1.Exactly 40 years ago in that distant 1977 our beloved Roman law professor Michail Andreev suggested to me that I should address my roman-law curiosity to the famous sentence by Paul in D.2.4.5.
Pater… is est quem nuptiae demonstrant.
The father is the one whom the marriage points to.
Following his advice I published in the Bulgarian journal “Legal Thought” Issue 5/1979 my first article ”The Presumption of Paternity in Classical Roman Law”. In the following 40 years I have noted and collected some interesting findings on that topic which I feel I should share today.
2. It is tricky and risky to research the law of a disappeared world because of the temptation to transplant our contemporary assumptions to a very different age which has sunk into eternity.
3. I should not repeat the references to books and authors which I have quoted in my first article. I should only quote the publications containing new references.
4. The main arguments for perceiving Paul’s sentence as a presumption for paternity are well known in the Roman law literature.
It is the clear message that the sentence carries and its relation to the previous statement concerning the origin from the mother: Mater semper certa est, etiam si volgo conceperit.
It is also the fact that Paul is considered the author of the presumption of innocence in D.22.3.2.: Ei incumbit probation qui dicit, non qui negat. Why should not he author a presumption of paternity?
5.However there are substantial objections by Roman scholars that Paul’s sentence is a presumption of paternity.
It is Fritz Schulz, Classical Roman Law, Oxford 1954, p. 142.
It is also the fact that this sentence is missing in its most appropriate chapters in the Digest: D.22.3. De probationibus et prasesumptionibus and D.25.3.: De agnoscendis et alendis liberis.
There are also competing and very different regulations on the same subject such as Senatusconsultum Plancianum in D.25.3. and another Senatusconsultum from the time of emperor Hadrian in D.25.3.3.1 both quoted by Ulpian. The existence of these regulations is incompatible with the alleged function of such a presumption of paternity. Also the ancient habit of tollere liberos does not imply the existence of a binding evidence rule related only to the marriage.
6. Yet what is the meaning and relevance of the famous Paul’s sentence if it is not a presumption for paternity?
We think most convincing is the explanation by G.Donatuti, Max Kaser and Rolf Knutel who consider that sentence as a praesumptio voluntatis and as an interpretation rule of the opinion of the husband whether he considers himself the father of the new-born. If the marriage continues to exist after the child’s birth, it was clear for the Roman jurists that the husband acknowledges the child as his own and they simply interpret that implied recognition of the father and note it. But it is not that the father was obliged to recognize the child as his own through the fact of the marriage- which is the meaning of the contemporary presumption.
7. But then how was Paul’s sentence in D.2.4.5 transformed into a presumption of paternity in the modern world? I.e. who is the father of the presumption for paternity?
7.1. It may not be true that the assumption for family origin of the children born throughout the marriage comes from Rome. Plato formulated it in Ancient Greece in the year 380 BC i.e. six centuries before Paul and nine centuries before the Digest.
Plato, Republic, Book V, 461D:
But how will they know who are fathers, daughters and so on?
They will never know. The way will be this:- dating from
the day of the hymeneal, the bridegroom who was then married
will call all the male children who are born in the seventh
and tenth month afterwards his sons, and the female children
his daughters, and they will call him father,
and he will call their children his grandchildren,
and they will call the elder generation grandfathers and grandmothers.
All who were begotten at the time when their fathers and mothers
came together will be called their brothers and sisters…
7.2. In 1625 Hugo Grotius published in Paris his famous work “On the Law of War and Peace”. Here is what he writes in Book II, Chapter VII, p.VIII 1-3 (from the German version):
Es musste deshalb eine Vermuthung
fϋr die Vaterschaft aufgestellt werden.
Eine solche ist die Ehe im natϋrlichen Sinne,
d.h. eine Gemeinschaft wo die Frau
unter der Aufsicht des Mannes steht.
Therefore one has to create an assumption for paternity.
Such an assumption is the marriage in its natural sense,
i.e. a community where a woman is under the supervision of a man.
The above quote shows that in 1625 there was no presumption of paternity in Europe and only then Hugo Grotius suggested its drafting in law. He did not refer to Paul’s sentence as such a presumption.
7.3. In 1721 in Amsterdam were published Lettres Persanes by the 32 year old Charles de Montesquieu. This is what he writes in the last but one paragraph of Letter 84/86 through his character Rica:
Par la loi qui y est observée,
tout enfant né pendant le mariage,
est censé être au mari;
il a beau avoir de bonnes raisons pour ne le pas croire,
la loi le croit pour lui,
et le soulage de l’examen et des scrupules.
According to the law which is followed here,
any child born of marriage is assumed to be the husband’s;
whatever good reasons he may adduce for not believing
the child is his, those reasons are unavailing;
the law believes for him,
and relieves him of both enquiry and scruples.
Something must have happen b/n 1625 when Hugo Grotius suggests a paternity presumption should be created and 1721 when Montesquieu reports it in his Lettres Persanes. I am not aware of any earlier reference to such a presumption than the above Montesquieu quote of 1721.
7.4. But that is not the end of the story. The legendary French lawyer Mathieu Marais (1664-1737) writes in his diary Journal et Mémoires de Mathieu Marais, Avocat au Parlement de Paris, sur la Regence et le Regne de Louis XV, tome troisieme, p.191:
31 mars 1724
… la loi: pater is est quem nuptiae demonstrant,
est le triomphe des femmes galantes et la honte des pauvres maris.
Avec cette loi, on donnera des enfants à qui on voudra
et à qui n’en aura point fait.
…the law : pater is est quem nuptiae demonstrant
is a triumph for the fancy ladies and a shame for the poor husbands.
By this law we shall give children to those who want
but also to those who do not want.
This is the first direct reference to Paul’s sentence as an acting law in France in 1724. One can feel the thin irony and indignation of avocat Mathieu Marais who suspected that Paul’s sentence would be used as a legal alibi for royal lewdness. But the important thing is that he refers to Paul’s sentence as acting law in 1724. That law must have been adopted by Louis XIV since Louis XV was born in 1710 i.e. in 1721 he was only 11 and in 1724 only 14 years old. Probably that law-rule was included in one of the Ordonnances of Louis XIV and it was possibly drafted by his great minister Jean-Baptiste Colbert.
But this is the limit of how far I can reach as an amateur into this Roman law and European law matter. With sympathy and a deep bow I pass over the legal baton to the next eager colleague wishing him the best of luck on this intriguing path.
January 2017 Valentin Braykov