Bracton: Thorne Edition: English. Volume 2, Page 204

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Volume 2, Page 204

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[001] taken into account with respect to succession.¹ But issue having more or fewer than
[002] the usual number of members, as six fingers on one hand, or no more than four, if
[003] in other respects he appears to be effectively human, shall be considered as a child
[004] with respect to succession.² And note, as was briefly discussed above, that if
[005] husband and wife live together and there is no impediment on either side to prevent
[006] conception and the wife conceives by someone other than her husband, the issue
[007] will be legitimate, because of the presumption, because it is born of the wife,³
[008] whether the husband avows it or disavows it, for this presumption admits of no
[009] proof to the contrary. If the husband and wife live together and the husband, because
[010] of some proper impediment, which can be proved, cannot beget, and the wife
[011] conceives by another, it is [likewise] presumed, because of the cohabitation, that
[012] the issue is legitimate, because it is born of the wife,⁴ and such presumption will
[013] stand until the contrary is proved.⁵ [Thus in these two cases presumption is
[014] preferred to truth.]⁶ If the husband once avows [such] offspring he may not disavow
[015] it at another time, if the avowal is proved.⁷ But if, when he cannot beget
[016] because of a proper impediment, he disavows the issue in utero or on its birth, and,
[017] as is proper, removes it from his house,⁸ though the presumption that the issue is
[018] legitimate must still stand, since it is born of the wife, proof to the contrary is
[019] admitted,⁹ and thus truth and real proof defeat the presumption.¹⁰ If it is shown
[020] by sure proofs that a proper impediment exists, and though, after such proof, the
[021] offspring is avowed by the husband, it will never be made legitimate, since that
[022] would be prejudicial to the true heir. Whether the husband can beget or not and
[023] whether the wife can conceive or not, if they have not lived together for a long
[024] period, two years or more, and the wife conceives by another or is delivered of a
[025] supposititious child, so that there is a strong presumption, because of the interval
[026] of time or¹¹ the distance between them, that the husband did not father such child,
[027] such issue will never be made legitimate, whether the husband avows it or not.¹²
[028] And though it is presumed to be legitimate, since born of the wife, nevertheless
[029] such presumption must not stand, nor will it be necessary to prove the contrary,
[030] since the truth itself (if it is established that they did not live together) demonstrates
[031] the contrary.¹³

Notes

1. Supra 31

2. Ibid.

3. Supra 35, 186

4. Supra 186

5. Supra 35

6. Supra 186

7. Supra 186, infra iv, 299

8. Infra iii, 311

9. Supra 186; ‘Admittatur,’ only in OA, CE

10. ‘et sic ... et probatio vera,’ from lines 21-2; Tancred, 222: ‘vera probatio vincit praesumptionem’

11. ‘vel’

12. Supra 186; infra iii, 311

13. Infra iv, 299