June 25, 2005
Historical Research on Adulthood, draft #1
[NOTE: This document was added to the blog on September 6, 2005]
Reviewing what I have learned -- without checking my source materials (much) for accuracy. The purpose of this: before I get too bogged down with checking my facts, I have to get a sense of what exactly I've learned so far.
The first (known) town was built circa 6000 BC. It had a stone wall around it, suggesting that it was engaged in warfare. There is evidence of slavery.
[See Chronology of World Slavery.]
We're dealing with about a thousand years of history here. The Assyrians and the Babylonians are the major peoples of the time. There are maybe 12 major cities. There are about six surviving legal codes from this time period to look into. However, "code" is not precisely the correct term -- the written laws are seen as proof to the gods of fulfilling one's duty as king.
There is slavery. Marriage is a private contract between families. Adulthood begins at marriage. Adults may be punished by punishing their children in their place.
[See A History of the Family, Vol I.]
Some of the earliest laws were written by Draco. These were substantially rewritten by Solon. Plato's notion of communally held children is rebuffed by Aristotle. Aristotle's Politics is a significant work, in which he describes women, children, and animals as the property of men. He also describes the household as a miniature state.
The Greeks have the clearest transition to adulthood that I've found. Children are brought into the forum, stripped naked, and given an adult toga. The "put away childish things". The city is organized into demes -- a political subdivision. People have three-part names; the name of the deme is part of how they are named. It appears that there is a census, and that entering new adults into this record is significant aspect of entering into public life. This may have to do with military service.
[See the Encyclopedia of Children and Childhood entry on Greco-Roman history.]
The extent to which Greece Hellenized Rome and Rome Romanized Greece is unclear to me at present. Greece did not turn law into a "science"; lawyers are viewed essentially as sophists paid to lie.
Rome is a high-point in the creation of law; there are two major systems in the course of world history -- Civil Law (Roman) and Common Law (originating in England).
Prior to the creation of the Roman Republic, there are seven kings. Most of this history is legendary -- however, I have seen fragments of legal code from this period that declare the father's right to control his children.
[See "The Roman Law Library" online, "http://web.upmf-grenoble.fr/Haiti/Cours/Ak/index.htm".]
In the Roman Republic, the earliest legal code is the Twelve Tables, followed by the works of Gaius. Toward the end of the Roman Empire Period, as the Empire is becoming Christianized, the Emperor Justinian creates a great collection of previous law: the Corpus Iuris Civilis, the Civil Law.
Adulthood is identified with puberty: 12 for girls, 14 for boys. Early on there is a debate about whether adulthood should be marked by actual physical changes, or by an artificial age line. Identifying the point at which a person becomes physically able to procreate requires an embarrassing exam, and is not possible for male eunuchs. The debate goes on for a very long time, but eventually the artificial age line approach wins out.
[See A Casebook on Roman Family Law by Frier & McGinn.]
The Romans explicitly recognize themselves as having a unique legal system in terms of how much control they have over their children. The system is called patria potestas; all power is vested in the male head of household, the paterfamilias. No one but the paterfamilias is allowed to own property. The paterfamilias is the oldest male in the household, and only cedes power upon death, along the lines of primogeniture. In the case of there being no male children, an agnate (the closest male relative) is chosen.
The Roman System of law is based on the view that households are responsible for self-governance. [See the final chapter, "Conclusion: The Face-to-Face Society" of Being A Roman Citizen by Jane F. Gardner.]. The system of patria potestas, however, sets up a conflict between private and public life. A son may take a public office while still technically under the control of his paterfamilias.
Adulthood at puberty is modified by the additional institution of tutelage.
There is a long-standing conflict in Roman society between the older families, the patricians, and the newer families, the plebeians. It appears that originally only patrician members of the senate may vote, but that the vote is expanded to include sons above a certain age -- probably because they are an armed infantry, which must be given vestment in the political structure, or risk losing control of them (rather similar to how Viet Nam precipitated lowering the voting age in the U.S.).
[See Roman Private Law by R.W. Leage?]
5. ENGLAND - ANGLO-SAXON ANTIQUITIES
Rome occupied England prior to approx. 400AD, at which point the Empire withdrew to deal with more pressing matters closer to home. The native inhabitants of England at that point were the Celts. There is widespread agreement that almost all traces of Roman culture were wiped away. The one enduring contribution of the Roman Empire was Christianity, which successfully dominated. Traces of Roman law persisted in the Canon Law of the Church's ecclesiastical courts. It is unclear to me at this point what of Roman Law persisted through Canon Law, except that I know Canon Law holds jurisdiction over marriage, divorce, and probate.
[See An Introduction to English Legal History, 2nd Ed. by J.H. Baker.]
With the Romans gone, two Teutonic (Germanic) tribes move into England: the Angles and Saxons. There are also invasions from the north by the Vikings. During the next six hundred years, there is a succession of kings. Aethelbert provides the earliest written legislation, albeit fragmentary. During this period, there are a number of artificial age lines. The primary sources are archaic, and English translations may be difficult for me to track down.
[See A History of English Law, Vol II, 3rd Ed. by W.S. Holdsworth, pp. 97-99.]
6. ENGLAND - THE MEDIAEVAL COMMON LAW
A great turning point in English history is 1066, when William I ("William the Conqueror") won the battle of Hastings, a.k.a. the Norman Conquest. The background of this battle is that three potential successors for the English crown came into conflict; one defeated another, William coming from Normandy in France defeated that victor, in his weakened state. Prior to 1066, there was already a fairly organized political system in England, composed of local governments (boroughs, etc.). William built upon this.
The origins of English Common Law are in the 12th century. Circa 1118, an author from the continent attempted to summarize the laws of England in the Leges Henrici Primi. Then, in 1189, Glanvil wrote De Legibus et Consuetundinibus. Meanwhile, in Bologna, Italy, the monk Gratian attempted the first summation of Canon Law with his "Concordance of Discordant Canons", a.k.a. the Discretum (circa 1140).
[See Handbook of Anglo-American Legal History by Max Radin for a time-line.]
During the period from 1066-1485, feudalism is in effect, and the age of majority is important largely relative to holding tenures. There are different ages for different classes, with 21 being the age of majority for knights; it gradually becomes the age of majority for all. There are complexities of different types of guardianship here that need to be examined. ...Apparently the Magna Carta (1215), which limited the powers of the king, had a number of provisos that dealt specifically with lords abusing guardianship of their wards' lands.
[See A History of English Law, Vol III, 3rd Ed. by W.S. Holdsworth, pp. 510-520.]
The parental duty to care for one's children emerges out of the Elizabethan Poor Laws.
[See From Father's Property to Children's Rights by Mary Ann Mason.]
William Blackstone's Commentaries on the Laws of England was published 1765-1769, and represented a concise summation of English legal principles, which was influential when it was transported to America. It is not in itself the English Common Law; I was in error when I previously asserted this.
Note that it wasn't until the 1832 Reform Bill that the majority of the male middle-class (but not the working class) was given the vote. [See wikipedia, "History of England".] The Common Law system came to an end circa 1850. [See An Introduction to English Legal History, p. 79.]
7. THE THIRTEEN COLONIES
Historians divide the colonies into four regions: New England, the Middle Colonies, the Chesapeake Colonies, and the Southern Colonies.
[See wikipedia, "Colonial America".]
During this period, although there wasn't an elaborate state mechanism yet, there were still local officials who would intercede in significant abuse / neglect cases. I am unclear who created ordinances, and how they fit into the governmental system of the time. However, at this point in time parents are required to provide (1) food & shelter, (2) basic literacy, (3) vocational education, (4) religious training.
Children are crucial as a workforce. Street children are captured in England and sent across the sea as slaves. A father has all custodial rights; mothers are only owed "respect". A child may be "bonded out" to another adult as labor. A child may also be apprenticed out, which is similar, except there's an obligation for the master to teach them a trade. Within the home, physical discipline is the norm. In Massachusetts (?) there is a law based on the bible that allows a father to murder a disobedient child -- but there is no evidence that it was used.
[See From Father's Property to Children's Rights by Mary Ann Mason.]
8. FOUNDING OF THE UNITED STATES
James Madison argued in the Federalist Papers No. 62 for setting the age requirement for senators at 30. George Mason of Virginia suggested 25 for the House of Representative (Records of the Federal Convention of 1787). At the same congressional convention, James Wilson makes the counter-argument that there is "no more reason for incapacitating youth than [old] age".
[See West's Encyclopedia of American Law under the article "age requirement for holding office".]
The age of 21 doesn't enter constitutional law until the 14th Amendment is ratified in 1868.
9. PROGRESSIVE ERA
During the 1800s, divorce law is changed significantly: people can divorce by going before a judge, rather than having to go before the state legislature. The principle of coverture, under which women have no legal existence under the law (feme covert), is eroded as women win the right to initiate divorce, own property, and (consequently) take custody of children after a divorce.
Toward the end of the 1800s, and during the first half of the 1900s, a revolution in the institutions dealing with children occurs. Prior to this period, there was a bargain that in exchange for receiving care, children are obligated to provide for their parents. During the progressive era, the children's obligation to serve their parents is eroded. There are three main institutions that emerge: (1) child labor law, (2) compulsory education, (3) juvenile courts. The activists spearheading these changes are generally referred to as the "child-savers".
After several decades of work, child labor is finally brought under control by the FDR's Fair Labor Standards Act, as part of the New Deal. Compulsory schooling is explicitly linked to child labor law by the child-savers: it puts children somewhere other than at work for their parents. Juvenile courts also play into the fundamental change of bargain, by lessening liability on parents for the actions of their children.
Additionally, toward the end of the 1800s, child abuse also begins to be recognized. Originally laws prohibiting cruelty against animals are used to argue the case. In the 1950s or 60s, awareness of child abuse explodes with the publication of the book the "Battered Child Syndrome".
10. LATE 20th CENTURY
Viet Nam highlights that young men can die for their country, but cant vote. This leads the U.S. government to pass the Federal Voting Rights Act Amendments of 1970. The Supreme Court strikes down portions of this that make improper demands upon state governments. The Federal Government responds by passing the 26th Amendment. This legislation is rushed through, because an election is impending and all involved want to avoid confusion during the actual election process.
[See The Guide to American Law by West Publishing, 1984, under the article "infants".]
A series of Supreme Court decisions recognize the personhood of children. However, since a high-water mark for Children's Rights around 1970, a progressively more conservative court has made increasingly anti-youth decisions.
Children's Rights have been founded upon the principle of parens patriae -- the right of the state to oversee the welfare of all its citizens. However, there has been a conflict in approach to rights. On the one hand there is a right to be nurtured, on the other the right to autonomy. The United Nations Convention on the Rights of the Child is largely based on attempting to guarantee that children will be nurtured, rather than have autonomy. The strange outcome of this approach is that it leads to children not having rights that they can access -- they must be spoken for by an adult advocate.
Posted by Sven at June 25, 2005 12:00 PM