Virginia Magazine of History and Biography
By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority • Holly Brewer • Chapel Hill: University of North Carolina Press, 2005 • xi, 390 pp. • $39.95
Reviewed by John Ruston Pagan, University Professor at the University of Richmond. He is the author of Anne Orthwood's Bastard: Sex and Law in Early Virginia (2003).
One of the bedrock principles of modern contract law is that a party will not be bound by an agreement unless he is capable of understanding the nature of his obligation. We presume that adults have sufficient intelligence and experience to give meaningful consent, and therefore we generally hold them to their bargains. Children, on the other hand, often lack the reasoning ability necessary for participation in that mystical moment, the so-called "meeting of the minds," when negotiation metamorphoses into contract, so we let them disavow most undertakings if they wish.
Until I read Holly Brewer's provocative and wide-ranging book, I had assumed that the concept of minors' contractual incapacity dated back to the Middle Ages and the beginnings of the common law. She persuasively demonstrates, however, that the rule developed later, primarily in the seventeenth and eighteenth centuries, as part of a larger movement to substitute age for status as the dividing line between those who were deemed capable of doing certain things (e.g., contract, marry, testify, vote, hold office, commit crimes), and those who were not.
Before this conceptual shift, Brewer explains, birthright was the primary determinant of capacity. For centuries, children from privileged families enjoyed virtual parity with adults, controlling property, selecting their own marital partners, and sometimes even governing their elders. Numerous well-born teenagers sat in the House of Commons, for example, until the passage of a 1696 law that prohibited "infants under 21" from standing for Parliament (p. 27). Children subsequently lost much of their capacity—and thus their equality—as informed consent became the cornerstones of both contract law and democratic-republican political theory, developments Brewer traces to debates spawned by the Reformation, the English Civil War, and Enlightenment philosophy, especially the writings of John Locke.
By Birth or Consent contains an illuminating account of the way that changing attitudes toward children’s legal rights have influenced perceptions of authority and equality. Though marred by repetitiousness, Brewer's book makes an important contribution to our understanding of the currents of thought that have shaped English and American law.