Page:Medical jurisprudence (IA medicaljurisprud03pari).pdf/433

 note at the bottom of the page, it was first published about 30 years ago.]

TWO NOTES, &c.

I. Note as to Lord Coke's cited Legitimacy Case of Radwell, in 18 E. 1.

Lord Hale, in a manuscript note about legitimacy in Co. Litt. fol. 8. a. gives a fuller extract of this case of 18. E. 1. from the record than is here expressed. His words are these.

"Trin. 18 E. 1. Coram rege, rot. 13. Bedford, et M. 22, 23 E. 1. rot. 2. In assise by John Radwell against Henry son of Beatrice, who was wife of Robert Radwell, quia compertum est, quòd dictus Henricus fuit natus per 11 dies post 40 septimanas, quod tempus est usitatum mulieribus pariendi, ex quo prædictus Robertus non habuit accessum ad prædictam Beatricem per unum mensem ante mortem suam, præsumitur dictum Henricum esse bastardum, ideo judgment for the plaintiff."

If this state of the case is correct, Lord Coke's is erroneous in several particulars of consequence.—1. He is short in not expressing, that the record mentions forty weeks, and so leaving it to be deemed an inference of his own, as which it hath been accordingly treated.—2. He exceeds the record, by representing it to stile that time the latest for a woman's going with child, when the record only calls it the usual period.—3. He wholly omits the husband's having had no access to his wife for one month before his death; a fact very material, it being very easy to allow eleven days after the usual time, but requiring a strong case to warrant extending such liberality to nearly six weeks.—4. The word præsumitur, which Lord Coke passes over, is of importance; for it indicates, that, notwithstanding the great excess of time, it was conceived to create only a presumption for the bastardy, and consequently, if very cogent circumstances to