than ordinarily legitimate; for he may, when he arrives to years of diſcretion, chooſe which of the fathers he pleaſes[1]. To prevent this, among other inconveniences, the civil law ordained that no widow ſhould marry infra annum luctus[2]; a rule which obtained ſo early as the reign of Auguſtus[3], if not of Romulus: and the ſame conſtitution was probably handed down to our early anceſtors from the Romans, during their ſtay in this iſland; for we find it eſtabliſhed under the Saxon and Daniſh governments[4].
As baſtards may be born before the coverture or marriage ſtate is begun, or after it is determined, ſo alſo children born during wedlock may in ſome circumſtances be baſtards. As if the huſband be out of the kingdom of England (or, as the law ſomewhat looſely phraſes it, extra quatuor maria) for above nine months, ſo that no acceſs to his wife can be preſumed, her iſſue during that period ſhall be baſtard[5]. But, generally, during the coverture acceſs of the huſband ſhall be preſumed, unleſs the contrary can be ſhewn[6]; which is ſuch a negative as can only be proved by ſhewing him to be elſewhere: for the general rule is, praeſumitur pro legitimatione[7]. In a divorce a menſa et thoro, if the wife breeds children they are baſtards; for the law will preſume the huſband and wife conformable to the ſentence of ſeparation, unleſs acceſs be proved: but, in a voluntary ſeparation by agreement, the law will ſuppoſe acceſs, unleſs the negative be ſhewn[8]. So alſo if there is an apparent impoſſibility of procreation on the part of the huſband, as if he be only eight years old, or the like, there the iſſue of the wife ſhall be baſtard[9]. Likewiſe, in caſe of divorce in the ſpiritual court a vinculo matrimonii, all the iſſue born during the coverture are baſtards[10]; becauſe ſuch divorce is always upon ſome cauſe, that rendered the marriage unlawful and null from the beginning.
