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

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

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

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


In mid-sixteenth-century England, people were born into authority and responsibility based on their social status. Thus elite children could designate property or serve in Parliament, while children of the poorer sort might be forced to sign labor contracts or be hanged for arson or picking pockets. By the late eighteenth century, however, English and American law began to emphasize contractual relations based on informed consent rather than on birth status. In By Birth or Consent, Holly Brewer explores how the changing legal status of children illuminates the struggle over consent and status in England and America. As it emerged through religious, political, and legal debates, the concept of meaningful consent challenged the older order of birthright and became central to the development of democratic political theory.

The struggle over meaningful consent had tremendous political and social consequences, affecting the whole order of society. It granted new powers to fathers and guardians at the same time that it challenged those of masters and kings. Brewer's analysis reshapes the debate about the origins of modern political ideology and makes connections between Reformation religious debates, Enlightenment philosophy, and democratic political theory.


“Men are as Fearfull to be under the imputation
of a reformer of the Law, as they would [to] be of the
name of knave or fool, or hypocrite.”
Sir Matthew Hale, “Considerations touching the
Amendment or Alteration of Lawes” (ca. 1660–1664)

“Pur ceo que cest prescription est encounter reason
ceo est voyd [Littleton]. This containes one of the Maximes
of the Common Law, viz. that all customes and prescriptions
that be against reason, are voyd.”
Sir Edward Coke, the First Part of the Institutes of
the Laws of England (Coke upon Littleton) (1629)

In sixteenth-century England, children over age seven were of “ripe age” to marry (under seven they could contract only “espousals,” or betrothals). Four-year-olds could make wills to give away their goods and chattels. Children of any age could bind themselves into apprenticeships. Eight-year-olds could be hanged for arson or any other felony. Teenagers were routinely elected to Parliament. Children who owned sufficient property could vote. and custody as we know it did not exist. These norms applied not only in England but in Virginia as it was founded during the seventeenth century. Although modified by Massachusetts and Pennsylvania at their founding, those norms changed even more in England over the next two centuries, a change accelerated in America by the Revolution. Still, laws that accepted children’s consent, and even in some cases their broader authority, had not changed completely in England or its former colonies by the early nineteenth century. in Pennsylvania in 1811, two-year-old Phoebe Stuart still placed her mark at the bottom of an apprenticeship contract, indicating that she consented to her indenture.

But in the seventeenth and eighteenth centuries a fundamental shift occurred in the legal assumptions about childhood, adulthood, and respon-

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