paration for the offence, by marrying within a few months after, our law is ſo indulgent as not to baſtardize the child, if it be born, though not begotten, in lawful wedlock: for this is an incident that can happen but once; ſince all future children will be begotten, as well as born, within the rules of honour and civil ſociety. Upon reaſons like theſe we may ſuppoſe the peers to have acted at the parliament of Merton, when they refuſed to enact that children born before marriage ſhould be eſteemed legitimate[1].
From what has been ſaid it appears, that all children born before matrimony are baſtards by our law: and ſo it is of all children born ſo long after the death of the huſband, that, by the uſual courſe of geſtation, they could not be begotten by him. But, this being a matter of ſome uncertainty, the law is not exact as to a few days[2]. And this gives occaſion to a proceeding at common law, where a widow is ſuſpected to feign herſelf with child, in order to produce a ſuppoſititious heir to the eſtate: an attempt which the rigor of the Gothic conſtitutions eſteemed equivalent to the moſt atrocious theft, and therefore puniſhed with death[3]. In this caſe with us the heir preſumptive may have a writ de ventre inſpiciendo, to examine whether ſhe be with child, or not[4]; and, if ſhe be, to keep her under proper reſtraint, till delivered; which is entirely conformable to the practice of the civil law[5]: but, if the widow be upon due examination found not pregnant, the preſumptive heir ſhall be admitted to the inheritance, though liable to loſe it again, on the birth of a child within forty weeks from the death of the huſband[6]. But if a man dies, and his widow ſoon after marries again, and a child is born within ſuch a time, as that by the courſe of nature it might have been the child of either huſband; in this caſe he is ſaid to be more
- ↑ Rogaverunt omnes epiſcopi magnates, ut conſentirent quod nati ante matrimonium eſſent legitimi, ſicut illi qui nati ſunt poſt matrimonium, quia eccleſia tales habet pro legitimis. Et omnes comites et barones una voce reſponderunt, quod nolunt leges Angliae mutare, quae hucuſque uſitatae ſunt et approbatae. Stat. 20 Hen. III. c. 9. See the introduction to the great charter, edit. Oxon. 1759. ſub anno 1253.
- ↑ Cro. Jac. 541.
- ↑ Stiernhook de jure Gothor. l. 3. c. 5.
- ↑ Co. Litt. 8. Bract. l. 2. c. 32.
- ↑ Ff. 25. tit. 4. per tot.
- ↑ Britton. c. 66. pag. 166.
