Childhood in History, Literature, and Law: Confronting Authority, Illegitimacy, Myth, and Rights

Ideological revolutions from the Reformation to the 1960s have made past assumptions about childhood, including the legal status of children, seem absurd to those living in the here–and–now. For instance, in the introduction to her By Birth or Consent, historian Holly Brewer observes:

We would not now elect a thirteen–year–old to the House of Representatives (and certainly not have him give a keynote speech on an important bill at fourteen). We would not accept a will signed by a four–year–old. We would not permit a fourteen–year–old, regardless of wealth, to judge (as a juror) someone’s guilt or innocence. We would not hang an eight–year–old for arson. We would not permit an eight–year–old to marry. We would not allow a five–year–old to bind himself to labor—and force him to abide by his agreement until he reached twenty–four. Yet the laws and legal guides and judges found these practices acceptable in sixteenth–and seventeenth–century England and Virginia (9).

Like Brewer, the authors of the four other books under review are all interested in recovering lost or overlooked histories of childhood. As historian Bianca Premo observes, “In histories of the colonial period, children occasionally can be spotted, almost as if they were darting in and out of the field of vision of historians whose sights are trained on other subjects, such as the nature of the colonial family or the history of inheritance among propertied elites” (2). Although all these authors agree that the concept of childhood is socially constructed and has changed dramatically over time, they offer very different approaches to recapturing the strands of its elusive and often elastic history. Each, however, forces us to question twenty–first–century assumptions about childhood, including the concept of children’s rights.

By Birth or Consent is a tour de force that seamlessly combines intellectual, legal, and social history with political theory, to reveal how the progenitors of new ideas about individual consent denied children the right to make legally binding decisions about themselves or how they were governed. Brewer convincingly argues that the Anglo–American revolution against religious and political authority, which launched the English Civil War, the Glorious Revolution, and the American Revolution, ultimately led to republican forms of government that privileged one’s ability to reason and consent over his or her birth status. Those who were deemed incapable of reason, most notably children, were denied the rights and responsibilities of citizenship. Thus, the creators of modern democratic theory inscribed inequality, including new forms of patriarchy and parental control, into its practice. Moreover, stripping children of their ability to consent also established a dangerous precedent for denying others, including women, slaves, and the subjects of imperial pursuits, the right to self–government.

Understanding the persistence of inequality in twenty–first–century democratic theory and practice, Brewer argues, requires that scholars must come to terms with how legal actors, including the leading compilers of the common law—Sir Edward Coke, Sir Matthew Hale, and Sir William Blackstone—purposefully rewrote the English past in order to shape its...