The Augustan marriage laws have been the subject of extensive study and debate, in modern scholarship as in antiquity1. This paper does not seek to add to the vast bibliography setting out the terms of the laws, eval-uating their purpose, or their demographic effect2. Instead, it addresses one specific question: how did the introduction of the ius liberorum (the “right of children”), which granted women freedom from tutela (guardianship), affect the freedom of Roman women to deal with their property as they chose? This question – as much a matter of conditions prior to the Augustan legislation as the terms of the laws themselves – has produced diverging views: some scholars regard Augustus’ laws as a watershed in the “emancipation” of Roman women, while others have stressed that republican women were already substantially emancipated and that the Augustan laws in effect gave legal form to existing social practice. As such, the question also has bearing on the larger question of tradition vs innovation, or anchoring innovation, in the Augustan principate – that is, how Augustus and his advisers could or did draw on existing values and legal/social realities to shape and support innovations3. In order to shed light on these questions, this paper seeks to reconstruct the operation of tutela mulierum, in its various forms, immediately before the passage of the Augustan laws. A further relevant factor, in assessing the impact of the ius liberorum, is to ask how many women were able to claim the privilege. Firm answers are not possible, due to the limitations of the evidence and uncertainty concerning the legal rules; however, I outline the parameters of the question, including the considerably higher bar set for Roman freed-women. What emerges is that the reality of tutela and thus the potential benefit of the ius liberorum varied widely, depending on a woman’s individual circumstances, the type of tutor she had, and especially whether she was freeborn or subject to the tutela of a male patron; moreover, while the Augustan laws paved the way for the further weakening of tutela for those freeborn women still subject to it, the gap between freeborn and freed grew wider. Irrespective of its practical effects, however, the ius liberorum possessed symbolic value for Roman women and for the social policy of Augustus and his successors, which may help to explain the retention of tutela mulierum of freeborn women as an institution even after reform under Claudius reduced it to little more than a formality.
The Augustan legislation on marriage comprised two laws – a lex Julia of (probably) 18 BCE and the lex Papia Poppaea of 9 CE. The two laws regulated marriage between different classes of person and introduced a complicated system of rewards and penalties designed to encourage marriage and the production of children, in large measure by modifying property rights4. So far as women were concerned, one important set of rules prevented unmarried persons from inheriting property from outside of close family, while those married but childless could take only half of any such bequest5. There were also limits on what a husband and wife could leave each other in their wills, unless they had three children, or a child in common6. Another rule stated that a woman who had three or more children (or four, in the case of freedwomen) was freed from tutela mulierum – the guardianship of women, or, more precisely, the need for an adult woman sui iuris to secure the authorisation of a male tutor for certain financial and legal transactions7. This privilege – the so-called ius (trium) liberorum8 – constituted a significant legal innovation, in that, previously, the only women free from tutela were the Vestal Virgins, and Octavia and Livia by special grant in 35 BCE9. It also held considerable symbolic value, as an expression of an imperial social policy that prized motherhood, and as an honour system for Roman women10 – even those who lacked the requisite number of children sometimes received the ius liberorum as an honour from the senate or emperor11. Its practical significance is debated, however: many scholars have emphasised that, by the late republic, the need for a tutor’s authorisation was no more than a formality for many women, while others see the Augustan innovation as relieving women of a real burden12. Understanding the impact of the Augustan laws on women’s financial freedom is therefore largely a question of understanding the operation of tutela immediately before the laws took effect.
In the Res Gestae, Augustus himself claimed that his new laws were anchored in – or rather “re-anchored” – ancient custom13, including the traditional value placed on marriage and raising children. Livy and Suetonius record that Augustus introduced the marriage legislation by quoting old republican speeches on similar themes14. Earlier legislation, as well, provided precedents or analogies for aspects of the Augustan laws15. At the same time, the laws broke with tradition in significant ways, both by intervening in private life as extensively as they did and on particular points; for instance, the pressure on widows to remarry within one year under the lex Julia of 18 BCE clashed with societal norms surrounding women’s mourning and the ideal of the univira (the woman who had only one husband in her lifetime) and, probably for this reason, the rule was relaxed in the lex Papia Poppaea16. Indeed, social resistance more than once compelled the princeps to modify his plans17, while the laws he did pass had limited demographic effect (as the younger Pliny recognised)18.
While Augustus took care to anchor the laws in terms of custom and the common good19, we have no statements from him or anyone else about the rationale for the creation of the ius liberorum – that is, the possibility of freedom from tutela – as a reward for motherhood20. The strategy might suggest that greater legal and financial freedom for women was something considered desirable (and socially palatable) at the end of the first century21. There were also precedents for freeing women from tutela in the Vestal Virgins (by the law of the XII Tables)22 and the special grant to Octavia and Livia in 35, perhaps on analogy with the Vestals23. Unfortunately, we have only Cassius Dio’s brief mention of the occasion, but possibly it was this moment, and not the lex Julia of 18, that represented the real innovation24 – the moment when it became conceivable for women other than the Vestals (whose status was in many ways exceptional) to obtain complete legal freedom from male oversight of their financial affairs.
“Complete legal freedom” is worth emphasising, however, because there were many property transactions for which a woman did not need her tutor’s authorisation – and some evidence that women, at the end of the republic, were acting without authorisation where it was legally required. Moreover, the likelihood of a tutor obstructing a woman’s wishes depended on a number of factors, especially the type of tutela she found herself in. As I outline below, this could make the difference between almost complete freedom for some women, while others might see their estates effectively frozen for the benefit of the tutors themselves – yet the distinction is sometimes obscured in modern accounts of the position of “women” at the end of the republic25. Another important variable is change over time – also sometimes obscured in scholarship on “Roman women” generally, and by the sources themselves, which are mostly late and reflect later legal change and juristic interpretation. When the jurist Gaius described the need for a woman to secure her tutor’s auctoritas as an antiquated (and unwarranted) formality (1.190), he was writing in a legal context that had already seen the virtual nullification of tutela for freeborn women through praetorian intervention to compel tutors to give auctoritas in most circumstances and the abolition of agnatic tutela mulierum by Claudius. But the situation was rather different in 18 BCE. Attending to these changes is necessary in assessing not only the position of women and the impact of the ius liberorum, but also how the Augustan laws served to anchor later developments – or, rather, formed part of a continuum. What I offer here, therefore, is an overview of tutela mulierum in its various forms immediately prior to the Augustan laws (so far as it can be reconstructed), not to gainsay the general picture, but to highlight some of the nuances26.
As is well known, Roman women enjoyed relatively favourable prop-erty rights compared certainly to their counterparts in classical Greece and indeed in many much more recent societies27. An adult Roman woman sui iuris could own and control sometimes very substantial wealth. (Adult, for a Roman female, meant aged 12 or over; she was sui iuris if she was no longer subject to the potestas of her father, grandfather, or husband by manus marriage.) She could inherit property28; she could also buy and sell property and engage in business (subject to the rules of tutela, as set out below). It was not unusual for a woman of senatorial or equestrian family to own multiple houses or farms. Terentia, the wife of the orator Cicero, is one well-known example29. In earlier times, the common practice of manus marriage meant that a woman and her property passed into the control of her husband30. However, by the late republic, at least, manus was uncommon31, and the usual form of marriage sine manu kept a wife’s property rigorously separate from her husband’s, to the point that even gifts between husband and wife were generally disallowed32. The only exception to this was the wife’s dowry, which was legally her husband’s for the duration of the marriage but had to be returned in the event of divorce or his death33. For the rest, the wife retained full ownership of her property and legally her husband had no say in how she used it. An illustration is Cicero’s letter to Terentia of November 58 (Fam. 14.1.5 SB 8), protesting her decision to sell a row of houses during his exile: although Cicero objected, legally the property and the decision were hers alone.
The only restriction on the woman’s control over her property was that she needed the authorisation of her tutor (sometimes more than one) for certain important transactions. The institution of tutela mulierum was designed to protect the property of the agnatic family34: in its earliest form, by giving a woman’s nearest male agnates (that is, relatives through the male line) the power to prevent her from disposing of prop-erty that would otherwise pass to the family on her death under the rules of intestate succession35. This power of tutela legitima (tutela arising by law) was extended to the patron of a freedwoman precisely because he was the woman’s intestate heir36. While tutor is commonly translated as “guardian”, the tutor of an adult woman did not administer her property or “look after” her in any other sense37. His only function was to give or withhold his auctoritas (authorisation) for particular legal and financial transactions, such as making a will, constituting a dowry, taking on obligations, entering manus marriage, manumitting a slave, and alienating (that is, selling or giving away) certain types of property known as res mancipi38 – in essence, transactions that could diminish the woman’s estate (though not all such transactions, as we shall see).
Whether a woman also required her tutor’s authorisation to purchase res mancipi is less clear. Gaius (2.80) and the Tituli of Ulpian (11.27) specify that she needed auctoritas to alienate, and Gaius also states that anything, whether res mancipi or not, can be paid over (solui possunt) to a woman without auctoritas (for instance, in release of a debt), because women are allowed to improve their position even without auctoritas (2.83). On the other hand, Tit. Ulp. 11.27 states that a woman need-ed auctoritas to undertake civil business (civile negotium), which could include mancipatio (the procedure required for formal conveyance of res mancipi)39, and Apuleius refers to his wife Pudentilla having her tutor’s authorisation for the purchase of a farm40. Further, Vat. fr. 45 indicates that a woman needed auctoritas for in iure cessio (transfer by means of a fictitious trial) of res nec mancipi. However, even if a woman required auctoritas to make a formal purchase of res mancipi, she could still acquire full ownership through an informal purchase followed by usucapio (acquisition of ownership by possession, for one year for movable property or two years for immovables)41. It seems possible for this reason, and also perhaps because the acquisition of res mancipi would tend to improve the estate42, that auctoritas was not required – or came not to be required – for the purchase of res mancipi.
Res mancipi included land in Italy, slaves, and beasts of burden (Gaius 2.14a). All other things were res nec mancipi, and these a woman was free to dispose of as she pleased, without her tutor’s authorisation43. Notably, res nec mancipi included gold and silver and provincial land (Gaius 2.20-1): potentially very valuable property44. We know of at least one republican woman – Cicero’s friend Caerellia – who owned substantial provincial estates (Cic. Fam. 13.72 SB 300), while women’s jewellery (also res nec mancipi) was at various times a target for censors and triumvirs and a war chest for Rome45. A woman could also make a loan without auctoritas (and thus place others under obligation to her), as money was res nec mancipi (Gaius 2.81).
While a woman could do whatever she liked with her res nec mancipi during her lifetime, however, in order to make a valid will she required her tutor’s authorisation46. Furthermore, a freeborn woman (other than a Vestal) could not make a will until she had undergone capitis deminutio (change of legal status), which served to break agnatic ties47. For women who had not previously done so (for instance, by entering manus marriage), this was accomplished through coemptio, a form of fictional sale, which required the auctoritas of her existing tutor(s) and also resulted in a change of tutor (Gaius 1.114-15). Freeborn women thus required auctoritas twice: first for undergoing coemptio and again for making the will itself. The latter was likely often a formality, since a woman undergoing coemptio could be expected to choose some pliable person to serve as her new tutor48, and because capitis deminutio severed agnatic ties, meaning that an agnatic tutor had already forfeited any intestate claim on the woman’s estate if he authorised coemptio. For that reason, however, auctor-itas for coemptio may have been hard to come by, especially for women in agnatic tutela49. A freedwoman in the tutela of her patronus was in a similar position: she did not undergo coemptio or change of tutor50, but required her patron’s auctoritas to make a will – and a patron could be expected to protect his interests by withholding it (Gaius 3.43).
In some circumstances, already in Cicero’s lifetime, the praetor would give effect to a will that was invalid under civil law by granting bonorum possessio secundum tabulas51. It is not clear if this was available for wills made without authorisation, but bonorum possessio was excluded where a woman had not undergone capitis deminutio (Cic. Top. 18) and was of no avail against intestate heirs (Gaius 2.119); thus a woman could not use an unauthorised will to defeat the claims of her agnates or the patronus of a freedwoman52. For these reasons, the need for auctoritas could represent a serious limitation on a woman’s freedom to dispose of her property, especially for those in tutela legitima (see further below).
How likely a tutor was to give his consent to a particular transaction would depend on what the woman wanted to do (I will return to this shortly) and individual inclination; he also needed to be physically present at the relevant time, which often created difficulties, to judge from later legal rules53. But the most important variable was the type of tutor a woman had. The key distinction was between what we might call interested and disinterested tutors: that is, those who could expect to benefit from the woman’s estate if she died intestate, and therefore had an interest in preventing her from making a will, alienating valuable res mancipi, or taking on obligations that might diminish her estate, and those with no such vested interests54. To the first category belong the various forms of tutela legitima, where a woman fell by law into the guardianship of her nearest agnates (or the gens, in the absence of agnates); her male patron (or patron’s son), in the case of freedwomen; or her father, in the case of manumitted daughters; as well as agnate relatives appointed by will. The second comprised tutors external to the family chosen by the woman’s father (or husband by manus) in his will or, in some circumstances, by the woman herself.
One common way in which a tutor was appointed was by a woman’s father in his will, as also for any prepubescent children55. This is known as testamentary tutela. We have little information about the tutors chosen for women, but relatives, family friends, and freedmen – or some combination of these – were probably usual56. Testamentary tutela was at least as old as the XII Tables57 and modern scholars sometimes treat it as the norm58, but caution is warranted. Even in the late republic, significant numbers of women continued to fall under the tutela legitima of their agnates (see below). Furthermore, a father could choose one or more agnatic relatives as testamentary tutor(s); an agnate appointed in this way would be less strongly protected than the tutor legitimus but still able to safeguard his own interest in the woman’s property by withholding auctoritas and, in particular, by preventing her from making a will59. Where a manus marriage existed (which was rare, but still attested at the end of the republic)60, the husband could appoint a tutor by will for his widow (Gaius 1.148). Alternatively, he could give his wife the right to choose her own tutor (so-called optio tutoris), either once or multiple times61. If the husband made no provision in his will, his wife would fall into the tutela legitima of her agnates, which meant, for a wife in manus, her husband’s agnates – including, potentially, her own sons62.
Optio tutoris does not seem to have been available in the case of fathers and daughters. However, as already mentioned in connection with wills, it was possible for a woman to change her tutor through coemptio (imaginary sale). This required the authorisation of her existing tutor (or tutors)63, but, provided he consented, the woman was free to choose some biddable person – even her own freedman64, for example – as her new tutor (term-ed tutor fiduciarius). Cicero may allude to this device in Pro Murena when he says that lawyers have found ways to subject tutors to the power of women, and not the other way around65.
A further possible way in which a woman could choose her own tutor was where a tutor was appointed by a magistrate. For women in Rome, the lex Atilia provided that a woman who had no tutor could have one appointed by the praetor and a majority of the tribunes of the plebs66. A similar process applied for Roman women in the provinces under the lex Julia et Titia, usually identified as a law of the future Augustus and his colleague in 31 BCE67. A woman might have no tutor where she had no testamentary tutor (or her tutor had died) and no relative eligible to be tutor legitimus, or, in the case of freedwomen, where her former owner was a woman (and therefore could not be tutor: Gaius 1.195). The lex Atilia is generally thought to have been passed around 210 BCE, at a time when the Punic wars had left many women without fathers, husbands, or tutors68. It was the woman herself who requested the appointment of a tutor69; to judge from clauses in later municipal laws which probably derive from the lex Atilia, she also nominated the person she wanted appointed as her tutor70. For this reason, and also because a woman with no tutor ipso facto had no agnates or patronus with an interest in her estate, the law should perhaps be seen as facilitating rather than controlling women in dealing with their property – that is, by enabling women who otherwise lacked tutors to engage in property transactions that required tutoris auctoritas71.
By the late republic, then, it was very possible for a woman to have a tutor who would act as no more than a rubber-stamp for her business affairs. Scholars regularly observe that many women were able to do as they pleased, unhampered by tutela72; to take the example of Terentia again, we hear quite a lot about her business affairs, but her tutor is never even named73. However, we should not assume that all women were in the same position74.
Although fathers could appoint tutors for their daughters by will, some apparently chose to leave their daughters to the tutela legitima of agnate relatives: late republican jurists discussed cases where fathers appointed tutors for sons but not daughters75. In addition, tutela legitima could arise where a father died intestate, or his will failed, or (assuming the Digest reflects republican law on this point) if the testamentary tutor died76. Tutela would then fall by law to her nearest male agnate or agnates, such as her brothers or paternal uncles (Gaius 1.155-6). All agnates in the nearest degree became tutors. A probable example is Clodia: Cicero (Cael. 68) implies that she was in the tutela of her brothers (on whose auctoritas she manumitted some slaves); the casual reference suggests, furthermore, that her situation was unremarkable – and, in Clodia’s case, apparently little hindrance to her business activities77.
If there were no male agnates, then tutela could pass to the gens (the larger family unit). This remained a real possibility at the end of the republic, as is clear from the Laudatio Turiae, where the husband praises his wife for defeating an attempt by false kinsmen to invalidate her father’s will and thereby become her tutors, presumably with the intention of inheriting her estate78. A passage from Catullus plays on what must have been a familiar fear of tutela legitima (in this case, again, the tutela of the gens) as an opportunity for greedy relatives to get their hands on a woman’s property: Catullus 68b, ll. 119-24 describes the joy of an old man on the birth of a son to his only daughter, thus enabling him to leave his estate to his grandson and exclude the gentilis who would have become his daughter’s tutor (and thus heir) if he died intestate79. The tutela of the gens could arise only in the absence of both testamentary and agnatic tutors, yet Catullus’ allusion to it, without explaining the legal situation, suggests that it was familiar to late republican readers. Agnatic tutela must have been far more familiar, and perhaps reasonably common, before its abolition by Claudius80.
As for freedwomen, a female slave freed by a male owner automatically fell under the tutela of her patron, or his son (when the patron died), even if the son was a minor and therefore unable to exercise the functions of tutor81. The Augustan marriage legislation addressed this situation to some extent by providing that a freedwoman in the tutela of an impubes could have an alternative tutor appointed for the purpose of constituting a dowry (Gaius 1.178), but the general rule is testament to the privileged position of the patronus vis-à-vis his freedwomen82. By contrast, as I have noted, a woman freed by a female owner did not have a tutor legitimus and instead could request a tutor under the lex Atilia (Gaius 1.195).
The chief reason why tutela legitima was particularly burdensome was because the tutor could quite legitimately use his position to prevent a woman from making a will or alienating res mancipi, in order to keep her property for himself or for the agnatic family. Roman law frankly acknowledged and indeed protected this right: for instance, Gaius (2.43) attests the expectation antiquo iure (prior to the Augustan laws) that a patron would safeguard his interests by preventing his freedwoman from making a will, and had only himself to blame if she made a will in which he was not named heir83. Later, when it became possible to compel tutors to give auctoritas, exception was made for the tutor legitimus, for his own benefit – specifically, to preserve the property he could expect to inherit as intestate heir84. Significantly, the tutor legitimus would exclude even the woman’s own children if she died intestate, because in Roman law the relationship between mother and child was cognatic, and both agnates and patrons (as legitimi) ranked above cognates in the order of succession85. This was despite the social expectation that women would leave their property to their children: this is reflected, for example, in the Laudatio Murdiae (of Augustan date, or thereabouts), where a son praises his mother particularly for the equitable manner in which she divided her property among her children from two marriages86. That is, in order even to leave her property to her children, a woman had to make a will, but she could not make a valid will if her tutor refused to give his authorisation – and a tutor legitimus had a vested interest in refusing.
Besides this, stricter rules applied to tutela legitima than to other types of tutors; rules which tended to preserve the estate for the intestate heirs87. For instance, a woman in tutela legitima had to secure the auctoritas of all her tutors, if she had more than one, whereas the consent of one tutor was sufficient for testamentary tutors88. Another rule, attributed to the XII Tables, provided that the property of a woman in tutela legitima could not be usucapted unless it had been transferred with the authority of her tutor89. Among other implications, for women in tutela legitima this closed off what was potentially one way of circumventing the need for a tutor’s authorisation to alienate res mancipi: by making an informal transfer which would then give the possessor full ownership after one or two years. It is not clear, however, if a purchaser could usucapt res mancipi transferred by a woman without her tutor’s authorisation if he knew she acted without auctoritas (or with the authorisation of a false tutor)90.
This raises the question of law vs practice. Some scholars have argued that women in the late republic were regularly circumventing the rules of tutela. Such a gap between law and practice would have implications not only for women’s legal and financial freedoms, but also for how we evaluate the Augustan laws: for instance, Jakab argues that the widespread practice of doing business through slaves and freedmen allowed women to sidestep the legal requirement of a tutor’s authorisation91, and that Augustus, by legislating greater liberties for women, was recognising earlier social and economic developments92. Tellegen-Couperus goes further, contending that women at the end of the republic might quite commonly sell res mancipi without a tutor’s authorisation and have their actions upheld by the praetor93, and that there was at least a school of thought, in the mid-first century BCE, that would allow a woman to make a will without auctoritas94. What seems clear is that lawyers at the end of the republic were dealing with situations where women acted without their tutors’ authority95. There will also have been many cases that “flew below the radar”, especially for smaller transactions or where there were no rival interests involved; in general, it was wealthy women who had the most at stake and who were also the most likely to be held to the legal rules. However, it is probably safer to see such cases as evidence of frustration with the constraints of tutela rather than accepted practice – certainly the use of a false tutor (Vat. fr. 1) speaks against any generally accepted view that a woman was free to act without auctoritas. In other words, it appears that, at the end of the republic, there was a “market” for legal changes that would free women from tutela.
Beyond the legal rules, the lived reality of tutela would vary also depending on the personality of the tutor and what exactly the woman wanted to do. Not all tutors were self-serving96. It is clear that some tutores legitimi considered their role a burden rather than a boon97. Later epigraphic evidence shows that there could be trusting, even affectionate relationships between women and their tutors98. Moreover, even a domineering tutor legitimus might have supported a canny businesswoman in managing her property portfolio99. On the other hand, he might have taken a very different attitude if she proposed to donate valuable land for the benefit of her city or leave her estate to her favourite mime actor – transactions that would transfer property out of the familia100. It is plausible, therefore, that the Augustan laws were a factor in the emergence of women as civic patrons and benefactors, as Cooley and Hemelrijk have suggested101. Put another way, even if the ius liberorum did not make a dramatic difference to a woman’s ability to manage her own property per se (that is, to buy and sell, invest, or engage in business on her own initiative and in her own name), it might have given her freer choice in what she did with it: in what she invested in, sold, or gave away – and to whom.
One point worth emphasising, therefore, in thinking about the impact of the Augustan laws, is that we cannot generalise the position of women in tutela, even those free-born102. A woman like Terentia, with a freedman or some other biddable person as her tutor, probably would have gained little in practice from the ius liberorum. By contrast, for a woman in agnatic tutela, the ius liberorum could have made the difference between leaving her property to her children (or providing a bathhouse for her city, if she was so inclined)103, rather than seeing the whole estate pass to a greedy brother or uncle – and agnatic tutela was probably considerably more common at the time of the Augustan laws than some scholars have suggested. For freedwomen, the potential benefits were still greater, since they were more likely to be subject to tutela legitima, but we also need to distinguish between freedwomen in the tutela of their male patrons and the freedwoman of a woman with her own choice of tutor appointed under the lex Atilia. Thus, how burdensome tutela was in practice, and how much difference the ius liberorum would have made, was, to an extent, the luck of the draw, and certainly nothing to do with a woman’s desire or ability to administer her own property104.
The Augustan laws created further inequalities, most obviously between those who produced the three (or four) children necessary for the ius liberorum and those who did not – a matter that was to a large extent outside a woman’s control, especially if “three children” meant three living children.105. Unfortunately, it is not clear what the original law required. The problem is complicated by the fact that the Augustan laws established an array of different privileges requiring various numbers of living and/or deceased children106. By the third century CE, it seems that three (or four) live births were sufficient for women to claim the ius liberorum107. However, the original rule may well have been more demanding, as for other privileges available under the laws108, which also suggest a general preference for live children109. For instance, we know that for men, for various purposes (such as exemption from providing operae for a patron, or from acting as tutor), what counted was the number of surviving children in potestas110; also, where a freedwoman gained the ius liberorum and made a will, the lex Papia granted her patron a share in her estate proportional to the number of her children who survived her111. Further, we know that the eligibility rules were subsequently relaxed, to some extent, through juristic interpretation and imperial enactment – for instance, by allowing men to count children who had died in war112, and women to count illegitimate children, contrary to the original rationale of the Augustan laws113. Women did not have potestas, and so the rules attested for men cannot have applied to them, but the original ius liberorum could have involved something like the “sliding scale” that gave freedom of inheritance between husband and wife: one child surviving past puberty, two to the age of three, or three to their naming-day114. The difference between live births and surviving children (even if only to a certain age) is significant in considering the impact of the Augustan laws, due to very high infant mortality in the ancient world. If the rule was three live births, most women would have qualified for the ius liberorum, as Kelly argues115. If three surviving children were needed, many would have struggled116.
At any rate, the bar was set much higher for freedwomen, especially freedwomen in the tutela of their male patrons (or patrons’ sons), who required four children to obtain the ius liberorum117. Moreover, a freedwoman could probably only count children born after manumission118, and under another Augustan law, the lex Aelia Sentia, slaves normally could not be manumitted before age 30 (Gaius 1.18). Thus, freedwomen required three or four children born after the age of 30, as against three for freeborn women, starting potentially as early as age 12. As Dixon notes, this would have made the ius liberorum virtually unattainable for the class of women most likely to benefit from it119.
Yet, Armani has observed that former slaves – male and female – were more likely than freeborn persons to record possession of the privilege120. She suggests that this may be due to differences in epigraphic habit, and the fact that freeborn persons were more likely to have other and better honours to record in their inscriptions. Another reason may be that the ius liberorum was significantly harder for freedwomen (and men) to obtain, and at the same time more valuable – making it indeed something to shout about. Perhaps some managed it: the rules laid down in the lex Papia concerning succession to freedwomen’s estates contemplate women producing four (freeborn) children (Gaius 3.44). It seems possible, however, that the privilege was most often obtained as a grant from the emperor, rather than by childbearing, as was the case for Cornelia Zosima, the only woman in Armani’s list of known holders of the ius quattuor liberorum121.
The ius liberorum was innovative, but not revolutionary, and uneven in its effects: helpful to women who obtained it, but not life-changing, except for those who were thus able to escape an overbearing tutor, and probably largely unattainable for freedwomen. It is best regarded as a step in the evolution of Roman women’s property rights, which had already seen the rise of sine manu marriage and the ability of women to make wills, and would see the further weakening of tutela for freeborn women, before the eventual disappearance of tutela mulierum altogether122. The independence the Augustan laws accorded to women was anchored in the independence many women already enjoyed in the republic, and, perhaps, the respect and responsibility associated with the Roman matrona123. The concept that women might henceforth operate without a tutor at all had antecedents in the position of the Vestal Virgins and the number of trans-actions a woman could undertake in any case without a tutor’s auctoritas.
Although there is no direct evidence, it seems likely the Augustan laws anchored further (and rapid) developments in the institution of tutela124. The freeing of significant numbers of women from tutela must have helped to cast doubt on the value of the institution. At some stage, praetors began to compel tutors, other than tutores legitimi, to give their auctoritas125. This gave women a means (if perhaps an inconvenient one)126 of getting their way in the face of a tutor’s objections. Auctoritas could be compelled even for making a will, which was probably the single most significant legal act most women would undertake127. There is no evidence to date this development, which probably occurred gradually, but it would fit well between the Augustan laws and the abolition of agnatic tutela by Claudius128. This was the next major development in the history of tutela mulierum129. It meant that the only women still subject to tutela legitima were freedwomen in the tutela of their patrons and emancipated daughters with living fathers. As the latter were probably rare, Claudius’ reform, in combination with the ability to compel tutors, reduced the significance of tutela for freeborn women to the point where Gaius could describe it as an antiquated and largely empty formality130. We do not know how Claudius introduced the measure but, in view of Claudius’ fondness for historical precedent and Augustus’ exemplary status, it would not be surprising if he invoked Augustus’ earlier innovation in freeing many women from tutela altogether131.
Freedwomen, however, were left behind, still subject to old republican rules designed to protect the interests of the tutor legitimus (and new inheritance rules benefiting patrons and their descendants)132, with little chance of gaining the ius liberorum through childbearing. It seems Claudius was aware of their unfavourable situation: when there was a shortage of grain and he wished to encourage investment in ship-building, he offered women who built merchant ships the right of four children133. The specification of four rather than three children indicates that the reward was targeted, at least partly, at freedwomen134. In general, however, freedwomen remained disadvantaged, in favour of the special privilege of patrons in Roman law135.
Further, although the Augustan laws helped to weaken the practical significance of tutela mulierum for many women, they provided new grounds for its maintenance as an institution. As Schulz put it, tutela was henceforth “anchored” in the Augustan laws and the ius liberorum136. Indeed, as far as freeborn women were concerned, and after the abolition of agnatic tutela, we might ask how far tutela mulierum was retained as a formality for the sake of granting exemption from it137. At any rate, the ius liberorum had a symbolic value sometimes independent of its practical effect. As noted earlier, the ius liberorum could be a source of pride, and the grant of the ius by the senate or emperor was one means of recognising and rewarding women, to whom many other forms of Roman honour were not available138. Moreover, by badging a set of legal privileges (including freedom from tutela) as the “right of children”, even where the recipient did not have any children at all139, the ius liberorum served to keep the ideal of motherhood in the public eye140. But this symbolism should not obscure the practical advantages that the ius liberorum could bring, especially to women in agnatic tutela – perhaps still common when the Augustan laws were introduced – and to those freedwomen lucky enough to obtain it.