n, when they refused to enact that children born
before marriage should be esteemed legitimate[k].

[Footnote i: _Inst._ 1. 10. 13. _Decretal._ _l._ 4. _t._ 17. _c._ 1.]

[Footnote k: _Rogaverunt omnes episcopi magnates, ut consentirent quod
nati ante matrimonium essent legitimi, sicut illi qui nati sunt post
matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites
et barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt et approbatae._ Stat. 20 Hen. III. c. 9.
See the introduction to the great charter, _edit. Oxon._ 1759. _sub
anno_ 1253.]

FROM what has been said it appears, that all children born before
matrimony are bastards by our law; and so it is of all children born
so long after the death of the husband, that, by the usual course of
gestation, they could not be begotten by him. But, this being a matter
of some uncertainty, the law is not exact as to a few days[l]. And
this gives occasion to a proceeding at common law, where a widow is
suspected to feign herself with child, in order to produce a
supposititious heir to the estate: an attempt which the rigor of the
Gothic constitutions esteemed equivalent to the most atrocious theft,
and therefore punished with death[m]. In this case with us the heir
presumptive may have a writ _de ventre inspiciendo_, to examine
whether she be with child, or not[n]; which is entirely conformable to
the practice of the civil law[o]: and, if the widow be upon due
examination found not pregnant, any issue she may afterwards produce,
though within nine months, will be bastard. But 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 he 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[p]. To prevent this, among
other inconveniences, the civil law ordained that no widow should
marry _infra annum luctus_[q]; a rule which obtained so early as the
reign of Augustus[r], 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[s].

[Footnote l: Cro. Jac. 541.]

[Footnote m: Stiernhook _de jure Gothor._ _l._ 3. _c._ 5.]

[Footnote n: Co. Litt. 8.]

[Footnote o: