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]]