204
THE SAXONS IN ENGLAND.
[book I.
their hereditary condition may arise from any one
of the conditions heretofore under examination.
All the legitimate children of two serfs are them-
selves irrevocably serfs1 : but some distinctions
arise where the parents are of unequal condition,
as where the mother is free, the father unfree, and
vice versa. In this respect the law was very dif-
ferent among the different tribes : the Swedish law
declared in favour of liberty 2, the German generally
the other way 3. The Sachsenspiegel decides that
the children follow the father’s right4, and similarly
the law of Henry the First5 has, “ Si quis de servo
patre natus sit et matre libera, pro servo reddatur
occisus;” and again, “Si pater sit liber et mater
ancilla, pro libero reddatur occisus on the general
principle that “ semper a patre non a matre ge-
neracionis ordo texitur,” which Fortescue confirms,
saying6, “ Lex Angliae nunquam matris, sed semper
patris Conditionem imitari partum iudicat, ut ex
libera etiam ex nativa non nisi liberum liber ge-
neret, et non nisi servum in matrimonio procreare
potest servus.” Fleta’s argument rests upon the
same doctrine7. Glanville however appears to adopt
the contrary view8, which agrees with the maxim
ɪ Theod. Poen. xvi. § 33. Ecgb. Poen. xxv.
a Deut. Rechtsalt. p. 324. 3 Ibid. p. 324.
’ Sachs, iii. 73. 5 Leg. Hen. I. Ixxvii. § 1, 2.
β Commend, cap. xlii. 7 Lib. i. cap. 3. § 2.
β “Sunt autem nativi a prima nativitate sua; quemadmodum si quis
fuerit procreatus ex nativo et native, ille quidem nativus nascitur.
Idem est si ex patre libero et matre nativa. Sed si ex matre libera et
patre native, idem est dicendum quantum ad status integritatem.” Lib.
v. cap. 6. But the passage in italic is wanting in some manuscripts,
and may possibly have been the gloss or addition of a civilian.
CH vɪɪɪd
THE UNFREE. THE SERF.
205
of the civil law, “Partus sequitur ventrem.” To
the English principle I am bound to give my ad-
hesion, inasmuch as the natural and the original
social law can recognize none but the father, either
in the generation, or in the subsequent rule, of the
family : whatever alleviation the practices of chi-
valry, the worship of the Virgin mother, and the
Christian doctrine of the equality of man and wo-
man before God, may have introduced, the original
feeling is on the father’s side, and the foundations
of our law are based upon the all-sufficiency of
his right. A woman is in the mund or keeping of
a man; society exists for men only, that is, for
women merely as far as they are represented by a
man.
That this original right was interfered with by
the law of property is not denied. But here dif-
ferent cases are to be considered. First, whether
the serf or nativa is the property of the party who
unites with him or her. Secondly whether the free
party unite with some other owner’s serf or neif;
next, whether the issue are born in wedlock or not ;
and lastly how far the public law and right is in-
volved in the question of freedom and servitude.
The last consideration in fact involves the first,
because, under the first, except in the case of hardly
intelligible neglect, marriage could never take place
between two unequal parties at all : emancipation
must have preceded the ceremony ; while the civil
law would of course rule that the ceremony itself,
taking place by consent, was an act of emancipa-
tion not to be gainsaid. It is therefore with regard