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.