no purpose, no more than those which were ordinarily made; seeing that neither the giuer, neither he to whome the thing was giuen, neither the thing it selfe giuen, were subiect unto the Roman civill law: nor that the fathers (in countries gouerned by customs) had any thing to do with the goods of their children.

But the fathers thus dispoiled of their power, and of the goods got by their children,

[*] it is yet by many demanded, If the sonne may of right defend himselfe, or withstand his father, offering him violence? Neither have there wanted some which were of opinion, That the sonne might of right so do: as if in that there were no difference whether the father or any other should offer him violence. But if it be so that the souldior which had onely broken the vine trunchion of his Captaine, beating him by right or wrong, was by the law of armes to be put to death: then what punishment deserueth the sonne which layeth hand upon his father? Yea some have passed further, and written that the sonne might kill his father, if he were an enemie unto the Commonweale.[*] But in mine opinion that is not vnlawfull onely for any man to doe, but impietie also for any man so to write: for these men in so doing propound not onely pardon vnto parricides, but giue leaue also unto others to presume to do the like, secretly encouraging them to commit so detestable a fact, under the color of the publick profit: wheras an antient author saith, That no fault so great canby the father be committed, as that the same should with his murther be revenged. O what a number of fathers should be found enemies unto the Commonwealth, if these resolutions should take place? And what father is there which in the time of civill warre could escape the hands of his murtherous child? For men know well that in such warres the weakest goeth to the wals, and they that get the upper hand make all traitors whom they list. And in other wars not onely they are iudged traitors which have giuen vnto their enemies help and counsell, but also they which have sold them armour, corne, or other victuals. As by the laws of England, to aid the enemie in any sort whatsoeuer, is accounted high treason. Which points of treason I see not to be distinguished by these interpretos of the Roman law. But by these resolutions, that is come to passe which posteritie will not[*] beleeue: as that a banished man of Venice, hauing brought to Venice his owne fathers head, who was banished as well as himselfe, demaunded and obtained also in reward of his so exectable a murther, the honours and rewards by the Venetian lawes due; viz. His returne into his countrey, his goods, his children, and the liberties of the citie, before taken from him. But happily it had beene better that the citie of Venice had bene swallowed up with the sea, than to have giuen a reward unto so great and detestable a villanie. Henrie the second the French king, tooke in good part the excuse of Maximilian king of Bohemia in the yere 1557, in that he had refused to giue safe conduct unto the duke of Wittemberg, ambassadour for the French; confessing that it was indeed against the law of nations, but that yet neuerthelesse he durst do no other for disobeying of his father. Now if it be lawfull to violat the lawes of nations rather than to disobey our father in so small a matter; what iust excuse can there bee, or reason giuen for the killing of ones father? Wherefore I thus resolue, That there can be no iust cause for which a man may lawfully lay violent hand upon his father. And albeit that such killing of ones father be in it selfe a fowle fact, yet fowler is the reward thereof; but of all other things most fowle and pernitious it is to allow reward for the same, for that by prounding such rewards for killing of a mans father, neither brethren can be in safetie from being murthered by their brethren; neither the nighest kinsmen for being slaine one by another. As indeed it chaunced in the yeare 1567 that Sampetre Corse was slaine by his owne cosin germaine; for which he had giuen him in reward ten thousand crownes, which the Senat and people of Genua had caused to be leuied for him. But how much better were it to follow the example of Cicero, who thought it better as it were in silence to passe over the selfe same questions moued by the two auncient Philosophers Antiochus and Antipater, as a place too slipperie and daungerous. Ioyning hereunto also, that the law of the Romans it selfe forbiddeth any reward to be propounded unto banished men for the killing of theeves: howbeit that Adrian the Emperour would have him pardoned that had killed a theefe. Wherefore I thus conclude, That princes and law makers should measure the power and authoritie of parents, according to the law of God; whether they be their lawful, or naturall children, or both together; so that they be not conceiued in incest, for such the lawes both of God and man haue alwaies had in detestation.

Now if some shall obiect it to be a thing dangerous, least some furious or prodigall[*] fathers should abuse the goods or lives of their children, under colour of their fatherly power: to him I aunswere, that the lawes have for such men prouided guardians, and taken from them that power ouer another man, considering that they have not power over themselves. And if the father be not sencelesse or mad, hee will neuer without

cause kill his sonne, seeing that he willingly chastiseth him not though he deserue the same. For so great is the loue and affection of parents towards their children, that the law neuer presumed that they would do any thing to their disgrace, but all to their honour and profit. Wherefore the parents are euer thought to be free from all fraud in their childrens affaires, whome to encrease with riches and honor, they doubt not oftentimes to forget the lawes both of God and man. And for this cause the Father hauing slaine his sonne, is not by the law Pompeia subiect to the paine of parricides: for why? the law presumeth that he would not without good and iust cause so doe; and hath priuatly giuen power unto him to kill the adulterer and his daughter found in the fact together. All most certaine and vndoubted arguments, whereby it is to be vnderstood, that parents cannot abuse the power of life and death over their children; neither that if they could, yet would they. But haply some man will say, there haue bene many which have abused the same to the vnworthy death of their children; yet bring no example therof: Let vs grant some such to have bene: should therefore a good law giuer leaue a good law vnmade for the inconueniences which some few times ensue thereof? It being a common saying in the law, That of such things as seldome happen the lawmaker ought to take no care. And where euer was there a law so iust, so natural, or so necessarie, that was not subiect vnto many inconueniences? So that he which would abrogat al laws for some few absurdities ensuing of them, should not leaue one of them, as Cato the greater wisely reasoned. In briefe (I say) that the natural loue of fathers and mothers toward their children, is impossible and incompatible with so great cruekie, as is the vniust killing of their children: and that the greatest torment that a father can endute, is, to have either by right or wrong killed his sonne. As in fact it chaunced in our memorie, in the countrey of Aniou, that a father desiring to chastice his sonne, whome running from him he could not ouertake, hauing by chaunce without any such purpose slaine him with a blow upon the head, with an hard clod of earth which he threw after him, forthwith for griefe hung himselfe, although no man knew any thing therof. Which things the antient Aegyptian law giuers wel understanding, appointed no other punishment against him that had wrongfully or without cause slaine his sonne, but for the space of three daies after to bee shut up together with the dead bodie of his sonne so by him slaine: For they thought it a thing detestable, for the death of the sonne to take away the life of the father, from whome he had receiued his. Yet might one say, that if fathers had the power of life and death over their children, they might constraine them to do something hurtfull unto the Commonweale: Whereunto I aunswere first, that that is not to be presumed; and then that although it were so, yet that the lawes had therefore wisely prouided, hauing at all times exempted the children out of the power of their fathers, in that which concerned the publick State. As also Fabius Gurges gaue vs well to vnderstand, who being Consull, and seeing his father a priuat man mounted on horseback comming towards him, commaunded him by one of his sergeants to alight, which he did, doing honour unto his sonne, and bidding him in such sort to proceed to defend the Consuls dignitie. And so farre hath it bene from wise fathers to commaund their children any thing that might be hurtfull to the Commonweale, as that there have bene some of them found to haue put them to death for transgressing the publick lawes: as first did Brutus his two sonnes, and after him L. Torquatus the Consul, who hauing caused his sonne to triumph in his campe for vanquishing his enemie in combat, presently after caused his head to be struck off, for that he had fought with him contrarie to his commandement and contrarie to the law of armes. There is yet one obiection concerning the childrens goods, which if they should be in the full disposition of the fathers, they might without cause disinherit some, and enrich others: whereunto mine aunswere is, That the lawes haue therefore also prouided, by offering iustice unto children disinherited; and propounding the causes of lawfull disinheriting. Howbeit that the auntient law of the Romans is more commendable, which neuer permitted the child by way of action to impugne his fathers will and testament; but onely by the way of request, and speaking of his dead father in all humilitie all honour and reuerence, leauing all the matter unto the discretion and conscience of the Iudge. But after that the Pretors, who could not make any man heire unto his father, yet by their decrees gaue possession of the goods (the force of which possession, was almost the same that it was to be appointed heire,) & that the magistrats had bound certain definit portions unto the children; then forthwith began the parents by little and little to be contemned of their children, & their death by them longed for. Which thing was the cause that one of the Ephori of the Lacedemonians made a law * concerning the making of Testaments, whereby[*] it was lawfull for every man to bequeath his goods as he pleased (when as before, the libertie of making of Wils was by long custome taken away) alledging that the pride and insolencie of children against their parents was so by the feare of disinheriting to be restrayned. But if any man shall account it better for inheritances to be conferred by the appointment of the lawes than by Testament, I will not striue with him therefore, seeing it is by the law of God [*] set downe that children should not by assentation and flatterie rather than by their kind duties preuenting their fathers inheritances, spoyle themselves of their mutuall and brotherly loue: but yet why vse we not the same diuine law [*] which giueth unto the father the power of life and death over his children.

We have before said fathers to have had that power of life and death ouer them[*] also whome they had adopted: in like manner as they had over them whom they had in lawfull matrimonie begotten: and although the lawes of adoption were by the new lawes of Iustinian almost abrogated; yet I thinke no man doubteth but that the law of adoption was of so auntient right, & so common also almost unto all people, as that it deserueth to be againe called into vse. Wee see the most auntient people to have had

it in singuler estimation: as we read Iacob himselfe to have adopted Ephraim and Manasses [*] his nephewes, (albeit he had twelue children yet liuing, who had diuers others also) and gaue them part of the land which hee had by force of armes conquered. Which to have hene before also in vse with the Aegyptians, is manifest by Moyses, whome the kings daughter [*] adopted for her owne. Wee see also Theseus to have bene solemnly adopted by Aegeus king of Athens, who made him his successor in the State, albeit that he was but his base sonne: After which time all the Athenians which had base children by Athenian women, were constrained to adopt them, and to cause them to be registred as their lawfull children, and to leaue them their part and portion of their goods as they did unto the rest of their children. For why? they accounted none a bastard but him that was begotten of a father or a mother, being a straunger albeit she were a woman of neuer so great honour. As also all the people of the East made little ⋯no difference betwixt the children that they had by their wiues and their handmaids. For Iacob the Patriarch made like reckoning of those which hee had by his wiues, and of those which he had by his handmaids: although that Sara had driuen out of his fathers house the child begotten by the handmaid, * least he should have had part in the lawfull inheritance. And Diodorus [*] also writeth, The children of the Aegyptians begotten of their bondwomen, to have had as great prerogative as the rest that were begot in lawfull marriage. For why? it was lawfull for them to have as many wiues as they would; as it was also unto the Persians & all the people of Asta⋯ and almost onely the Germans of all the barbarous nations (as saith Tacitus) had every one[*] of them but one wife. Thus hauing confirmed the matter by course of historie, it followeth by consequence all the children of one and the same father to have bene in his power, were they adoptiue or not. But the Romans of auntient time made no more account of their base children than of meere straungers neither were they compelled to adopt them, as were the Athenians, neither to bequeath them any thing by their will, neither had they any power over them. Which seueritie of the lawes was yet moderated in the raigne of Theodosius and Arcadius. And afterward it was ordained by the Emperor Zeno, that such base children should be accounted for legitimat, by the marriage of their father afterwards ensuing with their mother. And that more is Anastasius decreed that all bastards should by adoption be reputed legitimat but first Iustinus, and after him Iustinian abrogated that decree, and shut the gate against bastards, to the end that euerie man should desire to have lawfull wiues and children; and that auntient houses, and the rights of successions and inheritances should not bee altered and troubled by the adoption of bastards: the rights of adoption neuerthelesse yet still remaining, which had bene receiued to supplie the defect of nature; and whereof the auntient Romans had had so great esteeme, as that the adoptiue fathers had the same power of life and death over their adoptiue children, that they had over their owne: which was the true cause that women could not adopt children before the edict published by Dioclesian, considering that they themselves were in the perpetuall power of their parents, husbands, or neere kinsmen: as also in Greece it was not lawful for them to adopt, as writeth the Orator Isaeus. So then the right of adoptions, ennobled by the Romans (and especially after that they had extended the frontiers of their Empire more than euer before) other people also had it so much the more in regard: the Gothes, (I say) the Germans, the French, the Saliens; as we see in the lawes of the Ripuaires, where they vse the word Adfatinir for adopter: holding their adoptiue children in the same degree that they did their owne naturall and lawfull children, in the right of their succession into their inheritance: For by the auntient custome of the Romans they were both indifferently called unto their fathers inheritances as his heirs. For so we read in Cassiodorus, that Theodoric king of the Gothes, adopted the king of the Herules: and that Luitpr and king of the Lombards adopted the sonne of Charles prince of Fraunce, by cutting his haire, although he had sonnes of his owne in lawfull marriage begotten: as did in auntient time Micipsa king of the Numidians, adopting Iugurtha his base sonne, albeit he had two lawfull children of his owne, and leauing his kingdome equally divided amongst them three: when as yet the first and chiefe cause of adoptions was to supplie the defect of nature; that he to whome nature had altogether denied children, or at leastwise male children, might by the authoritie of the law have that defect supplied. As Scipio Africanus hauing no more children but Cornelia the mother of the Gracchi, adopted the sonne of Paulus Aemilius, afterwards called Africanus the younger, whome he left the inheritor not of his name only, but of his goods also. And so also Caefar the Dictator, hauing no children of his foure wiues, more than Iulia, which was married to Pompeius, adopted Octauius his sisters sonne, whom by his will he made heire of three parts, with charge that he should beare his name; whereby his owne fathers name was taken away, and hee knowne by the name of his adoptiue father. And he againe hauing no children but Iulia (whome he called the Impostume of his house) adopted Caius and Lucius his sisters sonnes bought at home of their father Agrippa, according to the auntient manner: who afterward dead also without issue, he adopted Tiberius, who adopted Caligula: so did Claudius adopt Nero, unto whome Galba succeeding without children, [*] adopted Piso before his armie, which custome was afterwards kept in the adoption of * Aurelianus [*] the Emperour; as would Iustinian the Emperour have adopted Cosroe king of Persia, which he refused; supposing (though yet falsly) the way unto the Empire to bee by that meane shut up. [*] We read also that the Emperour Nerua for lacke of children adopted Traian; & he Adrian; who afterward adopted Antoninus Pius; and not contented to have adopted so good a man, charged him also whilest he yet lived, to adopt Aelius Verus, and Marcus Aurelius, surnamed the Philosopher, to the intent the Empire should not want the most vertuous Emperours that euer were. But this last hauing begot Commodus heire apparant to the Empire, (but the most vitious man that might be) was about to have adopted another more worthie of the Empire, had hee not bene otherwise persuaded by his friends. For that almost no man used to adopt others, if he had legitimat children of his owne. For which cause Claudius the Emperour was euil spoken of, for being persuaded by the inticement of Agrippina his second wife, he had adopted Nero her sonne, hauing sonnes and one daughter by his former bed, who were afterwards slaine by Nero. But to leaue straungers which are infinite, and to come to our owne domesticall examples: Lewes duke of Aniou and brother to king Charles, was for want of heire adopted by Ioane (who of her incontinencie was in reproach called Lupa) who in the right of that adoption left unto him the kingdome of Naples, hauing reiected her nephew Alphonsus king of Aragon, whom she had before by consent of, the [*] Pope adopted. Afterwards also Rene of Aniou, Lewes his nephew, was adopted by Ioane the yonger queene of Naples for want of children. And at the same time as it were, that is to say, in the yere 1408, Henry duke of Pomeran was adopted by Margaret D'wolmar queen of Denmark, Sweden, & Norway, to succeed her in the same kingdoms. And not long after, Henry the fift king of England was adopted, not by Charles the sixt then distracted of his wits, but by his wife: who by her new son in law, caused Charles her owne sonne to be denounced incapable of the Crowne, albeit that he were a right wise and vertuous Prince. But Iustinian the Emperour willing to remedie such abuses, ordained that adoptiue children should neuerthelesse not faile to enioy the inheritance of their owne naturall or lawfull fathers; for that their adoptiue fathers would oftentimes upon small occasion cast them off againe, whereby it came to passe that they went without the inheritance of both their fathers: yet did he wrongfully take away the right of the fathers power, which was the onely marke of adoption, which taken away, nothing more remained. Now it were much better to prohibit adoptions to them, which had sonnes either naturall or legitimat: & in case they had none, that the adoptiue children should succeed in all the right of their owne naturall and lawfull children. Truely by our custome it is lawfull for euerie man to adopt: yet no preiudice is thereby made unto the next of kin, or them which should lawfully inherite: for that more cannot be giuen or bequeathed unto the adoptiue sonne, than to him that is a meere straunger: and yet that the father might for all that receiue the profit of the adoption; whereof Scipio Africanus the Great, in his time complained in the Oration which he had unto the people of his Censureship: as also after the publication of the law Iulia Pappia, which gaue great priueledges unto them which had children: they which had none adopted some (to have the benefit of the lawas, to be capable of some Magistracie or office) and in short time after they had once gained that they sought for, cast off those their adoptiue children againe, so abusing the law. As contrariwise Clodius beeing a noble man borne, caused himselfe to be adopted by a man of base condition, that so discharged of his Nobilitie, hee might bee made Tribune of the * people; but hauing got that office, caused himselfe presently to[*] be set at libertie by his adoptiue father: Which the Senat understanding, decreed that from thenceforth they which were adopted should not enioy the priuiledge of any publick office: neither that any man should under the colour of such children as hee had adopted obtaine any magistracie or honour unto himselfe; neither hinder substitution made for want of children; neither to have the benefit of any conditionall legacies, or couenants made or conceiued in hope of children; nor that for such adoptiue children, such donations should be void, as were by the law it selfe to be reuoked when the donatour had any children, either naturall or legitimat; nor that by the adoption of male children, women should be kept from their lawfull inheritance, from which they by the law are wont by the male children to bee excluded; neither that the word Sonne added unto the lawes, testaments, or other lawfull acts was to be extended unto them whome we adopt: all which deceits it is good to cut off, and yet not to extinguish the right of adoptions; and at the least to leaue unto the adoptiue father his fatherly power, to keepe in obedience his adoptiue sonne. And thus much of the second part of a Familie, concerning the power of a father over his children, and of their mutuall duties. Now let vs likewise speake of the third part also.