Year: 1859

Some writer has been furnishing the Greensboro
Patriot with series of articles on the Law OF
North Carolina, one of which is as follows:


HUSBAND AND W1FE-Marriage is civil
contract, and is treated in law as all other con-
tracts being valid when, and only when the parties
at the time of making it were, in the hrst place,
,rNing to contract secondly able to contract; and
lastly actually did contract in the proper forms
and solemnitlcs required by law.


It is said that certain individual in this State,
learned in the law, and at one time a propouEger
of the same Gin the course of human events con-
ceved the idea that sit is not good for man to be
alone," and being fascinated with the acquire
ments and charms of certain lady of his ac
ouaintance, he called at her house. Her maid
met him at the door, and was asked if her mistress
was at home Being answered in the affirmative,
he said that he desired to see her mistress I'M
mediatcly upon important business; In due time
the lady entered the parlor, and before the pre-
liminarv remarks concerning the weather were
passed, Judex proceeded, in style and manner
peculiar to himself after this fashion:


"Madam Marriage is civil contract, and IN
order to perfect marriage, the parties concerned
must be 1rtUinq to contract-must be able to con-
tract, and must actually contract. [, on my part,
am acizling able, and ready to contract marriage
with vou and desire to know if you are even so
likewise. Good morning, madam, will call IN
the morning and hear your answer" lie returned
at the day. received an answer i'll the affirmative
the laconic brevity of the Law asserted It's
supremacy over the usual arts of wooing, moon
shine sentimentalism, Get id omne genus"-and
in short time, civil contract was entered into
and ratified between Judex and Madam.


They must be willing to contract, for "consen-
sus, non concubitus, faciat nuptas consent
not concubinage, makes marriage. They must be
nJle to contract. All persons are able to contract
themselves in marriage, unless they labor under
some particular disabilities and incapacites which
arc follows:


lst A prior marriage or hay ing another hus-
band or wife living; in which case, besides the
penalties consequent upon it as felony the sacred
marriage is to all intents and purposes, void
polygamy being condemed both by the law OF the
new testament, and the policy OF all prudent
States.


2nd Want of age This is sufficient to avoid
all other contracts on account Of mbecllty OF
the Judgment in the parties contracting; more
especially, therefore, it ought to avoid TINS, the
most important contract Of any Our statute enacts
that females under the age of fourteen years and
males under the the age Of sixteen, shall DC inca
pable Of contracting marriage


Where license is applied for to marry female
whose parents or guardian reside without the
State, a certificate in writing, from the parent or
ouardain stating that she has arrived to the tull
ace of fifteen and if under that age that she has
ieave to marry, must be produced to the clerk and
filed in his office.


If any Clerk shall issue license, or any Min
ister or Justice of the Peace shall marry any female
contrary to the true intent and meaning OF the
above, he shall forfeit and pay one thousand dol
lars When man marries a woman, lie becomes
the owner of all her personal property, upon which
subject we will be heard in the proper place. But
when any person shall marry an infant female
under the age of fifteen years, except her tathel
) be living and assent to the marriage in writing
the person SO offending shall acquire no interest
in any of the property or estate OF such female
then owned and possessed by her, or i'll which she
NAV then have any interest: but the same shal
be vested in and held by such trustee or trus
tees as the court of Equity may appoint, who shal
have full power to take all such estate into thclI
possession, and to sue for and recover the same II
their own names as trustees; and they shall holt
such estate and property to the sole and separate
use of the female during marriage, free from al
control and dominion Of her husband.


t A third incapacity arises from want of consen
+ of parents or guardians, and under this hea'
should properly be classcd the above structures by
z our STATUTES But if the partiesA themselves be o
the age of consent, the marriage is valid.


! 4th A fourth ncapacity is want of reason


without proper share of which as no other, s


neither can the matrimonial contract be vallc
- Therefore all marriages contracted by with II


fans idiots and lunaicS not valid, and the CHI


dren Of such marriage were at common law, ba'


tards and incapable of iDheriting from their q"n'


parents; but whether or not in this State qucrc


9TH The parties must actually contract then


selves in due form Of law to make it good ma


riage


Ordained ministers of the Gospel of every d.
) nomination, and Justices of the Peace may solcn


Mise the rites of marimony, according to the rite


and ceremonies Of their respective churches


9th. All marriages between white person an


a free negro or free person Of color to the THU


generation, shall be void.


Of The first four incapactics such as exist
n virtue of the Common Law,-the others have bee
is created by our Legislature. lii England, SLAYER
I" did not exist, and hence the Common Law, whic


is the Law of England, is mute upon the nlarrla:
e. among slaves And there has been no legislati(
to upon it in this State; but from the very nature
III slavery; the relation between master and servant
e from the reason Of the thing, and by recent dec


ion of our Supreme Court, are justified
mentioning slavery as an eighth incapaclty to ma


riage \ slave cannot be able to contract for


power is altogether restricted by his master, al


he is at all times under all circumstances, subst
- Went to the will of another. He cannot actual


contract, for not being able, any agreement whl


he might make with another, would be destltu


of one of the chief essentials Of contract


In the case of Howard VS.. Howard, it said tn


a slave being property, has not the legal capaci
eS to make contract and is not entitled to the rgt


or Subjected to the liabilities incident there