Children

Children

A child born of a iustum matrimonium (that is, where there was conubium between the parents) was legitimate, took the father’s status and was in his potestas. If there was no conubium between the parents, then in law they were not married, and the child took its mother’s status. So, the offspring of a Roman man and a woman who was Latin or peregrine (without conubium) or a slave was Latin or peregrine or servile in status.

The rule was modified, possibly as early as the beginning of the first century B.C., before the Social War, by the lex Minicia, according to which, where one parent was Roman and the other peregrine, without conubium, the child’s status was to follow that of the ‘worse’, i.e., non-citizen, parent. As Gaius (I. 78) noticed, the law was superfluous where the father was a citizen; what the Roman lawmakers were guarding against was the admission to the Roman citizen body of the offspring of a Roman woman and a peregrine. The law apparently did not apply to the child of a citizen woman and a slave; until the passing of the senatusconsultum Claudianum (see below), such a child was apparently treated in the same way as one incerto patre (of unknown father) and had the mother’s status.1

Some confusion was caused by the legislation on manumission, the lex Aelia Sentia and lex Junia, which gave Latinity to slaves manumitted under the age of 30, but also apparently allowed them conubium with citizens. One opinion, therefore, was that the children of a marriage between a Junian Latin and a Roman woman should take the father’s status, as would happen also with the child of a Roman woman and a ‘peregrine’ Latin (i.e., one without conubium). However, this was anomalous, since the lex Aelia Sentia, or the lex Junia, had also provided that Junian Latins, even if married to wives of the same status, could gain citizenship for themselves and their child, by having a child who reached the age of one year. So, irregularly manumitted slave couples, who showed themselves stable and responsible members of society by marrying and starting a family, were admitted to the citizen body. Hadrian resolved the matter by a senatusconsultum stating that in all cases the child of a Latin father and a Roman mother was a Roman citizen.²

The child of a slave woman was a slave, and belonged to her owner at the time of birth.³ In general, it was held that the status of a child conceived in wedlock was determined at the moment of conception (so covering the case of the posthumous child or the child born after divorce), and that of the child conceived outside marriage was determined at the time of birth. Nevertheless, by the time of Paul, the law was liberally interpreted to mean that if a slave woman was free, even if only temporarily, at any time from conception to birth, the child was born free (this application could benefit also the Roman woman temporarily in captivity or penal slavery); this applied also if, through mischance or the deliberate delay of others, her manumission was delayed.⁴

The owner of the slave woman and her child could dispose of them as he or she wished. Natural families could be, and were, broken up by sale or bequest. A typical will from Oxyrhynchus, dated A.D. 127, contained the bequest of a slave woman together with any progeny she might have. They at any rate (though not perhaps the natural father) had a chance of staying together, but only as long as the inheritor saw fit. Less fortunate was a woman manumitted in a will dated between A.D. 161 and 169. Her twins, ten months old at the time of the will, were not freed, but were bequeathed to the testator’s daughter. Their mother could keep them with her until six months after they were weaned, then she must hand them over to the new owner. There may have been in the missing portion of the text a paramone clause (the testator has a Greek name), requiring the mother to stay on for some time in the service of the beneficiary. Livia Culicina, freedwoman of the wife of Augustus, mother of a chief centurion and married twice, to high-level apparitores in the freedman civil service, was the child of a broken slave family, her parents having been manumitted at the death of their previous owner, while she passed to the emperor and thence to his wife (perhaps as a gift ‘for manumission’).5 Even when the slave woman’s child was fathered by her owner, this was no guarantee that they would be allowed to stay together, let alone that they would be freed. Two examples must suffice.

First, there is the family of the veteran C.Julius Diogenes, living in Egypt. His freedwoman Julia Primilla bore him illegitimate twins, C.Julius Sp. f. Diogenes and Julia Isarus. He left them a legacy in his will, but nominated as his heirs two slave women, both aged over thirty, whom he manumitted. It looks rather as though these two were his natural daughters. They were evidently older than the children of Julia Primilla. We do not know what happened to their mother. Perhaps they were born to Julia Primilla before her manumission; her twins were born free, in the year of her manumission. As Diogenes’ natural daughters, the older women could have been manumitted with citizen status without waiting until the age of 30; Diogenes apparently preferred to keep them in his personal service until well after the age at which they would normally have been married and bringing up families of their own.⁶

The second is Petronia Justa, whose efforts to prove her freeborn status are preserved in a dossier, mainly of sworn statements, from Herculaneum. She was the child of Petronia Vitalis, freedwoman of Petronius Stephanus. Petronius and his wife, Calatoria Themis, seem to have claimed that Petronia Justa was Stephanus’ freed-woman and, according to one witness, had rebuffed her mother’s claim to have the girl, saying that they were treating her like a daughter’. She may in fact have been Petronius’ natural daughter. Other witnesses, including Petronius’ freedman C.Petronius Telesphorus (who, incidentally, was Calatoria’s tutor), said that Vitalis had been freed before the girl v/as born and that the latter was therefore freeborn. The girl herself underlined her claim to be freeborn, incerto patre, by including Sp(urii) f(ilia) in her name; as a freed slave she would, in the eyes of the law, have had no parents. We do not know the outcome of Petronia’s case, but one thing is clear—she and her mother had been separated.⁷

Julia Primilla’s twins had better luck, not being separated from their mother, but then, they were born after she obtained her freedom; what is more, she could prove it. In A.D. 148, when she testified before the prefect of Egypt that her son Isarus had reached his twenty-first year (the epikrisis), she produced a copy of the certification of Diogenes’ reaching that age in A.D. 104–5 (so establishing that he had been old enough to manumit her legally), her own manumission certificate dated A.D. 127–8, and a copy of her sworn declaration of the birth of Isarus later that year, so establishing his freeborn citizen status. Clearly, the bureaucracy which pervaded life in Egypt had its beneficial aspects.⁸

Until A.D. 52, if a Roman w^roman had sexual relations with a slave, whatever social or legal repercussions there might be for her, any offspring born of the union were free and citizen. In that year, a senatusconsultum (the sctum. Claudianum) was passed, ordering that, if the slave’s master did not consent to the association, the woman became his slave; if he did consent she was nevertheless, if freeborn, reduced to freedwoman status, with the master as her patron, and the children might ‘by agreement’ (though, as the master had the whip-hand, this was likely to be the condition for his consent) be his slaves.

There were exceptions. For example, if the slave had belonged to the woman’s own freedman or to her son, she was not enslaved. In the latter instance, says Paul, it would not be seemly, because of the reverence due a mother, and he cites the former case as the model (i.e., because of the reverence due to a patron from a freedman). If the woman was the master’s own freedwoman, she was not enslaved because, says Paul, “she appeared not to have wished to desert the household’. Until Hadrian, it will be remembered, her patron could make sure at least of her inheritance, even if she had freeborn children, so long as they were less than four in number. If, however, she had relations with another owner’s slave without her patron’s knowledge, she was re-enslaved to her patron and was not to have any chance of ever attaining citizenship. A daughter in potestate was not enslaved if she had not acted with her father’s consent; if he had consented, she was enslaved. This may seem odd; but the reasoning was that a daughter had no power to make her father’s situation worse (by the loss of a daughter) but a pater could, if he wished, worsen the situation of his children. These exceptions apart, in general the consequence was that, whether the master had consented to the union or not, the children would be born slaves.9

Given that, by the first century A.D., Roman society was no longer dependent for its supply of highly trained, educated slaves on prisoners taken in campaigns in the eastern Mediterranean, but on domestic breeding, Roman masters would be reluctant to see the sexual energies of their male slaves expended on women outside the household.¹⁰ This would seem likely to happen, however, in view of the relatively low proportion of female to male slaves in large urban familiae (precisely those in which skilled slaves were most in demand). In practice, though, as we have seen, only a small proportion of the wives of freedmen and consorts of slave men at Rome were freeborn women. Even this small proportion may have been enough to concern the domini in general and so ensure senatorial support for the measure. It may however have had a more specific aim, that of controlling the status of’wives’ and especially of children in the imperial slave household (familia Caesaris); the originator of the idea was Claudius’ freedman Pallas. Imperial slaves were apparently highly desirable catches in the eys of freeborn women, who make up about two-thirds of the known consorts. The emperor’s financial secretary may, in his master’s interests, have had designs on the estates of the women who thus became freedwomen, or even slaves, of Caesar; even more probably, he wanted to have a continued supply of home-bred slaves, vernae, for training in the imperial administrative service.

Hadrian changed the rule. Agreements were no longer to be made rendering the children slaves. Where the woman remained free (although as a freedwoman) the child also was to be free; otherwise, both were slaves. This remained the situation until Justinian repealed the senatusconsultum.¹¹

Legitimacy

Children born in iustum matrimonium were legitimate. They were in the potestas of their father and were his heirs on intestacy. This status could, however, be denied a child, in the opinion of some lawyers, if it were known, for example, that the husband was impotent, or that illness had prevented his sleeping with his wife for some length of time, or if, adds Julian, he had, say, been away for ten years and found in his house on his return a year-old baby (anniculum). Even though the neighbours might bear witness that the child had been born in the house, that would not be enough to establish its legitimacy.12

The procedures, initiated by a senatusconsultum under Vespasian and established in the reign of Hadrian, for determining the legitimacy of children born after a divorce, have been outlined in Chapter 3 above. Before they were systematised, an appeal to the praetor would be required to settle disputes. For children born after a woman was widowed, it was important to have their legitimacy established because of their inheritance rights; as we saw from the case of Petronilla (p. 53, above), these could be challenged. The question of potestas did not arise, but there would be a tutor legitimus or one assigned by the father’s will.¹³

Children not conceived in lawful marriage were illegitimate. In law, they were fatherless and sui iuris; their mothers could not have potestas over them, and they had no inheritance rights from their fathers. Children born in slavery and subsequently freed had, in law, neither mother nor father.¹⁴

Illegitimate children, many of them born of stable unions which did not constitute marriage, were common in the Roman world. All slaveborn freedmen and freedwomen were illegitimate. So were the children of concubines; indeed, desire to avoid prejudicing the patrimony of existing legitimate heirs may have been a motive for some men to take a concubine rather than remarry.

In the provinces, where, before the constitutio Antoniniana of A.D. 212, there was a mixed free population, unions between peregrine and Roman were common. There is copious evidence from Egypt in the Roman period; Roman women seem to have been ‘married’ to peregrine men more frequently than peregrine women to Roman men. Under the lex Minicia, the children were peregrine, and this consideration would be of more significance for a Roman man, as potential head of a familia, than for a woman. If mistake about the spouse’s status could be proved, the children could acquire citizen status and be in the father’s potestas, if the latter was Roman, but mistake might be rather harder to prove if the partner was a foreigner than if, say, he was a Latin. The nomenclature would surely have given the game away.¹⁵

As serving soldiers were not permitted marriage, the offspring of their unions were illegitimate, although Hadrian, as we have seen, did intervene to protect their children against hardship by allowing them inheritance rights as cognates.¹⁶

Illegitimate children, or liberae naturales as they were sometimes called, were not, in classical law, legitimated by the subsequent marriage of their parents. This first became possible only under Constantine, who was anxious on moral grounds to suppress concubinage, but he does not seem to have made the law prospective, and he limited it to children of freeborn mothers and of fathers who had no children by a previous marriage and who were not still married to someone else. It was not until Justinian that legitimation by marriage (or by imperial decree in circumstances, e.g., after the death of a parent, when marriage was not possible) became a permanent option.¹⁷

The father, if free or freed, could adopt a male child by adrogatio, so acquiring potestas over him and giving him legitimacy. For much of the classical period, it would not have been possible to adopt female children in this way (or children of either sex away from Rome); from the Antonines onwards, female as well as male children could be adrogated by imperial rescript. One may doubt whether many humble people, such as ex-slaves, attempted this, although there is some evidence from Rome, discussed in Flory (1984), indicating that slave couples sometimes gave priority to securing the woman’s manumission, so that their children could at least have citizen status.18

Women could not adopt children, because they did not have potestas. However, Ulpian mentions in passing that women could not adopt ‘without the emperor’s authorisation’, implying that by that time adoption by women was allowed by imperial rescript, although only one instance is known, from the end of the third century A.D.Diocletian and Maximian allowed a woman to adopt her stepson as consolation for the loss of her own sons. Justinian’s Institutes reiterate the ban, and cite this as the exceptional circumstance in which adoption might be allowed; clearly, women never acquired a general power to adopt.¹⁹

Adoption by a woman would give the child the inheritance rights already available since A.D. 178, under the senatusconsultum Orphitianum, to the woman’s own freeborn children, legitimate or otherwise. It could give the woman the right of cognate succession to the child (if not actually her natural child), but none of the rights deriving from potestas, since women could not exercise potestas.²⁰

Birth Certificate

It was not compulsory at Rome to register the birth of a child. However, the Augustan lex Aelia Sentia and lex Papia Poppaea established a procedure for the registration of legitimate children of citizen status, to be carried out within 30 days of the child’s birth. It need not be made by the father; the mother or grandfather could doit.²¹

The declaration (professio) was made before a magistrate. The particulars were entered in the official record (tabula professionum) and the form is known to us from copies preserved on diptych tablets from Egypt containing a copy of the extract from the records. No independent check was made of the truth of the declarations, so the register provided only prima facie evidence. (The same is true of declarations of birth in modern England, although failure to declare is an offence.) The diptych copies start with the date, then a statement that this is a copy from the official register. The text of the entry follows, with reference by tabula and page number for the year in question. The details supplied were the father’s name, tribe and filiation, the child’s name, that of the mother, and the date.²²

Several provisions of Augustan legislation made it important to be able to provide evidence of age and citizen-status, either for oneself or one’s children, and also of the fact of having had legitimate children. The existence of one or more children increased their parents’ capacity to receive inheritances from outsiders; the ‘privilege of children’ (ius liberorum) freed women from tutela, and after the senatusconsultum Tertullianum, of Hadrianic date, it also gave them some rights of inheritance from their children (described in more detail in Chapter 9). Manumitters, under the lex Aelia Sentia, had to be over 20 years of age. Obviously, once birth registration became customary, it could be used for other purposes, e.g., to establish that one had reached marriageable age.

Registration of illegitimate children was forbidden under these laws; Augustus had been interested in encouraging procreation within lawful wedlock. Nevertheless, some illegitimate children had citizen status, and it could be important for them to be able to prove this in later life. The practice developed, therefore, of making private sworn declarations (testationes) before seven witnesses. One already cited, from Herculaneum, was made by a Junian Latin freedman, L.Venidius Ennychus. He declared the birth of a daughter and then, a year later, he attested that she was one year old, so that he and his wife could claim citizenship. In an example from Egypt, dated A.D. 131, a soldier attested the birth of a daughter, so staking her claim, under Hadrian’s ruling, to inherit from him. In A.D. 145 a woman, Sempronia Gemella, recorded the birth of twin sons (clearly, twins ran in her family) ‘of unknown father’, incerto patre, with the filiation therefore given as Spurlif. According to Ulpian, one more child would get her the ius liberorum, though according to Paul three separate births were necessary, an alarming prospect, given her genetic inheritance—and they had to be live births. By this time, on the evidence of the senatusconsultum Tertullianum, illegitimate children possibly counted for the ius liberorum.23

Marcus Aurelius removed the ban on official registration of illegitimate children. By this time, as we have seen, there were so many circumstances in which couples, with the best will in the world, could not marry, and consequently so many children of citizen status born out of wedlock, that it was pointless to retain it. One of the few references to registration in the legal texts, however, actually concerns a false registration of a child as illegitimate. A woman was divorced by her husband while she was pregnant. When her son was born, in her husband’s absence she registered the child as spurius, illegitimate. She died intestate, and the husband then had to try to prove the child’s legitimacy and his own paternity so that he could establish his potestas and claim the inheritance on his son’s behalf.²⁴

Guardianship, Custody and Control

The potestas of a father over his legitimate children included the right to custody of the child and, as well as those powers of discipline and punishment already noted and the ownership of all property acquired by the child, it also included powers which might be classed as ‘care and control’. The father would have the final say on such matters as the child’s education and marriage, where the child would live, and so on. The extent to which mothers had any say in these matters would depend not on any legal right but on the nature of the personal relationships between them and their husbands, and no doubt they did normally play an active part in the upbringing of their children, especially in the early years. Cornelia, mother of the Gracchi, is an example often cited. Although the husband of Corellia Hispulla, Pliny’s friend, is apparently still alive, it is to her that Pliny writes (Ep. 3.3) to give advice on the choice of a rhetoric teacher for her young son. ‘Until now’, he writes, ‘he has been too young to be away from you, and has been taught at home.’ If there were disagreements, however, the mother’s wishes carried no legal weight at all.

After divorce, the father retained potestas, and with it the right to keep the children with him. There are indications, though, that it was sometimes recognised that it was in children’s best interests to stay with their mother rather than their father. From the time of Antoninus Pius at least, appeal could be made to a magistrate, who might rule that a child should continue to live with its mother, on account of the father’s bad character; the mother could also claim basic maintenance for the child.25 Even in these circumstances, however, although the mother had physical custody of the child, the father’s potestas was otherwise untouched. Clearly, a view such as that which eventually prevailed in English law, that the welfare of the child was the prime consideration, had made very little progress in the Roman world. As between the familia and the individual, the former prevailed.

Widows and unmarried mothers might have their children living with them, but they had no potestas over them. The children were sui iuris and required a tutor. Women could not be tutors; classical law was quite clear on this point, and the principle was maintained throughout the classical period. Again, there is a contrast with modern English law, according to which all rights and powers are vested in the mother of an illegitimate child, even when the father is known, and the latter has to bring proceedings, in order to claim custody; also, although a father can appoint a guardian for a legitimate child in his will, since 1886 it has been the law that the mother is to act jointly with any such guardian.²⁶

In Roman law, the mother had no such powers. If a guardian had not already been appointed by the father’s will and there was no tutor legitimus, the widow had to apply to the magistrate for one to be appointed, as we saw Petronilla doing, and similarly for an illegitimate child. The powers of the Roman mother were more restricted than those of her Greek or Egyptian counterpart in Egypt appear to have been. The latter could, by virtue of the terms of her husband’s will or of her marriage contract, or by application to a magistrate, acquire the capacity to do such things as giving a daughter in marriage, putting a child to apprenticeship or even prostitution, and, with her mother-in-law’s consent, exposing an infant. Papyri from Roman Egypt, some falling within our period, have been cited as showing Roman women in Egypt apparently exercising similarly extensive powers.²⁷ It may indeed have been found impracticable to impose Roman ways universally after the constitutio Antoniniana. However, allowance must also be made for a certain confusion, already noted, in the minds of ordinary people not themselves expert in either Roman or Greek law, about what the rules were, what forms of expression should be used, or even the legal significance, if any, of their actions. Analysis is not helped by the incompleteness of many texts. Space does not permit a detailed consideration even of the texts cited in Taubenschlag (1955:152–5), but to mention two examples may be instructive.

p. Oxy. 1273 (A.D. 260) is called by the editors ‘a marriage-contract’, and the resemblance between the tabulae nuptiales and the Greek marriage contract has already been noted. The bride’s mother says that she has given her daughter in marriage; otherwise, her part in the document as preserved amounts to no more than a specification of the dowry she is giving the groom and an undertaking on the latter’s part that it is to be returned to her or to the bride if the marriage should break down. The dowry agreement, apparently, was in the form of a stipulatio. The mention of having given the girl in marriage stems originally from Greek models: Roman fathers usually added that they did so in accordance with the lex Julia de maritandis ordinibus. However, a daughter old enough to marry would no longer be a minor. If her father was dead, she would be sui iuris, and if she was not herself constituting a dowry from her own property, not even tutor’s consent to her marriage would be necessary. There need be no question here of ‘maternal potestas’, so-called, replacing that of a deceased father.

The tutor to a minor was expected not merely to give assent and authorisation, but actually to administer the ward’s property. Although the legal powers of a mother in regard to property were very restricted, in practice we do find mothers administering their children’s property. They are sometimes referred to, especially in the papyri, as acting jointly with a guardian (as epakolouthetria or similar title), though the guardian’s function may be merely to give the legally necessary assent to the woman’s arrangements; women did, after all, customarily manage their own property in this way. So we find, for example, a mother, Marcia Athenais, accepting her late husband’s estate on behalf of their child, Herennia Helene, whom he instituted as heir, with the authority of a tutor, L.Valerius Onnos.28 Ulpian finds it necessary to point out that even when a mother is administering her son’s business affairs in accordance with the wishes of her late husband, nevertheless her transactions are not legally valid and enforceable. Cervidius Scaevola was more disposed to the view that their validity should be accepted on grounds of equity, where to do otherwise would be unjust, e.g., to debtors acting in good faith. A mother could be barred from the intestate succession to her child afforded her by the sctum. Tertullianum, if she had not taken steps to have tutors appointed. This suggests that it was not uncommon for mothers to handle the property affairs of their children without actually bothering to acquire tutors for them; for many, occasions may seldom or never have arisen when the validity of a transaction came into question and the lack of tutorial authorisation became important.²⁹

It is not until well after the end of the classical period of Roman law, until A.D. 390, that we have clear evidence for women being allowed to act as tutors.³⁰ A constitution issued that year by Theodosius and his colleagues states: