The laws of 14th-century Valais granted the unborn child a surprisingly complex legal identity. Blending Roman inheritance principles with Christian doctrine, these statutes reveal how medieval thinkers grappled with defining life, personhood, and rights before birth.
By Lorris Chevalier
The status of the unborn child within Valais legal traditions presents a notable field of study, distinguished by its originality yet understudied nature. A proper understanding requires situating these norms within two principal influences—the enduring legacy of Roman law and the doctrinal impact of Christianity, both of which profoundly shaped Valais legal thought and practice.
Roman Legal Heritage and the Unborn Child
The Roman legal tradition, foundational to many European legal systems, developed intricate rules concerning the status of the infans conceptus—the conceived but unborn child. Already under the Law of the Twelve Tables (c. 450 BCE), the unborn child was admitted to succession rights if born alive, a principle articulated by the jurist Ulpian (c. 170–223 CE): si fuerit editus (“provided it is born”) (Digest 38.16.3.9, Ulpian). Paul (c. 160–230 CE) extended this principle, insisting that the unborn child must be treated ac si in rebus humanis esset—“as if it were a human being”—whenever its interest was concerned (Digest 1.5.7; 50.16.23.1 Paul). This approach gave rise to the legal figure of the curator ventris, appointed to safeguard the unborn child’s estate (Digest 37.9 pr., Ulpian).
Roman law carefully defined “birth” with remarkable nuance. A mere moment of life—such as a cry after delivery—was sufficient for legal recognition, while stillborn infants were considered never to have existed (Code 6.29.2 [Diocletian]; Digest 50.16.129 [Paul]). Interestingly, the full physical integrity of the infant was not required, provided it exhibited some sign of life (non integrum animal […] cum spiritu tamen) (Digest 28.2.12.1, Ulpian). Jurisprudential debates emerged, such as the differing requirements of the Proculian and Sabinian schools concerning what constituted life at birth, resolved ultimately in Justinian’s favour toward the less stringent Sabinian view (Code 6.29.3.1, Justinian).
Physical deformities posed another legal question: “monstrous” births lacking human nature (magis animalis quam hominis) were distinguished from mere physical abnormalities like extra limbs, which did not affect legal status (Digest 1.5.14 Paul; 50.16.135 Ulpian). Ancient authorities, including Pliny the Elder, documented the belief that unnatural unions could result in monstrous offspring, such as serpents or hippocentaurs.
Monstrous births in the Nuremberg Chronicle.
In terms of viability, Roman law adopted Hippocratic medical knowledge, setting a benchmark for a ‘perfect’ birth after six months or 182 days of gestation, conferring legitimacy or freedom accordingly (Digest 1.5.12 Paul; 38.16.12 Ulpian). Yet the unborn child was not fully recognised as a human being; Papinian clarified that partus nondum editus homo non recte fuisse dicitur—an unborn child was not rightly considered a human (Digest 35.2.9.1 Papinian). Accordingly, abortion was generally not punishable unless motivated by malicious intent to deprive a husband of an heir after divorce, punishable by temporary exile (Digest 48.19.39 Tryphoninus).
Christian Doctrine and Its Influence
Christianity introduced a profound theological dimension to the question of the unborn child’s status, particularly concerning the soul’s union with the body. Early Christian writers such as Tertullian advanced the concept of traducianism (soul inherited via generation), but Western Christianity, following Augustine and Thomas Aquinas, predominantly embraced delayed animation. Influenced by Aristotelian philosophy, the medieval Church taught that the rational soul infused the foetus only after a period of formation—40 days for males and 80 days for females (De Anima, Aristotle; Summa Theologica, Aquinas).
This distinction persisted for centuries. The Congregation of the Holy Office in 1713 forbade the baptising of a foetus aborted before the rational soul’s animation, underscoring the doctrinal hesitation over the precise moment of ensoulment. The Church’s consistent condemnation of abortion nevertheless recognised a gradation of guilt depending on whether the foetus was animated: non est homicidium qui abortum procurat ante quam anima corpori sit infusa (Gratian’s Decretum, c. 1150). The Church also adopted ancient beliefs concerning “monstrous” births, refusing baptism for non-human entities according to the 1614 Rituale Romanum of Pope Paul V and the 1917 Code of Canon Law (canon 748).
The Christian doctrine’s influence predominated in medieval penal law on abortion and infanticide but left civil law more inclined to Roman traditions. This interplay is particularly evident in Valais (which is today located in southwest Switzerland), where the 1446 Articles of Naters stand out as a striking exception.
The Peculiar Rarity of the Articles of Naters (1446)
Earliest known map of Valais, drawn by Johannes Schalbetter in 1545.
The Articles of Naters, promulgated in 1446, uniquely addressed the inheritance rights of the posthumous child that is conceived but unborn at the time of the deceased’s passing. Unlike other contemporaneous legal codes that restricted the posthumous child’s rights solely to the father’s succession, the Articles extended potential inheritance to any succession (successio aliqua), conditional on two requirements:
The lapse of a minimum gestation period—40 days for males, 60 days for females—between conception and the opening of the succession; and
The child’s baptism after birth.
This rule was extraordinary, blending Aristotelian animative theory with Christian sacramental necessity. The gestation condition reflects the Aristotelian concept of delayed animation, suggesting that rights accrued only once the foetus was sufficiently ‘animated’. The baptismal prerequisite, rare in civil law, underscores the religious influence on legal recognition and inheritance rights.
Scholars such as Anne Lefebvre-Teillard observe that this rule appears singular in European legal history, with no close parallels (Lefebvre-Teillard, L’infans conceptus). The Articles themselves emerged under unusual circumstances: drafted under duress by Jean Hennannen, a cleric, donned in armour, and imposed on Bishop Guillaume VI of Rarogne by armed insurgents besieging his castle at Naters. This subversion of episcopal authority led to excommunication and eventual annulment of the Articles shortly after their promulgation in 1451 (Abbet, Le statut de l’enfant à naître).
Despite annulment, the principle of foetal animation as a condition for inheritance persisted in Valais legal tradition, resurfacing in the 15th-century Landrecht of Walter Supersaxo and the 16th-century Coutumier of Ardon-Chamoson, surviving until the early 19th century. In contrast, other prominent 16th-century codifications, such as Schiner’s Landrecht (1514) and the Statutes of 1571, abandoned the animation requirement, accepting any conceptus in utero at the father’s death as heir, albeit still conditioned on baptism.
Baptism, Birth, and Legal Recognition
The baptism requirement for civil rights acquisition, though generally rare in European civil law, finds some precedents in early medieval codes. The Visigothic Law of King Chindasvind (642–653) stipulated that a child born posthumously could only inherit if it survived at least ten days and was baptised. This reflected a fusion of sacramental and customary law, where baptism supplanted naming ceremonies. The Salic Law similarly made distinctions based on postnatal survival and naming, with identical wergeld for foetal and infant deaths before the ninth night.
Medieval jurists like Philippe de Beaumanoir (c. 1250–1296) explicitly separated baptism (spiritual birth) from the physical birth proven by the infant’s cry, the latter alone sufficient for temporal rights (Beaumanoir, Coutumes, ch. XXV). Later, 17th-century codes such as the Fribourg Municipale (1648) confirmed that baptism was not strictly necessary for inheritance but could serve as evidence of live birth.
In Valais, the baptismal condition was firmly embedded in Schiner’s Landrecht (c. 1514), affirming that a posthumous child who reached baptism enjoyed full inheritance rights in both intestate and testamentary successions; the latter with equal shares alongside other legitimate children. This marked a departure from Roman law, where posthumous omission in wills invalidated testamentary dispositions, signalling a progressive accommodation of unborn children’s rights in Valais legal culture.
Legacy and Transformation of Valais Legal Thought
The principal singularities of Valais law regarding the status of the unborn child relate first to the question of foetal animation and secondly to the necessity of baptism. The requirement that the foetus be animated at the moment of succession’s opening as a condition for posthumous rights—a rule apparently unique in Europe—emerged only in two 15th-century Landrecht texts and the 16th-century Coutumier of Ardon-Chamoson. This corresponds to the Aristotelian doctrine of delayed animation (after forty or eighty days from conception), long accepted by the Church and reflected in imperial legislation on abortion.
By the late 18th century, this distinction was contested by episcopal authorities defending the still-debated thesis of immediate animation, a position seemingly adopted by 19th-century Valais jurisprudence regarding abortion. The persistence of baptism as a prerequisite for acquiring civil rights into the 18th century likewise remains rare in legal history. This rule likely aimed to limit disputes arising from the ephemeral existence of some children, whose inheritance rights often remained marginal due to the prevailing rule that paternal or maternal property reverted to the original family line.
Dr Lorris Chevalier, who has a Ph.D. in medieval literature, is a historical advisor for movies, including The Last Duel and Napoleon. Click here to view his website.
The laws of 14th-century Valais granted the unborn child a surprisingly complex legal identity. Blending Roman inheritance principles with Christian doctrine, these statutes reveal how medieval thinkers grappled with defining life, personhood, and rights before birth.
By Lorris Chevalier
The status of the unborn child within Valais legal traditions presents a notable field of study, distinguished by its originality yet understudied nature. A proper understanding requires situating these norms within two principal influences—the enduring legacy of Roman law and the doctrinal impact of Christianity, both of which profoundly shaped Valais legal thought and practice.
Roman Legal Heritage and the Unborn Child
The Roman legal tradition, foundational to many European legal systems, developed intricate rules concerning the status of the infans conceptus—the conceived but unborn child. Already under the Law of the Twelve Tables (c. 450 BCE), the unborn child was admitted to succession rights if born alive, a principle articulated by the jurist Ulpian (c. 170–223 CE): si fuerit editus (“provided it is born”) (Digest 38.16.3.9, Ulpian). Paul (c. 160–230 CE) extended this principle, insisting that the unborn child must be treated ac si in rebus humanis esset—“as if it were a human being”—whenever its interest was concerned (Digest 1.5.7; 50.16.23.1 Paul). This approach gave rise to the legal figure of the curator ventris, appointed to safeguard the unborn child’s estate (Digest 37.9 pr., Ulpian).
Roman law carefully defined “birth” with remarkable nuance. A mere moment of life—such as a cry after delivery—was sufficient for legal recognition, while stillborn infants were considered never to have existed (Code 6.29.2 [Diocletian]; Digest 50.16.129 [Paul]). Interestingly, the full physical integrity of the infant was not required, provided it exhibited some sign of life (non integrum animal […] cum spiritu tamen) (Digest 28.2.12.1, Ulpian). Jurisprudential debates emerged, such as the differing requirements of the Proculian and Sabinian schools concerning what constituted life at birth, resolved ultimately in Justinian’s favour toward the less stringent Sabinian view (Code 6.29.3.1, Justinian).
Physical deformities posed another legal question: “monstrous” births lacking human nature (magis animalis quam hominis) were distinguished from mere physical abnormalities like extra limbs, which did not affect legal status (Digest 1.5.14 Paul; 50.16.135 Ulpian). Ancient authorities, including Pliny the Elder, documented the belief that unnatural unions could result in monstrous offspring, such as serpents or hippocentaurs.
In terms of viability, Roman law adopted Hippocratic medical knowledge, setting a benchmark for a ‘perfect’ birth after six months or 182 days of gestation, conferring legitimacy or freedom accordingly (Digest 1.5.12 Paul; 38.16.12 Ulpian). Yet the unborn child was not fully recognised as a human being; Papinian clarified that partus nondum editus homo non recte fuisse dicitur—an unborn child was not rightly considered a human (Digest 35.2.9.1 Papinian). Accordingly, abortion was generally not punishable unless motivated by malicious intent to deprive a husband of an heir after divorce, punishable by temporary exile (Digest 48.19.39 Tryphoninus).
Christian Doctrine and Its Influence
Christianity introduced a profound theological dimension to the question of the unborn child’s status, particularly concerning the soul’s union with the body. Early Christian writers such as Tertullian advanced the concept of traducianism (soul inherited via generation), but Western Christianity, following Augustine and Thomas Aquinas, predominantly embraced delayed animation. Influenced by Aristotelian philosophy, the medieval Church taught that the rational soul infused the foetus only after a period of formation—40 days for males and 80 days for females (De Anima, Aristotle; Summa Theologica, Aquinas).
This distinction persisted for centuries. The Congregation of the Holy Office in 1713 forbade the baptising of a foetus aborted before the rational soul’s animation, underscoring the doctrinal hesitation over the precise moment of ensoulment. The Church’s consistent condemnation of abortion nevertheless recognised a gradation of guilt depending on whether the foetus was animated: non est homicidium qui abortum procurat ante quam anima corpori sit infusa (Gratian’s Decretum, c. 1150). The Church also adopted ancient beliefs concerning “monstrous” births, refusing baptism for non-human entities according to the 1614 Rituale Romanum of Pope Paul V and the 1917 Code of Canon Law (canon 748).
The Christian doctrine’s influence predominated in medieval penal law on abortion and infanticide but left civil law more inclined to Roman traditions. This interplay is particularly evident in Valais (which is today located in southwest Switzerland), where the 1446 Articles of Naters stand out as a striking exception.
The Peculiar Rarity of the Articles of Naters (1446)
The Articles of Naters, promulgated in 1446, uniquely addressed the inheritance rights of the posthumous child that is conceived but unborn at the time of the deceased’s passing. Unlike other contemporaneous legal codes that restricted the posthumous child’s rights solely to the father’s succession, the Articles extended potential inheritance to any succession (successio aliqua), conditional on two requirements:
This rule was extraordinary, blending Aristotelian animative theory with Christian sacramental necessity. The gestation condition reflects the Aristotelian concept of delayed animation, suggesting that rights accrued only once the foetus was sufficiently ‘animated’. The baptismal prerequisite, rare in civil law, underscores the religious influence on legal recognition and inheritance rights.
Scholars such as Anne Lefebvre-Teillard observe that this rule appears singular in European legal history, with no close parallels (Lefebvre-Teillard, L’infans conceptus). The Articles themselves emerged under unusual circumstances: drafted under duress by Jean Hennannen, a cleric, donned in armour, and imposed on Bishop Guillaume VI of Rarogne by armed insurgents besieging his castle at Naters. This subversion of episcopal authority led to excommunication and eventual annulment of the Articles shortly after their promulgation in 1451 (Abbet, Le statut de l’enfant à naître).
Despite annulment, the principle of foetal animation as a condition for inheritance persisted in Valais legal tradition, resurfacing in the 15th-century Landrecht of Walter Supersaxo and the 16th-century Coutumier of Ardon-Chamoson, surviving until the early 19th century. In contrast, other prominent 16th-century codifications, such as Schiner’s Landrecht (1514) and the Statutes of 1571, abandoned the animation requirement, accepting any conceptus in utero at the father’s death as heir, albeit still conditioned on baptism.
Baptism, Birth, and Legal Recognition
The baptism requirement for civil rights acquisition, though generally rare in European civil law, finds some precedents in early medieval codes. The Visigothic Law of King Chindasvind (642–653) stipulated that a child born posthumously could only inherit if it survived at least ten days and was baptised. This reflected a fusion of sacramental and customary law, where baptism supplanted naming ceremonies. The Salic Law similarly made distinctions based on postnatal survival and naming, with identical wergeld for foetal and infant deaths before the ninth night.
Medieval jurists like Philippe de Beaumanoir (c. 1250–1296) explicitly separated baptism (spiritual birth) from the physical birth proven by the infant’s cry, the latter alone sufficient for temporal rights (Beaumanoir, Coutumes, ch. XXV). Later, 17th-century codes such as the Fribourg Municipale (1648) confirmed that baptism was not strictly necessary for inheritance but could serve as evidence of live birth.
In Valais, the baptismal condition was firmly embedded in Schiner’s Landrecht (c. 1514), affirming that a posthumous child who reached baptism enjoyed full inheritance rights in both intestate and testamentary successions; the latter with equal shares alongside other legitimate children. This marked a departure from Roman law, where posthumous omission in wills invalidated testamentary dispositions, signalling a progressive accommodation of unborn children’s rights in Valais legal culture.
Legacy and Transformation of Valais Legal Thought
The principal singularities of Valais law regarding the status of the unborn child relate first to the question of foetal animation and secondly to the necessity of baptism. The requirement that the foetus be animated at the moment of succession’s opening as a condition for posthumous rights—a rule apparently unique in Europe—emerged only in two 15th-century Landrecht texts and the 16th-century Coutumier of Ardon-Chamoson. This corresponds to the Aristotelian doctrine of delayed animation (after forty or eighty days from conception), long accepted by the Church and reflected in imperial legislation on abortion.
By the late 18th century, this distinction was contested by episcopal authorities defending the still-debated thesis of immediate animation, a position seemingly adopted by 19th-century Valais jurisprudence regarding abortion. The persistence of baptism as a prerequisite for acquiring civil rights into the 18th century likewise remains rare in legal history. This rule likely aimed to limit disputes arising from the ephemeral existence of some children, whose inheritance rights often remained marginal due to the prevailing rule that paternal or maternal property reverted to the original family line.
Dr Lorris Chevalier, who has a Ph.D. in medieval literature, is a historical advisor for movies, including The Last Duel and Napoleon. Click here to view his website.
Click here to read more from Lorris Chevalier
Further Readings:
Lefebvre-Teillard, A., “Infans conceptus, existence physique et existence juridique,” in Revue historique de droit français et étranger 72 (1994), p. 499-527
Abbet, Stéphane, “Le statut de l’enfant à naître dans les sources du droit valaisan (XIVe–XIXe siècles),” Commentationes Historiae Iuris Helveticae, vol. XIII, 2014, pp. 43-62.
Top Image: Brussels Koninklijke Bibliotheek van Belgie, Bibliothèque royale de Belgique ms. 3701-15 fol.55
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