The name is absent

to third parties only that a question can arise¹.
There is no proof that such a question ever did arise
among the Anglosaxons, or that it was thought
needful to provide for it by law : and the earlier
evidences with which this book has especially to do
are either entirely silent, or so general in their ex-
pressions that we cannot decide from them, upon a
particular case. In fact the whole argument is re-
duced to the second head, viz. where one parent is
the property of a third party, and where the child
is born in lawful wedlock ; for a child not so born
is not subject to any law which binds the parents, is
nullius filius, and can as little be injured as advan-
taged by the law.

In the strict Anglosaxon law there is no definite
decision on these points : the codes of other Ger-
man races, at the oldest period, are equally silent.
In later times indeed we have determinations ; but
these, as we have observed, are contradictory.
Perhaps we may take the doctrine of the Sachsen-
spiegel, coinciding as it does with the opinion of
many, probably a majority, of our own law-sages,
as the original one, especially as it is the only one
in accordance with other details of family life, and
with the supreme law of nature itself which leaves

¹ Of course (except under circumstances which the Christian clergy,
and probably even the heathen priesthood,—and if neither of these,
yet the univ ersal human feeling—would condemn,) the issue of such
marriage could not have been treated as unfree, during the life of the
father. But a question might anse after death, and on subsequent in-
heritance by third parties. And cases might occur where the public
right rendered it necessary to take care that the unfree should not en-
joy the advantages of freedom.

to the father the decision as to the life or death of
the child, as to its liberty or slavery. In this sense
then I agree with Sir John Fortescue and Sir Ed-
ward Coke¹. It is to be remembered that we are
dealing now with the condition of the offspring,
not of the parent : the uncertainty that prevails
with respect to the latter, in the Anglosaxon law,
and the contradictory enactments of other German
codes have been already noticed.

But all that has been said applies solely to the
case of children born in lawful wedlock ; and
almost all the apparent contradictions which have
been noticed in our own law, arise from a want
of clear distinction on this point. The child of a
free father and unfree mother, if the parents were
not married, remained to the lord of the neif, ac-
cording to our expressive proverb, “ Mine is the
calf that is born of my cow ².” In Fleta’s words ³
the distinction is drawn most clearly, and they may
therefore stand here in place of my own : “ Servi
autem aut nascuntur aut hunt ; nascuntur quidem
ex nativo et nativa solutis vel copulatis, et eius erit
servus in cuius potestate nasci contigerit⁴ ; dum
tamen de soluta nativa, doɪnini loci, quia sequitur
Conditionem matris, a quocunque fuerit genitus,
libero vel nativo⁵. Si autem copulati fuerint et

¹ Co. Litt. § 187,188.

^a Take an instance, though with a wider application, from Shak-
βpeaτe, King John, act i. sc. 2.

³ Lib. i. cap. 3. § 2.

⁴ That is, if the serfs of two different lords, then the child to follow
the mother.

⁵ In the event of there being no marriage. The case of a marriage
ɪs very different, and provided for in the next sentence.

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