It would however be possible that the people, in conferring the sovereignty, should express its will in what way and in what time the supreme authority might be lost by disuse; which will would undoubtedly be to be followed, and could not be infringed, even by a king possessed of the sovereign power; because it pertains, not to the sovereignty itself, but to the mode of holding it; of which difference we have elsewhere spoken.

XIII. But [though the sovereignty is thus exempt from the Rules of the Civil Law] those things which are not of the nature of the sovereignty, and do not belong to it as natural properties, but can either be naturally separated from it, or communicated to others, are altogether subject to the rules of Civil Law concerning Usucaption and Prescription. So we see that there are subjects who have by prescription acquired the Right that there is no appeal from them; but yet so that there is always some mode of carrying the matter to a higher tribunal, by petition, or in some other way. For that there should not be in any way an appeal from a person, is at variance with the notion of a subject: it belongs to a sovereignty or a part of it; and cannot be acquired otherwise than according to Natural Law, which regulates the sovereignty.

XIV. 1 Hence it appears how far we are to receive the doctrine which some put forth, that it is always lawful for subjects, if they can, to obtain their liberty, that is, Civil liberty; because the authority which was gained by force may be taken away by force; and in regard to that which was given voluntarily, they may repent and change their mind. [But this goes too far.] For authority gained at first by force may by tacit consent receive firm right: and the will exercised, either in the original institution of a government, or at an after period, may be such as to give a right which afterwards does not depend upon the will. King Agrippa said to the Zealots who were clamorous for liberty, It is now out of season to demand liberty. You should have fought formerly, not to lose it. For submission is a hard lot, and it is honourable to fight in order to avoid it. But when a person has once been overcome in such a struggle, if he shake off the yoke, he is no longer a lover of liberty, but an insurgent slave. And so Josephus himself said; and Cyrus to the king of Armenia. [See.]

2 But that a long forbearance of the king, such as we have before described, may be a sufficient ground of the people obtaining its liberty from a presumed relinquishment of imperial authority, is not to be doubted.

XV. But rights which do not involve daily exercise, but are exercised, once for all, at a convenient time, as the loosing of a pledge; also freely used rights*, to which the act exercised is not directly contrary,

In the table of contents at the head of the chapter, the subject of this section is thus given: Rights which are meræ facultatis, are not lost in any course of time; Jura meræ facultatis are Rights which a man possesses but is not bound to exercise.

but is contained in it as a part in the whole;—as if any one should for a hundred years have alliance with one only of his neighbours, when he might have it with others also;—are not lost, except for the time when prohibition or coaction intervenes, and obedience is rendered to it with a sufficient signification of consent; and since this agrees, not only with Civil Law, but with natural reason, it will properly have place also among the most exalted persons. [Such persons will not attempt to control the exercise of those rights.]

CHAPTER V.

Of the original acquisition of Rights over Persons; wherein of the Rights of Parents; of Marriage; of Corporations; of Rights over Subjects, and over Slaves.

I. HERE are rights over persons as well as over things; and these

Tmay be acquired by generation, consent, or delinquency.

Parents acquire a right over their children by generation; both parents, the father and the mother; but if there be a contention between the authorities, the authority of the father is preferred, as superior in sex.

II. 1 In Children, three periods of life are to be distinguished; first the period previous to years of discretion; next, the period when they have come to years of discretion, but remain part of the parents' family; third, the period when they have gone out of the family. [See Aristotle.]

In the first period, all the actions of the children are under the dominion of the parents; for he who cannnot govern himself must be governed by another; and the parents are the natural governors. [See Eschylus.]

2 Yet even in this period, a son or daughter is capable of ownership over things jure gentium; but the exercise of this right is impeded

by their imperfection of reason. They have the right to have, but not to use. Therefore that whatever becomes the property of the child becomes the property of the parents, is not Natural Law, but is an institution of the laws of certain peoples; which also in this matter distinguish the father from the mother, and sons not yet emancipated from paternal control, from those who are emancipated, and natural children from legitimate; which distinctions are unknown to nature; except the superiority of sex, when the authorities interfere, as we have mentioned.

III. In the second period, when the reason is matured by time, those actions only are subject to the authority of the parents which have some important bearing upon the state of the paternal or maternal family for it is equitable that a part should follow the analogy of the whole. In other actions, the children have, at that period, the moral right to act; but are bound, even in those, to endeavour to please their parents. But since this obligation is not founded in a jural right, like the above obligations [at the earlier period], but in piety, reverence, and the duty of repaying the benefits they have received, it does not render void what is done in transgression of it; as a donation made contrary to the rules of prudence by the owner is not void.

IV. In both these periods, the parents' right of governing includes also the right of coercing, so far as children require to be compelled to their duty or amended. What is to be done concerning greater punishments, we shall discuss elsewhere.

V. But although the paternal authority so far follows the person and position of the father, that it cannot be taken from him and transferred to another, yet by the Law of Nature, and where the Civil Law does not impede, the father may put his son in pledge, and if necessary, even sell him, when there is no other means of providing for him; which appears to have passed to other nations from an old law of the Thebans: as the Theban law came from the Phoenicians, and higher still, from the Hebrews [Exod. xxi. 7, And if a man shall sell his daughter to be a maidservant, &c. Romulus made the same law. Dionys. Halic. 2, 28. Gronovius.] The same held with the Phrygians. Nature is conceived to give a right to do every thing without which that cannot be obtained which nature demands: [as the sustenance of children.]

VI. In the third period, the son is independent and sui juris, the duty of piety and reverence still remaining, as its cause is perpetual. Whence it follows that the acts of kings are not void because they have parents alive.

VII. Whatever goes beyond this, proceeds from instituted law, which is different in different places. Thus the right which God gave to the Hebrews, of making void the vow of a son or a daughter, was not perpetual, but lasted as long as they were part of the father's house. Thus the Romans had a patria potestas over sons, even those

who were themselves heads of families, so long as they were not emancipated. This power over their children the Romans themselves remark that other nations had not. So Sextus Empiricus, Simplicius. [See.] Aristotle notes a similar right among the Persians as tyrannical. Where we are to distinguish accurately Civil Law from Natural Law.

VIII. 1 The right over persons which arises ex consensu, from consent, flows either from partnership or from subjection. The most natural form of partnership appears in marriage; but on account of the difference of sex, the authority is not common to the two; the husband is the head of the wife (Eph. v. 23); namely, in matters relating to the marriage union and to the family: for the wife is part of the husband's family. Thus to determine the place of domicile, is the husband's office. If any further rights are given to the husband, as by the Hebrew law, the right of disallowing the vows of the wife, and in some nations, the right of selling the wife's goods, this is not by Natural Law, but by institution.

The subject requires that we consider the nature of the marriage union.

2 Marriage, by Natural Law, we conceive to be such a cohabitation of the male and female, as places the female under the protection and custody of the male; for such a union we see in some cases in mute animals. But in man, as being a rational creature, to this is added a vow of fidelity by which the woman binds herself to the

man.

IX. 1 Nor does nature appear to require any thing more for the existence of marriage. Nor does the divine law seem to have required more, before the propagation of the gospel. For holy men, before the law, had more than one wife; and in the law, precepts are given to those who have more than one; and the king is commanded not to have many wives, or horses; whence the Hebrew commentators note that the king might have eighteen wives or concubines; and God says to David that he had given him many wives.

2 And in like manner a process is appointed for him who wishes to put away his wife; and no one is prohibited from marrying her who is put away, except him who put her away, and a priest. But this liberty of going to another husband is to be so restricted, even by Natural Law, that no confusion of offspring shall arise. Hence the question of pontifical law in Tacitus; whether after the conception and before the birth of the child a woman might lawfully marry. By the Hebrew law three months must be interposed between the marriages.

But the law of Christ refers, as other things, so this, to a more perfect rule; and by this, pronounces him who had put away a wife, except an adulteress, and him who married one thus put away, as guilty of adultery; and Paul, his Apostle and Interpreter, not only gives the man a right over the body of the woman, which also was the