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.