B Inheritance rights and the supposititious child
Roman law wanted to be sure that paternal property went to the proper heir. The inheritance rights of an unborn child and potential heir had to be protected, and so agnates (relatives on the father's side) who would have inherited if the deceased had been childless had to wait until the child was born:
D.38.16.3.9 (Ulpian): Certainly even in the law of the Twelve Tables he who was in the womb is admitted to the legitimate succession, if he has been born.
Therefore it is customary to keep waiting agnates who come after him (in succession), to whom he is preferred, if he has been born. Therefore also he has a share with those who are of the same degree (of relation to the deceased), as for instance, (when) there is a brother and the unborn child, or one son born to a paternal uncle and one who is in the womb.D.5.4.3 (Paulus): The ancients provided for the free unborn child124 in such a way that they preserved for it all legal rights intact until the time of birth. Thus it appears in the law of successsion, where those who come after what is in the womb in regard to degree of agnation are not admitted (to the inheritance), as long as it is uncertain whether it can be born. Where, however, others are of the same degree as the unborn child, they (jurists) therefore asked what portion ought to be in suspension then, since they could not know how many were able to be born. Therefore indeed so many varied and incredible things about a matter of this sort are believed that they are counted among fables.
[Paulus continues with several stories of amazing multiple births in Greece and Egypt.
Jurists decided that three was the maximum number that could be born at one time except in very unusual cases, and so no more than three portions of the inheritance would be held back until the woman gave birth.]D.37.9.1 pr. (Ulpian): Just as the Praetor had a care for those children who are already among human affairs, so also he has not neglected even those who have not yet been born, on account of their expectation of being born. For he has protected their interests also in this part of the edict, in which he put the unborn child into possession instead of (granting) possession of property contrary to the will,125 1: It is necessary that the woman be pregnant in every case, nor does it suffice that she says she is pregnant. Therefore the granting of possession of property does not hold, unless she truly was pregnant both at the time of (her husband's) death and at the time when she asks to be put into possession.
A curator was to be appointed, at the woman’s request, for both the unborn child and its property; sometimes a curator was appointed only for the child [D.37.9.17 (Ulpian)]. The curator authorized deductions from the inheritance for the maintenance of the pregnant woman “in proportion to the means of the deceased and also in proportion to the status of the woman” [D.37.9.19 (Ulpian)].126
D.37.9.27 (Ulpian): Moreover, the unborn child ought to be in possession until she either gives birth or has a miscarriage or it is certain that she is not pregnant. 28: And if she consumed (part of the inheritance) knowing and aware that she was not pregnant, Labeo says that she has consumed it at her own expense.
If a woman fraudulently claimed to be pregnant and went to court to obtain bonorum possessio in the name of her unborn child, she could be charged with calumnia (bringing of false charges or vexatious prosecution), which resulted in legal infamy (infamia) [cf.
the widow who remarried within ten months of her husband’s death; Part I.A]. However, women who were honestly mistaken as to their pregnancy were not penalized. Of course, it would be difficult to prove that a woman who claimed to be pregnant was deliberately bringing a fraudulent claim. Physical examination might determine whether or not she was pregnant, but could not prove that she had intentionally deceived by a false claim.D.25.6.1 (Ulpian): If there is an inquiry concerning possession in the name of the unborn child (venter) and, when the heir brings an accusation, the woman has sworn that she is pregnant, the oath should be observed, nor will the woman be held, as if she came into possession for the sake of calumnia, nor should force be used on her after swearing. If, however, she has given birth, the truth shall be inquired into, whether she was pregnant from him (her husband). For an oath made between others neither benefits nor harms another, and therefore it will not harm the offspring. 1: And this edict arises from the same cause as the one above: for inasmuch as it is easy for (an action) concerning possession of property to be given to a woman in the name of her unborn child, so the praetor ought not to leave her calumnia unpunished. 2: However, she who wanted to come into possession knowing and aware that she was not pregnant, seems to have come into possession through calumnia.
D.3.2.15 (Ulpian): She is penalized with infamia who came into possession in the name of her unborn child (venter), while she declared that she was pregnant,
D.3.2.16 (Paulus): when she was not pregnant or had conceived from another (than her husband):
D.3.2.17 (Ulpian): For she who deceived the Praetor ought to be punished. But she is penalized with infamia, when she does this of her own power.
D.3.2.18 (Gaius): She who was deceived by a false opinion (that she was pregnant), cannot appear to have come into possession through calumnia.
D.3.2.19 (Ulpian): Moreover, no one is branded with infamia other than the woman about whom it has been judged that she had come into possession for the sake of calumnia.
And that also will be observed in the case of the father, who for the sake of calumnia allowed a daughter whom he had in his legal power to come into possession in the name of her unborn child.What if those who otherwise stood to inherit continued to claim, even after the child's birth, that it was not the legitimate heir? Under the Carbonian Edict, the child would still have possession of the disputed inheritance until he or she reached puberty (fourteen for boys, twelve for girls), at which time the question of ownership would be resolved in court. During the period when the inheritance was still in dispute, the child could draw maintenance from the estate [D.37.10; Buckland 1963, 726].
Challenges to the child's claim to inherit might be made on the grounds that he or she was “supposititious” (from Latin suppositus, “substituted”), that is, that someone else's baby had been brought in just after or during the birth itself, either to substitute for a stillborn infant or to conceal the fact that the woman was not pregnant. This fell under the lex Cornelia de falsis (Cornelian law on forgery), evidently by analogy with forged wills) and carried a criminal penalty [Robinson 1995, 37].
D.34.9.16 pr. (Papinian): A father had in “second tablets” named co-heirs and made his brother’s sons substitute heirs for his son who was below puberty,127 and after the boy’s death the substitute heirs, the sons of the brother, had brought charges of “substituted offspring” against his mother, in order that they might obtain their uncle’s property as legitimate heirs.128
A petitioner, rather ostentatiously named “Legitimus,” believed that his aunt had perpetrated a fraud on the family in the same way; presumably he was next in line as heir if the child could be proved to be a suppositus:
Cod. Just. 9.22.10, 21 September, 285
Emperors Diocletian and Maximian Augusti to Legitimus:
Since you are stirring up a criminal charge of “substituted offspring” against the wife of your paternal uncle, bring an accusation and prove it before the governor of the province. Posted on the eleventh day before the Kalends of October in the second consulship of Diocletian Augustus and the consulship of Aristobulus.
It was the possibility of substitution which had prompted the security precautions called for in the edict de inspiciendo ventre [Part III.A above}. How often such a substitution acuially occurred is not known; legal references may reflect the anxieties of a society obsessed with questions of legitimacy and property (and distrustful of women) rather than actual frequency. The charge that a woman had had a baby smuggled in goes back to Greek comedy [Hanson 1994, 78—80] and appears also in the Roman playwright Terence {Andria, lines 514—15; cf. Part III. A above}.
Among the Roman elite, charges that a woman had fraudulently claimed to have borne a child could have a political motivation. In the reign of Tiberius, Aemilia Lepida, descendant of an illustrious republican family, was charged with falsum for having pretended to have had a child by her former husband (from whom she was divorced), a “rich and childless” man. Accusations of adultery, poisoning, and consulting astrologers regarding the imperial house were thrown in. Amidst the protests and laments of other senatorial women, she was convicted by the Senate and banished from Roman territories (jnterdictio aquae et ignis, “prohibition from fire and water”), though her property was not confiscated [Tacitus, Annales III.22-23; see Talbert 1984, 467].
A law of 393 indicates that the Carbonian Edict, and controversies over the status and inheritance rights of a posthumous child, continued into late antiquity:
Cod. Theod. 4.3.1, 28 Sept., 393
Emperors Valensinianus, Theodosius, and Arcadius Augusti129 to Rufinius, praetorian prefect:
The Carbonian Edict is deployed in regard to legitimate persons from an undoubted marriage, when the offspring has been guarded and the legitimate succession has been proven, so that certainly the new heir, placed in possession until the age of puberty, may in some instances enjoy the possessions of others without disturbance.
Given at Constantinople on the fourth day before the Kalends of October in the third consulship of Theodosius Augustus and the consulship of Abundantius.130