Page:Medical jurisprudence (IA medicaljurisprud03pari).pdf/431



Two Notes on the Legal Time for Human Birth.

(From Hargrave's Jurisconsult Exercitations)

[Lord Coke, in his Commentary upon Littleton, fol. 8. a. considers, who may inherit lands or tenements; and about the close of his remarks on that head, introduces the case of a woman brought to bed of a child, so as to raise a question whether the child was by her deceased first husband or by her second husband. His words are, "If a man hath a wife and dieth; and within a very short time after the wife marries again, and within nine months hath a child, so that it may be the child of the one or the other, some have said that in this case the child may choose his father, quia in hoc casu filiatio non potest probari; and so is the book to be intended: for avoiding of which question and other inconveniencies, this was the law before the conquest, sit omnis vidua sine marito duodecim mensibus, et si maritaverit perdat dotem." In the margin also of the same book, he thus refers to authorities, "21 E. 8. 39 Pancirollus Nova Rep. 485, &c. Opus eximium, 48. b. Lambard de priscis Anglorum Legibus, 120. 72, &c." and as to the year-book of E. 3. so cited, it shews, that the doctrine, of allowing the infant to choose which of the two husbands should be his father in the case so put, was attributed to Sir William de Bereford, who was made chief justice of the common pleas early in 2 E. 2.

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 ad