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_.