By Birth or Consent: Children, Law and the Anglo-American Revolution in Authority (review)

Imagine an England in which seven-year-olds married, toddlers bound themselves to a decade of indentured servitude, and courts, without batting an eye, hanged children for willfully committing felonies. Holly Brewer’s By Birth or Consent takes us from the sixteenth to the early nineteenth century, from England to its North American colonies, analyzing the intellectual and legal transformations by which such treatment of children came to be seen as absurd or cruel. Through an exploration of the fundamental shift in legal assumptions about childhood, adulthood, and individual responsibility, Brewer offers new perspective on the roiling, centuries-long fight over the meaning of consent, as articulated by Locke and others, and its place in political power and the social order.

From the Protestant Reformation, through the English Revolutions of the 1600s, and through the American Revolution, Brewer reveals how the legal status of children –not merely the political metaphor of childhood – became a central battleground in conflicts concerning authority and consent. In late sixteenth century England, children and most adults remained legally undifferentiated, as seen in the examples above. The Reformation in England encouraged an ideology of childlike submission to authority, but simultaneously undermined that authority by asserting the centrality of individual experience and reason in religious and political life. The resulting upheavals and reforms of the seventeenth century declared children incapable of reason and placed them in a separate political and legal space, similar to that which they inhabit today. Brewer contends that the creation of this separate space where children could not be legal or political actors “reveals the tensions within modern political theory” and shows new sources for “the underlying inequalities within a theory of equality.” (2–3).

To explore the place of children in the developing debate over consent and authority, Brewer focuses on their appearance in English and colonial law and in specific court cases in England, Virginia, Massachusetts, and Pennsylvania. Each chapter addresses a specific legal topic, beginning with the gradual changes in English common law across the seventeenth and eighteenth centuries and then moving to its changing applications towards children in English and colonial American courts from the seventeenth through the early nineteenth century. Despite the topical chapter arrangement, the book as a whole creates an arc across the centuries, depositing the reader in the early 1800s. Brewer’s topical focus in each chapter will allow scholars of many fields to focus more closely on aspects that relate to their own interests. She begins by demonstrating the centrality of real children to political power in Tudor England and how children’s status entered debates over the basis of authority. Chapter Two discusses the Reformation origins of these debates through ideas about infant baptism. The third chapter, while focusing on children, pursues the dispute between patriarchal inherited right and government based on consent into democratic-republican political theory of the Enlightenment and Revolutionary America. In the second part of the book, Brewer turns to practical questions of children’s legal identity and how children’s legal status shifted with these religious and political debates. How did people consent? How and when could children participate as legal actors in their own right? Chapter Four traces these debates over the legal status of children in relation to citizenship, jury service, and militia service. Chapter Five addresses children’s changing ability to bear witness in courts and the consequences of their legal silencing. Chapter Six examines children’s liability for crime, focusing on the idea of intent as it relates to consent. Chapter Seven contrasts children’s declining ability to form legal contracts with the rise of parental custody. Chapter Eight continues the discussion of custody and consent in changing norms for children’s consent to marriage. Her powerful conclusion ties together these changing legal ideas and practices regarding children with ideologies rising in the eighteenth and early nineteenth...