were born afore matrimony should be legitimate, as well as they that be born within matrimony, as to the succession of [121] inheritance, forasmuch as the church accepteth such for legitimate. And all the earls and barons, with one voice, answered that they would not change the laws of the realm which hitherto have been used and approved (k)." Against the common Order of the Church.] For the better understanding of which, it is to be known, that in the time of Pope Alexander the Third, which was in the 6 Hen. 2, this constitution was made, that children born before solemnization of matrimony, where matrimony followed, should be as legitimate to inherit unto their ancestors as those that were born after matrimony; and thereupon the statute saith, that the church accepteth such for legitimate (1). The Bishops instanced the Lords.] Hereupon these two conclusions do follow: 1. That any foreign canon or constitution made by authority of the pope, being against the law and custom of the realm, bindeth not until it be allowed by act of parliament, which the bishops here prayed it might have been; for no law or custom of England can be taken away, abrogated or annulled, but by authority of parliament. 2. That although the bishops were spiritual persons, and in those days had a great dependency on the pope; yet in case of general bastardy, when the king wrote to them to certify who was lawful heir to any lands or other inheritance, they ought to certify according to the law and custom of England, and not according to the Roman canons and constitutions, which were contrary to the law and custom of England, wherein the bishops sought at this parliament to be relieved (m). [The doctrine of the civil and canon law, which legitimated children born out of wedlock by a subsequent marriage, prevails over a large portion of the civilized world both in Europe and America; and its adoption by the law of Scotland renders it possible that a person may be legitimate, and succeed to property in that country, while he is a bastard in England. In July, 1840, it was finally decided by the House of Lords, Lord Chief Justice Tindal delivering their lordships' judgment, that a child born in Scotland before the marriage of his parents cannot inherit lands in England, although he was legitimate in Scotland, and his parents domiciled there. This decision in Doe dem. Birtwhistle v. Vardill, affirmed a previous decision of the House of Lords, who had allowed a rehearing, because Lords Brougham, Denman and Lyndhurst, delivered their opinions against it. At the final hearing, however, Lord Brougham declared himself a convert to the judgment delivered by the lord chief justice (n). See section Divorce, under title Marriage.—ED.] (k) 20 Hen. 3, c. 9. (1) 2 Inst. 96. 455, 456; Godolph. 479.] (n) [See 8 D. & R. 185; and 1 (m) 2 Inst. 97; [1 Bl. Comm. Clarke & Fin. 591.] after the Fa 9. If a man hath a wife and dieth, and after within a short Child born time the wife marrieth again, and within nine months hath a ther's Death, child, so that the child may be the child of the first or of the and the Mosecond husband; in this case, if it cannot be known by cir- again. cumstances, the child may choose the first or second husband for his father (o). ther married By the civil law, such as were born in the beginning of the eleventh month after the decease of their mother's husband, were to be accounted legitimate; but such as were born in the end thereof were to be accounted bastards: yet the gloss there relates to a matter of fact contrary to this law, and gives us an instance of a widow in Paris who was delivered of a child the fourteenth month after her husband's death, yet the good repute of this woman's continency prevailed so much against the letter of the law, that the court judged the causes of childbirth [ 122 ] to be sometimes extraordinary, the woman to be chaste, and the child legitimate. But this, as the gloss addeth, ought not to be easily drawn into example (p). It was found by verdict, that Henry, the son of Beatrice, which was the wife of Robert Radwell deceased, was born eleven days after a woman's furthest lawful time. And thereupon it was adjudged, that he was not the son of Robert. Now the time, saith Lord Coke in that case, appointed by the law, at the furthest, is nine months, or forty weeks, but she may be delivered before that time (9). In the foregoing case, instead of the furthest lawful time, it might have been better to have said the common usual time. Or rather that the usual time is nine solar months and ten days (r). Mr. Hargrave, in his edition of Co. Lit. (s), has given a learned note on the case of Radwell, by which it appears that he languished of a fever a long time, and that he had not access to his wife for one month before his death; from which says the record præsumitur dictum Henricum esse bastardum. An excess of forty weeks therefore creates a presumption against the legitimacy of the issue, but is not conclusive. Lord Hale says, partus potest protrahi ten days, ex accidente (t). The maxim of the civil law, which is also adopted by Bracton, is, pater is est quem nuptiæ demonstrant (u). But it was requisite that the child should not be born till the seventh month after marriage (x). This rule was founded on the opinion of Hippocrates, who fixes the shortest time of gestation at six months and two days, or 182 complete days (y). The longest time was fixed at ten months. Post decem menses 1 Roll's Abr. 357. (p) God. 482. (g) 1 Inst. 123. (r) 1 Bac. Ab. 312. (s) 123 b. (t) Ib. (u) Dig. 2, 4, 5. (r) Dig. 1, 5, 12. (y) See Huber, Prælect. ad Pand. 1, 5, 4. Child born after Father's death. [123] mortis natus non admittetur ad legitimam hereditatem (z). Sande, an approved reporter of decisions in the court of Friezeland, discusses this question at large, and gives an instance of a child being decided to be legitimate which was born 333 days, or eleven solar months and three days, after the death of the father, who had been confined to his bed a fortnight before he died. The mother was a woman of excellent character; but the judges hesitated, and recommended a compromise to the parties, which not taking effect, the child was adjudged heir to the defunct (a). It is there said, that the ill state of the husband's health might be a cause why the child was not born within the ordinary time. This must be allowed to be a singular case; but the claim of the Countess of Gloucester, in Ed. 2, mentioned in the note above referred to, after a year and seven months, is more so; as also the dictum of Rolfe (b), that a woman may be ensient seven years, though his opinion in other respects is sensible. The learned editor above referred to put the following questions to the late Dr. Hunter. 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? Who answered them in the following manner: 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 (c). M. 7 Jac. Alsop and Bowtrell. Ejectment for lands in Munden in the county of Hertford. The question upon evidence to the jury was, whether Edmund Andrews dying the twenty-third of March, and his wife being with child, but not delivered until the fifth of January following (which was forty weeks and nine days, and then delivered of a daughter named Elizabeth) shall be reputed the father to the said Elizabeth, or that she were a bastard. For it was proved that he fell sick upon the twenty-second day of March, and died the day following, of the plague; and that Edmund Andrews, father of the said Edmund who was dead, in malice to his son's wife, did much abuse her, and caused her to be dislodged from places where she was harboured, and to lie in the cold streets; and that she was so used for six weeks together before her travail; and she being brought into a woman's house, who com (3) Paulus, Dig. 38, 16, 3, § penult. (b) 1 H. 6, 3 a. (c) Co. Lit. Ed. Harg. 130 b. miserated her case, having warmth and sustenance, was presently within twenty-four hours delivered of the said Elizabeth. And this being proved, and this misusage by five women of good credit, and two doctors of physic, viz. Sir William Paddy and Doctor Mundford, and one Chamberlaine, who was a physician and in nature of a midwife, upon their oath; they affirming that the child came in time convenient to be the daughter of the party who died; and that the usual time for a woman to go with child was nine months and ten days, to wit, solar months, that is thirty days to the month, and not lunar months; and that by reason of the want of strength in the woman or the child, or by reason of ill usage, [ 124 ] she might be a longer time, viz. to the end of ten months or more; the court held here, that it might well be as the physicians had affirmed. And the physicians further affirmed, that a perfect birth may be at seven months, according to the strength of the mother, or of the child, which is as long before the time of the proper birth; and by the same reason it may be as long deferred by accident, which is commonly occasioned by infirmities of the body, or passions of the mind. And so the court delivered to the jury, that the said Elizabeth, who was born forty weeks and more after the death of the said Edmund Andrews, might well be the daughter of the said Edmund (d). Births, and do. 10. The author of Fleta, who lived in the reign of Edward Supposititions II., hath a whole chapter about supposititious births; where he writ de Ven tells us, what remedy the right heir had in such case, viz. That tre inspiciena writ was directed to the sheriff, to cause the woman who pretended herself to be with child, forthwith to appear in the county court, there to be searched by discreet and lawful women. And if it was doubtful to them whether she was with child or not, then the sheriff might commit her to some castle, there to continue. And no woman with child was to come near her, until she should be delivered. And this writ was used above sixty years before the author of Fleta wrote, viz. in the 5 Hen. 3, when the widow of William Constable, of Manton, in Norfolk, was found guilty of this cheat. And in all probability it was of use in the Saxon times: for the form of the writ is, to command the sheriff to summon the woman to appear in the full county; as it is generally known, that all business of the law was then transacted in that court, where the bishop sate with the civil magistrate (e). But afterwards, when the courts at Westminster came to be established, then was the writ de ventre inspiciendo framed; by which the sheriff was commanded, that in the presence of (d) Cro. Jac. 541; Palm. 9, S. C., where it is said the wife was 66 un lewd et light damosel." [Cf. Le Marchant's Case of the Gardner Peer age, and the cases there cited.] twelve knights and so many women, he should cause examination to be made, whether the woman was with child or not; [125] and if with child, then about what time it would be born; and that he certify the same to the justices of assise or at Westminster, under his seal, and under the seals of two of the men present (ƒ). Instances of the Writ de ciendo. Mr. Hargrave, in the note above referred to (g), vindicates Ventre inspi- this proceeding from the charge of indelicacy; for though the jury consisted of men and women, the search was to be made by the latter only (h). The writ also lay for the heir, if a woman soon after the death of her husband married, and feigned herself with child by her first husband, but the proceedings under it were different (i). In the matter of Martha Brown ex parte Wallop, Eyre and Ashurst, lords commissioners, ordered the writ to issue against a married woman (whose husband had been near ten years abroad) on the application of a devisee in a will; there being a limitation in the will, that if she had a male child within forty weeks after testator's decease, it should take previous to the devisee: but the writ was ordered to lie in the office fourteen days; and if within that time Mrs. Brown chose to submit to an examination by two midwives, to be appointed by the petitioner, to inspect and examine by such examination as they should think necessary, whether she were pregnant; then the writ not to go till further orders; otherwise to issue (k). We have two instances of this writ in the books; the one in Easter term, in the 39 Eliz., which was thus: Percival Willoughby and Bridget his wife, one of the coheirs of Sir Francis Willoughby (because Sir Francis died seised of a great inheritance, having five daughters, whereof the eldest was married to Percival Willoughby, and not any son; and the said Francis leaving his wife Dorothy, who at the time of his death pretended herself to be with child by Sir Francis, which if it were a son, all the five sisters should thereby lose the inheritance descended unto them) prayed a writ de ventre inspiciendo out of the chancery, directed to the sheriff of London, that he should cause the said Dorothy to be viewed by twelve knights, and searched by twelve women in the presence of the knights, et ad tractandum ubera, et ventrem inspiciendum, whether she were with child, and to certify the same into the Court of Common Pleas; and if she were with child, to certify for how long time in their judgments, and when she would be delivered. [126] Whereupon the sheriff accordingly caused her to be searched, (ƒ) Nels, Rights of the Clergy, tit. writ was softened; with Mr. HarBastards. grave's note to Co. Litt. 8 b. (i) Co. Litt. ibid. (g) Co. Litt. 123 b. (h) See on this subject 2 P. Wms. 591, ex parte Ayscough, where the rigour of the proceedings under this (k) See the petition and affidavits in 4 Brown, Cha. Rep. 90. |