Two Notes on the Legal Time for Human Birth.
(From Hargrave’s Jurisconsult Exercitations)
[Lord Coke, in his Commentary upon Littleton, fol. 8. a. considers, who may inherit lands or tenements; and about the close of his remarks on that head, introduces the case of a woman brought to bed of a child, so as to raise a question whether the child was by her deceased first husband or by her second husband. His words are, “If a man hath a wife and dieth; and within a very short time after the wife marries again, and within nine months hath a child, so that it may be the child of the one or the other, some have said that in this case the child may choose his father, quia in hoc casu filiatio non potest probari; and so is the book to be intended: for avoiding of which question and other inconveniencies, this was the law before the conquest, sit omnis vidua sine marito duodecim mensibus, et si maritaverit perdat dotem.” In the margin also of the same book, he thus refers to authorities, “21 E. 8. 39 Pancirollus Nova Rep. 485, &c. Opus eximium, 48. b. Lambard de priscis Anglorum Legibus, 120. 72, &c.” and as to the year-book of E. 3. so cited, it shews, that the doctrine, of allowing the infant to choose which of the two husbands should be his father in the case so put, was attributed to Sir William de Bereford, who was made chief justice of the common pleas early in 2 E. 2.
So far Lord Coke only puts a special case barely involving a consideration of the legal time for a woman’s going with child.
But in a subsequent part of his commentary, Lord Coke brings forward an adjudged case of 18 E. 1. which materially involved considering what was the limit to the time for a woman’s parturition, and for which he refers to Trin. 18 E. 1. Rot. 61. Bedford coram rege; and so Lord Coke was led to giving his own idea of the latest legitimate time pariendi for women. The passages here meant to be adverted to are in Co. Litt. 123. b. and are in these words. “It was found by verdict, that Henry the son of Beatrice, which was the wife of Robert Radwell deceased, was born per undecim dies post ultimum tempus legitimum mulieribus constitutum. And therefore it was adjudged, quòd dictus Henricus dici non debet filius prædicti Roberti secundùm legem et consuetudinem Angliæ constitutus. Now legitimum tempus in that case appointed by law at the furthest is nine months or forty weeks: but she may be delivered before that time. Which judgment I thought good to mention. And this agreeth with that in Esdras: Vade et interroga prægnantem si quando impleverit novem menses suos, adhuc poterit matrix ejus retinere partum in semetipsâ? et dixi non potest, Domine.” In the margin of the last passage of this extract from Co. Litt. 123. b. there is a reference to 4 Esdras 4. 41. and Panciroll. Nova Reporta, pag. 485, &c.
These two extracts from Co. Litt. 8. a. and 123. b. are here given as an introduction to the following article, which consists of two notes by the author in the first part of the 13th edition of the Coke upon Littleton, being the author’s part of that edition, and the first attempt at editing that ever to be valued work with notes.—Both the notes are on the second of the two preceding extracts from the Coke upon Littleton.—The first of the two notes chiefly relates, to the special case of a widow’s marrying a second husband, and being delivered of a child so soon after the death of her first husband, as to raise a doubt, which of the two husbands should be considered as the father: and so far such note applies as well to the case so put in Co. Litt. 8. a. from the year-book of 21 E. 3. 39. as to the case in 18 E. 1. so stated in Co. Litt. 123. b. from the king’s bench record of that year.—The second of the two notes relates to the general point as to the ultimate legitimate time for a woman’s parturition.
Further as to the following article, it is proper to apprize the reader, that, exclusively of what is now added by note at the bottom of the page, it was first published about 30 years ago.]
TWO NOTES, &c.
I. Note as to Lord Coke’s cited Legitimacy Case of Radwell, in 18 E. 1.
Lord Hale, in a manuscript note about legitimacy in Co. Litt. fol. 8. a. gives a fuller extract of this case of 18. E. 1. from the record than is here expressed. His words are these.
“Trin. 18 E. 1. Coram rege, rot. 13. Bedford, et M. 22, 23 E. 1. rot. 2. In assise by John Radwell against Henry son of Beatrice, who was wife of Robert Radwell, quia compertum est, quòd dictus Henricus fuit natus per 11 dies post 40 septimanas, quod tempus est usitatum mulieribus pariendi, ex quo prædictus Robertus non habuit accessum ad prædictam Beatricem per unum mensem ante mortem suam, præsumitur dictum Henricum esse bastardum, ideo judgment for the plaintiff.”
If this state of the case is correct, Lord Coke’s is erroneous in several particulars of consequence.—1. He is short in not expressing, that the record mentions forty weeks, and so leaving it to be deemed an inference of his own, as which it hath been accordingly treated.—2. He exceeds the record, by representing it to stile that time the latest for a woman’s going with child, when the record only calls it the usual period.—3. He wholly omits the husband’s having had no access to his wife for one month before his death; a fact very material, it being very easy to allow eleven days after the usual time, but requiring a strong case to warrant extending such liberality to nearly six weeks.—4. The word præsumitur, which Lord Coke passes over, is of importance; for it indicates, that, notwithstanding the great excess of time, it was conceived to create only a presumption for the bastardy, and consequently, if very cogent circumstances to account for the protraction of the birth, and in favour of the wife’s chastity, had occurred, the judgment might have been for the legitimacy.
So far we had advanced, when on looking into Rolle’s Abridgment, 536. we found the same ancient case of Radwell more at large, than either in Lord Coke or Lord Hale.
But Rolle agrees with Lord Coke, as well in respect to the record’s not mentioning the forty weeks, as to its stating the birth to be eleven days after the latest time in law for a woman’s going with child; and as from Rolle’s particularity he seems to have most minutely attended to the record, his authority, till the whole record appears, seems most decisive.
However the two last particulars, in which Lord Coke differs from Lord Hale, still remain, to which Rolle adds these further circumstances: namely,—that the husband languished of a fever a long time before his death;—that on the taking of an inquisition afterwards in the court of a lord, of whom he held lands by knight’s service, the wife swore she was not pregnant, and to prove it uncovered herself in open court;—and that, in consequence of all this, the lord received a collateral relation as heir. The words describing the wife’s exposure of her person are remarkable; for the record states, that she, being interrogated, juramento asserebat, se non esse prægnantem; et, ut hoc omnibus manifestè liqueret, vestes suas ad tunicam exuebat, et in plená curiá sic se videri permisit. 1 Ro. Abr. 356. pl. 3. and 18 E. 1. rot. 13. in B. R. there cited. It reflects great discredit, on the lord’s court, which permitted such a gross indecency; and still more on the king’s judges, who suffered it to be recorded as one of the grounds for a verdict before them. How laudably contrariant is the proceeding on the writ de ventre inspiciendo? This remedy for the heir against the pretence of pregnancy, so well known to be of earlier date than the reign of Edward the first, as it was framed in the times of Bracton, Britton, and Fleta, delicately requires the widow to be inspected by a jury of her own sex; and though in subsequent times the sheriff was ordered to summon a jury composed both of men and women, yet still the search was to be made by the latter only. Bract. 69. a. Brit. 165. b. Flet. lib 1. c. 15. Reg. Br. Orig. 227. a. What harsh ideas of the times might we be led to adopt, if the early introduction of the writ de ventre inspiciendo did not demonstrate, that the unseemly record we are observing upon was a singularity, and so many other testimonies of a more advanced refinement in judicial proceedings did not concur to rescue the age of our English Justinian from the suspicion of a general practice of such barbarism!
Let us then suppose the record to be as it is in Rolle; which is the more probable to be the truth, because a contemporary judge, who reports its having been produced on a trial of legitimacy, represents it much in the same way. Cro. Jam. 541. But still it will not warrant Lord Coke’s inferring from it, that forty weeks constitute the latest time the law allows for a woman’s going with child. On the contrary, no particular time being mentioned, what period was meant, must be found out through some other medium; and as the record states other unfavourable circumstances besides the excess of time, and that the jury presumed against the child’s being the issue of the deceased husband, it seems fair to suppose, that the law was understood, not to be so strict in the time alluded to, whatever that time might be, as indiscriminately to condemn as illegitimate all children not born within it, but rather to consider every excess, unless very extraordinary indeed, as only raising a presumption against them. This construction is clearly most consistent with the terms of the record in question. In the next note we shall attempt to satisfy the reader, that the rule resulting from it is most conformable to other precedents and authorities, as well as to the reason of the thing.
After the case of Radwell from the Record of E. 1. Lord Hale thus gives the four following cases.
“Rot. Parl. 9 E. 2. M. 4. Gilbert de Clare comes Glouc. obiit 30 Junii 7 E. 2. In parliamento tent. quindena Hil. 9 E. 2. the sisters and coheirs pray livery. Matilda, quæ fuit uxor comitis, pretends to be big by the earl, which was accordingly found per inquisitionem. The coheirs reply, that, si comitissa prægnans esset, tantum tempus elapsum est, ut secundum cursum pariendi non potest dici imprægnari a comite. Yet they could not obtain livery till Pasch. 10 E. 2. but the question hung in deliberation.
“Note 18 R. 2. where a woman in such a case immediately after the death of the first husband took a second husband, and had issue born forty weeks and eleven days after the death of the first husband, and it was held to be the issue of the second husband.
“M. 17. Jac. B. R. Alsop and Stacey. Andrews dies of the plague. His wife, who was a lewd woman, is delivered of a child forty weeks and ten days after the death of the husband. Yet the child was adjudged legitimate and heir to Andrews; for partus potest protrahi ten days ex accidente.
“M. 4. Car. in Cur. Ward, and afterwards P. 5. Car. B.R. Thecar marries a lewd woman; but she doth not cohabit with him, and is suspected of incontinency with Duncomb: Thecar dies: Duncomb within three weeks after the death of Thecar, marries her: two hundred and eighty-one days and sixteen hours after his death she is delivered of a son. Here it was agreed, 1. If she had not married Duncomb, without question the issue should not be a bastard, but should be adjudged the son of Thecar. 2. No averment shall be received that Thecar did not cohabit with the wife. 3. Though it is possible, that the son might be begotten after the husband’s death, yet, being a question of fact, it was tried by a jury, and the son was found to be the issue of Thecar.”
Lord Hale’s case of E. 2. appears very extraordinary, the time from 30 June from 7 E. 2. when the Earl of Gloucester died, to the quindene of Hilary, or 29 Jan. 9 E. 2, when the livery to his sister was further postponed in parliament, being within one day of a year and seven months; which is a much later date for the delivery of a live child, than the most liberal in their calculations have hitherto assigned. However, on reading the printed copy of the original record, in the rolls of parliament lately published, we find Lord Hale’s note quite accurate. See Rot. Parl. v. 1. p. 353.—As to the case of R. 2. it confirms the doubt we have elsewhere stated of the opinion, that, if a widow marries again and has a child within nine months after the death of the first husband, the child may choose his father; and is an authority for deciding according to the proof of the woman’s condition when her first husband died. Ante fo. 8. a. note 7. Terms of the Law, first edit. tit. Bastard, and Cowel Inst. lib. 1. t. 9.—Lord Hale’s two other cases are reported in several books, Alsop and Stacey being in Cro. Jam. 541. Godb. 281. Palm. 9. 1 Ro. Abr. 356. and Thecar’s in Cro. Jam. 685. Winch. 71. Litt. Rep. 177.[179]
II. Note on Lord Coke’s Doctrine as to the latest time with Women for Parturition.
If our law was really as strict in point of time as is here represented by Lord Coke, it would not sufficiently conform to the course of nature. The physicians, it is true, generally call nine months, each being of thirty days, the usual period for a woman’s going with child. But then they allow, that, as a delivery may be accelerated by various accidental and other causes, so it is frequently protracted, not only for ten days beyond the nine months, but to the end of the tenth month, and sometimes for a considerably longer time. See Zach. Quæst. Medico-legal, lib. 1. tit. 2. Justice therefore requires, that, in the case of posthumous children, an excess of the usual time should not operate further, than by raising a proportional presumption against the legitimacy.
The Roman law was very liberal in this respect; for the decemviri allowed, that a child may be born in the tenth month; and though a law of the digest excludes the eleventh, yet the emperor Adrian, after consulting with the philosophers and physicians, decreed even for this, where the mother was of good and chaste manners. See Dig. 1. 4. 12. Paul. Sentent. lib. 4. t. 9. s. 5. Nov. 39, c. 2. t. 17. with Gothofred’s learned notes on those two texts of the Roman law. Cod. lib. 6 t. 29. leg. 2. Aul. Gell. lib. 3. cap. 16. Huber. Prælect. in Dig. lib. 1. tit. 6.
A like liberal discretion probably prevails in most countries in Europe; for an instance of which, we refer to a very respectable foreign lawyer, who reports a decision by a majority of judges in the supreme court of Friesland, by which a child was admitted to the succession, though not born till three hundred and thirty-three days from the day of the husband’s death,[180] which period wants only three days of twelve lunar months. Sand. Decis. Fris. lib. 4. tit. 8. Definit. 10.
Nor will our own law, notwithstanding what Lord Coke advances, if the authorities are duly collected and considered, be found deficient on this interesting subject. Indeed there is a passage in Britton, which gives countenance to Lord Coke’s limitation of forty weeks; for this writer excludes from the inheritance posthumous children not born within forty weeks from the husband’s death. Britt. 166. a. However, even this writer seems to extend in some degree beyond the forty weeks; unless he meant to make the wife’s conception exactly of equal date with the husband’s death, which surely is not a very reasonable construction. But without dwelling on such a nicety, it is sufficient, that the principal of the few other authorities in our books are against so rigid a rule. Bracton is very cautious, illegitimatizing only the issue born so long after the husband’s death, as to create an improbability of its being his child, without naming any fixed period. Bract. lib. 5. fo. 417. b.
As to the determined cases in our courts, the only authorities of this sort, we meet with, are enumerated in the preceding annotation; and these, duly weighed, will not be found, it is apprehended, to warrant Lord Coke’s conclusion.—In Radwell’s case, the finding against the issue is expressed to have been grounded merely on presumption; and besides, if we construe the record properly, the presumption arose from proof of the husband’s non-access to the wife a month before his death,—The case of 9 E. 2. is an instance of allowing so much time beyond forty weeks, that it seems too strong to have much weight; but so far as it can claim any, it counts against Lord Coke.—The case of 18 Rich. 2. at first seems full for Lord Coke’s rule, the child, though born only eleven days beyond the forty weeks, having been declared not the issue of the deceased husband. But when it is further considered, there will be found nothing to prove a positive general rule; for the case was very special, the widow having married a second husband the day after the death of the first, so that the question was not of legitimacy, but merely to which husband the issue belonged.—One of the two only remaining cases considerably extends the time beyond the forty weeks; for in Alsop and Stacey, the first of them, the issue was found legitimate, notwithstanding the lapse of forty weeks and ten days, and the lewd character of the wife: and even as to Thecar’s case, which is the other of them, the issue having been born two hundred and eighty-two days, there was an excess of the forty weeks, though but a trifling one.
The precedents therefore, so far from corroborating Lord Coke’s limitation of the ultimum tempus pariendi, do, upon the whole, rather tend to shew, that it hath been the practice in our courts, to consider forty weeks merely as the more usual time, and consequently not to decline exercising a discretion of allowing a longer space, where the opinion of physicians or the circumstances of the case have so required.
In the course of our inquiries into the subject of this note, we were curious to know the general sentiments of that eminent anatomist, Dr. Hunter, on three interesting questions. These were, what is the usual period for a woman’s going with child, what is the earliest time for a child’s being born alive, and what the latest. The answer, which he obligingly returned through a friend, we have liberty to publish; and it was expressed in the words following:—1. The usual period is nine calendar months; but there is very commonly a difference of one, two, or three weeks. 2. A child may be born alive at any time from three months; but we see none born with powers of coming to manhood, or of being reared, before seven calendar months, or near that time. At six months it cannot be. 3. I have known a woman bear a living child, in a perfectly natural way, fourteen days later than nine calendar months, and believe two women to have been delivered of a child alive, in a natural way, above ten calendar months from the hour of conception.
[What follows is an extract from Sande’s Decisiones Frisicæ, being his report of the case, which in the preceding article is referred to as a decision by the supreme court of Friesland in 1634, for the legitimacy of a child born in the twelfth month after the husband’s death. It is taken from the fourth book, title 8, definition 10.]
“Partum à muliere, quæ non probabatur impudicè vixisse, editum duodecimo ab obitu viri mense, habitum legitimum et ad viri successionem admissum.
“Vir aliquamdiu valetudinarius, et per quatuordecim dies ante mortem lecto affixus, ex hac vita migravit die decimo Augusti, Anno 1631, relictâ uxore, quæ nono mensis Julii die anno insequenti peperit filiam, ita ut à die obitûs viri effluxerint dies naturales tricenti et triginta tres, qui efficiunt menses solares completos undecim cum tribus diebus, vel lunares ferè duodecim, sive annum integrum lunarem ab eo momento, quo vir animam reddidit. Quæsitum, an hæc filia legitima et ad successionem istius viri admittenda sit.
“Inter Medicos et Physicos constat, quamvis hominis nascendi tempora sint varia, illa tamen ad certos limites revocari. Aristoteles enim lib. 7. histor. animal. ait, soli homini multiplex pariendi tempus datum: nam et septimo mense, et octavo et nono parere potest, et quod plurimum, decimo: nonnullas etiam mulieres undecimum mensem attingere. His conveniunt, quæ Plinius lib. 7. natur. hist cap. 5. scribit, nonnullas etiam mulieres undecimum mensem attingere.
“Secundùm ordinarium igitur naturæ cursum, decimus mensis completus est extremus pariendi terminus. Undè Author libri Sapientiæ cap. 7. v. 2. In utero, inquit, matris figuratus sum raro tempore decem mensium. Et Plautus in Cistelaria refert, puellam compressam exacto decimo mense filiam peperisse. At Authores fidei digni referunt exempla mulierum, quæ undecimo, duodecimo, decimo tertio, et ulteriore mense, pepererunt, ut A Gellius 8. noct. attic. 16. Plinius lib. 7. natur. histor. cap. 5. Avicenna lib. 9. de animal. Et Albericus Gentilis disputat. 1. de nascendi tempore hæc celebris Medici Victoris Trincavelli ex epist. 5. verba recitat. Auctores, inquit, multi et illi quidem viri omni exceptione majores, tam antiqui, quam juniores, attestuntur huic sententiæ, nempe repertas esse mulieres indubitatæ probitatis et pudicitiæ, quæ fœtum in utero gesserint ad undecimum mensem et ultra. Cujus diuturnioris gestationis caussas varias nonnulli Medici reddunt, ut videre est in consilio primo Monsbelianorum Medicorum, quod extat apud Gerard. Maynard. lib. 3. decis. Tholos. 4. Alii tamen Medici non adhihent fidem his exemplis, eaque malunt proficisci ex phantasia et imaginatione mulierum, quæ opinantur ex diversis accidentibus se ultra tempus ordinarium gestare fœtum, cum tamen res aliter se habeat, ut apparet ex concilio Medicorum secundo, quod refertur a Maynardo d. loco. Minimè igitur de hac quæstione convenit inter ipsos Medicos. Illud certum est, casus istos mulierum, quæ post decimum mensem peperisse dicuntur, si veri sunt, esse nihilominus raros et extraordinarios, idcirco eorum non haberi rationem à Legislatoribus, qui contemnunt quæ semel bis aut perraro accidunt, et ad ea jus aptant, quæ frequenter et facilè eveniunt l. nam ad ea 5. et l. seq. ff. de legib. l. ea quæ raro 64 ff. de reg. jur. et idcirco legitimum et extremum pariendi terminum constituunt decimum mensem completum. Quod jus primum proditum est lege 12 Tabularum ubi Decemviri ita ajunt, Ut si qua mulier post viri mortem in decem mensibus proximis pareret, qui quævè ex ea nasceretur, suus suavè in viri familia heres esset. Et Testatores dicere solebant. Si filius et filia intra decem mensium spacium, post mortem meam editi fuerint, heredes sunto l. ult. C. de postum. hered. instit. l. ult. ff. de fideicommiss. libert. l. Gallus 29. in pr. ff. de liber. et postum. Ac Ulpianus ut de jure certo in l. 3 § penult. ff. de suis et legit. hered. respondit his verbis, post decem menses mortis natus non admittetur ad legitimam successionem. Augustinus lib. 1. quæst. Evangelic. ita ait. Quod dicuntur decem menses pregnantis, novem sunt pleni, sed initium decimi pro toto accipitur. Hos decem menses ex instituto Græcorum, a quibus Decemviri leges suas acceperunt, non solares, sed lunares fuisse probat Fr. Hotomannus lib. 9. obs. 9. Nec Ulpiano obloquitur Justinianus in Novell. 39. dum negat sub finem undecimi mensis vel perfecto undecimo natum esse legitimum: nam indé à contrario sensu ad correctionem Ulpianei responsi malè inferretur natum initio undecimi mensis esse legitimum ut animadvertit etiam Albericus Gentilis d. Disp. 1. Sanè in Dicastetrio Wittenbergensi anno 1567. partum pronuntiatum fuisse legitimum, quam mulier, quæ honestè vixerat, post obitum mariti pepererat in initio undecimi mensis, referunt Ioachimus à Beust in tract. de matrimonio cap. 36. in fin. et ad. l. 3. ff. de jurejur. num. 36. ac Andreas Rauchbaert, part. 1. quæst. 24. num. 53. Unde Conradus Riddershusius in comm. ad Novell. Const. part. 4. cap. 13. a Justinianeo jure moribus recessum existimat. Quod non est admittendum. Illud notatu dignum, quod ex Theodoro Zuingero Medico refert Hotomannus d. obs. 9. mulieres nempe dum dimidiatum mensem pro integro computant, sæpe opinari, se undecim menses uterum gestare, cum tamen septem tantum quadragenas dies scilicet 280. compleverint. Jure igitur nostro partus habetur legitimus, qui intra et non post decem menses a morte viri editus est. Confer Iacobum Cujacium ad d. Novell. 39. in tract. de præscript. cap. 19. et lib. 4 recept. sent. Iulii Pauli cap. 9. § 5. Andream Tiraquellum in repetit. l. si unquam 8. in verb. Suscepit liberos C. de revocand. donat. Iacobum Menochium lib. 2. de arbit. judic. cas. 89, num. 47. 48. & 52. Ioachimum Mynsing. cent. 6. obs. 4. Franciscum Hotomannum lib. 9. obs. 9. Gerardum Maynard. lib. 4. decis. Tholos. 3. 4. Iacobum Concennatium, lib. 2. quæst. jur. cap. 9. Casus illos raros et extraordinarios ad facti quæstionem, id est, ad Indicis, ut noni viri arbitrium, redigendos esse dicit Hotomannus d. obs. 9. in fin. Et hanc inter ordinarios et extraordinarios partus differentiam esse ait Gentilis, quòd illi justi habeantur, nisi probentur injusti, hi injusti censeantur, donec justi fuerint approbati.
“In hac specie partitæ erant Iudicum sententiæ. Quidam enim censebant juris definitioni hic esset insistendum, cum partus editus sit mense duodecimo ferè completo, si menses his accipiamus lunares, et vir ante obitum quatuordecim dies graviter decubuerit, ideoque credibile non fuerit eum de vene exercenda cogitasse. Alii (qui numero vincebant) judicabant partum legitimum, quòd mulier esset probatis moribus ac pudicitiâ minimè suspectâ, quòd etiam ex marito quantumvis ægroto concipere potuerit, tardiorisque partus caussam ex Hippocratis sententia esse potuisse, quod viri infirmi semen fuerit humidius et excrementosius eoque minus concoctum. Senatus tamen expedire censuit, ut partes ad transigendum monerentur. Transactione autem non succedente, partus frequentioribus suffragiis declaratus fuit legitimus, et patri heres.[181].”
The learned author of these notes, Francis Hargrave, one of the King’s Counsel, died while our work was at press: the profession have lost a most profound and erudite lawyer; the learned, an elegant scholar; and his friends, a man whose amenity of manner and kindness of heart surpassed the ordinary bounds of human benevolence.