De laudibus legum Angliæ writen by Sir Iohn Fortescue L. Ch. Iustice, and after L. Chancellor to K. Henry VI. Hereto are ioind the two Summes of Sir Ralph de Hengham L. Ch. Iustice to K. Edward I. commonly calld Hengham magna, and Hengham parua. Neuer before publisht. Notes both on Fortescue and Hengham are added

THe Ciuil Lawes de∣crée, that the issue euer followeth the wombe, that is to say, the mother. As for example, if a bond wo∣man be married to a free man, their issue shall bee bond: And contrariwise if a bond man marieth a frée womā, he begetteth none but free children. But the Lawe of England neuer iudgeth that issue to fol∣low the mothers conditi∣on, but alway the fathers. So that a free mā beget∣teth free childrē aswell of a bondwomā, as of a frée woman, & a bondman in wedlocke can beget none other but bond children.

Whether of these laws is better thinke you in their sentences? It is a cruell law, which without offēce subdueth the free mans childe to bondage. And no lesse crueltie is to bee thought in the law, which without any desert op∣presseth the free womans child with bondage. Yet the Ciuilians say, that the Ciuil Laws in these their iudgements do excel. For an euill tree, say they, can not bring foorth good fruites, nor a good tree beare euill fruites. And by the consent of all Lawes it is agreed, that euerie plant yeeldeth to the na∣ture of the ground where∣in it is planted, the childe also hath much more cer∣taine & sure knowledge of the mother, then of the

father. Whereunto the Lawiers of England an∣swere on this wise: That a childe lawfully begot∣ten hath no more certaine and sure knowledge of the mother then of the father. For both these laws thus disagreeing, agree yet in this point, that hee is the father, whom wedlocke declareth. And is it not then more conueniēt, that the condition of the child should haue relation ra∣ther to the fathers condi∣tion, then to the mothers, Seeing that Adam spea∣king of married couples, said: They shall be two in one flesh, which our Lord expounding in the Gospel saith: Now are they not two but one flesh. And for∣somuch as the male, as more worthy, containeth

the female, thē the whole flesh so vnited must haue relation to the male as to the worthier, wherefore the Lord called Adam & Eue not by the name of Eue, but because they were both one flesh, hee called them both in the name of Adam, the man, as it appeareth in the fift chapter of Genesis. The Ciuill Lawes also holde that women doe euer gli∣ster with the shining beames of their husbāds. Wherefore in the title beginning with these words: Qui se professione excusant, in the 9. Booke L. fi. the text saith thus, we auaunce women with the honour of their hus∣bands, and with the kin∣red of their husbands we worship them, in the court

we decre matters to passe in the name of their hus∣bands, & into the house & surname of their husbāds do we trāslate thē. But if afterward a woman marie with a man of baser de∣gree, then loseth shee her former dignitie, & follow∣eth the condition of her latter husband, And forso∣much as all children, spe∣cially male childrē, beare the fathers name, and not y^e mothers, whereof then should it come, that the sonne by reason of the mo¦ther should lose the honor, or change the condition of the father, whose name neuerthelesse he shall still keepe, Specially seeing the mother her selfe recei∣ueth of the same Father, honor, worship & dignitie which honor, worship and

dignity of the husbād can neuer be desteined or im∣peached through the fault of y^e wife. Truly that law may wel be deemed cruel, which without any cause, cōmitteth to bondage the fremans son, & which, dis∣heriting the innocent son of the innocēt free father, adiudgeth his land to an vnworthy strāger, which also with the base state of bondage in the sonne de∣faceth the name of the fre father. Cruell also of ne∣cessity must that lawe bee counted, which augmen∣teth thraldome, and dimi∣nisheth libertie or free∣dome. For libertie is the thing that mans nature e∣uer coueteth. For, by man and for sinne, did bon∣dage first enter. But free∣dome is graffed in mans

nature of God. Whereof if men be depriued, he is euer desirous to recouer the same again, like as al other things doe, that are spoiled of their naturall libertie. Wherefore wic∣ked and cruell is hee to be deemed that fauoreth not libertie. Which things the Lawes of Englande, duely considering doe in all respects shew fauour to libertie. And though the same lawes iudge him thrall, whom a bondman in wedlocke begetteth of a free woman, yet hereby cannot these lawes bee reputed seuere and cruel. For a woman, which by marriage hath submitted herselfe to a bondman, is made one flesh with him, wherefore as the fore∣said Lawes determine,

shee followeth the state of his condition, and of her owne free will hath made her selfe a bond woman, not forced there to by the Lawe, much like to such, as in Kings Courts become bonde∣men, or sell themselues into bondage without any compulsion at all. And how then can the Lawe determine the childe to bee free, whom such a mother hath thus borne? For the husband can neuer bee in so much subiection to his wife, though shee bee a right greate Ladye, as this woman is subiect to the bond man, whom she hath made her Lord, insomuch as the Lord saith to all wiues: Thou shalt bee vnder the power of thy

husband, And hee shall haue dominion ouer thee, And what is it that these Ciuilians say of the fruit of a good or euill tree, Is not euery wife of a free or thrall condition, according to the state of her husband? And in whose ground hath the husband planted, while his wife is one fleshe with him? Not in his owne? And what then if he haue graffed a slip of a sweete nature in a stocke of a sower tree: So that the tree be his owne, shall not the fruites, though they euer sauer of the stock, be his owne fruites? So the childe, which the wife beareth is the husbandes issue, whether the wife bee free or thrall. How∣beit the Lawes of Eng∣land

decree, that if a bond woman, without the con∣sent of her lord, be married to a free man, though they cannot bee deuorced, be∣cause the Gospell saith, whom God hath conioy∣ned, let no man seperate, yet shall her lord recouer against the same freeman all the dammages, that he hath sustained by reasō of y^e losse of his vassal or bōd woman. This now, as I suppose, is the summe & forme of the law of Eng∣land in the case now de∣clared. What therefore is your opinion most excel∣lent Prince, in the same case? And whether of these two lawes do you esteem to be of more worthinesse and excellencie?