Protecting Unborn Children's Shares and Multiple Births — Justinian I, The Digest of Justinian Book 5 (5.4.3.pr), Latin & English

[PAULUS libro septimo decimo ad Plautium.]

§5.4.3.pr

Antiqui libero uentri¹ ita prospexerunt, ut in tempus nascendi omnia ei iura integra reseruarent: sicut apparet in iure hereditatium, in quibus qui post eum gradum sunt adgnationis, quo est² id quod in utero est, non admittuntur, dum incertum est, an nasci possit. ubi autem eodem gradu sunt ceteri quo et uenter, tunc quae portio in suspenso esse debeat, quaesierunt ideo, quia non poterant scire quot nasci possunt: ideo nam multa de huiusmodi re tam uaria et incredibilia creduntur, ut fabulis adnumerentur. nam traditum est et quattuor pariter puellas a matre familias natas esse: alioquin tradidere non leues auctores quinquies quaternos enixam Peloponensi, multas Aegypti uno utero septenos. sed et tregeminos senatores cinctos uidimus Horatios. sed et Laelius scribit se uidisse in Palatio mulierem liberam, quae ab Alexandria perducta est, ut Hadriano ostenderetur, cum quinque liberis, ex quibus quattuor eodem tempore enixa, inquit, dicebatur, quintum post diem quadragensimum. quid est ergo? prudentissime iuris auctores medietatem quandam secuti sunt, ut quod fieri non rarum admodum potest, intuerentur,³ id est quia fieri poterat, ut tregemini nascerentur, quartam partem superstiti filio adsignauerint: τὸ γὰρ ἅπαξ ἢ δίς, ut ait Theophrastus, παραβαίνουσιν οἱ νομοθέται.⁴ ideoque et si unum paritura sit, non ex parte dimidia, sed ex quarta interim heres erit:

The ancients made such provision for a free unborn child that they reserved all its rights intact until the time of its birth: as appears in the law of inheritance, in which those who are of a later degree of agnation than that of the child in the womb are not admitted, as long as it is uncertain whether it can be born. But where the others are of the same degree as the unborn child, they then questioned what share ought to remain in suspense, for the reason that they could not know how many could be born: for indeed, many so diverse and incredible things are believed concerning this matter that they are numbered among fables. For it is handed down both that four girls were born at one time to a mother of a family: moreover, authors of no small authority have recorded that a woman in the Peloponnese gave birth to four children five times, and that many in Egypt bore seven at a single birth. And we have also seen the triplet senators, the Horatii, wearing their official girdles. Moreover, Laelius writes that he himself saw in the Palatine a free woman who had been brought from Alexandria to be shown to Hadrian, with five children, of whom, he says, she was said to have given birth to four at the same time, and the fifth forty days later. What is the rule then? The most prudent authorities of the law followed a certain middle course, so that they might regard that which can happen not altogether rarely; that is, because it could happen that triplets were born, they assigned a fourth part to a surviving son: “for legislators pass over what happens only once or twice,” as Theophrastus says. And therefore, even if she is going to give birth to only one child, the existing son will in the meantime be heir not to a half share, but to a fourth:

Syntax notes4 items

5.4.3.prlibero uentri
Meaning 'free unborn child'. The noun uentri (belly, womb) is used metonymically to refer to an unborn child, modified by the adjective libero to indicate that the mother is a free woman rather than an enslaved person.
5.4.3.prqui post eum gradum sunt adgnationis, quo est id quod in utero est
In the relative clause starting with quo, the noun gradum is omitted in its second occurrence as it is shared with the antecedent (equivalent to in quo gradu est...). The whole phrase means 'those who belong to a remoter degree of agnation than that to which the child in the womb belongs.'
5.4.3.prut quod fieri non rarum admodum potest, intuerentur
The ut clause expresses the purpose or result of the main verb secuti sunt. Within it, quod fieri non rarum admodum potest is a relative clause with quod as the subject, functioning as the direct object of the verb intuerentur ('so that they might contemplate that which can happen not altogether rarely').
5.4.3.prτὸ γὰρ ἅπαξ ἢ δíς, ut ait Theophrastus, παραβαíνουσιν οἱ νομοθέται
A Greek quotation attributed to Theophrastus. The verb παραβαίνουσιν means 'to step over' or 'disregard'. It articulates the legal maxim that legislators and laws concern themselves with general or common cases rather than extremely rare exceptions that occur only once or twice.

Translated by Gemini 3.5 Flash (published 2026-07-12)urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.4.3.pr