children in Roman law
In the Roman world, the age limits connected to children were often flexible. Even in the case of legal liability, the ages were not rigid. In individual cases, children’s capacity to understand right and wrong, criminality, and responsibility were to be taken into account—at least in theory.1 Generally, children until the age of seven were referred to as infantes, until puberty (or, in later legislation, until the age of twelve for girls and fourteen for boys) as impuberes, and those between the puberty and the age of twenty-five (with the full legal capacity) more generally as (minores).
Even if children and, more broadly, minores feature in the Roman law already from the Twelve Tables onwards, they did not constitute a category of their own in Roman legislative thinking. Thus, information on children in Roman law is scattered throughout the whole corpus of legal literature.
A child is here defined as an individual below the age of full legal capacity, not primarily as a blood relationship to one’s parents. The focus here is on matters pertaining to the rights and status of the children themselves as underaged persons. The main themes are children’s legal incapacity in economic matters, guardianship, paternal and parental power over the person of the child (patria potestas and personal status; exposure, killing and selling of children) and the obligations between parents and children. Adult children’s duties towards their parents, inheritance issues or child as a source for privileges for its parents (see ius liberorum) are not discussed here.
Economic Incapacity of Children
Roman legislation was primarily concerned about the privileged sectors of the society. This shows also in relation to children: their (in)capacities were of interest most conspicuously in connection with economic matters. Roman legislation was based on the principle that childhood was a separate, vulnerable phase of life during which children’s property needed protection. In principle, the pater familias, the eldest ascendant in the male line of the familia, not only had complete ownership of the family’s assets but also legal liability for his dependants and for contracts involving them. Thus, children under the pater familias could not own the property they had accrued by way of gifts or testamentary bequests (Inst. Gai. 2.86–90; 2.123–124).
Children under a father’s power could also be given financial assets to use, the peculium. This was a way for offspring to undertake independent financial actions while the fathers involved retained limited legal responsibility. Complex legislation was enacted to regulate the relationships between the owners, the users of the peculium, and third parties. A father could, however, release his children under his power by emancipatio. The children then became independent, sui iuris, and capable of owning and managing property independently if they were of age. Emancipatio was also a prerequisite for adoption. If emancipatio took place, it often happened only at the end of childhood; in late Antiquity this seems to have taken place on reaching adulthood as a matter of course.2
For an underage person, it was not possible to administer one’s property, make a will, or to contract a marriage. If a minor child was emancipated or the father died, a guardian (tutor) was needed, to take care of the child’s property and personal maintenance, and to be the spokesman in all legal matters. By the 3rd century ce, the guardian was also supposed to protect the well-being of the child more generally. The burdens of guardianship (tutela) was indeed a topos in Roman culture. However, being under guardianship was seen as a special threat to the patrimony, and the way one administered guardianship would reveal one’s virtue or moral weakness. Almost half of the children at the time would have lost at least one parent before reaching puberty, and thus guardianship was indeed an experience many children shared—this, naturally, only among the wealthier families.3 There developed a detailed legislation for applying guardians and for the administration of their duties (e.g., Inst. Gai. 1.142–196, Dig. 26 passim). Infantes, who were less than seven years old, were not able to administer their own affairs at all, whereas impuberes could administer these with guardian’s specific authorisation.
Legislation gave mothers the obligation to find a guardian for the children if there were none appointed in the father’s will, or there were no older paternal male relatives available, but the mother could not become a guardian herself. Still, Roman legislation acknowledged mothers’ strong role. Magistrates were obliged to obey the will of the mother in nominating guardians, and the mother had the duty to oversee them. Mothers’ guardianship was institutionalized in the late 4th century ce, even if only on condition that they did not remarry.4
At reaching puberty, free persons attained their full legal capacity. There were different opinions whether puberty should be determined individually or set at age fourteen for boys: the jurist Gaius (2) still in the 2nd century ce gave both alternatives for determining majority, and it was only the Justinianic legislation which unequivocally fixed the full age for boys at fourteen.5 For girls, the marriageable age was twelve. There was a difference between the legal age limit and the age of social majority, reached only somewhat later in the Roman contexts.6 Indeed, full economic independence was reached only at the age of twenty-five, when (male) individuals were considered to need no further guidance. Therefore, from the early 2nd century ce, they could plead under the lex Plaetoria if defrauded, and later by the right of restitutio in integrum (“restoration to original condition”). It was also possible for them to apply for a curator, without whose approval any transaction was not binding. To have a curator became mandatory during the reign of Marcus Aurelius. Originally women were under tutela mulieris after their tutela minorum had ended, but when the institution of tutela mulieris gradually dissolved during the late Republic and early Empire, they also received a curator. Consequently, cura minorum and tutela began to merge, even if a formal difference can still be seen occasionally in the Justinian’s codification (see guardianship, Roman).7
For children whose fathers were still living, legal majority did not mean any change if the children were not emancipated—all property remained under the father. For daughters, the situation was similar after the change in the forms of marriage, as by the late Roman Republic most marriages were contracted sine manu, meaning that the bride remained under her father’s power. Before that, with cum manu marriage, the legal authority over her would have shifted from paternal hands to her husband’s (see marriage law, Roman for further information).
Parents and Fathers: Authority in Person
The basic principle of the Roman law was that the pater familias had total power over the person of his dependants, also children. In its simplest form, this meant that a father had unlimited and unequalled authority to discipline and punish. However, social expectations and the requirement of pietas set practical limits to this power.8
The idea of Roman fathers’ right to kill (ius vitae necisque) was perpetuated in the Roman literature, with an idealized vision of the early Roman Republic as a period of uncontested paternal power. The Twelve Tables refer to some kind of selling of children and urged the killing of the deformed at birth. However, the historical existence and extent of these powers has been heavily debated.9 In any case, the references to these rights in Roman literature show that the extensive rights connected with patria potestas had relevance as a part of the Roman identity (see Dig. 48.5.23–24). Cicero (1) thought that patria potestas had also “originally” included a right to sell one’s children (De or. 188.8.131.52), but for the period for which historians have sources, selling or pledging freeborn children were understood as offences, and there were no trace of any right for a father to sell his children to slavery in the Late Republic or after. On the other hand, it was permitted to put one’s children to work without any restrictions, also outside of one’s household.10
Roman law viewed newborn children differently than it did older ones, and for a long time there were no legal prohibitions against abandoning or killing children at birth. Parents had also the right to sell their newborns. Infanticide and child abandonment were prohibited only in 374 ce (Cod. Th. 9.14.1 and Cod. Iust. 8.51.2 pr.-1). There was no special ritual with legal content by which the father would have accepted the newborn child; no sources explicitly gave a Roman father a legally sanctioned right to kill, reject, or abandon his newborn children or to give them away; and no Roman text links these acts to patria potestas.11 In the extant legislation, no distinction was made between fathers and mothers on matters pertaining to abandoning, selling, pledging, or hiring the child.
Thus, the attitude towards the newborn depended on the status of the baby and the parental authority rather than on the father’s rights. During the Roman Empire, patria potestas remained the leading principle in organizing the economic relationships between fathers and children, and it was a tool in propagating Romanness and proper family relationships, but it had little relevance in relation to matters of the person. Still, honouring the (imagined) mos maiorum made it impossible to expressly restrict the powers of the pater familias. Moreover, in Roman law, adoption (adrogatio and adoptio) created juridically a similar relationship between children and their adoptive parents as the blood relation.
Duties and Obligations Concerning Children
Filial pietas required children to respect and obey the parents and, consequently, to support parents and other relatives in need. Parental pietas required parents to behave dutifully towards their children: the principle of pietas was above patria potestas. Thus, for example, children could bring an action of undutifulness (querela inofficiosi) if they were mistreated or disinherited by their parents. More generally, the sustenance of minor children was self-evidently part of the parental pietas.12 Parents were to take care of their offspring during their minority, and children were expected to honour their parents and take care of them in old age.
Children followed their father’s status in legitimate marriage (iustum matrimonium), otherwise their mother’s. In case of divorce, children joined their father as members of his familia as a rule. Still, there were disputes, and sometimes the mother could obtain custodia of her children. In these cases, the father did not lose his potestas, and was obliged to pay for maintenance (Dig. 184.108.40.206; Dig. 220.127.116.11–6; Cod. Iust. 5.24.1). Children born outside marriage could not inherit from their father. Also children of soldiers (before the reign of Septimius Severus) and of other couples who could have not entered a proper marriage were considered illegitimate. Most importantly, all children born of slave women were slaves.13 They could be separated from their parents at any time; in late antiquity there was an attempt to prevent the splitting of slave families on imperial estates (Cod. Th. 2.25.1Cod.Iust. 8). All these children were legally fatherless (sine patris) (Inst. Gai. 1.82 and 89).
Children born after divorce or after the death of the father were given special attention: the law ordered notification of the pregnancy and inspections to determine paternity. An unborn child (in utero) was to receive maintenance since he or she was born for the benefit of both male lineage and the community; similarly, an abortion was seen as violating the rights of the father. Here, the jurisdiction was aimed at protecting the rights of fathers or kin, not children.14 Likewise, parents were free to lease out work of their children as they wished as long as it did not endanger the child’s status.
Did Roman Law Favour Children?
That children were to be constantly under someone else’s authority meant not only restrictions but also some privileges. Here also, there were legal remedies to which children could appeal, and the best interest of children were occasionally invoked in legislation, more frequently in late Antiquity. In the later legislation, for example, guardians for the children were to be chosen for the benefit of their wards, whereas in the late Republic, guardians were primarily seen as protecting the property and the interests of the agnatic lineage (Cic. Off. 1.25.85; Dig. 26.1.1; Dig. 18.104.22.168; Dig. 27.4). Moreover, children below the age of puberty were legally incapable of committing a crime (doli incapax, Dig. 47.2.22pr–23), and they could not be tortured (except in case of treason, Dig. 48.18.10). These conditions could end at the age of ten if the child could be shown to have understood the nature of the deed. Neither could a failure to notify early enough of the pregnancy harm the inheritance rights of the child. By the 5th century ce, there even appears an idea that divorce as such could be harmful for the children.15
It seems unquestionable that children’s position in Roman law was strengthened and especially their inheritance rights were widened during the Roman Empire. However, the legal cases which seem to show special treatment of the children could also be interpreted as aiming at the protection of the interests of father, family line, and the res publica rather than of children per se. The jury is still out in what sense there were any “children’s rights” at play in Roman law or, more generally, if Roman law actually sought to favour children.16 Still, the Roman legislators clearly saw that children were in many contexts in the need of specific legislative measures.
The sources for children in Roman law are scattered among the Roman legal sources. Any shortlist would be difficult to compile and remain of limited help. Still, a well-contextualized selection of the relevant sources can be consulted in English in Bruce Frier and Thomas McGinn’s A Casebook of Roman Family Law. There are also helpful entries in Judith Evans Grubbs’s Women and Law in the Roman Empire. A Sourcebook on Marriage, Divorce and Widowhood. For the sources for Roman law in general, see law and procedure, Roman. A major part of Roman legal literature can be approached through the Internet in Latin. A most useful tool is the Roman Law Library, where a variety of legal sources can be consulted.
Arjava, Antti. “Paternal Power in Late Antiquity.” Journal of Roman Studies 88 (1998): 147–165.Find this resource:
Benke, Nikolaus. “On the Roman Father’s Right to Kill his Adulterous Daughter.” History of the Family 17 (August 2012): 284–308.Find this resource:
Corbier, Mireille. “Iuvenis, Iuvenes, Iuventus.” Iuris Antiqui Historia. International Journal on Ancient Law 4 (2012): 15–28.Find this resource:
Evans Grubbs, Judith. “Children and Divorce in Roman Law.” In Hoping for Continuity: Childhood, Education and Death in Antiquity and the Middle Ages. Edited by K. Mustakallio, J. Hanska, H.-L. Sainio and V. Vuolanto, 33–47. Rome: Institutum Romanum Finlandiae, 2005.Find this resource:
Evans Grubbs, Judith. “Promoting Pietas through Roman Law.” In A Companion to Families in the Greek and Roman Worlds. Edited by B. Rawson, 377–392. Oxford and Malden, MA: Oxford University Press, 2011.Find this resource:
Evans Grubbs, Judith. “‘Making the Private Public: Illegitimacy and Incest in Roman Law.’” In Public and Private in Ancient Mediterranean Law and Religion. Edited by C. Ando and J. Rüpke, 115–141. Berlin: De Gruyter, 2015.Find this resource:
Fayer, Carla. La familia romana: aspetti giuridici ed antiquari. Vol. I-III. Roma: “L’Erma” di Bretschneider, 1994 and 2005.Find this resource:
Frier, Bruce, and Thomas McGinn. A Casebook of Roman Family Law. Oxford: Oxford University Press, 2004.Find this resource:
Gardner, Jane. Family and familia in Roman law and life. Oxford: Oxford University Press, 1998.Find this resource:
Hirt, Marguerite. “La legislation romaine et les droits de l’enfant.” In Naissance et petite enfance dans l’Antiquité. Edited by V. Dasen, 281–291. Fribourg: Fribourg Academic Press, 2004.Find this resource:
Kirschenbaum, Aaron. Sons, Slaves, and Freedmen in Roman Commerce. Jerusalem and Washington, DC: Magnes Press and Catholic University of America Press, 1987.Find this resource:
Krause, Jens-Uwe. Witwen und Waisen im Römischen Reich, iii. Rechtliche und soziale Stellung von Waisen. Stuttgart: Fr. Steiner, 1995.Find this resource:
Laes, Christian, and Johan Strubbe. Youth in the Roman Empire. The Young and Restless Years? Cambridge, U.K.: Cambridge University Press, 2014.Find this resource:
Lamberti, Francesca. “‘Infantia’, capacità di ‘fari/intellegere’, e minore età nelle fonti giuridiche classiche e tardoantiche.” Iuris Antiqui Historia. International Journal on Ancient Law 4 (2012): 29–52.Find this resource:
McGinn, Thomas. “Roman Children and the Law.” In The Oxford Handbook of Childhood and Education in the Classical World. Edited by J. Evans Grubbs, T. Parkin, and R. Bell, 341–364. Oxford and New York: Oxford University Press, 2013.Find this resource:
Rawson, Beryl. Children and Childhood in Roman Italy. Oxford: Oxford University Press, 2003.Find this resource:
Tafaro, Sebastiano. “Los derechos de los niños en la experiencia jurídica romana [The Rights of Children in the Roman Legal Experience].” Revista de Derecho Privado 17 (2009): 177–202.Find this resource:
Thomas, Joseph. “Delictal and Criminal Liability of the Young in Roman Law.” Recueils de la Société Jean Bodin 38 (1975): 9–31.Find this resource:
Vuolanto, Ville, “Child and Parent in Roman Law.” In Oxford Handbook for Roman Law and Society. Edited by C. Ando, P. J. du Plessis, and K. Tuori, 487–497. Oxford: Oxford University Press, 2016.Find this resource:
Westbrook, Raymond. “Vitae necisque potestas.” Historia 48 (1999): 203–223.Find this resource:
(1.) Beryl Rawson, Children and Childhood in Roman Italy (Oxford: Oxford University Press, 2003), esp. 74–75; and Christian Laes and Johan Strubbe, Youth in the Roman Empire. The Young and Restless Years? (Cambridge, U.K.: Cambridge University Press, 2014), 30–36.
(2.) Antti Arjava, “Paternal Power in Late Antiquity,” Journal of Roman Studies 88 (1998): 161–162.
(3.) See, esp., Jens-Uwe Krause, Witwen und Waisen im Römischen Reich, iii. Rechtliche und soziale Stellung von Waisen (Stuttgart: Fr. Steiner, 1995), 130–145, 173–175; and Richard Saller, Patriarchy, Property and Death in the Roman Family (Cambridge, U.K.: Cambridge University Press, 1994), 181–202.
(4.) Ville Vuolanto, “Women and the Property of Fatherless Children in the Roman Empire,” in Women, Wealth and Power in the Roman Empire, P. Setälä et al. (Rome: Institutum Romanum Finlandiae, 2002), 203–243.
(6.) Mary Harlow and Ray Laurence, Growing Up and Growing Old in Ancient Rome: A Life Course Approach (London: Routledge, 2002), 13–19, 67.
(8.) Judith Evans Grubbs, “Promoting Pietas through Roman Law,” in A Companion to Families in the Greek and Roman Worlds, ed. B. Rawson (Oxford/Malden: Oxford University Press, 2011), 377–392; and Saller, Patriarchy, 105–120, 130–131, 151–153.
(9.) Raymond Westbrook. “Vitae necisque potestas.” Historia 48 (1999): 203–223; Brent Shaw, “Raising and Killing Children: Two Roman Myths.” Mnemosyne 54 (2001): 131–177; and Thomas McGinn. “Roman Children and the Law,” in The Oxford Handbook of Childhood and Education in the Classical World, eds. J. Evans Grubbs, T. Parkin, and R. Bell (Oxford and New York: Oxford University Press, 2013), 356–357; and Nikolaus Benke, “On the Roman Father’s Right to Kill His Adulterous Daughter,” History of the Family 17 (August 2012): 284–308.
(10.) Ville Vuolanto, “Selling a Freeborn Child: Rhetoric and Social Realities in the Late Roman World,” Ancient Society 33(2003): 179–188; Fayer, Familia, 215–231.
(11.) Judith Evans Grubbs. “The Dynamics of Infant Abandonment: Motives, Attitudes and (Unintended) Consequences.” In K. Mustakallio and C. Laes, eds., The Dark Side of Childhood in Late Antiquity and the Middle Ages (Oxbow: Oxford, 2011), 22–24; and Shaw, “Raising”, 56–77; Westbrook, “Vitae”, 208–209.
(12.) McGinn, “Roman Children,” 352–353; Evans Grubbs, “Promoting Pietas,” 380–384.
(13.) See, however, Dig. 22.214.171.124: a child conceived while the mother was free was born free, even if the mother was enslaved during the pregnancy.
(14.) See, e.g., Dig. 1.5.18, Dig. 126.96.36.199, Dig. 24.3.1, Dig. 47.11.4, and Dig. 48.19.39, with Marguerite Hirt, “La legislation romaine et les droits de l’enfant,” in Naissance et petite enfance dans l’Antiquité, ed. V. Dasen (Fribourg: Academic Press, 2004), 282–285.
(15.) McGinn, “Roman Children,” 350–356; Krause, Witwen, 86–87; and Judith Evans Grubbs, “Children and Divorce in Roman Law,” in Hoping for Continuity: Childhood, Education and Death in Antiquity and the Middle Ages, ed. K. Mustakallio et al. (Rome: Institutum Romanum Finlandiae, 2005), 46–47.
(16.) Ville Vuolanto, “Child and Parent in Roman Law,” in Oxford Handbook for Roman Law and Society, ed. C. Ando, P. J. du Plessis, and K. Tuori (Oxford: Oxford University Press, 2016), 493–496; McGinn, “Roman Children,” 342–348; Evans Grubbs, “Promoting pietas”; Sebastiano Tafaro, “Los derechos de los niños en la experiencia jurídica romana,” Revista de Derecho Privado 17 (2009): 177–202; and Hirt, “Legislation,” 281–291.