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.
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.
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.
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.
The right to the child given from the mother, &c.
5. Of covenants that amount not to subjection between a man and woman, there be some which are made for a time; they are covenants of cohabitation, or else of copulation only. And in this latter case, the children pass by covenants particular. And thus in the copulation of the Amazons with their neighbours, the fathers by covenant had the male children only, the mothers retaining the females.
The child of the concubine, &c.