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.]
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.