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.