Now, the misprint of "sun-setting" for sun-rising, which I am supposing in Hopton's book, would be much more likely of occurrence than these, because these form part of a series of carefully examined data from which a scientific deduction is to be drawn, while Hopton's is a mere loose description. And, moreover, a twenty-four hour day, commencing and ending with sunrise, does not, after all, appear to be so wholly unknown to English law as Prof. De Morgan supposes, since Sir Edward Coke, to whom the professor especially refers, describes such a day in these words:
"Dies naturalis constat ea 24 horis et continet diem solarem et noctem; and therefore in Inditements for Burglary and the like, we say in nocte ejusdem diei. Iste dies naturalis est spatium in quo sol progreditur ab oriente in occidentem et ab occidente iterum in orientem."
But there is another way of reconciling the discrepancy—Hopton may not have intended the words "holding till sun-setting" to apply to the Babylonians, but only to "the lawyers in England," whose day, he says, commenced at the same time as the Babylonian day. The transposition of the words in question to the end of the sentence would give such a meaning, viz. "The Babylonians begin their day at sun-rising, and so do our lawyers count it in England, holding till sun-setting." Altered in this way, the latter clause does not necessarily apply to the Babylonians.
Here again we have a lawyers' day almost verbally identical with one assigned to them by Sir Edward Coke: "Dies artificialis sive solaris incipit in ortu solis et desinit in occasu, and of this the law of England takes hold in many cases."
Nor does Lord Coke strengthen or vary his description in the least, when speaking of the day commencing at midnight; he uses again the same expression with regard to it, "The Egyptians and Romans from midnight, and so doth the law of England in many cases."
Hence the authority of Chief Justice Coke, is at best only neutral; for who will undertake to prove to which of these classes of "many cases" Lord Coke meant to assign the attainment of majority?
In support of Ben Jonson's testimony, it may be urged that the midnight initial of the day was itself derived by us from the Romans; and it is nearly certain that they did not perform any legal act, connected with birthday, until the commencement of the dies solis.
A proof of this may be observed in the discussion by Aulus Gellius (Noct. Attic., iii. 2.) as to which day, the preceding or the following, a person's birth, happening in the night, was to be attributed. He quotes a fragment from Varro,—
"Homines qui ex media nocte ad proximam mediam noctem his horis XXIV nati sunt, uno die nati dicuntur."