CASE 145: Periods of Gestation

Aulus Gellius, Noctes Atticae 3.16.12

size=1 color=black face="Book Antiqua">Praeterea ego de partu humano, praeterquam quae scripta in libris legi, hoc quoque usu venisse Romae comperi: feminam bonis atque honestis moribus, non ambigua pudicitia, in undecimo mense post mariti mortem peperisse factumque esse ne­gotium propter rationem temporis, quasi marito mortuo postea concepisset, quo­niam decemviri in decem mensibus gigni hominem, non in undecimo scripsissent; sed divum Hadrianum, causa cognita, decrevisse in undecimo quoque mense par­tum edi posse; idque ipsum eius rei decretum nos legimus.

(Aulus Gellius in the third book of his Attic Nights)

Moreover, on the subject of human gestation, besides what I have read in books, I have discovered that the following situation actually took place at Rome. A woman of good and honorable character, and of unquestioned sexual virtue, gave birth to a child in the eleventh month after the death of her husband. Be­cause of the time involved, she was accused of having conceived after her hus­band was already dead, since the decemvirs had written that a person is born within ten months and not in the eleventh month.

The deified Hadrian, however, after hearing the case, gave his decision that birth can also take place in the eleventh month. I have read the actual decision of this case. In it, Hadrian states that he delivers his opinion after having consulted the views of ancient philosophers and doctors.

1.      Woman Accused.

2.      Intestacy. The regulation of the decemvirs upon which the accusers relied was a part of the Twelve Tables, the semicodification of private law dating to 449 B.C. Ulpian (D. 38.16.3.11) gives us something of its content: “a child born ten months after the death (of its father) shall not be admitted to intes­tate succession.” This statute seems to presuppose that there is no will. In the present Case, Gellius does not mention a will, and possibly there was none. But it is somewhat more probable that there was a will (do you see why?), and the heirs under the will were accusing the widow of misconduct.

3.      Ten Months. Does the tenth-month rule make sense? Does it seem fair? Whose interests does it consider? Keep in mind that the Romans strictly pro­hibited remarriage by a widow for a mourning period, originally, it seems, of ten months, and later a year; see the Discussion to Case 23.

4.      Brief Gestation. Other texts show that the Romans admitted full-term gesta­tions of less than seven months (Paul.

5.      Imperial Standard. Hadrian claims to have consulted the appropriate moral and medical authorities in formulating his decision. Given this emperor's reputation for learning, there is no reason to doubt that he did. But how likely is it that the womans reputation played a more decisive role in the out­come of this particular case? What if her reputation had been more ques­tionable? In the final analysis, is Hadrians standard moral, medical, or legal in nature? The antiquarian Pliny the Elder (Naturalis Historia 7.5.40) men­tions a Roman praetor who awarded an inheritance to a posthumous child allegedly born after thirteen months of pregnancy (i.e., thirteen months after the testators death). Do you think that Hadrian would have been willing to accept this result?

D. 1.6.6 (Ulpianus libro nono ad Sabinum)

Filium eum definimus, qui ex viro et uxore eius nascitur. sed si fingamus afuisse maritum verbi gratia per decennium, reversum anniculum invenisse in domo sua, placet nobis Iuliani sententia hunc non esse mariti filium. non tamen ferendum lu- lianus ait eum, qui cum uxore sua adsidue moratus nolit filium adgnoscere quasi non suum. sed mihi videtur, quod et Scaevola probat, si constet maritum ali­quamdiu cum uxore non concubuisse infirmitate interveniente vel alia causa, vel si ea valetudine pater familias fuit, ut generare non possit, hunc, qui in domo natus est, licet vicinis scientibus, filium non esse.

(Ulpian in the ninth book on Sabinus)

We define a child as someone born from a man and his wife.

On the other hand, I am persuaded, and Scaevola too was of this view, that if it is determined that for some time a husband has not slept with his wife because of the onset of an infirmity or for some other reason, or if the paterfamilias had a disease rendering him impotent, a child born in his home, even if the neighbors were completely in the know, is not his own.

1.      Suspicious Minds. In the first hypothetical situation, where the husband, away for ten years, returns to find a one-year-old presented as his own, do Ju­lian and Ulpian assume there is no other evidence of the wife's adultery? Would the facts have to be this extreme? Would being away for only two years suffice?

2.      Absence of Evidence. In the second situation, where the husband has been living with his wife without interruption, do Julian and Ulpian assume there is no evidence that the wife had an extramarital affair?

3.      Neighbors in the Know. Is the third situation essentially the same as the first? What does Ulpian mean by “even if the neighbors were completely in the know”? What do the neighbors have to do with proving paternity? Is there any similarity with proving the existence of a legitimate marriage? See Case 16, which also mentions informed (or nosy?) neighbors.

4.      Benefit of Doubt. How does the outcome of this case differ from that of Case 145? Is it that the standard is objective here and subjective there? Who re­ceives the benefit of the doubt when paternity is in question?