Note 243 — Chapter XVII · THE KILLING OF PARENTS, SICK PERSONS, CHILDREN—FETICIDE

As regards the time from which the fetus was considered to be animate a curious distinction was drawn between the male and the female fetus. The former was regarded as animatus forty days after its conception, the latter eighty days. This theory, however—which was derived, as it seems, either from an absurd misinterpretation of Leviticus, xii. 2-5, or from the views of Aristotle (De animalibus historiæ, vii. 3; cf. Pliny, Historia naturalis, vii. 6)—was not accepted by the glossarist of the Justinian Code, who fixed the animation of the female, as well as of the male, fetus at forty days after its conception; and this view was adopted by later jurists (Spangenberg, in Neues Archiv des Criminalrechts, ii. 37 sqq.).