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<DATE>2009-06-23</DATE>
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<NAME>Scott Lepisto</NAME>
<RESP>MURP</RESP>
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<VID>175411</VID>
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<DIV1 TYPE="letter">
<PB N="1" REF="1">
<HEAD><HI>DE VENTRE INSPICIENDO:</HI> OR, REMARKS ON Mr. <HI>ASHTON</HI>'s ANSWERER In a LETTER to a Friend.</HEAD>
<OPENER><SALUTE>Dear SIR,</SALUTE></OPENER>
<P>IN Compliance with your Commands, obliging me to give you my Thoughts upon what the An&s;werer of Mr. <HI>A&s;hton</HI>'s Speech has &s;aid in Relation to the Civil and Common Laws, which he has been pleas'd to produce (as he thinks, conducing to his purpo&s;e) you re|ceive this. You very well ob&s;erve that this An&s;wer has prevailed with many (e&s;pecially tho&s;e who&s;e Education has not enabled them to examine his Quotations) to entertain Opinions that we were very hardly, d<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">l<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> with, as to the Affair of the Prince of <HI>Wales,</HI> contrary both to the <HI>Laws of Nations, Civil</HI> and <HI>Old Common Law of England.</HI> All that I have to alledg in the matter, is, that the Civil Law never made Provi&s;ion in &s;uch a Ca&s;e as the Prince of <HI>Wales</HI> hap|pens to be; becau&s;e unrea&s;onable, as I &s;hall demon&s;trate in this following Letter: And as for his Old Common Law, i'll appeal to all the unprejudic'd World, if it reaches the bu&s;ine&s;s he brought it in for. His Laws of Nations I &s;hall not concern my &s;elf in, both as 'tis not in|join'd <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> by you, and likewi&s;e becau&s;e 'tis too ab&s;tru&s;e; but it will be I think, &s;ufficient for me to prove, he prevaricates with the Laws (I mean Civil and Common) which the genera|lity of our Engli&s;h World are better acquainted with, and &s;o leave you to judge of the &s;in|cerity of the Per&s;on: For 'till he convinces me that it is a Law of Nations for every Prince to prove (when the next pre&s;umed Heir does or does not demand it) That the Child, he is &s;atisfied, was Born of his Wife, be truly &s;o; though &s;uch a thing might happen when &s;he was perhaps at Prayers in her Clo&s;et, <HI>&amp;c.</HI> I &s;ay, till he proves this to be u&s;ual among&s;t all Nations; For as <HI>Ju&s;tinian</HI> (who I think, under&s;tood the Law of Nations as well as this Gentleman) defines the Laws of Nations to be, it is, <HI>Quo jure <GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">nes Gentes utuntur,</HI><NOTE PLACE="marg">In&s;tit. lib. 1. Tit. 2. Sect. 1.</NOTE> I believe I may very well forbear any thing of that matter. It will not be unnece&s;&s;ary, if I hint that the freedom I u&s;e is cau&s;ed chiefly by the Security a private Letter ought to carry with it, which I &s;uppo&s;e, will &s;ufficiently admoni&s;h you of the Caution and Circum&s;pection you are to u&s;e in Expo&s;ing it.</P>
<P>Fir&s;t then, he A&s;&s;erts that <HI>the Civil Law upon any Occa&s;ion of Su&s;picion</HI> (ob&s;erve the word of La|titude, <HI>ANY OCCASION,</HI> &amp;c.) <HI>Did Order that Notice be given twice a Week to the Parties
<PB N="2" REF="2">concerned; that they may receive full &s;atisfaction; that the Mother is to be kept in an Hou&s;e by it &s;elf,</HI> &amp;c. As in the An&s;wer to the Speech; and all this <HI>upon any Occa&s;ion of Su&s;picion.</HI> In An&s;wer to which, I reply, what the Civil Law mentions in Relation to Spurious I&s;&s;ues, or Suppo&s;ititi|ous Births, may be reduced to a very narrow Compa&s;s, without leaving any thing material un&s;aid. <HI>The Sanatus Con&s;ultum Plancianum</HI> (of which Dige&s;t. <HI>Lib.</HI> 25. <HI>Tit.</HI> 3. <HI>de Agno&s;cendis &amp; Alendis Liberis</HI>) contains two Ca&s;es; of which the fi<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters"> <HI>Commands that a Woman Divor&s;ed from her Husband, &s;hall within thirty days after this Divor&s;e give Notice to her Husband, if &s;he be with Child, that he may take care of, and make provi&s;ion for it; or that the Husband deny the Wife to be &s;o with Child by him; which if he does not do, he is obliged to take care of, and Educate the Child that &s;hall be Born of her.</HI> The &s;econd is, <HI>That tho&s;e Women who after a Divor&s;e, feign a fal&s;e Birth, render them&s;elves Obnoxious and Puni&s;hable;</HI> as the Law in &s;uch Ca&s;es has provided: Of which &s;ee <HI>Cod. Lib.</HI> 9. <HI>Tit.</HI> 22. <HI>Ad Legem Corneliam de fal&s;is.</HI> Which was then Capital, but was afterwards moderated by the Emperor <HI>Leo. Novel.</HI> 77.</P>
<P>But in the Time of <HI>Marcus Antoninus</HI> and <HI>Verus</HI> Emperors, there happen'd two New Ca&s;es; and by con&s;equence, requir'd a new Remedy; the fir&s;t was of a Woman Divor&s;ed from her Husband, who denied &s;he was big with Child by him; the Husband A&s;&s;erted &s;he was: upon which (the Man earne&s;tly de&s;iring an Heir to his Family) the Emperors wrote to <HI>Valerius Pri&s;cianus</HI> the <HI>Praetor</HI> of the City, <HI>That it &s;eem'd mo&s;t fit to them upon the Husband's Reque&s;t, that three Midwives &s;hould be &s;ent to this Woman and in<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">pect her Body,</HI> &amp;c. Of which Dige&s;t. 25. <HI>Tit.</HI> 4. <HI>de Ventre in&s;piciendo.</HI> The other Ca&s;e was, of a Woman, who after the Death of her Husband affirm'd her &s;elf with Child; upon which the <HI>Praetor</HI> Commanded, <HI>That, that Woman who, after the Death of her Husband, A&s;&s;erted her &s;elf to be with Child, &s;hould give Notice twice a Month to them, to whom this matter did appertain,</HI> viz. The next Heirs at Law; that &s;atisfaction might be given them, <HI>&amp;c.</HI> As in the An&s;wer p. 13. From hence, Sir, I think you may plainly di&s;cern the di&s;|genuity of this An&s;werer. For I appeal to you, and profe&s;s I would to all Mankind if the fore|mention'd Ca&s;es (and yet they are tho&s;e he refers us to; and I Challenge him to give me any other in Civil Law, any ways relating to &s;uppo&s;ititious Births) have any Relation to that of the Prince of <HI>Wales:</HI> The fir&s;t of the&s;e Ca&s;es, being between a Husband and his Wife after a Divor&s;e: The &s;econd, of the Inheritance and Po&s;&s;e&s;&s;ion of an E&s;tate, between the Relations of a dead Husband and the Wife, who A&s;&s;erted her &s;elf with Child. But in the Ca&s;e of the Prince of <HI>Wales,</HI> I think there was no Divor&s;e; neither could there be any di&s;pute of Inheri|tance in the bu&s;ine&s;s, when his Father, King <HI>James,</HI> was then alive; and con&s;equently no &s;uch thing as Succe&s;&s;ion or Mi&s;&s;ion in the Po&s;&s;e&s;&s;ion of the Goods of him who was &s;till living. For the Rule in Civil Law is, <HI>Viventis nulla e&s;t haereditas neque <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ucce&s;&s;i<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">,</HI> according to the 29. <HI>Dig Tit.</HI> 2. <HI>L.</HI> 19. <HI>de Acquirenda vel omittenda haereditate.</HI> From all which I infer, That (&s;uppo&s;ing the Civil Law, which this Gentleman has been plea&s;ed to Quote, were indeed Common Law (up|on which the true State of the Controver&s;ie alone depends) and more over in the great Charter of <HI>England</HI>) that King <HI>James</HI> was not obliged to &s;uch a Formality, neitheir of the Ca&s;es amounting, in the lea&s;t, to have him concern'd in them. By the by, I cannot omit wondring, &s;ince this Gentleman &s;eems to be &s;o mightily taken (and I may well enough add &s;o mightily mi&s;taken) with Civil Law, he did not gratify the World with an Expo&s;ition of the Edict of the Emperors <HI>Diocle&s;ian</HI> and <HI>Maximinian Cod. Lib.</HI> 9. <HI>Tit.</HI> 22. <HI>L.</HI> 10. <HI>de partu &s;uppo&s;ito.</HI></P>
<P><HI>Cum &s;uppo&s;iti partus Crimen Patrui tui Uxori moveas, apud Rectorem Provinciae, in&s;tituta Accu&s;atio|ne, id proba.</HI> So that from Civil Law it is not <HI>any Cau&s;e of &s;u&s;picion</HI> will do the bu&s;ine&s;s, but proof mu&s;t be made to render it &s;ufficient&mdash;<HI>Actori Incumbit Onus probandi.</HI> And &s;o much for his Civil Law. With this likewi&s;e exactly agrees the <HI>Ba&s;ilicon,</HI> <GAP DESC="foreign">, <HI>Lib.</HI> 31. <HI>Tit.</HI> 7.</P>
<PB N="3" REF="2">
<P>In this bu&s;ine&s;s I have de&s;ignedly waved giving you the Expo&s;ition of the mo&s;t Celebrated Civilians <HI>Cujacius, Molinaeus,</HI> and <HI>Faber,</HI> upon the&s;e pa&s;&s;ages, I have had occa&s;ion to quote, be|cau&s;e I was loth to have my Letter &s;well to a Volume. But if any curious Gentleman will take the pains to examine the Learned Works of the foremention'd Civilians, he will find their Expo&s;itions agreeable to what I have produced the&s;e Laws for.</P>
<P>I &s;hall now briefly ob&s;erve what I judge material to object to his old Common Law, and then take my leave of him and you for the pre&s;ent. I &s;hall &s;ave both the Expence of Time and Paper, if I only de&s;ire you to peru&s;e that Chapter in <HI>Bracton,</HI> to which his Margin does refer you; you'l find it chiefly concerns what the Civil Law, I mentioned before, provi|ded for: And as for <HI>Fleta</HI> (who almo&s;t in every thing follows <HI>Bracton,</HI>) he &s;ays, <HI>That &s;uppo&s;ing the Husband and Wife being Summoned by the King to appear before the Sheriffs, upon Complaint of the next Heir, that they have Forg'd and Suborn'd a &s;uppo&s;ititious Child.</HI> To u&s;e his own Words. <HI>Si po|tentes videbantur e&s;&s;e Parentes, ad Prolem &s;u&s;citandam pro haerede judicabitur ni&s;i querens decere po&s;&s;it Contrarium. That if the Parents be thought able to get Children (their Child) &s;hall be adjudged Heir, except the Plaintiff can prove the contrary.</HI> Take Notice here what both <HI>Bracton</HI> and <HI>Fleta</HI> &s;ay, <HI>That this Writ is to be I&s;&s;ued out by the King, &amp;c.</HI> Therefore granting this were now true Law (which I deny) yet I cannot perceive how it would reach the King. For who is &s;o mad to &s;uppo&s;e the King would i&s;&s;ue out a Writ to his Officer, for the Examining the Queen, his Wife, with who&s;e I&s;&s;ue he him&s;elf is well &s;atisfied&punc; His friend <HI>Bracton</HI> would have told him accord|ing to his <HI>Old Law,</HI> That if the King Rule indeed contrary to the Laws of the Land; that all that Subjects ought to do in the matter is to have recour&s;e to &s;upplication (to u&s;e his Words,) <HI>Cum Breve non currat contra ip&s;um.</HI>) That he would correct his Error, which (&s;ays he) if he refu&s;es and denies to do, 'tis altogether &s;ufficient puni&s;hment for him, That he expect God a Revenger. For (as he goes on) no Man may pre&s;ume to call his Actions in Que&s;tion, much le&s;s ri&s;e up again&s;t his Act. <HI>Bracton. lib.</HI> 2. <HI>cap.</HI> 8. <HI>de acquirendo rerum Dominio, fol.</HI> 5.</P>
<P>To end all, I'll tran&s;cribe you what our Oracle of the Law of <HI>England</HI> &s;ays in this matter. Youll, without difficulty, &s;uppo&s;e, I mean my Lord <HI>Cook.</HI></P>
<P><Q>For the Benefit and Safety of Right Heirs <HI>contra partus &s;uppo&s;itos,</HI> the Law hath provided Remedy by the Writ <HI>de Ventre In&s;piciendo,</HI> whereof the Rule in the Regi&s;ter is this. <HI>Nota.</HI><NOTE PLACE="marg">Regi&s;t. f. 227. Bracton. l. 2. f. 69. Britton. f. 165. Fleta. l. 1. c. 14.</NOTE> <HI>si quis habens Haereditatem duxerit aliquam in Uxorem, &amp; po&s;tea moriatur ille &s;ine Haerede de Corpore &s;uo Exeunte per quam Haereditas illa Fratri ip&s;ius defuncti de&s;cendere d<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">beat; &amp; Uxor dicit &s;e e&s;&s;e pregnan|tem de ip<GAP DESC="illegible" RESP="UOM" EXTENT="1+ letters"> d<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">functo cum non &s;it, habeat Frater &amp; Haeres Breve de Ventre in&s;piciendo.</HI> It &s;eemeth by <HI>Bracton</HI> and <HI><GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">etu,</HI> which followed him, that this Writ doth lie <HI>ubi Uxor alicujus in vita Viri &s;ui &s;e pregnantem fecit cum non &s;it ad Exhaereditationem veri Haeredis,</HI> &amp;c. <HI>Ad querelam veri Haeredis per praeceptum Domini Regis,</HI> &amp;c. which is to be under&s;tood according to the Rule of the Regi&s;ter: when a Man having Lands in Fee-&s;imple dieth, and his Wife &s;oon after marrieth again, and feigns her &s;elf with Child by her former Husband: In this Ca&s;e, though &s;he be married, the Writ <HI>de Ventre In&s;piciendo,</HI> doth lie for the Heir. But if a Man &s;eized of Lands in Fee (for Example) hath I&s;&s;ue a Daughter, who is Heir Apparent; She in the Life of her Father cannot have this Writ for divers Cau&s;es. Fir&s;t, Becau&s;e She is not Heir, but Heir Apparent; for; as hath been &s;aid, <HI>Nemo e&s;t Haeres Viventis;</HI> and this Writ is given to the Heir to whom the Land is de&s;cended. And both <HI>Bracton</HI> and <HI>Fleta</HI> &s;ay that this Writ lieth <HI>ad querelam veri Haeredis,</HI> which cannot be in the Life of his Ance&s;tor, and herewith agreeth <HI>Britton</HI> and the Regi&s;ter. Secondly, the ta|king a Husband, in the Ca&s;e afore&s;aid, being her own Act, cannot barr the Heir of his lawful
<PB N="4" REF="3">Action once ve&s;ted in him. Thirdly, the Law doth not give the Heir Apparent any Writ; for 'tis not certain whether he &s;hall be Heir <HI>Solus Deus facit Haeredes.</HI> Fourthly, the Inconvenience were too great, if Heirs Apparent in the Life of their Ance&s;tors, &s;hould have &s;uch a Writ to examine and try a Man's lawful Wife, in &s;uch &s;ort as the Writ <HI>de Ventre In&s;piciendo</HI> doth appoint; Or if She &s;hould be found to be with Child, or &s;u&s;pect; then She mu&s;t be removed to a Ca&s;tle, and there &s;afely kept until her Delivery; and &s;o any Man's Wife might be taken from him again&s;t the Laws of God and Man.</Q> So far my Lord Chief Ju&s;tice <HI>Coke. In&s;tit. Part. I. lib.</HI> 1. <HI>cap.</HI> 1. <HI>lib.</HI> 1. <HI>fol.</HI> 8.</P>
<P>You may now &s;ee what obliged our An&s;werer to run to his Civil and Old Common Law, the fir&s;t being little practi&s;ed in <HI>England,</HI> and neither that nor Old Common Law under&s;tood, but by the mo&s;t eminent Profe&s;&s;ors. But for the modern Expo&s;ition of Laws, he &s;uppo&s;ed we were a little better ver&s;ed in. I hope &s;ome of our able Lawyers will take care to vindicate the Honour of their Profe&s;&s;ion, and not &s;uffer it to be thus abu&s;ed by crafty People, to in&s;inuate Fal&s;hood in|to, and poy&s;on the minds of the Ignorant and Unwary. For my own part, what I have here &s;aid, is ju&s;t what my Lei&s;ure would &s;uffer me ha&s;tily to &s;et down, and therefore wants tho&s;e Orna|ments both of Method and Elegance I could wi<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">h it cloathed with; however, con&s;idering it an Epi&s;tle of one Friend to another, it carries, I hope, its Pardon along with it. Before I take my Farewel, I cannot omit &s;aying &s;omewhat to the grand popular Objection generally urged, <HI>That it is not expected that the Birth of the Prince of</HI> Wales <HI>be proved Spurious, &s;ince a Negative will not ad|mit of Proof.</HI> To which I an&s;wer, That the a&s;&s;erting his Highne&s;s, the Prince of <HI>Wales</HI> not to be K. <HI>J</HI>'s Son is an Affirmative. For &s;uppo&s;e I a&s;&s;ert <HI>Titius</HI> not to be the Son of <HI>Cajus,</HI> I affirm him to be the Son of Some|body el&s;e: So till the Prince of <HI>Wales</HI> be proved to be the Son of Some-body el&s;e than of K. <HI>J</HI>&mdash;s, I &s;hould do a very great Injury to Equity and Common Ju&s;tice (&s;ince his Father has own'd him) &s;hould I pronounce him a Ba&s;tard. Be&s;ide, the Matter never came to Litigation or Di&s;pute; and to hang People before we judge 'em, has ever, I think, been deem'd and look'd upon as too &s;evere and unju&s;t. We ought, in an Affair of &s;uch Moment, to be very wary and cautious how we proceed; &s;ince the Example, I fear, may be of direful and perni|cious Con&s;equence. Encouraging you &s;till to be &s;tedfa&s;t in the Truth, I take my Leave of you with the&s;e excellent Lines of <HI>Horace,</HI>
<Q><L>Ju&s;tum &amp; tenacem propo&s;iti Virum</L>
<L>Non Civium ardor prava Jubentium;</L>
<L>Non vultus in&s;tantis Tyranni,</L>
<L>Men<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> quaetit &s;olida.</L></Q></P>
<CLOSER><SIGNED>I am, <HI>Deare&s;t SIR,</HI> Your mo&s;t Faithful and Affectionate Friend And Humble Servant.</SIGNED>
<DATE><HI>April</HI> 5.. 1691.</DATE></CLOSER>
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