_Mich. Term. 1821, C. B._
Severn _v._ Olive.
Mr. Serjeant _Lens_ appeared to show cause against a rule obtained in
this case. The case arose out of the well-known one of Messrs. _Severn_,
_King_, and Co., sugar-refiners, against some of the Insurance
Companies, for losses sustained in the destruction of their extensive
premises, near Whitechapel. It will be recollected, that in the two
trials which arose out of that event, a great number of scientific men
were examined on both sides as to the result of experiments made by them
in the process of boiling sugar by means of heated oil. The verdict in
both cases, as is known, was for the plaintiffs. In the bill of costs,
sent in to the defendants, charge was made for the attendance of the
learned chymists, who gave evidence for the plaintiffs, and also for
their loss of time and trouble in making those experiments. Other
charges were made for the expense of the experiments themselves. The
prothonotary who taxed the costs allowed both the charges in principle,
though not to the extent set down in the bill. It was in consequence of
having made those allowances that a rule had been granted to show cause
why he should not review his taxation of costs.
Mr. Sergeant _Lens_, in showing cause against the rule, contended that
the allowance for loss of time to Dr. _Thomson_ was a very natural and
just one. Dr. _Thomson_ was Professor of Chymistry in the University of
_Glasgow_, and had been obliged to come up to _London_ three times, at
considerable inconvenience and expense, to give evidence in the case. He
had been at great trouble in making and superintending experiments, and
the prothonotary, in taking the costs, had allowed a reasonable sum for
the whole. It was the same in the cases of the other scientific
gentlemen who attended.
The Prothonotary here observed, that he considered the allowance for
expenses and loss of time of Dr. _Thomson_ and other gentlemen as very
just. It was usual to allow for loss of time in such cases.
The CHIEF JUSTICE said, that in certain cases allowances were made for
loss of time, and the question here was, how far the present case came
within the rules of those allowances. As a general principle, allowances
to witnesses for loss of time could not be maintained. No doubt it was a
great inconvenience, that individuals whose business required their
whole time should be obliged to devote part of that time to the concerns
of others without reward; but it was an inconvenience to which all were
equally subject in turn; and as it was to answer the ends of public
justice, it ought to be borne. As to allowance for loss of time, he
considered the thing decided by the case of _Willis_ v. _Peckkan_ (4th
_Moore_). An action had been brought in that case to recover 3_l._ for
loss of time whilst giving evidence in a case. It was contended for the
defendants that no such action could be maintained, except by medical
men and attornies. The court was of the same opinion; but the jury,
nevertheless, found a verdict for the plaintiff. In the following term a
motion was made to have the verdict set aside and a nonsuit entered. The
court, after hearing the arguments on both sides, decided that a nonsuit
must be entered; and further held, that only medical men and attornies
could charge for loss of time, as witnesses. The matter was settled,
before, in the Court of King’s Bench, in the case of “_Moore_ v.
_Adam_.” The court were therefore of opinion, that as far as this
allowance for loss of time, the taxation should be reviewed.
Mr. Sergeant _Lens_ then proceeded to other parts of the rule, and
contended that the apportioning of the costs between the Phœnix and
Imperial Insurance was the fairest mode which could be adopted, as each
had two actions, though they were not all tried, and the evidence in
each was the same.
The _Chief Justice_ asked how much the expense of the experiments made
amounted to.
The Prothonotary said that all the items were so mixed up, that it would
be impossible to ascertain at that moment.
The _Chief Justice_—It is important that the charge for experiments
should be known. The opinion of men of science is received as evidence,
because it arises from pre-existing science; but surely, as in the
present case, they ought not to acquire their knowledge at the expense
of the parties against whom their evidence is to weigh.
Mr. Sergeant _Vaughan_, on the same side with Sergeant _Lens_, submitted
that it could never have been intended that men should not be allowed
some recompense for loss of time. It would be not only an injustice, but
a cruelty in many cases, if such a principle were to be adopted. Indeed,
the principle was constantly departed from, in cases where the time of
individuals had been a good deal engaged. In the case of _Lopez_ v. _De
Tastet_, the evidence of a Spanish captain of a ship was taken, and it
caused him to delay a considerable time in town, and in the taxing of
the costs a round sum was very properly allowed by the prothonotary,
which, no doubt, was meant not merely to cover his expenses in town, but
to compensate him for the loss of time.
The _Chief Justice_.—We had a consultation, not long since, in a
well-known case, and in another place, whether the profits of a voyage
should not be allowed for, and as to whether a certain sum given to a
captain of a ship should be looked upon as compensation for loss of
time, or in the light of a bribe.
Mr. Sergeant _Vaughan_ said he knew the case to which his lordship
alluded. He went on to say, that the prothonotary had not made any
specific allowance for loss of time as such, but had mentioned one sum
for trouble, expense, and loss of time. As to the costs of the
experiments which had been made, he submitted that in a case where the
subject was quite new, and as they were not made wantonly or with a view
to put a party to unnecessary expense, the costs of them ought to be
allowed. They were made _bona fide_ for this case; the materials and
apparatus were also provided with reference to the present case alone.
Under such circumstances, he submitted that they ought to be allowed;
and he ought to add, that their affidavits set forth, that the
experiments were made in consequence of its being known that similar
experiments were made on the other side.
Mr. Sergeant _Taddy_ followed on the same side, and observed, that while
he admitted the general principle that expenses were not allowed for
loss of time, except to physicians and attornies, he could not see why
scientific men, such as chymists, should not be brought under the same
rule as physicians.
The _Chief Justice_.—For this reason, that to a physician loss of time
is considered as loss of profit. A physician cannot visit a patient by
deputy, as the patient might not have the same confidence in that person
as in that physician, and this I take to be the reason why the loss of
time is allowed. For reasons similar in principle the loss is also
compensated in the attorney.
Mr. Justice _Park_.—Suppose a clergyman, living in Cumberland, were
summoned to give evidence in a case in London, and that being delayed
here for two or three weeks, he was obliged to employ a curate to
officiate in his absence, have you any case where that expense would be
allowed?
The Prothonotary.—Invariably the expenses would be allowed, my Lord.
Mr. Justice _Park_.—I am glad to know it, for I was not aware how the
case was.
Mr. Sergeant _Taddy_ then proceeded to contend, that with respect to the
cost of the experiments, as they were not made for the purposes of
general science, but had reference to this case alone, they ought to be
allowed. Indeed, they were made by a sort of compact with the other
side. They (the defendants) themselves seemed anxious that such
experiments should be made. They declared that they would make them, and
they invited the plaintiffs to make them also.
The _Chief Justice_.—How much was the amount of the property insured?
Mr. Sergeant _Lens_ replied that it was upwards of 70,000l.
The _Chief Justice_.—I think (whether the cost of experiments be allowed
or not) it was right, in a case of such importance, that they should
have been made; but I wish it could be shewn to me whether there was any
compact between the parties for making them.
Mr. Sergeant _Hullock_, who appeared for the defendants, here observed
that he knew of no compact of that nature.
Mr. Sergeant _Taddy_.—I do not say, my lords, that there was a positive
compact; but I remember that, when the motion for a new trial was argued
before your lordships, one of the arguments used in support of the
motion by the defendants’ counsel was, that a sufficient number of
experiments had not then been made. Surely, then, it will not be
contended that there was not an inducement to the plaintiffs to make
those additional experiments for which they now claim to be allowed.
Mr. Justice _Burrough_.—There was no contract.
Mr. Sergeant _Taddy_.—None, my lord; but they challenged us to make the
experiments. We have done so; and I submit to your lordships that the
verdict being for us, we ought to charge them with the full costs.
Mr. Sergeant _Hullock_, in support of the rule, contended that the case
of _Lopez_ and _de Tastet_, which had been quoted by his learned brother
(_Vaughan_), was not in point, nor did it bear the interpretation which
had been given to it. As to physicians, he had some doubt whether in
strict law even they ought to be allowed for loss of time as such, for
how was the rule of expenses to be settled? One physician whose practice
was extensive, might charge fifty guineas a day, while another might be
satisfied to go to Guildhall for five; so that there could be no settled
rule. He thought also, though he did not at all mean it invidiously,
that the plaintiffs need not have sent to the great distance they had
done for witnesses, while they could have got others of equal skill
nearer home. If the principle were to be admitted, a man might send to
_Calcutta_ for witnesses for scientific purposes, and charge the
expenses of the voyage here and back. At the same time he did not mean
to object to Dr. _Thomson_, who he had no doubt was an extremely clever
man. The learned Sergeant then went through various items in the bill,
several of which, he contended, his clients ought not to be called upon
to pay. There was one item of 205_l._ for a model of the premises. Why,
if, as had been suggested, they had built a model of exactly the same
size as the original, they might as well charge the price of it, as
250l. for a model. There was another item of 213l. for loss of time,
trouble, and expenses, in making experiments, to S. Parkes, esq. Of this
the prothonotary had deducted 99l., but then it was not stated what sum
was for loss of time, what for the trouble, and what for the expenses.
It was the same with the charges to several other gentlemen. Now he
objected to any thing being allowed for loss of time, and in that case
he was satisfied the case ought to be reviewed. With respect to the
costs of the experiments, he apprehended that the best answer had been
given by the court. In no case that he heard of before this were they
charged.
The _Chief Justice_ asked what was the rule in patent cases.
The Prothonotary said that in all such cases a reasonable sum was
allowed.
Mr. Sergeant _Hullock_ proceeded. There was another ground on which he
thought the experiments ought not to be charged. Either there had been
several experiments made before the new method was adopted, or there had
not. If there had, no additional experiments were necessary on the late
trials. If there had not, the plaintiffs had rashly made the risk, and
ought not to recover now.
The _Chief Justice_.—You forgot, brother _Hullock_, that this was a
patent.
Mr. Sergeant _Hullock_.—That, my lord, strengthens my argument, for in
that case it must have been so well known, as not to need any additional
experiments. The learned Sergeant was proceeding to contend that the
division of the costs equally between the two insurance companies was
not the most proper one; but the court thought that such an arrangement
would best meet the justice of the case. There were two insurance
companies in the case, in each of which two policies had been effected,
and two actions commenced; and though all the actions were not tried,
yet as the same evidence went to all, it was but just that each office
should bear a moiety of the costs.
The arguments being closed on both sides, the _Chief Justice_ asked
whether physicians were allowed for loss of time as witnesses?
The Prothonotary replied, that they were always allowed.
The Court then wished to be informed, whether there was a particular
scale of allowance, for it was not to be supposed that such an eminent
physician as Dr. _Baillie_ would be allowed according to the extent of
his practice.
The prothonotary said certainly not. There was an average allowance, and
by that the most eminent physician received only the same sum as the
physician who had got his diploma but the day before.
The _Chief Justice_.—What sum would you allow?
The Prothonotary.—My lord, since the allowance has been raised to
barristers, we have raised physicians to the same rank, and they are
allowed the same—two guineas per day.
The _Chief Justice_.—But do barristers take the allowance?
The Prothonotary.—In some cases, my lord, it is allowed.
The _Chief Justice_ (after consulting for a short time with the other
Judges) said we shall not say any thing more upon this, than that it
must be referred back to the master to revise the costs, and that the
experiments are not to be allowed: nor is allowance to be made for loss
of time as such; but let it be understood that physicians are to be
allowed as usual.
The Prothonotary begged to know how he was to reckon physicians, was it
by diploma?
The Court said by practice. It was not to be expected that a physician
was to take his diploma about in his pocket.
The Prothonotary again begged to trouble their lordships. There was
another class of persons who were frequently allowed much more than any
professional men—he meant surveyors. Sometimes very high charges were
made for them. For instance, the late Mr. _Rennie_, who was summoned as
a witness in the present case: his time was of the utmost value, as was
that of others of eminence in that branch of science. He wished to know
how they were to be allowed.
The _Chief Justice_.—We can know no distinction here. The time of such
gentlemen as the late Mr. Rennie must no doubt be extremely valuable to
them, but that of a poor man is equally valuable to him, and perhaps
more so; for though the amount might not be as great, yet the support of
his family might be depending on it.
Rule made absolute; and it was further ordered, that a moiety of the
taxed costs should be paid by each of the Insurance Offices in question.
There was another case of “_Severn_ v. _Slade_,” turning exactly on the
same point, which was not argued, as of course the same decision will
apply to it.
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 adverted to are in Co. Litt.
123. b. and are in these words. “It was found by verdict, that Henry the
son of Beatrice, which was the wife of Robert Radwell deceased, was born
_per undecim dies post ultimum tempus legitimum mulieribus constitutum_.
And therefore it was adjudged, _quòd dictus Henricus dici non debet
filius prædicti Roberti secundùm legem et consuetudinem Angliæ
constitutus_. Now _legitimum tempus_ in that case appointed by law at
the furthest is nine months or forty weeks: but she may be delivered
before that time. Which judgment I thought good to mention. And this
agreeth with that in Esdras: _Vade et interroga prægnantem si quando
impleverit novem menses suos, adhuc poterit matrix ejus retinere partum
in semetipsâ? et dixi non potest, Domine_.” In the margin of the last
passage of this extract from Co. Litt. 123. b. there is a reference to 4
Esdras 4. 41. and Panciroll. Nova Reporta, pag. 485, &c.
These two extracts from Co. Litt. 8. a. and 123. b. are here given as an
introduction to the following article, which consists of two notes by
the author in the first part of the 13th edition of the Coke upon
Littleton, being the author’s part of that edition, and the first
attempt at editing that ever to be valued work with notes.—Both the
notes are on the second of the two preceding extracts from the Coke upon
Littleton.—The first of the two notes chiefly relates, to the special
case of a widow’s marrying a second husband, and being delivered of a
child so soon after the death of her first husband, as to raise a doubt,
which of the two husbands should be considered as the father: and so far
such note applies as well to the case so put in Co. Litt. 8. a. from the
year-book of 21 E. 3. 39. as to the case in 18 E. 1. so stated in Co.
Litt. 123. b. from the king’s bench record of that year.—The second of
the two notes relates to the general point as to the ultimate legitimate
time for a woman’s parturition.
Further as to the following article, it is proper to apprize the reader,
that, exclusively of what is now added by 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
account for the protraction of the birth, and in favour of the wife’s
chastity, had occurred, the judgment might have been for the legitimacy.
So far we had advanced, when on looking into Rolle’s Abridgment, 536. we
found the same ancient case of Radwell more at large, than either in
Lord Coke or Lord Hale.
But Rolle agrees with Lord Coke, as well in respect to the record’s not
mentioning the _forty weeks_, as to its stating the birth to be eleven
days after the _latest time in law for a woman’s going with child_; and
as from Rolle’s particularity he seems to have most minutely attended to
the record, his authority, till the whole record appears, seems most
decisive.
However the two last particulars, in which Lord Coke differs from Lord
Hale, still remain, to which Rolle adds these further circumstances:
namely,—that the _husband languished of a fever a long time before his
death_;—that on the taking of an inquisition afterwards in the court of
a lord, of whom he held lands by knight’s service, _the wife swore she
was not pregnant_, and to prove it uncovered herself in open court;—and
that, in consequence of all this, the lord received a _collateral_
relation as heir. The words describing the wife’s exposure of her person
are remarkable; for the record states, that she, being interrogated,
_juramento asserebat, se non esse prægnantem; et, ut hoc omnibus
manifestè liqueret, vestes suas ad tunicam exuebat, et in plená curiá
sic se videri permisit_. 1 Ro. Abr. 356. pl. 3. and 18 E. 1. rot. 13. in
B. R. there cited. It reflects great discredit, on the lord’s court,
which permitted such a gross indecency; and still more on the king’s
judges, who suffered it to be recorded as one of the grounds for a
verdict before them. How laudably contrariant is the proceeding on the
writ _de ventre inspiciendo_? This remedy for the heir against the
pretence of pregnancy, so well known to be of earlier date than the
reign of Edward the first, as it was framed in the times of Bracton,
Britton, and Fleta, delicately requires the widow to be inspected by a
jury _of her own sex_; and though in subsequent times the sheriff was
ordered to summon a jury composed both of men and women, yet still the
_search_ was to be made by the latter only. Bract. 69. a. Brit. 165. b.
Flet. lib 1. c. 15. Reg. Br. Orig. 227. a. What harsh ideas of the times
might we be led to adopt, if the early introduction of the writ _de
ventre inspiciendo_ did not demonstrate, that the unseemly record we are
observing upon was a _singularity_, and so many other testimonies of a
more advanced refinement in judicial proceedings did not concur to
rescue the age of our English Justinian from the suspicion of a _general
practice_ of such barbarism!
Let us then suppose the record to be as it is in Rolle; which is the
more probable to be the truth, because a contemporary judge, who reports
its having been _produced_ on a trial of legitimacy, represents it much
in the same way. Cro. Jam. 541. But still it will not warrant Lord
Coke’s inferring from it, that _forty weeks_ constitute the latest time
the law allows for a woman’s going with child. On the contrary, no
particular time being mentioned, what period was meant, must be found
out through some other _medium_; and as the record states _other_
unfavourable circumstances besides the excess of time, and that the
_jury presumed_ against the child’s being the issue of the deceased
husband, it seems fair to suppose, that the law was understood, not to
be so strict in the time alluded to, whatever that time might be, as
indiscriminately to condemn as illegitimate all children not born within
it, but rather to consider every excess, unless very extraordinary
indeed, as only raising a presumption against them. This construction is
clearly most consistent with the terms of the record in question. In the
next note we shall attempt to satisfy the reader, that the rule
resulting from it is most conformable to other precedents and
authorities, as well as to the reason of the thing.
After the case of Radwell from the Record of E. 1. Lord Hale thus gives
the four following cases.
“Rot. Parl. 9 E. 2. M. 4. Gilbert de Clare comes Glouc. obiit 30 Junii 7
E. 2. In parliamento tent. quindena Hil. 9 E. 2. _the sisters and
coheirs pray livery. Matilda_, quæ fuit uxor comitis, _pretends to be
big by the earl, which was accordingly found_ per inquisitionem. _The
coheirs reply, that_, si comitissa prægnans esset, tantum tempus elapsum
est, ut secundum cursum pariendi non potest dici imprægnari a comite.
_Yet they could not obtain livery till_ Pasch. 10 E. 2. _but the
question hung in deliberation_.
“Note 18 R. 2. _where a woman in such a case immediately after the death
of the first husband took a second husband, and had issue born forty
weeks and eleven days after the death of the first husband, and it was
held to be the issue of the second husband_.
“M. 17. Jac. B. R. _Alsop and Stacey. Andrews dies of the plague. His
wife, who was a lewd woman, is delivered of a child forty weeks and ten
days after the death of the husband. Yet the child was adjudged
legitimate and heir to Andrews; for_ partus potest protrahi _ten days_
ex accidente.
“M. 4. Car. in Cur. Ward, _and afterwards_ P. 5. Car. B.R. _Thecar
marries a lewd woman; but she doth not cohabit with him, and is
suspected of incontinency with Duncomb: Thecar dies: Duncomb within
three weeks after the death of Thecar, marries her: two hundred and
eighty-one days and sixteen hours after his death she is delivered of a
son. Here it was agreed, 1. If she had not married Duncomb, without
question the issue should not be a bastard, but should be adjudged the
son of Thecar. 2. No averment shall be received that Thecar did not
cohabit with the wife. 3. Though it is possible, that the son might be
begotten after the husband’s death, yet, being a question of fact, it
was tried by a jury, and the son was found to be the issue of Thecar._”
Lord Hale’s case of E. 2. appears very extraordinary, the time from 30
June from 7 E. 2. when the Earl of Gloucester died, to the _quindene_ of
Hilary, or 29 Jan. 9 E. 2, when the livery to his sister was further
postponed in parliament, being _within one day of a year and seven
months_; which is a much later date for the delivery of a live child,
than the most liberal in their calculations have hitherto assigned.
However, on reading the printed copy of the original record, in the
rolls of parliament lately published, we find Lord Hale’s note quite
accurate. See Rot. Parl. v. 1. p. 353.—As to the case of R. 2. it
confirms the doubt we have elsewhere stated of the opinion, that, if a
widow marries again and has a child within nine months after the death
of the first husband, the child may choose his father; and is an
authority for deciding according to the proof of the woman’s condition
when her first husband died. Ante fo. 8. a. note 7. Terms of the Law,
first edit. tit. _Bastard_, and Cowel Inst. lib. 1. t. 9.—Lord Hale’s
two other cases are reported in several books, Alsop and Stacey being in
Cro. Jam. 541. Godb. 281. Palm. 9. 1 Ro. Abr. 356. and Thecar’s in Cro.
Jam. 685. Winch. 71. Litt. Rep. 177.[179]
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._
“Vir aliquamdiu valetudinarius, et per quatuordecim dies ante mortem
lecto affixus, ex hac vita migravit die decimo Augusti, Anno 1631,
relictâ uxore, quæ nono mensis Julii die anno insequenti peperit filiam,
ita ut à die obitûs viri effluxerint dies naturales tricenti et triginta
tres, qui efficiunt menses solares completos undecim cum tribus diebus,
vel lunares ferè duodecim, sive annum integrum lunarem ab eo momento,
quo vir animam reddidit. Quæsitum, an hæc filia legitima et ad
successionem istius viri admittenda sit.
“Inter Medicos et Physicos constat, quamvis hominis nascendi tempora
sint varia, illa tamen ad certos limites revocari. Aristoteles enim
_lib._ 7. _histor. animal._ ait, soli homini multiplex pariendi tempus
datum: nam et septimo mense, et octavo et nono parere potest, et quod
plurimum, decimo: nonnullas etiam mulieres undecimum mensem attingere.
His conveniunt, quæ Plinius _lib._ 7. _natur. hist cap._ 5. scribit,
nonnullas etiam mulieres undecimum mensem attingere.
“Secundùm ordinarium igitur naturæ cursum, decimus mensis completus est
extremus pariendi terminus. Undè Author libri Sapientiæ _cap._ 7. v. 2.
_In utero_, inquit, _matris figuratus sum raro tempore decem mensium_.
Et Plautus _in Cistelaria_ refert, puellam compressam exacto decimo
mense filiam peperisse. At Authores fidei digni referunt exempla
mulierum, quæ undecimo, duodecimo, decimo tertio, et ulteriore mense,
pepererunt, ut A Gellius 8. _noct. attic._ 16. Plinius _lib._ 7. _natur.
histor. cap._ 5. Avicenna _lib._ 9. _de animal_. Et Albericus Gentilis
_disputat._ 1. _de nascendi tempore_ hæc celebris Medici Victoris
Trincavelli _ex epist._ 5. verba recitat. _Auctores_, inquit, _multi et
illi quidem viri omni exceptione majores, tam antiqui, quam juniores,
attestuntur huic sententiæ, nempe repertas esse mulieres indubitatæ
probitatis et pudicitiæ, quæ fœtum in utero gesserint ad undecimum
mensem et ultra_. Cujus diuturnioris gestationis caussas varias nonnulli
Medici reddunt, ut videre est in consilio primo Monsbelianorum
Medicorum, quod extat apud Gerard. Maynard. _lib._ 3. _decis. Tholos._
4. Alii tamen Medici non adhihent fidem his exemplis, eaque malunt
proficisci ex phantasia et imaginatione mulierum, quæ opinantur ex
diversis accidentibus se ultra tempus ordinarium gestare fœtum, cum
tamen res aliter se habeat, ut apparet ex concilio Medicorum secundo,
quod refertur a Maynardo d. loco. Minimè igitur de hac quæstione
convenit inter ipsos Medicos. Illud certum est, casus istos mulierum,
quæ post decimum mensem peperisse dicuntur, si veri sunt, esse
nihilominus raros et extraordinarios, idcirco eorum non haberi rationem
à Legislatoribus, qui contemnunt quæ semel bis aut perraro accidunt, et
ad ea jus aptant, quæ frequenter et facilè eveniunt _l. nam ad ea 5. et
l. seq. ff. de legib. l. ea quæ raro 64 ff. de reg. jur._ et idcirco
legitimum et extremum pariendi terminum constituunt decimum mensem
completum. Quod jus primum proditum est lege 12 Tabularum ubi Decemviri
ita ajunt, _Ut si qua mulier post viri mortem in decem mensibus proximis
pareret, qui quævè ex ea nasceretur, suus suavè in viri familia heres
esset_. Et Testatores dicere solebant. _Si filius et filia intra decem
mensium spacium, post mortem meam editi fuerint, heredes sunto l. ult.
C. de postum. hered. instit. l. ult. ff. de fideicommiss. libert. l.
Gallus 29. in pr. ff. de liber. et postum._ Ac Ulpianus ut de jure certo
_in l. 3 § penult. ff. de suis et legit. hered._ respondit his verbis,
_post decem menses mortis natus non admittetur ad legitimam
successionem_. Augustinus _lib_. 1. _quæst. Evangelic. ita ait._ Quod
dicuntur decem menses pregnantis, novem sunt pleni, sed initium decimi
pro toto accipitur. Hos decem menses ex instituto Græcorum, a quibus
Decemviri leges suas acceperunt, non solares, sed lunares fuisse probat
Fr. Hotomannus _lib._ 9. _obs._ 9. Nec Ulpiano obloquitur Justinianus in
_Novell._ 39. dum negat sub finem undecimi mensis vel perfecto undecimo
natum esse legitimum: nam indé à contrario sensu ad correctionem
Ulpianei responsi malè inferretur natum initio undecimi mensis esse
legitimum ut animadvertit etiam Albericus Gentilis _d. Disp._ 1. Sanè in
Dicastetrio Wittenbergensi anno 1567. partum pronuntiatum fuisse
legitimum, quam mulier, quæ honestè vixerat, post obitum mariti
pepererat in initio undecimi mensis, referunt Ioachimus à Beust in
tract. de matrimonio _cap._ 36. _in fin. et ad. l._ 3. _ff. de jurejur.
num._ 36. ac Andreas Rauchbaert, _part._ 1. _quæst._ 24. _num._ 53. Unde
Conradus Riddershusius _in comm. ad Novell. Const. part._ 4. _cap._ 13.
a Justinianeo jure moribus recessum existimat. Quod non est admittendum.
Illud notatu dignum, quod ex Theodoro Zuingero Medico refert Hotomannus
_d. obs._ 9. mulieres nempe dum dimidiatum mensem pro integro computant,
sæpe opinari, se undecim menses uterum gestare, cum tamen septem tantum
quadragenas dies scilicet 280. compleverint. Jure igitur nostro partus
habetur legitimus, qui intra et non post decem menses a morte viri
editus est. Confer Iacobum Cujacium _ad d. Novell._ 39. _in tract. de
præscript. cap._ 19. _et lib._ 4 _recept. sent. Iulii Pauli cap._ 9. §
5. Andream Tiraquellum _in repetit. l. si unquam_ 8. _in verb. Suscepit
liberos C. de revocand. donat._ Iacobum Menochium _lib._ 2. _de arbit.
judic. cas._ 89, _num._ 47. 48. & 52. Ioachimum Mynsing. _cent._ 6.
_obs._ 4. Franciscum Hotomannum _lib._ 9. _obs._ 9. Gerardum Maynard.
_lib._ 4. _decis. Tholos._ 3. 4. Iacobum Concennatium, _lib._ 2. _quæst.
jur. cap._ 9. Casus illos raros et extraordinarios ad facti quæstionem,
id est, ad Indicis, ut noni viri arbitrium, redigendos esse dicit
Hotomannus _d. obs._ 9. _in fin._ Et hanc inter ordinarios et
extraordinarios partus differentiam esse ait Gentilis, quòd illi justi
habeantur, nisi probentur injusti, hi injusti censeantur, donec justi
fuerint approbati.
“In hac specie partitæ erant Iudicum sententiæ. Quidam enim censebant
juris definitioni hic esset insistendum, cum partus editus sit mense
duodecimo ferè completo, si menses his accipiamus lunares, et vir ante
obitum quatuordecim dies graviter decubuerit, ideoque credibile non
fuerit eum de vene exercenda cogitasse. Alii (qui numero vincebant)
judicabant partum legitimum, quòd mulier esset probatis moribus ac
pudicitiâ minimè suspectâ, quòd etiam ex marito quantumvis ægroto
concipere potuerit, tardiorisque partus caussam ex Hippocratis sententia
esse potuisse, quod viri infirmi semen fuerit humidius et excrementosius
eoque minus concoctum. Senatus tamen expedire censuit, ut partes ad
transigendum monerentur. Transactione autem non succedente, partus
frequentioribus suffragiis declaratus fuit legitimus, et patri
heres.[181].”
------------------------------------
The learned author of these notes, Francis Hargrave, one of the King’s
Counsel, died while our work was at press: the profession have lost a
most profound and erudite lawyer; the learned, an elegant scholar; and
his friends, a man whose amenity of manner and kindness of heart
surpassed the ordinary bounds of human benevolence.
APPENDIX.