CASE 165: Illegitimate Children*

D. 38.8.2 (Gaius libro sexto decimo ad edictum provinciale)

Hac parte proconsul naturali aequitate motus omnibus cognatis promittit bonorum possessionem, quos sanguinis ratio vocat ad hereditatem, licet iure civili deficiant.

(Gaius in the sixteenth book on the Provincial Edict)

In this part (of his Edict), the governor, motivated by considerations of natural fairness, promises bonorum possessio to all cognates who are called to the inheri­tance by reason of blood relationship, even though they are not entitled under civil law.

So even illegitimate children can ask for bonorum possessio with respect to their mother, and a mother with respect to such children; and likewise brothers with respect to each other under this section of the Edict, because each of these is respectively cognate to the other; and (this is true) to the extent that also if a pregnant (slave) woman is manumitted and then gives birth, her child will also be a cognate to its mother, and the mother to it, and likewise her children to each other.

1.      Praetor and Proconsul. The model provincial governors Edict, on which Gaius comments, was largely drawn from that of the urban praetor, whose motives are therefore more pertinent.

2.      Illegitimate Children. Does it make sense to recognize the cognate relation­ship of a mother with her illegitimate children? Why not also recognize such a tie with their father, assuming that he can be conclusively identified?

3.      Freedwomen. Slaves had neither agnates nor cognates. Because of their ori­gin, freedwomen had no agnates. But this Case shows that a freedwoman could at least have cognates in her children, provided they were born after manumission (otherwise, they would be slaves unless separately freed). Could a freedwoman's children be agnates as well as cognates to each other? Does the answer depend on whether she entered a legitimate marriage?

4.      Grandchildren. Modestinus (D. 38.8.8) held that illegitimate children could inherit from their maternal grandmother on intestacy. Could they succeed to a paternal grandmother whose will had failed?