A little information... Cathy Hall Email: cat5hall@email.msn.com ASC TNGenWeb TNGenWeb: http://www.tngenweb.org/ Polk County: http://www.tngenweb.org Bradley County: http://www.tngenweb.org/bradley Personal Page: http://msnhomepages.talkcity.com/PicnicPl/cat5hall/ -----Original Message----- From: Billie R. McNamara [mailto:billie@tnhillbillie.net] Sent: Wednesday, March 21, 2001 5:20 PM To: Recipient list suppressed Subject: [TN-all] Age of consent for marriage in 1849 Decision in THE GOVERNOR, for the use of SMITH v. RECTOR AND RYLAND, September, 1849, by the TN Supreme Court included this tidbit: HEADNOTES: MARRIAGE--AGE OF CONSENT--CONSENT OF PARENTS. In this state a marriage entered into by parties of the age of consent, fourteen years for males and twelve for females, is valid, without the consent of parent or guardian. [ Acc. Warwick v. Cooper, 5 Sneed, 660, citing this case.] Is the want of consent of the father to the marriage of a child under the age of twenty-one years, lawful cause to obstruct, or nvalidate, the marriage? We think not. The principle of the common law upon this subject, remains unchanged in this State. By the common law, males at the age of fourteen, and females at twelve, were competent to enter into the marriage relation, or, in the language of the books, were of the age of consent. And if the parties themselves were [**7] of the age of consent, there wanted no other concurrence to make the marriage valid; and this was agreeable to the canon law. 1 Bla. Com. 436, 437. If a boy under fourteen, or a girl under twelve years of age, marries, such marriage is only inchoate, and imperfect; and when either of them reaches the age of consent, he or she may disagree and declare the marriage void, without any divorce, or sentence in the spiritual court. But, if at the age of consent the parties agree to continue together, it is so far a marriage, that they need not be married again. Id. The common law so remained until the 26 George 2, ch. 32, which enacted that all marriages celebrated by license, [*62] without the consent of the father, or, if he be dead, of the mother, or guardian, shall be absolutely void. This statute, which never was in force in this State, was repealed by the 4 George 4, ch. 76. And although the 16th section of the statute re-enacts the like provisions in respect to the consent of parents and guardians, except that it does not declare the marriage void, yet it is held to be only directory, and the want of such consent does not affect the validity of the marriage. See 1 Stephens N. [**8] P. 16; 8 B. and C. 29. The only provision we find, in the legislature of North Carolina or of this State, upon this subject, is contained in the 6th section of the Colonial act of 1741, ch. 1, which directs that the clerk shall take bond, with security, in the penalty of fifty pounds, that there is no lawful cause to obstruct the marriage; and in case of minors, if not heretofore married, the consent of the parent or guardian shall be personally given before the clerk, or signified under the hand and seal of the parent or guardian, attested by two witnesses. And, by a subsequent clause, the clerk was subject to forfeit fifty pounds, if a license were issued contrary to said act. This requirement of the act of 1741, in respect to the consent of parents, is wholly omitted in the act of 1778, ch. 7, and is repealed thereby. But, were it otherwise, the 6th section of the act of 1741, is merely directory to the clerk, and could not in the slightest degree affect the validity of the marriage for want of such consent. It follows, therefore, that, in this State, a marriage entered into by parties of the age of consent, though under the age of twenty-one, is valid, without the [**9] consent of parent or guardian. [*63] 2. Whether upon the facts alleged in the third count of the declaration, the plaintiff might not maintain the common law action for the loss of services of his daughter, is a question that does not arise upon this record. If his right to do so were conceded, it is very clear that he could not, for that cause maintain an action upon the license bond, because, upon the facts set forth in the declaration, the law regards the female as "the party grieved," and she alone is entitled to recover the penalty. **** TN-All mailing list, discussion list of TNGenWeb/TNGenNet. Mailing List policy can be viewed at: http://www.tngenweb.org/adoptco/mail_list.htm To Unsubscribe from TN-All, email: TN-all-unsubscribe@onelist.com To Re-Subscribe to TN-All, email: TN-all-subscribe@onelist.com Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/