An edict in the Roman law, in the 25 book of the digests, title 4, section 10 as concerning the visiting of a big-bellied woman, and the looking after what may be born by her. Burnet, Gilbert, 1643-1715. 1688 Approx. 16 KB of XML-encoded text transcribed from 3 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2004-03 (EEBO-TCP Phase 1). A37825 Wing E160A ESTC R24944 08700731 ocm 08700731 41575 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A37825) Transcribed from: (Early English Books Online ; image set 41575) Images scanned from microfilm: (Early English books, 1641-1700 ; 1258:23 or 1755:33) An edict in the Roman law, in the 25 book of the digests, title 4, section 10 as concerning the visiting of a big-bellied woman, and the looking after what may be born by her. Burnet, Gilbert, 1643-1715. 4 p. s.n., [London? : 1688?] Caption title. Concerned with the belief that the son born to James II and his Queen in June, 1688, was actually not their child. Attributed to Gilbert Burnet--His History of his own time ... 2nd ed., 1855, v. 6, p. 357. Item at reel 1258:23 identified as Wing E160A (number cancelled). Reproductions of original in the Henry E. Huntington Library and Art Gallery. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. 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Great Britain -- History -- James II, 1685-1688. 2003-10 TCP Assigned for keying and markup 2003-12 Apex CoVantage Keyed and coded from ProQuest page images 2004-01 Mona Logarbo Sampled and proofread 2004-01 Mona Logarbo Text and markup reviewed and edited 2004-02 pfs Batch review (QC) and XML conversion An EDICT in the Roman Law : In the 25. Book of the Digests , Title 4. Section 10. As concerning the visiting of a Big-Bellied Woman , And the looking after what may be Born by Her. The Pretor says thus ; § 10. De inspiciendo ventre , custodiendoque partu , sic Praetor ait : Si mulier mortuo marito praegnantem se esse dicet , his ad quos ea res pertinebit , procuratorive eorum , bis in mense denunciandum curet , ut mittant , si velint , quae ventrem inspicient . Mittantur ( autem ) mulieres liberae duntaxat quinque ; haeque simul omnes inspiciant : Dum ne qua earum , dum inspicit , invita muliere ventrem tangat . Mulier in domu honestissimae foeminae pariat , quam ego , constituam . Mulier ante dies triginta , quam parituram se esse putat , denunciet his ad quos ea res pertinet , procuratoribusve eorum , ut mittant , si velint , qui ventrem custodiant . In quo conclavi mulier paritura erit , ibi ne plures additus sint , quam unus : si erunt , ex utraque parte tabulis praefigantur . Ante ostium ejus conclavis liberi tres , & tres liberae cum binis comitibus custodiant . Quotiescunque ea mulier in id conclave , alidve quod , sive in balineum ibit , custodes , si volent , id ante prospiciant : & eos qui introierint , excutiant . Custodes , qui ante conclave positi erunt , si volunt , omnes , qui conclave aut domum introierint , excutiant . Mulier , cum parturire incipiat , his ad quos ea res pertinet , procuratoribusve eorum denunciet , ut mittant quibus praesentibus pariat . Mittantur mulieres liberae duntaxat quinque : ita ut , praeter obstetrices duas , in eo concla● i ne plures mulieres liberae sint , quam decem , ancillae quam sex . Hae , quae intus futurae erunt ; excutiantur omnes in eo conclavi , ne qua praegnans sit . Tria lumina , ne minus , ibi sint : scilicet , quia tenebrae ad subjiciendum aptiores sunt . Quod natum erit , his ad quod ea res pertinet , procuratoribusve eorum , ostendatur . Apud eum educatur , apud quem parens jusserit . Si autem ne his parens , jusserit , aut is , apud quem voluerit educari , curam non recipiet , apud quem educetur , causa , cognita constituam . Is , apu● quem educabitur quod natum erit , quoad trium mensium sit , bis in mense ex eo tempore ; quoad sex mensium sit , semel in mense ; a sex mensibus quoad anniculus fiat , alternis mensibus ; ab anniculo quoad fari possit , semel in sex mensibus , ubi volet , ostendat . Si cui ventrem inspici , custodirive , adesse partui licitum non erit , factumque quid erit , quominus ea ita fiant , uti supra comprehensum est . Ei , quod natum erit , possessionem causa cognita non dabo ; sive quod natum erit , ut supra cautum est , inspici non licuerit . Quas itaque actiones me daturum polliceor his , quibus ex Edicto meo Bonorum possessio data sit eas , si mihi justa causa videbitur esse , ei nondabo . § 11. Quamvis sit manifestissimum Edictum Praeoris , attamen non est negligenda inter pretatio ejus . § 12. Denunciare igitur mulierem oportet his scilicet , quorum interest partum non edi , vel totam habituris haereditatem , vel partem ejus , sive ab intestato , sive ex Testamento . § 13. Sed & si servus haeres institutus fuerit , si nemo natus sit : Aristo scribit , hic quoque servo , quamvis non omnia , quaedam tamèn circa partum custodiendum arbitrio Praetoris esse concedenda . Quam sententiam puto veram ; publice enim interest , partus non subjici : ut ordinum dignitas , familiarumque salva sit . Ideoque etiam servus iste , cum sit in spe constitutus successionis , qualis qualis sit , debet audiri , rem & publicam & suam gerens . § 14. Denunciari oportet his , quos proxima spes successionis contingit ; ut put a primo gradu haeredi instituto ; non etiam substituto : & , si intestatus pater-familias sit , his , qui primum locum ab intestato tenent : si vero plures sint simul successuri , omnibus denunciandum est . § 15. Quod autem Praetor ait , causa cognita se possessionem non daturum , vel actiones denegaturum , eo pertinet , ut si per rusticitatem aliquid fuerit omissum ex his , quae praetor servari voluit , non obsit partui . Quale est enim , si quid ex his , quae leviter observanda Praetor edixit , non sit factum , partui denegari bonorum possessionem ? Sed mos Regionis inspiciendus est , & secundum eum & observari ventrem , & partum , & infantem oportet . If a Woman upon her Husband ' s death pretends that she is with Child , she must intimate that twice every Month thereafter , to those who are the most concerned in it , or to their Proxies , that so they may send some , if they think fit , to visit her Belly . They may send any Free Women ( i. e. not Slaves ) to the number of five at most ; and all these together may visit her , provided that while they do it , none of them may touch her Belly , without her leave : She shall be lodged in the House of some Woman of an untainted Reputation , such as shall be named by the Pretor ; and she shall signifie to the Persons concerned , or to their Proxies thirty days before , when she expects to be delivered , that if they think fit , they may send such as may watch over her . The Room in which she is to be brougt to Bed , shall be visited , that there may be no other Entries to it but One ; and if there are any other , care must be taken to nail them up with Boards laid along both within and without ; and at the Door of this Bed-Chamber three Free Men , with as many Free Women , and two Servants may be set to watch ; as oft as the Woman thinks fit to go into that Bed-Chamber , or into any other , or into a Bath , which those keepers may visit , if they think fit , before she goes into it , and may also visit all that go into it at that time ; and those Keepers may also , if they think fit , search all such as come within the House or the Bed-chamber . When the Woman falls in Labour , she shall give notice of it to those concerned , or to their Proxies ; that so they may send such Persons who may be Witnesses to the Birth ; who must be Free Women , to the number of five at most ; and besides the Two Midwives , there must be no more Free Women in the Bed-chamber , than Ten ; nor more Servants than Six . All these who enter within the Bed-chamber , shall be visited in the Room , to see if any of them is with Child : nor must there be fewer than three Lights in the Room , because a● Imposture may be more easily committed in the dark . That which is born , shall be shewed to those who are concerned , or to their Proxies , if they desire it . The Infant is to be kept by him who is named by the Father for that intent ; but if he has left no Orders concerning it , or if he who was named by him , will not undertake it , the Pretor having examined the matter , shall name the Person to whose keeping the Child is to be trusted ; whose name shall be published , and he shall be obliged to shew him , as he thinks fit twice a Month , till he is three Months old , and after that once a Month , till he is six Months old , and once in two Months , till he is a year old ; and from thence once in six Months , till he can speak . But if any will not suffer their Belly to be visited , nor themselves to be watched , nor admit of Witnesses to their delivery , or if any thing is done for hindring the execution of those things that are hereby provided , when upon the hearing of the matter that is made out , that which is born , is not to be admitted to the possession of the Estate ; if it be found that the Child has not been visited , according to the former regulations ; in which case the Pretor promises to give over all Rites and Titles to those others , whom according to his Edict he has put in Possession , and not to the Child that is so born , the Justice of the cause being first made out to him . 11. Altho' the Pretors Edict is very express , yet the Explanation of it is not to be passed over . 12. The Woman is bound to intimate her being with Child , to all those who are concerned in it , and to all others to whom either the whole Inheritance or a part of it belong ; whether by the succession in the course of Law , or by the Will of the Dead . 13. And even if a Slave is made Heir by the Will , there being no Child , Aristo writes , that the Pretor ought , according to his discretion , to give him some , though not all those privileges of watching over the birth ; in which I think he is in the right : For it is of publick concern , that there should be no supposititious Births ; and that the Dignity of Families , & of the different ranks of men , be preserved entire . And that therefore even this Slave , who is put in the hope of the Succ●ssion , should be heard , how mean soever his condition may be , since the Publick is concerned in that which he looks after , as well as he is as to his own particular . 14. The matter ought to be imtimated to those who are the next in the Succession ; but not to those who come after them in the entail : but if the Father died without a Will , then it must be intimated to those who succeed immediately to the defunct : and if there are many Heirs Portioners , it must be intimated to them all , 15. As for that Clause , in which the Pretor says , that upon the hearing of the Cause , he will not put the Child in possession , and that he will not give him leave to sue for it : by this ( of hearing the Cause ) is to be understood , that if by a clownish simplicity some of those things have been neglected , that the Pretor has appointed to be observed , this must not turn to the prejudice of the Child ; for what reason is there , that if any of those things have been omitted , which the Pretor has order'd to be slightly observed , that then the Possession of the Estate should be denied to the Child ? But a regard is to be had to the Custom of the Country ; and according to that , both the Big-Belly , the Birth , and the Child , are to be visited and watched over . It seems that the Abuse provided against by this Law , was known among the Athenians ; for it is set forth among their other Disorders by Aristophanes , in the following words . Aristophanes in his Thesmoph●riasonsai ▪ I knew another Woman , who said that she was in Labour , and pretended to have had her Pains for the space of ten days , till she had bought a Child , mean while the Husband was running about to all places , buying those Remedies that hastened Labour . But an Old Woman brought in a Pot a Child to her , the Mouth of which she had shut up carefully with Wax , that so it might not cry out ; and as soo as she had made a Sign to the Woman , intimating what she had brought to her , she that pretended to be in Labour , cried out to her Husband , Get you gone ; get you gone , Husband ; for I am now upon the point to be brought to bed , and I feel the Child , kicking with his Heels ready to break out . Upon this he in great joy withdrew , and presently the Old Woman pluck'd out of the Child's mouth that Wax with which she had stopped it : upon which that cursed Woman that had brought in the Child run out with great joy to the Husband , and said , You have a Son born that looks like a Lyon , like a Lyon ; and that is yor very Image in all things . — What follows , is too immodest to be translated . Concerning the Interpretation of Laws , and that they ought to be expounded not strictly by the Words or Cases put in them , but by the Equity and Reason of them , Cicero writes thus ▪ lib. 2. de Inventione . Causae & rationes afferentur , quare & quo consilio , sit ita in lege : ut sententia & voluntate scriptoris ▪ non ipsa solum Scriputrae causa , confirmatum esse videatur . — Legis Scriptorem , certo ex ordine , Judices certa aetate praeditos , constituisse ; ut essent non qui scriptum ●uum recitarent , quod quivis puer facere posset , sed qui cogitationem assequi postent , & voluntatem interpretari . — Nullam rem nequè legibus , neque scriptura u●a , denique ne in serm●ne quidem quotidiano atque imperiis domesticis , recte posse administrari si unusquisque velit verba spectare , & non ad voluntatem ejus qui verba habuerit accedere . Judex is videtur legi obtemperare , qui sententiam ejus , non qui Scripturam sequatur , — Leges in concilio scriptoris , & utilitate communi , non in verbis consistere . — Idcirco de hac re nihil esse scriptum , quod cum de illa esset scriptum , de hac is qui scribebat , dubitaturum neminem judicabat . Postea multis in legibus , multa esse praeterita , quae idcirco praeterita nemo arbitretur , quod ex caeteris de quibus scriptum sit , intelligi possint . Let the Grounds and Reasons be shewed , that it may appear upon what design the Law was so and so made ; that so it may appear what is enacted not only from the words of the Law , but from the w●ll and design of the Law-giver . — The Law-givers have ordained Iudges to be chosen cut of a certain rank of Men , and of a determined age , that so there might be Persons appointed , who should not only repeat the Letter of the Law , which any Child may do , but should be able to find out the design of the Law-giver , and explain it according to his will. — If one will only have regard to the Words , and not to the Mind of him that uttered them , it will not be possible to order matters aright , neither by Law , nor by any sort of Writing , nor indeed by any sort of Discourse ; and this will appear in the whole business of the World , and even in Domestick Matters . — That Iudge obeys the Law more , who pursues the design of it , than he who has regard only to the words of it . Laws consist not in the words in which they are conceived , but in the intent of the Makers of them ; and are to be explained by the good of the Publick for which they are made . Nothing is specified in the Law concerning such a case , because the Law-giver , who mentioned another case in the Law , could not but conclude , that the one being expressed , no body could doubt of the other . For after all , there are many cases that seem to be omitted in many Laws , which yet we ought not to think omitted ; because we may easily see what we ought to think of them from those cases that are mentioned in the Law. The greatest part of his Oration for Caecinna , is to the same purpose ; and among many others , these words are remarkable . Cum voluntas , & consilium , & sententia interdicti , intelligatur , impudentiam summam , aut stultitiam singularem putabimus in verborum errore versari , rem & causam & utilitatem communem non relinquere solum , sed etiam prodere . — Juris igitur retineri sententiam , & aequitatem plurimum valere , oportere , an verbo ac litera jus omne torqueri , vos statuite utrum utilius esse videatur ? When we once comprehend the Reasons , the Design , and the Intent of a Law , it is either great Impudence , or great Folly , to let our selves be misled by any ambiguity in the words ; for this is not only to for sake but to betray the true Ends of the Law , and the good of the Publick — Do you therefore that are the Iudges consider which is best : Whether the Design of the Law ought to be observed , and to be explained according to Equity , or whether Iustice it self ought to be perverted by adhering to the Words and Letter of the Law. FINIS .