An historical and legal question

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KevinS
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Post by KevinS » July 5th, 2019, 12:11 pm

Does anyone know if, legally speaking, children were considered the property of their parents years ago (or even today)?

I'm reading a bit about Nat Turner and see he is referred to as being 'born the property of...' He was a slave, as many of you know. It's such a strange statement to make, to us of a more enlightened age, but...

Children today can still be 'emancipated.' That's interesting to me and wonder if someone could comment on my original question.
E agora, José?

Peter Why
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Post by Peter Why » July 5th, 2019, 9:32 pm

From a group of novels that I've been reading recently, which I assume are well-researched (Mercedes Lackey's Elemental Masters series), before the suffragists managed to get the laws changed, women were considered the property of their husbands or families, so children almost certainly were. I've no specific legal details, though.

Peter
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KevinS
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Post by KevinS » July 6th, 2019, 3:14 am

Peter Why wrote:
July 5th, 2019, 9:32 pm
From a group of novels that I've been reading recently, which I assume are well-researched (Mercedes Lackey's Elemental Masters series), before the suffragists managed to get the laws changed, women were considered the property of their husbands or families, so children almost certainly were. I've no specific legal details, though.

Peter
Thank you. I hadn't thought about women's situations. (A lot has changed in 100 years, but not, of course, everywhere.)
E agora, José?

lethargilistic
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Post by lethargilistic » September 12th, 2019, 11:11 am

The process of a woman's property rights being subsumed by her husband upon marriage was called "coverture." I think that's the doctrine Peter is referring to, rather than husbands literally owning their wives as property.

I also can't give a good answer for children, though. ^^;
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Elizabby
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Post by Elizabby » September 12th, 2019, 5:36 pm

I don't think children were ever considered property (apart from slavery, which is a separate issue).

The murder of a child is always considered the murder of a Person, not as property destruction. Parents who abuse children can have their parental rights taken away and the children removed from the home. If parents are in court over custody issues the rights and benefit of the child are usually considered first (theoretically, anyway).

I work in child protection, not as a lawyer, but children have (AFAIK) always been considered separately from pets/property. Consider the social punishments are quite distinct between if a person sets his cat on fire, vs setting a child on fire! Or even lets his dog run away and get hit by a car, or lets a toddler run away and get hit by a car...

As I understand it, children being "emancipated" refers to making their own decisions, usually in opposition to their parents' wishes. Overriding guardianship is different from being a freed slave though.

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Post by TriciaG » September 12th, 2019, 5:54 pm

I THINK the ancient Romans considered their children as property. But that's going back a long time ago. :)
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Post by Elizabby » September 12th, 2019, 6:10 pm

In ancient Roman law, the oldest male was considered the paterfamilias, or father of the family (“estate owner” might be more accurate though). The paterfamilias had full authority over not only his things, but his wife and children, including – at least on paper – authority over life and death. This was called patria potestas (“the power/authority of the father”).

While the frequency of anyone actually exercising this extreme authority is doubted by many scholars today, there is at least one known instance connected to it: the practice of the exposure of infants. Indeed, the mythological origins of Rome begin with the exposure of two infants: Romulus and Remus. Most infants either died or were enslaved, rather than founding expansive empires like Romulus.

Not all Romans approved of this. The Stoics notably objected. This makes sense given their belief in the equality of all people and perhaps the fact that one of their most prominent teachers was the freed slave Epictetus. The ancient Jews, many of whom also lived in the ancient Roman Empire and were Roman citizens, objected too. Then there came the Christians.

Ancient Christians were known to object to this practice as well. As the second-century writer St. Athenagoras of Athens put it,

For the same person would not regard the fetus in the womb as a living thing and therefore an object of God’s care, and at the same time slay it, once it had come to life. Nor would he refuse to expose infants, on the ground that those who expose them are murderers of children, and at the same time do away with the child he has reared. But we are altogether consistent in our conduct. We obey reason and do not override it.

Not only that, however, but Christians were known for going out of their way to rescue infants left for dead by pagans and raising them as their own. In 313, the Emperor Constantine, the first Christian emperor of Rome, even legalized a distinctly libertarian alternative: people were allowed to sell their children. This might not sound much better, but often those who exposed their infants were poor and did so because they didn’t think they could afford to raise them. The new law reduced exposure and thus saved many infants’ lives, and by around 374, Christian Rome officially outlawed the practice.

On the one hand, the pagan Romans who believed children were the property of the paterfamilias permitted the practice of exposing infants because it meant fewer poor people and people with disabilities to burden society. In short: fewer “undesirable” people.

For the Stoics, Jews, and especially the ancient Christians, on the other hand, human beings ought not to be anyone’s property. While one may – in some cases rightly – object that they were inconsistent on this point, it is worth noting that all agreed that every human being was free by nature. This was even part of Justinian’s Institutes: “Slavery … makes a man the property of another, contrary to the law of nature.” It notes that slavery was nevertheless a part of the juris gentium – the law of all nations – but then goes on to show the many ways in which the law of Christian Rome excelled in offering opportunities for slaves to obtain their freedom, implying that it was better than the laws of other nations by its closer proximity to the ideal of natural law. Indeed, we believe modern societies have made moral progress in this area by the same measure, to the point that the abolition of slavery is now part of the juris gentium.

From: https://www.intellectualtakeout.org/article/are-children-their-parents-property

KevinS
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Post by KevinS » September 14th, 2019, 12:20 pm

Glad to see the topic come alive again! Thank you!
E agora, José?

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