It is impossible indeed in the nature of things that this difference should not occur, since females usually calculate from the time when the menses disappear, and pregnancy may occur at any period between the interval. In particular cases also, where the menstrual function is irregular or disordered, the danger of mistake is increased, and undoubtedly we may add to these, the variety that occurs in the period of quickening. This is uncertain, yet it is much relied upon by females, and considered a proper era from which a calculation may be dated.(c)

When the way in which married people commonly live together is considered, having constant access and frequent intercourse with one another, it is obvious that medical men have not an opportunity of knowing exactly the time when conception commenced, and consequently it is utterly impossible for them to know exactly the pregnancy. Medical men however in large practice meet with cases in which the time of conception is accurately known, and therefore the length of pregnancy is actually known, and such cases have led them to the conclusion that their calculation is exceedingly accurate, and the period of gestation as nearly as possible nine calendar months, sometimes a day or two before, sometimes a day or two beyond.(d) This period was allowed on both sides as constituting the ordinary ultimate range in a case in which the subject was matter of judicial investigation by the house of lords. (e) This part of the subject will be dismissed with a quotation from an eminent author on medical jurisprudence.(f) "The natural duration of the time of pregnancy or gestation is thirty-nine weeks and one day, or nine calendar months; and the only difficulty or uncertainty in general is the time *from which this period begins to run. If there has only [ *728 1-been a single coitus, then it is to be calculated from that event; and some women, it is said, from peculiar sensations a few hours after intercourse, can tell when in fact impregnation has been accomplished; some reckon from the usual cessation, or rather non return of the catamenia, reckoning from its last appearance and adding a fortnight; whilst others calculate from the time of quickening, reckoning five months after that event, but as that event does not uniformly take place at the sixteenth week, it has been deemed an uncertain period from which to calculate.(g) Dr. Denman observes, that in order to avoid any great error, it is customary to take the middle time, and to reckon forty two weeks from the last act of menstruation, by which method, if rightly informed as to that event, then no egregious mistake can arise.(h) Dr. Paris observes, that the term does not appear to be so authoritatively established, but that nature may occasionally transgress her usual law, and that in several tolerably well attested cases the birth appears to have been protracted several weeks beyond the common time of delivery; and Dr. Hamilton remarks, that if the character of the mother be unexceptionable, a

(c) Beck's Med. Jurisp. 194, 3d ed.

(d) Gardner case, Ev. of Dr. Gooch, pp. 40, 41.

(e) Sec Le Marchant's Rep. of Gardner case, 8vo, 1828.

(f) 1 Chitty Med. Jurisp. 405, 406.

(g) Denman's Prac. Mid. 175; Blundell's Lect. Mid. 256; 1 Paris & Forbl. 218. 230. 245. 248; Id. appx. 3 vol. 209. 222; Smith, 492; 5 Good, 158.

(h) Denman's Pr. Mid. 175.

favourable report ought to be given for the mother, though the child should not be produced till nearly ten calendar months after the absence or sudden death of the husband.(i) Dr. Smith states, that it is admitted that a woman may carry a child to the eleventh month ;(k) and that although in this country the usual time of birth is considered to be 280 days after conception, making a period of nine months, of thirty days each, and ten days more; yet that a child may be born nine months and twenty days after the death of his father; but where the child was born eleven months after the death of the husband, and it was proved that the father could not have had intercourse with his wife within a month before his death, it was adjudged *a [ *729 ] bastard ;(1) he states that real excess beyond nine months is by no means frequent, and certainly never great; and he suggests that considering the fallacy of a woman's sensation, if any, as to the period of conception, and the very great probability of her having been mistaken in the first instance to the extent of about three weeks, by reckoning conception from sexual intercourse immediately after the last appearance of the catamenia, while in reality it may not have taken place until just before they should have appeared again, the erroneous supposition of ten month's pregnancy might be explained at once, added to which it may occur that the catamenia may cease from other causes, and conception may take place during their influence(m) Another author states that the ordinary time of gestation is forty-two weeks to be commenced in reckoning from the middle of the last menstruation, ascertaining the time it ceased ;(n) but that even twelve months is a term allowed by some physicians as what may take place under peculiar weakness or delicacy of health; though he suggests that it is most probable that in all these cases the mother was mistaken as to the proper time of her conception, and has imagined herself to have conceived for some weeks or even months before it actually took place."(o)

We now proceed to the cases which have occurred on this subject. 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 the child is said to be more than ordinarily legitimate, for he may, when he arrives to years of discretion, choose which of the fathers he pleases.(q) But it seems that the circumstance of the case, instead of the choice of the issue, must determine who is the father.(p) It is said that if born above forty weeks after the death of the first husband, it shall be the child of the second husband, but if within seven months after the death of the first husband, it shall be the *child of the first husband.(r) [ *730 ] It was considered by Lord Coke that it was established by the law of England that the ultimum tempus gestationis was nine

(i) Sec cases in Midw. by Dr. Hamilton, 1795; 1 Paris & Fonbl. 245. 248. See opinions in Runnington on Ejectment, 1st ed.; 2 Stark. Ev. 138, n. (p).

(k) Smith, 492.

(1) Smith, 492, 493, cites Burn's Justice, tit. Bastard.

(m) Smith, 493, 494; 5 Good, 159.

SEPTEMBER, 1841.-2 N

(n) 5 Good, 160.166.

(0) 1 Chitty's Med. Jurisp. 405, 406; see Ency. Brit. Midwifery, ch. iii.

(p) Co. Litt. 8; 1 Bl. Com. 456. (9) Br. Abr. Bastardy, pl. 18; Pa'm. 10; 1 Rol. 357, 1. 30.

(7) Com. Dig. Bastard, (B).

months or forty weeks. (s) Mr. Hargrave dissents from this opinion and maintains that the precedents quoted by him, so far from corroborating Lord Coke's limitation of the ultimum tempus pariendi, do, upon the whole, rather tend to show that it hath been the practice in our courts to consider forty weeks merely as the more usual time, consequently not to decline exercising a discretion of allowing a longer space, where the opinion of physicians or the circumstances of the case have so required.(t) In some countries there is a fixed period of calculation; thus by the law of Scotland a child born after the expiration of ten solar months, or 300 days, after the husband's death, is accounted a bastard.(u)

In England the calculation rests solely on received opinions and a few decisions. In Alsop v. Boutrell, a child born forty weeks and ten days after the death of the father, and under circumstances which might have postponed labour, was held to be legitimate, Lord Hale remarking quia partus potest protrahi decem dies ex accidente.(x) In Forster v. Cooke,(y) the legitimacy of a child born forty-three weeks all but one day after the possibility of access was held to be legitimate; but Lord Eldon said that he held that case to be of very little importance.(z) The doctrine of the law of England on the duration of utero-gestation, was the subject of much discussion before the house of lords in the Gardner Peerage case, in 1825, in which one point attempted to be established by the medical evidence was, that the time of imputed gestation was so long as to render it impossible for the husband to have been the father of the child. In that case there were two claimants to the barony of Gardner; the one Henry Fenton Gardner, the alleged issue of Captain Gardner's first marriage, but whose legitimacy was disputed. The other was *Allen [ *731 ] Legge Gardner, the undoubted issue of a second marriage, whose title to the barony depended on the illegitimacy of Henry Fenton Gardner. It was proved that Mrs. Gardner, his mother, the wife of the first marriage, left her husband's ship on the 30th January, 1802, that she did not again visit it, nor did Captain Gardner go ashore. The vessel sailed shortly afterwards to the West Indies, and he did not return to England until 11th July of the same year. On the 8th December following she was delivered of the claimant Henry Fenton Gardner. It was not, and indeed could not be pretended, that he was the fruit of an intercourse between Captain Gardner and his wife after the 11th July. If he was the issue of their marriage, he must have been the fruit of a sexual intercourse between them on or before the 30th January, and the gestation must have been of three hundred and eleven day's duration. Besides the fact that such gestation exceeded the ordinary period, the conduct of Mrs. Gardner, and her declarations connected with that conduct, afforded a very strong presumption against his legitimacy. The house of lords decided that the infant Allen Legge Gardner was the only son and heir male of

(8) Co. Litt. 123 b.

(t) Harg. Co. Litt. 123 b. n. 190*. (u) Ersk. Inst. book, 1, tit. 6, s. 50, p. 150; Stewart v. M'Keand, Fac. Decision, No. 132, Aug. 6, 1774, stated in Gardner case, 337342; Bankton, b. 1, tit. 2, s. 3; Routledge v.

Carruthers, 19 May, 1812, Fac. Coll. 4 Dow,
392; see case of Sandy, 2 Sess. R. 453;
post, 782.

(x) Co. Litt. 123 b; Cro. Jac. 541.
(y) 3 Br. C. C. 347.

(2) Gardner case, 286.

Captain Gardner, and had therefore established his claim to the barony, and consequently that Henry Fenton Gardner was illegitimate. The witnesses in support of the clain of Mr. Allen Legge Gardner all agreed that ten months or 280 days, is the ordinary period during which the mother bears the child previous to birth. The counsel for Henry Fenton Gardner entirely concurred in that, but they endeavoured by their evidence to controvert their proposition, that this period is invariable, that the rule is inflexible, that it is without exceptions, that it is impossible for the period of gestation to extend to 311 days, and in short, that a child born under the circumstances of this claimant cannot be legitimate. They maintained that if they could produce cases where the ordinary period of 280 days had been materially extended, any one case is evidence of the fact, in contradiction to all the theory and all the judgment of those, as the ground that no such instance had occurred, or by any possibility could occur.(a) The decision in this case was founded *not exclusively on the ground that the alleged gestation for 311 days was [ *732 ] contrary to the ordinary course of nature, but on that ground united with the other circumstantial evidence adduced in the cause. The utmost extent to which it prevailed was to form one, but not the only presumption against the legitimacy. The attorney-general, who in such cases offers reasons in the nature of a judgment, claimed the decision of the house that Henry Fenton Gardner was not the son of Captain Gardner on the following grounds:-" Here are 311 days which have elapsed from the period of separation of the husband and the wife to the birth of the child. I do not say that it is impossible he might be the father of the child, for to make use of an expression used by some of the witnesses, to know what is impossible in nature, I must know all nature: but courts of justice do not speculate upon things which by possibility may exist; they proceed according to the evidence that is consistent with the ordinary and established rules of nature, and unless it can be shown in this particular case there was some reason for supposing that those established rules of nature had been deviated from, even if there were no evidence as to the conduct of the female, your lordships would hesitate before you came to the conclusion that this was the child of Captain Gardner; but why should you do so, when you find that within the ordinary period of gestation she was in the arms of an adulterer capable of begetting a child and she capable of bearing it? When you try this case by the test laid down by the counsel, you must establish a case free from any reasonable doubt; then I ask your lordships, on the part of the claimant, whether a case free from any reasonable doubt has been established ?"(b) The decision was in favour of Allen Legge Gardner, and Lords Eldon and Gifford founded their opinions upon the whole evidence, for though there might be the possibility of the husband being the father upon the question of time, there was sufficient circumstantial evidence, of which the length of time no doubt formed part, to lead to the conclusion that he was not. It is clear the house decided on this ground; for Lord Eldon *declined entering into a discussion of the ultimum tempus, [ *733 ]

(4) Gardner case, 239, 240. 246.

(b) Le Marchant's Rep. pp. 326, 327.

by which consideration alone the physical impossibility could be proved, and proceeded upon all the evidence together, which satisfied his mind that the child was not the child of the husband. (c) One of the conclusions to be drawn from this case is that a limit to the period of gestation is not prescribed by the law of England. The conflicting evidence of the medical men in this case has occasioned a new controversy on this subject.(d)

OF THE CONFLICT BETWEEN THE LAWS OF ENGLAND AND SCOTLAND, WITH REGARD TO DIVORCE AND LEGITIMACY.

SECT. 1. Of Divorce

2. Of Legitimacy

SECT. 1.-OF DIVORCE.

734

781

Law of Divorce in Scotland.]-THE law of marriage in Scotland has been considered in a former part of this work, (a) it remains only to take a general view of the law of divorce and of legitimacy in Scotland. Allusion has been already made to the great diversity which prevails in different countries with respect to the laws of divorce.(b) This contrast is very striking in the case of England and Scotland, for in the latter adultery and wilful desertion are sufficient grounds for dissolving the parties a vinculo matrimonii,(c) whilst the English law dispenses no such remedy except by the overruling power of a special act of parliament. (d) In Scotland the divorced parties may lawfully marry again with any other person not within the prohibited degrees of propinquity, the paramour excepted. But the marriage between the adulterer and adulteress is declared null, and the issue inhabilitate to succeed to their parents.(e) But otherwise even the person guilty may marry again.(f) The canon law does not carry the restraint so far, it permits the adulterer, after the marriage is dissolved by the wife's death, to intermarry with the very woman with whom he was guilty, except in the special case where the adulterer had contrived and been accessary to the death of the wife.(g) Wilful desertion is the second ground for the dissolution of *a marriage by the law of Scotland, which provides(h)

[ *735 }

(a) See ante, pp. 85-118.

(b) Ante, p. 366-369.

(c) Stair's Inst. book 1, tit. 4, pl. 7, p. 26.

(d) Ante, pp. 373-385.

(e) Parl. 1600, c. 20.

(f) Stair's Inst. book 1, tit. 4, s. 7; Ersk. Inst. book 1, tit. 6, s. 43.

(g) Decretal, 1. 4, tit. 7, c. 6; Ersk. Inst. book 1, tit. 6, s. 43.

(h) Parl. 1573, ch. 55.