[ULPIANUS libro trigesimo quarto ad edictum. ] §25.3.1.prSenatus consultum, quod factum est de liberis agnoscendis, duas species complectitur, unam eorum qui agnoscunt, aliam earum quae falsum partum subiciunt.
[ULPIAN, On the Edict, book 34.] The senatus consultum which was made concerning the recognition of children embraces two classes: one of those who recognize, the other of those women who substitute a false child.
§25.3.1.1Permittit igitur mulieri parentiue in cuius potestate est uel ei cui mandatum ab eis est, si se putet praegnatem, denuntiare intra dies triginta post diuortium connumerandos ipsi marito uel parenti in cuius potestate est, aut domum denuntiare, si nullius eorum copiam habeat.
Therefore, it permits the woman, or the parent in whose power she is, or anyone who has been mandated by them, if she thinks she is pregnant, to give notice within thirty days to be counted after the divorce to the husband himself or to the parent in whose power he is, or to give notice at his home, if she has access to neither of them.
§25.3.1.2Domum accipere debemus hospitium, si in ciuitate maneat: quod si non sit, sed in uilla uel in municipio, illic ubi larem matrimonio collocarent:
By "home" we ought to understand his lodging, if he remains in the city; but if he is not there, but in a country house or in a municipality, [we ought to understand] that place where they established the hearth of their marriage.
§25.3.1.3Denuntiare autem hoc tantum esse mulierem ex eo praegnantem.
To give notice, moreover, is only this: that the woman is pregnant by him.
non ergo hoc denuntiat, ut mittat custodes maritus: sufficit enim mulieri hoc notum facere, quod sit praegnas.
Therefore, she does not give notice for this purpose, that the husband send guards; for it is enough for the woman to make this known, that she is pregnant.
mariti est iam aut mittere custodes aut ei denuntiare, quod non sit ex se praegnas: hoc autem uel ipsi marito uel alii nomine eius facere permittitur.
It is then the husband's part either to send guards or to give notice to her that she is not pregnant by him; and this is permitted to be done either by the husband himself or by another in his name.
§25.3.1.4Poena autem mariti ea est, ut, nisi aut custodes praemiserit aut contra denuntiauerit non esse ex se praegnatem, cogatur maritus partum agnoscere: et, si non agnouerit, extra ordinem coercetur.
The penalty for the husband, moreover, is this: that, unless he has either sent guards beforehand or given counter-notice that she is not pregnant by him, the husband is compelled to recognize the offspring; and, if he does not recognize it, he is punished extraordinarily.
debebit igitur respondere non esse ex se praegnatem aut nomine eius responderi: quod si factum fuerit, non alias necesse habebit agnoscere, nisi uere filius fuerit.
Therefore he must answer that she is not pregnant by him, or an answer must be made in his name; and if this is done, he will not otherwise have the necessity to recognize [it] unless it is truly his son.
§25.3.1.5Illud notandum est, quod denuntiatio a marito non incipit, sed a muliere:
It must be noted that the giving of notice does not begin with the husband, but with the woman.
§25.3.1.6Sed si maritus ultro custodes offerat et ea non admittat, uel si non denuntiauerit mulier, aut si denuntiauerit quidem, custodes autem arbitrio iudicis non admiserit, liberum est marito parentiue eius partum non agnoscere.
But if the husband of his own accord offers guards and she does not admit them, or if the woman has not given notice, or if she has indeed given notice, but does not admit the guards under the decision of a judge, it is free to the husband or his parent not to recognize the offspring.
§25.3.1.7Si mulier esse se praegnatem intra triginta dies non denuntiauerit, postea denuntians causa cognita audiri debebit.
If the woman has not given notice within thirty days that she is pregnant, if she gives notice afterwards she must be heard after the cause has been examined.
§25.3.1.8Quin immo et si in totum omiserit denuntiationem, Iulianus ait nihil hoc nocere ei quod editur.
Nay rather, even if she has entirely omitted the giving of notice, Julian says that this does no harm to that which is born.
§25.3.1.9Dies autem triginta continuos accipere debemus ex die diuortii, non utiles.
We must understand the thirty days as continuous days from the day of the divorce, not useful days.
§25.3.1.10Eleganter autem apud Iulianum libro nono decimo digestorum quaeritur, si intra dies triginta mulier marito non denuntiauerit et intra triginta partum ediderit, an senatus consulto locus sit.
Moreover, it is elegantly asked in Julian, in the nineteenth book of his Digests, if the woman has not given notice to the husband within thirty days and has given birth within thirty days, whether there is room for the senatus consultum.
et ait Plancianum senatus consultum cessare, quia de eo partu non uidetur sentire, qui intra diem trigesimum nascatur: quippe dies triginta ad denuntiandum praestituit senatus.
And he says that the Senatus Consultum Plancianum is inapplicable, because it does not seem to contemplate that birth which is born within the thirtieth day; for indeed the Senate prescribed thirty days for giving notice.
sed hanc rem non facere praeiudicium partui arbitror.
But I think this matter does not prejudice the offspring.
§25.3.1.11Quemadmodum per contrarium si maritus uxore denuntiante custodes miserit, nullum praeiudicium sibi facit.
Just as, conversely, if the husband, upon the wife giving notice, has sent guards, he does no prejudice to himself.
licebit igitur ei partum editum ex se negare nec ei nocebit, quod uentrem custodierit: et ita Marcellus libro septimo digestorum scripsit: ait enim, siue quis neget uxorem siue ex se praegnatem, sine praeiudicio recte mittet custodes, maxime si missurus id ipsum protestetur.
It will therefore be permitted to him to deny that the offspring born is from him, nor will it harm him that he guarded the womb; and so Marcellus wrote in the seventh book of his Digests: for he says that whether one denies that she is his wife or that she is pregnant by him, he correctly sends guards without prejudice, especially if, when about to send them, he protests that very thing.
§25.3.1.12Iulianus libro nono decimo digestorum scripsit: quod senatus consulto comprehensum est, si mulier uiro denuntiauerit se ex eo concepisse et is cui denuntiatum erit custodes ad uentrem custodiendum inspiciendumque non misserit neque contestato dixerit eam ex se praegnatem non esse, ut ei id quod editum sit agnoscere sit necesse, non eo pertinet, ut, si quis agnoscere se filium diceret, suum heredem haberet, quamuis ex alio conceptus sit: quandoque enim, inquit, coepit causa agi, grande praeiudicium adfert pro filio confessio patris.
Julian wrote in the nineteenth book of his Digests: what is contained in the senatus consultum—namely, if a woman has given notice to her husband that she has conceived by him, and he to whom notice was given has not sent guards to guard and inspect the womb, nor said in a formal declaration that she is not pregnant by him, so that it is necessary for him to recognize that which is born—does not mean that if someone said he recognized him as a son, he would have him as his own heir, even though he was conceived by another; for whenever, he says, the case begins to be tried, the confession of the father brings a great presumption in favor of the son.
§25.3.1.13Idem per contrarium quoque ait, si mulier diuortio facto non fecerit ea, quae senatus consulto praecipiuntur, ut liceat patri non agnoscere, non eo pertinere, ut filius natus suum se dicere non possit, sed ad id tantum, ut ita pater alere eum cogatur, si constiterit eum filium esse.
The same writer says conversely also, if the woman, after divorce has taken place, has not done those things which are prescribed by the senatus consultum, so that it is permitted to the father not to recognize the child, this does not mean that the son born cannot call himself his own heir, but only to this extent, that the father is only compelled to support him if it is established that he is his son.
§25.3.1.14Idem Iulianus scribit, si uxore denuntiante se praegnatem maritus non negauerit, non utique suum illi partum effici, cogendum tamen alere: ceterum esse satis iniuriosum ait, si quis longo tempore afuerit et reuersus uxorem praegnatem inuenerit et idcirco reiecerit, si quid ex his, quae senatus consulto continentur, omiserit, suum heredem ei nasci.
The same Julian writes that if, upon the wife giving notice that she is pregnant, the husband has not denied it, the offspring is not by all means made his own heir for him, but he must nevertheless be compelled to support it; but he says it is quite unjust if someone has been absent for a long time and, having returned, found his wife pregnant and therefore rejected her, should have his own heir born to him if he omitted any of those things which are contained in the senatus consultum.
§25.3.1.15Ex his apparet, siue uxor omisserit, quae eam ex senatus consulto obseruare oportuit, nihil praeiudicare filio, si filius est, non tantum in iure sui, uerum ne in alimentis quidem secundum diui Pii rescriptum: siue maritus neglexerit facere, quae ex senatus consulto debet, natum cogitur omnimodo alere, ceterum recusare poterit filium.
From these things it appears that, whether the wife has omitted what she ought to have observed under the senatus consultum, it does no prejudice to the son, if he is indeed the son, not only in his status as suus, but not even in maintenance, according to a rescript of the Divine Pius; or whether the husband has neglected to do what he ought under the senatus consultum, he is compelled in any event to support the child born, but otherwise he will be able to reject him as his son.
§25.3.1.16Plane si denuntiante muliere negauerit ex se esse praegnatem, tametsi custodes non misserit, non euitabit, quo minus quaeratur, an ex eo mulier praegnas sit.
Clearly, if, when the woman gives notice, he denies that she is pregnant by him, although he has not sent guards, he will not avoid an inquiry being made as to whether the woman is pregnant by him.
quae causa si fuerit acta apud iudicem et pronuntiauerit, cum de hoc agetur quod ex eo praegnas fuerit nec ne, in ea causa esse, ut agnosci debeat: siue filius non fuit siue fuit, esse suum
And if this case has been conducted before a judge and he has pronounced, when there is a trial about whether she was pregnant by him or not, that he is in such a position that the child ought to be acknowledged: whether he was not his son or was, he is his own.