1. The Evolution of the State Role in the Treatment of Children

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© Center on Juvenile and Criminal Justice 2013
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The Evolution of Juvenile Justice
from Antiquity to the late Middle Ages
The origins of parens patriae and
institutional care

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(paa-wrens pat-tree-eye)
Latin for "father of his country,"
the term for the doctrine that
the king (or the government) is
the ultimate guardian of all
people, especially children.

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In Loco Parentis (in place of the parents)
When the state or its
designated agent is
assigned the
responsibility to provide
care and protection for
children that is the
equivalent to that of the
natural parent

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Children and the State in the Ancient World
• Designed to prevent strong from
injuring the weak
• Defined crimes and set punishments
• Established a father as head of
family unit
• Father’s role strictly enforced through
power of the state
• Provided for adoption of children
• Misconduct by child outside family
unit subject to same punishments as
adult
The Hammurabi
Code
1752 BC

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Children under Early Roman Law
Doctrine of Patria
Potestas continued
tradition of father’s
absolute control over
family matters

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Unwanted Children in Ancient Rome
Infanticide through
exposure.
In Rome a column near
the Velebrum, where
Romulus and Remus
were abandoned and
then saved by a she
wolf, became the
traditional spot for
leaving unwanted
children.

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Assignment of Guardianship and the
Emergence of State Care Under Roman Law
Earliest form of institutionalized state policy to
protect orphaned children of Roman citizens

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Three Types of Guardianship established
under Roman Law
• Tutela Legitima: guardianship
fell to the senior surviving male
relative
• Tutela Testamentaria:
Guardianship designated by
the natural father prior to his
death
• Tutelia Atiliana: Guardianship
assigned by government
officials (praetor urbanus)

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Guardianship under Roman Law
Focused on protecting children’s
property rights
Recognized the primacy of the male
in family matters
Extended special protections to
Roman born children especially of
high social status

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Evolution of Roman Law and the Protection of Children under
Byzantine State (500 AD to 1453)
• Outlawed exposure in 541 by
classifying the act as murder
• Established network of state
and church run orphanages
• Orphanotropheion in
Constantinople stood for a
1000 years
• Increased laws protecting
property rights of children
placed in guardianship
• Expanded practice of adoption

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Roman Law and the Juvenile
Delinquent
Assigning criminal
responsibility

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mens rea: the Latin term for "guilty mind”
“the act does not make a
person guilty unless the
mind be also guilty".
actus non facit reum nisi mens sit
rea

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CHILDREN AND CRIMINAL
RESPONSIBILITY IN ANCIENT ROME
UNDER AGE 7- NO
RESPONSIBILITY
8 TO PUBERTY – SOME
RESPONSIBILITY
PUBERTY TO 25 –
RESPONSIBILITY WITH AGE
CONSIDERATIONS

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Middle Ages: Orphans and the Evolution of State Responsibility
and Institutional Care (400 – 1500 AD)
The Role of the Christian Church

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Ospedale degli Innocenti, Florence
Hospital of the Innocents ( Established 1411)

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The Foundling Wheel
Foundling wheel
at the Ospedale
degli Innocenti

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Growth of Parens Patriae in the Late Middle Ages (1300-
1500)
Magna Carta 1215 – re-
established the role of
the state in ensuring the
protection of orphaned
children and their
property through the
appointment of
guardians

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CHANCERY COURTS:
An legal body that was established in
England during the Middle Ages to
carry out various legal, executive and
legislative functions including the care
and treatment of orphaned children
and administering their estates.
Represented the formal acceptance of
the expanding state role in child
welfare.

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Growth of Parens Patriae in the Late Middle
Ages
• 1500 Chancery Court – expanded right
of the English king to assign
guardianship over orphaned children
• 1562 English Parliament passes the
Statute of Artificers allowing
government to involuntarily separate
children from pauper parents
• 1601 English Poor Law Act allows
government to place poor children in
bondage to local residents as
apprentices

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English Poor Laws and the Growth of
Institutional Care
Poor Houses Work Houses

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Children and Criminal Responsibility in the
Middle Ages
• One to Seven = no criminal responsibility
• Eight to Puberty = limited criminal responsibility
• 14 and over = criminal responsibility

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The Evolution of Institutions for the Reformation of Criminal
Youth
1703: Hospice San Michele
established by Pope Clement XI

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Hospice San Michele
• Congregate work station for
offenders
• Solitary confinement for
incorrigible
• Enforced silenced
• Wearing of hoods
“It is insufficient to restrain the
wicked by punishment unless you
render them virtuous by
corrective discipline”

1. The Evolution of the State Role in the Treatment of Children

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1. The Evolution of the State Role in the Treatment of Children