DE VENTRE INSPICIENDO: OR, REMARKS ON Mr. ASHTON's ANSWERER In a LETTER to a Friend.  
Dear SIR,  
IN Compliance with your Commands, obliging me to give you my Thoughts upon what the Answerer of Mr. Ashton's Speech has said in Relation to the Civil and Common Laws, which he has been pleased to produce (as he thinks, conducing to his purpose) you receive this. You very well observe that this Answer has prevailed with many (especially those whose Education has not enabled them to examine his Quotations) to entertain Opinions that we were very hardly, d●●l● with, as to the Affair of the Prince of Wales, contrary both to the Laws of Nations, Civil and Old Common Law of England. All that I have to allege in the matter, is, that the Civil Law never made Provision in such a Case as the Prince of Wales happens to be; because unreasonable, as I shall demonstrate in this following Letter: And as for his Old Common Law, i'll appeal to all the unprejudiced World, if it reaches the business he brought it in for. His Laws of Nations I shall not concern myself in, both as 'tis not enjoined 〈◊〉 by you, and likewise because 'tis too abstruse; but it will be I think, sufficient for me to prove, he prevaricates with the Laws (I mean Civil and Common) which the generality of our English World are better acquainted with, and so leave you to judge of the sincerity of the Person: For till he convinces me that it is a Law of Nations for every Prince to prove (when the next presumed Heir does or does not demand it) That the Child, he is satisfied, was Born of his Wife, be truly so; though such a thing might happen when she was perhaps at Prayers in her Closet, etc. I say, till he proves this to be usual amongst all Nations; For as Justinian (who I think, understood the Law of Nations as well as this Gentleman) defines the Laws of Nations to be, it is, Quo jure ●●nes Gentes utuntur, 
Instit. lib. 1. Tit. 2. Sect. 1.  I believe I may very well forbear any thing of that matter. It will not be unnecessary, if I hint that the freedom I use is caused chief by the Security a private Letter ought to carry with it, which I suppose, will sufficiently admonish you of the Caution and Circumspection you are to use in Exposing it.  
First then, he Asserts that the Civil Law upon any Occasion of Suspicion (observe the word of Latitude, ANY OCCASION, etc.) Did Order that Notice be given twice a Week to the Parties concerned; that they may receive full satisfaction; that the Mother is to be kept in an House by itself, etc. As in the Answer to the Speech; and all this upon any Occasion of Suspicion. In Answer to which, I reply, what the Civil Law mentions in Relation to Spurious Issues, or Supposititious Births, may be reduced to a very narrow Compass, without leaving any thing material unsaid. The Sanatus Consultum Plancianum (of which Digest. Lib. 25. Tit. 3. de Agnoscendis & Alendis Liberis) contains two Cases; of which the fi●●● Commands that a Woman Divorced from her Husband, shall within thirty days after this Divorce give Notice to her Husband, if she be with Child, that he may take care of, and make provision for it; or that the Husband deny the Wife to be so with Child by him; which if he does not do, he is obliged to take care of, and Educate the Child that shall be Born of her. The second is, That those Women who after a Divorce, feign a false Birth, render themselves Obnoxious and Punishable; as the Law in such Cases has provided: Of which see Cod. Lib. 9 Tit. 22. Ad Legem Corneliam de falsis. Which was then Capital, but was afterwards moderated by the Emperor Leo. Novel. 77.  
But in the Time of Marcus Antoninus and Verus Emperors, there happened two New Cases; and by consequence, required a new Remedy; the first was of a Woman Divorced from her Husband, who denied she was big with Child by him; the Husband Asserted she was: upon which (the Man earnestly desiring an Heir to his Family) the Emperors wrote to Valerius Priscianus the Praetor of the City, That it seemed most fit to them upon the Husband's Request, that three Midwives should be sent to this Woman and inspect her Body, etc. Of which Digest. 25. Tit. 4. de Ventre inspiciendo. The other Case was, of a Woman, who after the Death of her Husband affirmed herself with Child; upon which the Praetor Commanded, That, that Woman who, after the Death of her Husband, Asserted herself to be with Child, should give Notice twice a Month to them, to whom this matter did appertain, viz. The next Heirs at Law; that satisfaction might be given them, etc. As in the Answer p. 13. From hence, Sir, I think you may plainly discern the disgenuity of this Answerer. For I appeal to you, and profess I would to all Mankind if the forementioned Cases (and yet they are those he refers us to; and I Challenge him to give me any other in Civil Law, any ways relating to supposititious Births) have any Relation to that of the Prince of Wales: The first of these Cases, being between a Husband and his Wife after a Divorce: The second, of the Inheritance and Possession of an Estate, between the Relations of a dead Husband and the Wife, who Asserted herself with Child. But in the Case of the Prince of Wales, I think there was not Divorce; neither could there be any dispute of Inheritance in the business, when his Father, King James, was then alive; and consequently no such thing as Succession or Mission in the Possession of the Goods of him who was still living. For the Rule in Civil Law is, Viventis nulla est haereditas neque ●uccessi●, according to the 29. Dig Tit. 2. L. 19 de Acquirenda vel omittenda haereditate. From all which I infer, That (supposing the Civil Law, which this Gentleman has been pleased to Quote, were indeed Common Law (upon which the true State of the Controversy alone depends) and more over in the great Charter of England) that King James was not obliged to such a Formality, neither of the Cases amounting, in the least, to have him concerned in them. By the by, I cannot omit wondering, since this Gentleman seems to be so mightily taken (and I may well enough add so mightily mistaken) with Civil Law, he did not gratify the World with an Exposition of the Edict of the Emperors Dioclesian and Maximinian Cod. Lib. 9 Tit. 22. L. 10. de partu supposito.  
Cum suppositi partus Crimen Patrui tui Uxori moveas, apud Rectorem Provinciae, instituta Accusatione, id proba. So that from Civil Law it is not any Cause of suspicion will do the business, but proof must be made to render it sufficient— Actori Incumbit Onus probandi. And so much for his Civil Law. With this likewise exactly agrees the Basilicon, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Lib. 31. Tit. 7.  
In this business I have designedly waved giving you the Exposition of the most Celebrated Civilians Cujacius, Molinaeus, and Faber, upon these passages, I have had occasion to quote, because I was loath to have my Letter swell to a Volume. But if any curious Gentleman will take the pains to examine the Learned Works of the  Civilians, he will find their Expositions agreeable to what I have produced these Laws for.  
I shall now briefly observe what I judge material to object to his old Common Law, and then take my leave of him and you for the present. I shall save both the Expense of Time and Paper, if I only desire you to peruse that Chapter in Bracton, to which his Margin does refer you; you'll find it chief concerns what the Civil Law, I mentioned before, provided for: And as for Fleta (who almost in every thing follows Bracton,) he says, That supposing the Husband and Wife being Summoned by the King to appear before the Sheriffs, upon Complaint of the next Heir, that they have Forged and Suborned a supposititious Child. To use his own Words. Si potentes videbantur esse Parents, ad Prolem suscitandam pro haerede judicabitur nisi querens decere possit Contrarium. That if the Parents be thought able to get Children (their Child) shall be adjudged Heir, except the Plaintiff can prove the contrary. Take Notice here what both Bracton and Fleta say, That this Writ is to be Issued out by the King, etc. Therefore granting this were now true Law (which I deny) yet I cannot perceive how it would reach the King. For who is so mad to suppose the King would issue out a Writ to his Officer, for the Examining the Queen, his Wife, with whose Issue he himself is well satisfied▪ His friend Bracton would have told him according to his Old Law, 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 recourse to supplication (to use his Words,) Cum Breve non currat contra ipsum.) That he would correct his Error, which (says he) if he refuses and denies to do, 'tis altogether sufficient punishment for him, That he expect God a Revenger. For (as he goes on) no Man may presume to call his Actions in Question, much less rise up against his Act. Bracton. lib. 2. cap. 8. de acquirendo rerum Dominio, fol. 5.  
To end all, I'll transcribe you what our Oracle of the Law of England says in this matter. You'll, without difficulty, suppose, I mean my Lord Cook.  
For the Benefit and Safety of Right Heirs contra partus suppositos, the Law hath provided Remedy by the Writ de Ventre Inspiciendo, whereof the Rule in the Register is this. Nota. 
Regist. f. 227. Bracton. l. 2. f. 69. Britton. f. 165. Fleta. l. 1. c. 14.  si quis habens Haereditatem duxerit aliquam in Uxorem, & postea moriatur ille sine Haerede de Corpore suo Exeunte per quam Haereditas illa Fratri ipsius defuncti descendere d●beat; & Uxor dicit se esse pregnantem de ip●… d●functo cum non sit, habeat Frater & Haeres Breve de Ventre inspiciendo. It seemeth by Bracton and ●etu, which followed him, that this Writ doth lie ubi Uxor alicujus in vita Viri sui se pregnantem fecit cum non sit ad Exhaereditationem veri Haeredis, etc. Ad querelam veri Haeredis per praeceptum Domini Regis, etc. which is to be understood according to the Rule of the Register: when a Man having Lands in Fee-simple dieth, and his Wife soon after marrieth again, and feigns herself with Child by her former Husband: In this Case, though she be married, the Writ de Ventre Inspiciendo, doth lie for the Heir. But if a Man seized of Lands in Fee (for Example) hath Issue a Daughter, who is Heir Apparent; She in the Life of her Father cannot have this Writ for divers Causes. First, Because She is not Heir, but Heir Apparent; for; as hath been said, Nemo est Haeres Viventis; and this Writ is given to the Heir to whom the Land is descended. And both Bracton and Fleta say that this Writ lieth ad querelam veri Haeredis, which cannot be in the Life of his Ancestor, and herewith agreeth Britton and the Register. Secondly, the taking a Husband, in the Case aforesaid, being her own Act, cannot bar the Heir of his lawful Action once vested in him. Thirdly, the Law doth not give the Heir Apparent any Writ; for 'tis not certain whether he shall be Heir Solus Deus facit Haeredes. Fourthly, the Inconvenience were too great, if Heirs Apparent in the Life of their Ancestors, should have such a Writ to examine and try a Man's lawful Wife, in such sort as the Writ de Ventre Inspiciendo doth appoint; Or if She should be found to be with Child, or suspect; then She must be removed to a Castle, and there safely kept until her Delivery; and so any Man's Wife might be taken from him against the Laws of God and Man. So far my Lord Chief Justice Coke. Instit. Part. I. lib. 1. cap. 1. lib. 1. fol. 8.  
You may now see what obliged our Answerer to run to his Civil and Old Common Law, the first being little practised in England, and neither that nor Old Common Law understood, but by the most eminent Professors. But for the modern Exposition of Laws, he supposed we were a little better versed in. I hope some of our able Lawyers will take care to vindicate the Honour of their Profession, and not suffer it to be thus abused by crafty People, to insinuate Falsehood into, and poison the minds of the Ignorant and Unwary. For my own part, what I have here said, is just what my Leisure would suffer me hastily to set down, and therefore wants those Ornaments both of Method and Elegance I could wi●h it clothed with; however, considering it an Epistle of one Friend to another, it carries, I hope, its Pardon along with it. Before I take my Farewell, I cannot omit saying somewhat to the grand popular Objection generally urged, That it is not expected that the Birth of the Prince of Wales be proved Spurious, since a Negative will not admit of Proof. To which I answer, That the asserting his Highness, the Prince of Wales not to be K. J's Son is an Affirmative. For suppose I assert Titius not to be the Son of Cajus, I affirm him to be the Son of Somebody else: So till the Prince of Wales be proved to be the Son of Somebody else than of K. I— s, I should do a very great Injury to Equity and Common Justice (since his Father has owned him) should I pronounce him a Bastard. Beside, the Matter never came to Litigation or Dispute; and to hang People before we judge 'em, has ever, I think, been deemed and looked upon as too severe and unjust. We ought, in an Affair of such Moment, to be very wary and cautious how we proceed; since the Example, I fear, may be of direful and pernicious Consequence. Encouraging you still to be steadfast in the Truth, I take my Leave of you with these excellent Lines of Horace, 
Justum & tenacem propositi Virum  
Non Civium ardor prava Jubentium;  
Non vultus instantis Tyranni,  
Men●● quaetit solida.   
I am, Dearest SIR, Your most Faithful and Affectionate Friend And Humble Servant. April 5.. 1691.