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,[1] which period wants only three days of twelve lunar months. Sand. Decis. Fris. lib. 4. tit. 8. Definit. 10.
- ↑ The book here cited is a collection of adjudications in the supreme court of Friesland. The author was Johannes a Sande, who was himself a senator of that court. An improved edition of the book came out in 1656. The particular case above cited was adjudged 27th October, 1617. What increases the latitude of the decision for the legitimacy is, that the husband was for some time a valetudinarian, and for 14 days before his death confined to his bed. The book being probably rare amongst English lawyers, and the arguments in the case comprising very ancient and curious research in a moderate compass on the ultimum tempus pariendi for women, the whole of Sande's report of the case will be given in a note at the end of the present article.
