- mon 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 legitimancy, 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 extroardinary 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 authorites, 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
