age of seven years are incapable of committing felony (0); that males under fourteen are incapable of sexual intercourse (p); and that males under fourteen years, and females under twelve, cannot consent to marriage (q). So, between the ages of seven and fourteen, an infant is presumed incapable of committing felony; but this is only præsumptio juris, and a malicious discretion in the accused may be proved, in which case it is said "malitia supplet ætatem (r).” § 381. Under this head come the important and dif- Gestation of the ficult questions of the maximum and minimum time of human fœtus. gestation of the human fœtus-subjects replete with importance and delicacy, and on which a false decision by a judicial tribunal may not only compromise the rights of individuals, but jeopardize female honour, and destroy the peace of families. These are medico-legal subjects, on which the opinion of physiologists and physicians must necessarily have great weight; i. e. provided we are not tied up by any positive rule of law. As to the ques- Protracted gestion of protracted gestation--according to Sir Edward Coke, the "legitimum tempus appointed by law at the furthest is nine months, or forty weeks," for which he cites an old case of Robert Radwell, in the reign of Edward I. (s), and endeavours to fortify his position by a passage from the Book of Esdras (t). But this doctrine is not clear even upon the ancient authorities (u), (0) 1 Hale, P. C. 27; 4 Blackst. Com. 23. (p) 1 Hale, P. C. 630; R. v. Philips, 8 C. & P. 736; R. v. Jordan, 9 Id. 118; R. v. Brimilow, Id. 366; R. v. Groombridge, 7 C. & P. 582. (9) 1 Blackst. Com. 436. (r) 1 Hale, P. C. 26; 4 Blackst. Com. 23. (s) Co. Litt. 123 b. (t) 2 Esdras, iv. 40, 41. "Go thy way to a woman with child, and ask of her, when she hath fulfilled her nine months, if her womb may keep the birth any longer within her. Then said I, 'No, Lord, that can she not.'" (u) See them collected and ably commented on by Mr. Hargrave, in his edition of Co. Litt. 123 b, n. (2). H H tation. while it is denied by the modern (x), and is repugnant to experience. According to many eminent authorities, the regular and usual period of gestation is nine calendar months (y); but others fix it at ten lunar months, being 280 days, or nine calendar months and about a week over (z). It is, however, conceded on all hands that a delay or difference in the time may take place, of some days, or even weeks, as there are numerous causes, both physical and moral, by which delivery may be accelerated or retarded. But whether the laws of nature admit of such a phenomenon as the protraction of the term of gestation for a considerable number of weeks or months beyond the accustomed period, is a point altogether unsettled, although the weight of authority is decidedly in favour of the affirmative (a). It is, perhaps, hardly neces (x) Runnington on Ejectment, 383, et seq. (y) Dr. Hunter's Answers to Mr. Hargrave, (Co. Litt. 123 b, n. (2)); Chitty's Med. Jurisp. 405; Evidence in the Gardner Peerage case, 1828, cited Beck's Med. Jurisp. 366, 7th Ed. (2) Beck's Med. Jurisp. 356, 7th Ed.; who remarks that it is very important to recollect the distinction between lunar and calendar months. Nine calendar months may vary from 273 days to 275 days, but ten lunar months are 280 days. See also Tayl. Med. Jurisp. 513, 4th Ed. (a) Beck's Med. Jurisp. chap. 9, 7th Ed.; Chitty, Med. Jurisp. 405, 406; Tayl. Med. Jurisp. 525, 4th Ed. It is incontestable that there are to be found on record a great many cases, true or false, of gestation protracted considerably beyond the usual time. There are many old instances of children declared legitimate by foreign tribunals after a gestation, real or alleged, of ten, eleven, twelve, thirteen, and fourteen months, and even longer. See a large number collected in Beck's Med. Jurisp. 363, 374, 7th Ed., as well as other authors who have written on the subject in modern times. Upon the whole we may fairly conclude that, admitting the possibility of gestation being protracted in the sense in which the word is here used, the genuine cases of it are rare; and it is difficult to withhold assent from the following observations of an eminent writer on this subject: "If we admit," says he, "all the facts reported by ancient and modern authors, of delivery from eleven to twentythree months, it will be very commodious for females; and if so sary to observe, that, in all investigations of this nature, the character and conduct of the mother are elements of the highest importance to be taken into consideration, as also are the respectability or otherwise of the deposing witnesses, and the motives to falsehood or fabrication which may exist on either side. tation. § 382. With respect to the minimum term of gestation- Shortened gesit seems now conceded, that, as a general rule, no infant can be born viable, or capable of living, until 150 days, or five months, after conception (c). There are, it is true, some old cases recorded to the contrary (d), but Dr. Beck doubts them (e). It seems also conceded that children born before the seventh month are very unlikely to live, even for a few hours (f); and even at seven months the chance is against the child (g). from the course §383. We now proceed to the consideration of pre- Moral presumpsumptions of this kind derived from observation of the tions derived moral world. Many of these are founded on the feel- of nature. ings and emotions natural to the human heart, of which we have already seen an instance in the celebrated judgment of Solomon (h). Following out this principle, it is held that natural love and affection form a good consideration, sufficient to support all instruments where a valuable consideration is not expressly required by law (i); that money advanced by a parent to a child is great a latitude is allowed for the production of posthumous heirs, the collateral ones may in all cases abandon their hopes unless sterility be actually present." (Louis, Mémoire contre Légitimité des Naissances prétendues tardives, as cited in Beck's Med. Jur. 366, 7th Ed.) 7th Ed. (d) Id., and Chitty's Med. (e) Beck, ul supra. (h) 1 Kings, iii. 16. (i) 2 Blackst. Com. 297; Dy. 374, pl. 17; Plowd. 306, 309, 426; Finch, Law, 25. (c) Beck's Med. Jurisp. 210, Presumption from advancing money. intended as a gift, not as a loan (k), &c. And it is a maxim of law "Nemo præsumitur alienam posteritatem suæ prætulisse (1).” § 384. The civil law laid down as a maxim, "Qui solvit, nunquam ita resupinus est, ut facile suas pecunias jactet, et indebitas effundat (m):" and in the common law, the fact of advancing money is presumptive evidence of payment of an antecedent debt, and not of a gift or loan (n). "Non præsumitur donatio (o).” Presumption of § 385. It is said by Abbott, C. J., in the case of willingness to accept a benefit. Townson v. Tickell (p), that, " primâ facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is given;" and presumptions are sometimes founded on the assumption that a person must be taken to be willing to receive a benefit. Thus, in Thompson v. Leach (q), it was held that a surrender immediately divests the estate out of the surrenderor, and vests it in the surrenderee, whose consent to the act is implied; for, says the book, “a gift imports a benefit, and an assumpsit to take a benefit may well be presumed; and there is the same reason why a surrender should vest the estate before notice or agreement, as why a grant of goods should vest a property, or sealing of a bond to another in his absence, should be the obligee's bond immediately without notice." In Smyth v. Wheeler (r), where a lease was assigned to B. and C. on certain trusts, Hale, C. J., says, this "assignment, being of a chattel, is in both the assignees till the disagreement of B., and then is wholly in C." So, it is said that mutual benefit is evidence of an agreement; as, suppose two men front a river, and each of them has land between them and the river, and they cut through each other's ground for water, and that continues twenty years, in such a case an agreement might be presumed (s). that every person intends the § 386. It is a maxim running through the whole law Presumption that every person must be taken to intend the natural consequence of his acts (t). The principal applications natural conseof this are to be found in criminal cases, as shall be acts. shewn in a subsequent part of this chapter (u). quences of his SUB-SECTION V. PRESUMPTIONS DRAWN FROM THE ORDINARY CONDUCT OF MANKIND, HABITS OF SOCIETY, AND USAGES OF from the ordi § 387. The presumptions drawn from the ordinary Presumptions conduct of mankind, the habits of society, and usages nary conduct of of trade, are somewhat numerous and several of them mankind, &c. (r) 2 Keb. 774. See, on the subject of disclaimer, Nicloson v. Wordsworth, 2 Swanst. 365; and Adams v. Taunton, 5 Madd. 435. (s) So held by Lord Cowper, H., 6 Ann. Vin. Abr. Ev. Q. (1) 2 Stark. Ev. 572, 3rd Ed.; |