CHAP. XLII.

THE Civil Laws decree that the issue always follows the venter, that is, the condition of the mother: for example, if a bond-woman be married to a free-man, the children shall be bond. Again, if a bond-man marrieth a free-woman the children shall be free: by the laws of England "the issue does not follow the condition of the mother, but always that of the father:" so that a free-man begetteth free children whether he be married to a bond or free-woman. So a bond-man, who is married, can beget none but bond-children. Which law think you is more equal in its decision? Is not that a cruel law, which, without any fault of the party, adjudges the issue of the free-man to be bond; neither is that law deemed by some less cruel, which adjudges the issue of a free-woman to be bond: the Civilians say, that their laws give the best determination in the case; for they say, "A good tree cannot bring forth bad fruit, neither can a corrupt tree bring forth good fruit." And it has the consent of all laws, that every plant belongs to the soil where it is planted: the child also has a more certain knowledge of the mother who bore him, than of the father who begot him. To this the sages in our laws reply, that a child lawfully begotten hath no more certain knowledge of the one parent than of the other; for both laws, however wide in other respects, agree in this, that he is the father whom the marriage declares

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so to be. Is it not more reasonable that the issue should follow the condition of the father, than that of the mother, since Adam, speaking of such as are joined in wedlock, says, "And they two shall be one flesh:" which our Saviour, in the Gospel, thus explains, they are no more twain but one flesh." And forasmuch as the male comprehends the female, the whole flesh, so made one, ought rather to regard and to be referred to the male, as the more worthy. "Male and female created he them, and called their name Adam." The Civil Laws themselves allow, that the woman always shines by reflexion from her husband, whence (C. Qui Professione se excusant L. nono L. fi.) the text has it, "We advance women by giving them the titles and honors of their husbands:" we honor them with the sirnames of our families. We proceed and decree for and against them in the Courts of law in the name of the husband. We change their habitations: but in case they afterwards marry a man of inferior rank, they are deprived of their former honors, and follow the condition, as well as habitation, of the latter husband. And since all the children, especially the sons, bear the name of the father, and not of the mother, whence can it be, that the son, in respect of his mother, should lose his rank and follow her condition, when, at the same time, he is known in law by the name of his father who begot him: nay, the woman is distinguished according to the rank and quality of her husband, neither of which can suffer diminution, or be sullied by any crime or base condition of the wife. That law ought to be accounted cruel and unjust, which, without any the least pretence or reason, leaves the son in a base condition. Again, as to the inheritance, which the father (a free-man, lying under no imputation, crime or disability in law, whereby forfeitures accrue) has, with great

care and industry, acquired for himself and family, that in the case before us the inheritance should pass into the possession of a stranger who took no pains in the acquisition thereof, seems very unjust. Further, the base condition of the child affects the father's name with the same blemish. Again, that must needs be judged to be an hard and unjust law, which tends to increase the servitude, and to lessen the liberty of mankind. For "human nature is evermore an advocate for liberty." GOD Almighty has declared himself the GoD of liberty: this being the gift of God to man in his creation, the other is introduced into the world by means of his own sin and folly; whence it is, that every thing in nature is so desirous of liberty, as being a sort of restitution to its primitive state. So that to go

about to lessen this, is to touch men in the tenderest point: it is upon such considerations as these, that the Laws of England, in all cases, declare in favour of liberty. True it is, where the father is a bond-man, though married to a freewoman, the child is, by our laws, in the same state of bondage with the father; nor is this unreasonable or unjust: for a woman who has undervalued herself by marrying a bond-man, is thereby made one flesh with him. In consequence of the laws above recited, she follows the condition of her husband, and by her own voluntary act hath put herself under subjection to him, having been before under no constraint of the law so to do. Those, who by act of law enter themselves bond-men in the king's Courts, or sell themselves into bondage without any compulsion are in the same case. How then can the laws make that son free, whom the mother, in the present instance, has so brought forth in her state of subjection: for no husband can ever be so much in subjection to his wife, let her be of never so high a rank or quality, as this woman hath made herself subject to her husband; whom,

though a bond-man, she hath advanced to be her lord, according to the sentence of GOD himself, pronounced in Holy Scripture, "that every wife shall be in subjection to her husband, and he shall rule over her." What the Civilians What the Civilians say concerning the fruit of a good or corrupt tree, is more to our purpose than to theirs; since every wife is either bond or free, according to the condition of her husband. And in whose soil (pray) does the husband plant, if not his own, when the wife is made one flesh with him? What if he hath grafted a slip of good kind upon a crab-stock, since the tree is his property, is not the fruit still his fruit, though it favour of the stock? So the children begotten of a woman are the husband's, whether the mother be bond or free. Nevertheless, by the laws of England, the lord of a bond-woman, who is married to a free-man, without his consent first had and obtained, I say, in this case, though the lord cannot get her divorced à vinculo matrimonii (it being expressly said in the Gospel, Whom GOD hath joined together let no man put asunder.") Yet he shall recover against the free-man all his damages which he hath sustained by reason of the loss of his bond-woman, and of the service which she owed him. This, I conceive, is the sum, substance and manner of proceeding according to the laws of England, in the case now declared. And now, my Prince, what is your opinion of the matter, and which of the two laws do you judge to be the most eligible 1?

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Ulpian regards the maxim which is mentioned in the text, as a part of the Law of Nature. It may be considered as flowing from a more general principle in the Civil Law, "Pater est quem nuptiæ destinant." Whereas the cohabitation between two slaves, or between a slave and a free-man, was called contubernium, and not nuptiæ, or matrimonium: and to such intercourse, the Imperial Law did not give so much countenance,

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as to presume the father certain. (Taylor's Civil Law, p. 425. Concerning the Right of Dominion in the Mother, see Hobbes' de Corpore Politico, c. 4.)

This Chapter of Fortescue, is remarkable, for exhibiting a view, taken by a contemporary writer, of a state of society, which has long ceased to exist in England. The origin of villeins in this Country, has been variously accounted for: The conquest of the Britons by the Saxons, or the circumstance of the latter people having brought over with them their slaves from Germany, are assigned as the probable causes of slavery in this Country: the practice of sanctuary, by which the person, taking refuge, was sometimes obliged to become the villein of the proprietors of the asylum, may have increased the numbers of the servile class. By an inhuman Act, passed A. D. 1543, vagabonds were adjudged to be the slaves of any one who presented them to a justice. It was contended by Mr. Hargrave, in his argument for Somersett the negro, that the English Law recognized as villeins, only those persons whose families had been such time out of mind. (Archeol. Antiq. Soc. Vol. II. p. 312, 349. Hallam's Middle Ages, Vol. II. p. 136. Burnet Hist. Ref. Part II. B. 1. p. 83.) In enquiries respecting the condition of the ancient villeins, it is necessary to attend to the distinction between the villani and servi, which is preserved throughout Domesday Book, and to the primary meaning of the term "villanus," as collected from the more ancient laws, in which it is used to signify simply the inhabitant of a Vill. (Lord Lyttleton's Henry II. Note to a Law of the Conqueror, Append. to Book I, and the Notes to Book II. Kennet's Parochial Antiq. Gloss. Villanus, Servus; Hallam's Middle Ages, Vol. II. p. 135. Diss. on D. B. Report of the Commissioners for the Public Records. For the use of these Terms by our earliest Law Writers; Glanville, lib. v. per totum. Bracton, lib. iv. p. 190, 192.) Villenage forms the subject of the fifth book of Glanville: and it is highly interesting to trace the gradual relaxation of the many rigorous principles of the law, in respect of villeins, which prevailed in the time of that author. Thus, with reference to the subject of the present chapter, he lays it down, that if a free-man take to wife a woman born in Villenage, he shall be deemed a villein during the marriage: but we learn from Britton, that the law afterwards changed, and the wife became enfranchised, so long as the husband lived. (Glanville, lib. v. c. 6. Britton, 78 b.) As many persons, of free condition, held lands according to Bracton's expression, "nomine villenagii et non nomine personæ," it would be irrelevant to investigate the circumstances attending transformation of villenage tenures, into the modern copyholds: it may be noticed, that more than half of the lands in this Country, are supposed to have

been