52 N.C. 194 | N.C. | 1859
The facts of the case are as follows: In February, 1858, James G. Wallace, being then under 21 years of age, but over 16, was married to Caroline Tilghman, then under 14 years of age. She (195) became 14 in June, 1858, and lived with Wallace as his wife until 23 September, 1858, when he died, being still under 21. The parties lived together as man and wife, and strictly recognized each other as such, from the marriage in February, 1858, until the death of the husband in September of the same year. At December term of Onslow County Court, Caroline Wallace, widow of James Wallace, applied for letters of administration on his estate, when the defendant *152 in this case, the mother of the intestate, and also his highest creditor, opposed the motion, alleging that no marriage had taken place between her son and the applicant, inasmuch as the applicant was under 14 years of age when married. The county court granted the letters of administration to the applicant, and from this judgment there was an appeal to the Superior Court, when the applicant, Caroline, relinquished to Francis D. Koonce her right to administer, and that court accordingly granted him letters of administration; and from this judgment defendant appealed to this Court. It is enacted, Rev. Code, ch. 69, sec. 14: "Females under the age of 14 and males under the age of 16 years shall be incapable of contractingmarriage."
A marriage is duly solemnized in all respects, save that the female is a few months under the age of 14; the parties lived together as man and wife until she arrives at that age, and afterwards continue so to live together until the death of the other party.
The question is, upon the construction of this statute, Was the marriagevoid, i. e., a mere nullity, or was it voidable, i. e., imperfect, but capable of being confirmed and made perfect by subsequent consent and cohabitation as man and wife?
(196) At common law, 14 in males and 12 in females was the age of consent, and if one or both of the parties, at the date of the celebration of the marriage, were under the requisite age, such marriage was imperfect, by reason of the fact that the parties were incapable of contracting marriage, but it became perfect and was confirmed if the parties, after attaining the requisite age, assented to it by continuing to cohabit together as man and wife. In other words, the marriage was not void, but was only imperfect or voidable from the want of capacity, but could be made perfect or be confirmed by the consent of the parties, implied from subsequent cohabitation as man and wife, on the same principle by which it was held that the contract of one under the age of 21, in respect of property, except for necessaries, although imperfect and voidable because of a supposed want of capacity, may be confirmed and made perfect by assent after attaining the age of 21. Indeed, the application of this principle is especially called for in regard to the contract of marriage, from its peculiar nature and consequences. Coke Lit., 33a; ibid., 79a, note 43; 1 Bl. Com., 436. Such was the settled rule of law in regard to incapacity to contract for the want of age *153 previous to the statutory enactment above recited; and, in the opinion of this Court, the only effect of the statute was to make 16 instead of 14 years in respect to males, and 14 instead of 12 years in respect to females, the ages at which the parties, respectively, were capable of making a perfect marriage, leaving the rule of the common law unaltered in all other respects; for, as is said by Bishop in his treatise on "Marriage and Divorce," sec. 192: "The common-law rule of 14 in males and 12 in females, as the age of consent, was derived from the civil and canon law. It originated in the warm climate of Italy, and it has been thought not entirely suited to more northern latitudes. In some of the United States it has been altered by statute, and the age of consent fixed at later periods of life."
This construction of the statute is supported by "the reason (197) of the thing," for no ground of public policy can be conceived of making it expedient to deprive the parties of the common-law right to confirm, by subsequent consent and cohabitation as man and wife, a marriage solemnized in due form of law, although imperfect because both or one of the parties were incapable, for want of age, of making a perfect marriage, whereby, notwithstanding such confirmation by assent and cohabitation, they should be subjected to indictment for living together in fornication, and their issue should be deemed bastards. And, as we conceive, the correctness of this construction is put beyond reach of doubt or question by a comparison with other sections of the same statute, to wit, section 9: "All marriages contracted after," etc., "between persons nearer of kin than first cousins shall be void." Section 7: "All marriages since," etc., "between a white person and a freed negro, or free person of color, to the third generation, shall bevoid." Section 8: "No minister of the gospel or justice of the peace shall marry a white person with an Indian, negro, or free person of color to the third generation, knowing them to be so, upon pain of forfeiting," etc. Thus in the statute some marriages are made void, and, in respect to others, it is enacted that the parties shall be incapable of contracting marriages. Why this change of expression, if the same idea was intended to be expressed? Taking into consideration the law as it was before settled, there is no rule of construction which would justify the Court in giving the same meaning and effect to modes of expression so different, and such a construction would shock common sense.
On the argument, Gathings v. Williams,
Crump v. Morgan,
PER CURIAM. Affirmed.
Cited: S. v. Parker,