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Book Review
| Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority, Chapel Hill: University of North Carolina Press for the Omohundro Institute of Early America History and Culture, 2005. Pp. 390. $39.95 cloth (ISBN 0-8078-2950-1); $24.95 paper (ISBN 0-8078-5832-3).
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| Legal historians, scholars of the American founding, and historians of the family should find an abundance of insight in Holly Brewer's By Birth or Consent. Deeply researched, sweeping in scope, and powerfully argued, Brewer examines the shifting legal status of children and places that developed at the center of the even more important legal and political revolution in authority that occurred in the Anglo-American world during the seventeenth and eighteenth centuries. "[O]nly by focusing on the child," Brewer argues, can historians fully grasp the "paradigm shift, from authority based on birthright to authority based on reasoned consent" (5). |
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Brewer states that "patriarchalism"—the religious and political idea that emphasized "how the status to which one was born determined one's place in society" (21)—dominated medieval and early modern England's political and legal thought. Patriarchalism equated a monarch's reign with that of a father's rule over the household, and permitted incidents such as teenagers holding peerages, fourteen year olds sitting on juries, and a child as young as four entering into binding contracts. Patriarchalism also served as the guiding ideology behind legal practices such as primogeniture, which, in turn, allowed the transfer of authority from father to (eldest) son, thereby justifying and upholding inherited authority. The Englishmen of this period, both in England and the North American colonies, believed these children not only understood and consented to these actions but could also be active participants in the body politic. In sum, it was birthright that granted access to the levers of power. |
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During the seventeenth and eighteenth centuries, however, a sea change occurred, fundamentally transforming authority from its medieval, age-based moorings to the more modern notion based on consent. The cornerstone of Brewer's entire argument for this change rests on the concept of reason, of when an individual could make a reasoned and intelligent choice. Brewer traces the origins and development of this emphasis on reasoned consent to the Reformation and English Puritanism's stress on individuals selecting their denomination, reading the bible in the vernacular, and the appropriateness of infant baptism. From there Whig, or "Democratic-Republican" philosophers such as Harrington, Sidney, Trenchard, Gordon, and, above all, Locke moved the idea of reasoned consent into the philosophical realm contending that youth, by their very nature, were too young to provide the intelligent, reasoned consent required for governance. While philosophers theorized, common law reformers such as Hale and Blackstone relied on reason to reform elements of the common law. Their attempted reforms, which Brewer admits were slow and haphazard, nonetheless started the questioning of whether very young children could serve as witnesses, provide testimony in trials, or even commit crimes in the first place since they could not understand the consequences of their actions. According to Brewer, however, the American Revolution provided the death-knell of patriarchalism and the permanent establishment of government based on consent of the governed as the new American states abolished primogeniture and entail, as well as forbade any noble or hereditary titles. The Constitution's age requirements for office, Brewer notes, demonstrated how the new republic expected only people with the ability to reason to participate in and consent to the government. |
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Of particular interest to legal historians is Brewer's discussion on how the emerging idea of consent affected the development of custody and contract law. As late as 1700, parents possessed no custodial rights over their children, thereby making children legally responsible for themselves. This meant that they could (and did) legally enter into various contracts. With the growing acceptance of an age of consent, these rules underwent dramatic change. Legal reformers from Coke to Kent advocated what Blackstone labeled the "empire of the father" which granted parents—particularly fathers—custodial rights to the child. Along with this custody, the right of consent passed from the youth to the father. By 1800, therefore, fathers could now consent to labor and other contracts such as marriage for their children. Brewer convincingly shows that the "rise of contract" that legal historians attribute to the early nineteenth century was "happening during the earlier two centuries as well" and is "intertwined with the struggles over justice and power that followed the Reformation" (237). It is an argument that is difficult to refute. |
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By Birth or Consent is complex and well argued but there is room for a few quibbles. Brewer's continual reference to "democratic-republican" political thought is awkward and downplays the philosophical differences between the two. One wonders what differences and complexities might exist in the idea of consent and age-based law between democratic and republican thought. She also sprinkles her work with discussions on slavery, all of which feels forced and adds little to the overall argument. Finally, the work contains too many block quotes and sometimes lapses into redundancy. Yet, these are small blemishes on an otherwise excellent and important work. |
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| Aaron N. Coleman
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| Kentucky Christian University |
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