A Surveillance of pregnant widows

As we saw, widows were supposed to observe a “mourning period” of ten months after their husband's death before they could legally remarry [Part I.A].

A section of the Praetor's Edict, “On examining the womb and the guarding of the offspring”¹¹⁸ sets out an elaborate procedure to be followed when a widow claimed after her husband's death that she was carrying his child. Since the deceased husband himself was not able to state whether or not he recognized the child, the widow's pregnancy had to be closely monitored and birth had to take place under extreme high security precautions, lest an attempt be made to smuggle in a “supposititious” (substitute) child. The law (and perhaps many in-laws of widows) supposed that a woman might claim that she had borne the supposititious child herself, in order to obtain the property of her deceased husband in the name of his alleged child. The following passages are all from Ulpian's commentaries on the Praetor's Edict:

D.25.4.1.10 (Ulpian): About examining the womb and guarding the offspring the Praetor says the following:

If a woman says that she is pregnant after her husband has died, she should take care to announce this twice within a month to those to whom this matter pertains or to their representative (procurator), so that they, if they wish, can send those who will examine her womb.

Thirty days before she thinks that she will give birth, the woman is to announce (this) to those to whom this matter pertains or to their representa­tives, so that they, if they wish, can send those who are to guard the womb. There should be no more than one entrance to whatever room the woman will give birth in; if there are, they are to be obstructed on both sides by boards. Before the entrance of this room three free men and three free women are to stand guard along with two companions each. As often as the woman goes into that room or into any other room or to the bath, the guards, if they wish, are to stand look-out in front and to search¹¹⁹ those who have entered. The guards, who have been placed in front of the room, if they wish, are to search all who have entered either the room or the house. When the woman begins to give birth, she will announce this to those to whom this matter pertains or their representatives, so that they can send those in whose presence she is to give birth. Up to five free women are to be sent, so that in addition to two midwives, there shall be no more than ten free women in that room, and no more than six slavewomen. All the women who are within are to be searched in that room, lest any be pregnant. Let there be three lights, no less, there, of course because shadows are more suit­able for substituting (a baby). Whatever is born is to be shown to those to whom this matter pertains or to their representatives, if they wish to examine it.

It (the child) is to be raised at the home of the person whom the parent has ordered.¹²⁰ However, if the parent ordered nothing or the person, at whose home (the parent) wished it to be raised, will not accept the responsi­bility, I will decide at whose home it is to be raised after holding a hearing.

If someone is not allowed to examine the womb or to guard or be present at the birth, or if something has been done so that these things do not happen as has been dealt with above, having held a hearing, I will not give possession to the one who has been born. Or if it has not been permitted to examine that which has been born, as was decreed above, if it is shown to me that there is just cause, I will not give to that person those legal actions which I promise that I will give to those to whom possession of property (bonorumpossessio) has been given according to my edict.

D.25.4.1.12 (Ulpian): Therefore, it is necessary that the woman announce (her pregnancy) to those, certainly, in whose interest it is that she not give birth to offspring, those who would have either the entire inheritance or part of it either upon intestacy or by will.

D.25.4.1.14 (Ulpian): Moreover, it is necessary that she announce (her preg­nancy) to those whom the next hope of succession touches; as, for instance, the heir instituted in the first grade (not, indeed, the substituted heir)¹²¹ and, if the paterfamilias died intestate, the one who holds the first place upon intestacy. But if several people are to succeed together, it must be announced to all.

These would be members of her deceased husband's family, who would inherit from him if he died childless or without a will. They would have a considerable interest in whether or not she was actually pregnant (hence the need to examine her) and in whether she actually gave birth to a live baby or had another baby smuggled in (hence the room with only one entrance and the physical search of all who entered it), and in whether that child actually survived and was not replaced by a substitute (hence the inspection of the child at regular intervals until it could speak).

Women could be excused for not following the prescribed procedure if this was due to ignorance (cf. Chapter 1, Part IV.A on imperitia as an excuse) or to differences in local custom:

D.25.4.2.1 (Julian): But sometimes the Praetor ought to relax this (rule), if it has happened not through the woman’s malice, but through her inexperi­ence, that the womb was not inspected or the birth observed.

D.25.4.1.15 (Ulpian): However, as to what the Praetor says, that after holding a hearing he will not grant possession or will deny legal actions, this pertains to the case where something of those matters which the Praetor wished to be observed has been omitted, so that it not be to the disadvantage of the offspring. For what a situation it would be for possession of property (bonorum possessio) to be denied to the offspring, if any of those things, which the Praetor decreed were to be observed leniently, has not been done.

The legal presumption behind the edict de inspiciendo ventre is the same as that behind the senatusconsultum Plancianum, concerning pregnant divorced women [Chapter 4, Part I.E.2]: the claim of a widow or divorcee to be pregnant by her former husband might be disputed by the ex-husband himself (in the case of a divorcee) or by his family (in the case of a widow). Which came first, the procedure for pregnant widows (de inspiciendo ventre} or for pregnant divorcees (the s.c. Plancianum)? The edict de inspiciendo ventre is known from juristic commentaries to have been included in the Praetor's Edict, which was given final form under Hadrian (reigned 117—138). The Senate probably passed its decree on pregnant divorcees under Trajan (98—117), the reign prior to Hadrian's. However, the edict de inspiciendo ventre probably went back much earlier than the reign of Hadrian, at least to the late Republic.¹²² Roman law had dealt with the question of the paternity of a child born to a widow much earlier than that; already in the Twelve Tables (450 B.C.E), we find the rule that a child born within ten months of the death of his father is his heir [D. 38.16.3.9—11 (Ulpian)]. A passage in a Roman comedy, the Andria of Terence, performed in 166 B.C., mentions the presence of free women (liberae') at a birth where the paternity of the child is questioned.¹²³ Sanctions against widows who remarried less than ten months after their husband's death go back to very early Rome, and though such rules were originally religious in nature, they also served the prac­tical purpose of ensuring that a child born within the ten-month period had been conceived by the woman's husband [see Part I.A above]. Both the penalizing of a widow who remarried too soon and the monitoring of a widow who declared her pregnancy were intended to assure the paternity of a child born after her husband's death, and to protect his inheritance.