An edict in the Roman law, in the 25 book of the digests, title 4, section 10 as concerning the visiting of a big-bellied woman, and the looking after what may be born by her.

An EDICT in the Roman Law: In the 25. Book of the Digests, Title 4. Section 10. As concerning the visiting of a Big-Bellied Woman, And the looking after what may be Born by Her.

The Pretor says thus;

§ 10. De inspiciendo ventre, custodien∣doque partu, sic Praetor ait: Si mulier mortuo marito praegnantem se esse dicet, his ad quos ea res pertinebit, procuratori∣ve eorum, bis in mense denunciandum curet, ut mittant, si velint, quae ventrem inspicient. Mittantur (autem) mulieres liberae duntaxat quinque; haeque simul omnes inspiciant: Dum ne qua earum, dum inspicit, invita muliere ventrem tangat. Mulier in domu honestissimae foeminae pariat, quam ego, constituam. Mulier ante dies triginta, quam paritu∣ram se esse putat, denunciet his ad quos ea res pertinet, procuratoribusve eorum, ut mittant, si velint, qui ventrem custo∣diant. In quo conclavi mulier paritura erit, ibi ne plures additus sint, quam unus: si erunt, ex utraque parte tabulis praefi∣gantur. Ante ostium ejus conclavis li∣beri tres, & tres liberae cum binis comi∣tibus custodiant. Quotiescunque ea mu∣lier in id conclave, alidve quod, sive in balineum ibit, custodes, si volent, id an∣te prospiciant: & eos qui introierint, ex∣cutiant. Custodes, qui ante conclave po∣siti erunt, si volunt, omnes, qui concla∣ve aut domum introierint, excutiant. Mu∣lier, cum parturire incipiat, his ad quos

ea res pertinet, procuratoribusve eorum denunciet, ut mittant quibus praesentibus pariat. Mittantur mulieres liberae dun∣taxat quinque: ita ut, praeter obstetrices duas, in eo concla•• i ne plures mulieres liberae sint, quam decem, ancillae quam sex. Hae, quae intus futurae erunt; excu∣tiantur omnes in eo conclavi, ne qua praegnans sit. Tria lumina, ne minus, ibi sint: scilicet, quia tenebrae ad subjicien∣dum aptiores sunt. Quod natum erit, his ad quod ea res pertinet, procuratoribus∣ve eorum, ostendatur. Apud eum edu∣catur, apud quem parens jusserit. Si au∣tem ne his parens, jusserit, aut is, apud quem voluerit educari, curam non re∣cipiet, apud quem educetur, causa, cog∣nita constituam. Is, apu•• quem educa∣bitur quod natum erit, quoad trium men∣sium sit, bis in mense ex eo tempore; quoad sex mensium sit, semel in mense; a sex mensibus quoad anniculus fiat, al∣ternis mensibus; ab anniculo quoad fari possit, semel in sex mensibus, ubi volet, ostendat. Si cui ventrem inspici, custo∣dirive, adesse partui licitum non erit, fa∣ctumque quid erit, quominus ea ita fiant, uti supra comprehensum est. Ei, quod natum erit, possessionem causa cognita non dabo; sive quod natum erit, ut su∣pra cautum est, inspici non licuerit. Quas itaque actiones me daturum polli∣ceor his, quibus ex Edicto meo Bono∣rum possessio data sit eas, si mihi justa causa videbitur esse, ei nondabo.

§ 11. Quamvis sit manifestissimum E∣dictum Praeoris, attamen non est negligen∣da inter pretatio ejus. § 12. Denunciare igi∣tur mulierem oportet his scilicet, quorum interest partum non edi, vel totam habitu∣ris haereditatem, vel partem ejus, sive ab in∣testato, sive ex Testamento. § 13. Sed & si servus haeres institutus fuerit, si nemo na∣tus sit: Aristo scribit, hic quoque servo,

quamvis non omnia, quaedam tamèn circa partum custodiendum arbitrio Praetoris esse concedenda. Quam sententiam puto ve∣ram; publice enim interest, partus non subjici: ut ordinum dignitas, familiarumque salva sit. Ideoque etiam servus iste, cum sit in spe con∣stitutus successionis, qualis qualis sit, debet audiri, rem & publicam & suam gerens.

§ 14. Denunciari oportet his, quos pro∣xima spes successionis contingit; ut put a primo gradu haeredi instituto; non etiam substituto: &, si intestatus pater-familias sit, his, qui primum locum ab intestato te∣nent: si vero plures sint simul successuri, omnibus denunciandum est. § 15. Quod autem Praetor ait, causa cognita se possessionem non daturum, vel actiones denegaturum, eo pertinet, ut si per rusticitatem aliquid fue∣rit omissum ex his, quae praetor servari vo∣luit, non obsit partui. Quale est enim, si quid ex his, quae leviter observanda Praetor edixit, non sit factum, partui denegari bo∣norum possessionem? Sed mos Regionis inspiciendus est, & secundum eum & obser∣vari ventrem, & partum, & infantem opor∣tet.

If a Woman upon her Husband's death pretends that she is with Child, she must in∣timate that twice every Month thereafter, to those who are the most concerned in it, or to their Proxies, that so they may send some, if they think fit, to visit her Belly. They may send any Free Women (i. e. not Slaves) to the number of five at most; and all these together may visit her, provided that while they do it, none of them may touch her Belly, without her leave: She shall be lodged in the House of some Woman of an untainted Reputation, such as shall be named by the Pretor; and she shall signifie to the Persons concerned, or to their Proxies thirty days before, when she expects to be delivered, that if they think fit, they may send such as may watch over her. The Room in which she is to be brougt to Bed, shall be visited, that there may be no other Entries to it but One; and if there are any other, care must be taken to nail them up with Boards laid along both within and without; and at the Door of this Bed-Chamber three Free Men, with as many Free Women, and two Servants may be set to watch; as oft as the Woman thinks fit to go into that Bed-Cham∣ber, or into any other, or into a Bath, which those keepers may visit, if they think fit, before she goes into it, and may also visit all that go

into it at that time; and those Keepers may also, if they think fit, search all such as come within the House or the Bed-chamber. When the Woman falls in Labour, she shall give no∣tice of it to those concerned, or to their Pro∣xies; that so they may send such Persons who may be Witnesses to the Birth; who must be Free Women, to the number of five at most; and besides the Two Midwives, there must be no more Free Women in the Bed-chamber, than Ten; nor more Servants than Six. All these who enter within the Bed-chamber, shall be visited in the Room, to see if any of them is with Child: nor must there be few∣er than three Lights in the Room, because a•• Imposture may be more easily committed in the dark. That which is born, shall be shewed to those who are concerned, or to their Proxies, if they desire it. The Infant is to be kept by him who is named by the Father for that intent; but if he has left no Orders concerning it, or if he who was named by him, will not un∣dertake it, the Pretor having examined the matter, shall name the Person to whose keep∣ing the Child is to be trusted; whose name shall be published, and he shall be obliged to shew him, as he thinks fit twice a Month, till he is three Months old, and after that once a Month, till he is six Months old, and once in two Months, till he is a year old; and from thence once in six Months, till he can speak. But if any will not suffer their Bel∣ly to be visited, nor themselves to be wat∣ched, nor admit of Witnesses to their deli∣very, or if any thing is done for hindring the execution of those things that are hereby provided, when upon the hearing of the matter that is made out, that which is born, is not to be admitted to the possession of the Estate; if it be found that the Child has not been visited, according to the former regulations; in which case the Pretor promises to give over all Rites and Titles to those others, whom according to his Edict he has put in Possession, and not to the Child that is so born, the Justice of the cause being first made out to him.

11. Altho' the Pretors Edict is very express, yet the Explanation of it is not to be passed over. 12. The Woman is bound to intimate her being with Child, to all those who are concerned in it, and to all others to whom either the whole Inhe∣ritance or a part of it belong; whether by the suc∣cession in the course of Law, or by the Will of the Dead. 13. And even if a Slave is made Heir by the Will, there being no Child, Aristo writes,

that the Pretor ought, according to his discre∣tion, to give him some, though not all those privi∣leges of watching over the birth; in which I think he is in the right: For it is of publick concern, that there should be no suppositi∣tious Births; and that the Dignity of Fami∣lies, & of the different ranks of men, be pre∣served entire. And that therefore even this Slave, who is put in the hope of the Succ••ssion, should be heard, how mean soever his condition may be, since the Publick is concerned in that which he looks after, as well as he is as to his own particular.

14. The matter ought to be imtimated to those who are the next in the Succession; but not to those who come after them in the entail: but if the Father died without a Will, then it must be inti∣mated to those who succeed immediately to the de∣funct: and if there are many Heirs Portioners, it must be intimated to them all, 15. As for that Clause, in which the Pretor says, that upon the hearing of the Cause, he will not put the Child in possession, and that he will not give him leave to sue for it: by this (of hearing the Cause) is to be understood, that if by a clownish simplicity some of those things have been neglected, that the Pre∣tor has appointed to be observed, this must not turn to the prejudice of the Child; for what rea∣son is there, that if any of those things have been omitted, which the Pretor has order'd to be slight∣ly observed, that then the Possession of the Estate should be denied to the Child? But a regard is to be had to the Custom of the Country; and according to that, both the Big-Belly, the Birth, and the Child, are to be visited and watched over.

It seems that the Abuse provided against by this Law, was known among the Athenians; for it is set forth among their other Disorders by Aristophanes, in the following words.

Aristophanes in his Thesmoph••riasonsai▪

I knew another Woman, who said that she was in Labour, and pretended to have had her Pains for the space of ten days, till she had bought a Child, mean while the Husband was running about to all places, buying those Remedies that hastened Labour. But an Old Woman brought in a Pot a Child to her, the Mouth of which she had shut up carefully with Wax, that so it might not cry out; and as soo as she had made a Sign to the Woman, intimating what she had brought to her, she that pretended to be in Labour, cried out to her Husband, Get you gone; get you gone, Husband; for I am now upon the point to be brought to bed, and I feel the Child, kicking with his Heels ready to break out. Upon this he in great joy withdrew, and presently the Old Woman pluck'd out of the Child's mouth that Wax with which she had stopped it: upon which that cursed Woman that had brought in the Child run out with great joy to the Husband, and said, You have a Son born that looks like a Lyon, like a Lyon; and that is yor very Image in all things.—What follows, is too immodest to be translated.

Concerning the Interpretation of Laws, and that they ought to be expounded not strictly by the Words or Cases put in them, but by the Equity and Reason of them, Cicero writes thus▪ lib. 2. de Inventione.

Causae & rationes afferentur, quare & quo consilio, sit ita in lege: ut sententia & voluntate scriptoris▪ non ipsa solum Scri∣putrae causa, confirmatum esse videatur.—Legis Scriptorem, certo ex ordine, Judices certa aetate praeditos, constituisse; ut essent non qui scriptum ••uum recitarent, quod quivis puer facere posset, sed qui cogitatio∣nem assequi postent, & voluntatem in∣terpretari.—Nullam rem nequè legibus, neque scriptura u••a, denique ne in serm••∣ne quidem quotidiano atque imperiis do∣mesticis, recte posse administrari si unus∣quisque velit verba spectare, & non ad vo∣luntatem ejus qui verba habuerit accedere. Judex is videtur legi obtemperare, qui sententiam ejus, non qui Scripturam sequa∣tur,—Leges in concilio scriptoris, & utilitate communi, non in verbis consiste∣re.—Idcirco de hac re nihil esse scrip∣tum, quod cum de illa esset scriptum, de hac is qui scribebat, dubitaturum neminem judicabat. Postea multis in legibus, multa esse praeterita, quae idcirco praeterita nemo arbitretur, quod ex caeteris de quibus scrip∣tum sit, intelligi possint.

Let the Grounds and Reasons be shewed, that it may appear upon what design the Law was so and so made; that so it may appear what is en∣acted not only from the words of the Law, but from the w••ll and design of the Law-giver.—The Law-givers have ordained Iudges to be cho∣sen cut of a certain rank of Men, and of a deter∣mined age, that so there might be Persons ap∣pointed, who should not only repeat the Letter of the Law, which any Child may do, but should be able to find out the design of the Law-giver, and explain it according to his will.—If one will only have regard to the Words, and not to the Mind of him that uttered them, it will not be possible to order matters aright, neither by Law, nor by any sort of Writing, nor indeed by any sort of Discourse; and this will appear in the whole business of the World, and even in Do∣mestick Matters.—That Iudge obeys the Law more, who pursues the design of it, than he who has regard only to the words of it. Laws consist not in the words in which they are conceived, but in the intent of the Makers of them; and are to be explained by the good of the Publick for which they are made. Nothing is specified in the Law concerning such a case, because the Law-giver, who mentioned another case in the Law, could not but conclude, that the one being expressed, no body could doubt of the other. For after all, there are many cases that seem to be omitted in many Laws, which yet we ought not to think omitted; because we may easily see what we ought to think of them from those cases that are mentioned in the Law.

The greatest part of his Oration for Caecinna, is to the same purpose; and among many others, these words are remarkable.

Cum voluntas, & consilium, & sententia interdicti, intelligatur, impudentiam sum∣mam, aut stultitiam singularem putabimus in verborum errore versari, rem & causam & utilitatem communem non relinquere solum, sed etiam prodere.—Juris igitur retineri sententiam, & aequitatem pluri∣mum valere, oportere, an verbo ac litera jus omne torqueri, vos statuite utrum uti∣lius esse videatur?

When we once comprehend the Reasons, the Design, and the Intent of a Law, it is either great Impudence, or great Folly, to let our selves be misled by any ambiguity in the words; for this is not only to for sake but to betray the true Ends of the Law, and the good of the Publick—Do you therefore that are the Iudges consider which is best: Whether the Design of the Law ought to be observed, and to be explained according to E∣quity, or whether Iustice it self ought to be per∣verted by adhering to the Words and Letter of the Law.

FINIS.