As is said by Mr. Justice Hydrick, in the case of State v. Smith, 101 S.C. 293;85 S.E., 958; Ann. Cas., 1917-C, 149:
"Questions affecting marriage and its consequences are of grave importance to the citizens and the State, and they deserve the most careful consideration. *Page 84
The guilt or innocence of the defendant of the charge of bigamy is not alone involved in the determination of this appeal; the questions involve the peace and quiet, the mental repose, the moral status, of many who have contracted marriage, and the legitimacy of their children. As has been stated, the commonwealth, as the guardian of its citizens, is a silent partner in every marriage. I do not concur in the disposition of this case, indicated in the opinion of Mr. Justice Blease, and submit herewith the grounds of my dissent.
The undisputed facts are these: In the year 1908, Linnie Bailey, a girl of between 11 and 12 years of age, a mere child, went through the form of a marriage ceremony with one Cy Reynolds, whose age does not appear in the record; they lived together as man and wife for a period of four weeks; at the end of this time, she not having reached the age of 12 years, they "separated by mutual agreement." It appears that Reynolds moved to North Carolina, and in 1916 he instituted divorce proceedings in the Courts of that State, served the summons by publication, and secured a decree of divorce against Linnie Bailey Reynolds, who was then living in Dillon County, S.C. In the year 1920, when she was about 23 years of age, she went through the form of a marriage ceremony with the defendant, Dock Sellers, with whom she lived for a short while. They separated, and in the year 1924, Dock Sellers went through the form of a marriage ceremony with another woman, Edith Hewitt, and has cohabited with her ever since. This last alleged marriage is the basis of the indictment for bigamy, upon which he was tried and convicted before his Honor Judge Featherstone, at a time not stated in the record. From the sentence of the Court, the defendant has appealed.
The contention of the defendant, in brief, is that the marriage between Linnie Bailey and Cy Reynolds, by reason of her not having reached the age of consent to marriage, 12 years, was a voidable contract; that it has never been *Page 85 annulled by a Court of competent jurisdiction; that the alleged divorce obtained by Reynolds in North Carolina was ineffective by reason of the want of personal service upon Linnie Reynolds; that she was therefore incapable of effecting a legal marriage with Dock Sellers in 1920; and that therefore his marriage with Edith Hewitt was not bigamous. The conclusion is irresistible if the premises are found to be sound.
The case then turns upon the question of the strength of the ligament which bound Linnie to Reynolds at the time she married Dock Sellers. If at that time she was the lawful wife of Reynolds, her marriage with Sellers was void, and his marriage with Edith Hewitt was valid and not therefore bigamous.
His Honor, the presiding Judge, held that by reason of the fact that at the time of the alleged marriage of Linnie Bailey with Reynolds she had not attained the age of consent, 12 years, the marriage was void; that her marriage with the defendant in 1920 was consequently valid; and that the defendant's marriage in 1924, with Edith Hewitt, was bigamous. In this he may have been in error, but as the admitted facts show that long before the defendant's marriage with Linnie Reynolds the infant marriage between her and Reynolds had been annulled by both parties to it, the conviction should stand.
The prominent facts must not be lost sight of: Linnie at the time of her so-called marriage with Reynolds was a mere child, 11 years old; within a month they mutually agreed to separate, to consider the alleged marriage as at an end; 12 years afterwards, in 1920, she married the defendant, Dock Sellers; in the meantime, 12 years, she was living apart from Reynolds, and in 1916 he had obtained a divorce. Conceding that the divorce was ineffective, the fact remains that there was not the slightest evidence that she affirmed the tentative, inchoate, imperfect marriage with Reynolds, when she reached the age of consent, or at *Page 86 any time thereafter. Between the time she reached the age of consent, in 1909, and the time Reynolds secured the ineffective divorce in 1916, they had had nothing to do with each other; and if there could be any doubt as to the disaffirmance of the marriage by Linnie, the divorce proceeding instituted by Reynolds is conclusive upon the question of disaffirmance by him, which alone was sufficient to annul the marriage.
The law of the case seems plain: At common law, which has not been altered by any Statute called to my attention, the age of marital consent in males was 14 years, in females 12. A marriage where either of the contracting parties was under 7 years of age was considered absolutely void. Confusion has arisen in my opinion, from a mistaken characterization of a marriage where both of the parties were over 7 years of age and one of them was under the age of consent. Such marriages have been characterized as voidable — an unfortunate and misleading term. As Mr. Schouler says in his work on Domestic Relations, § 24, they are neither strictly void nor strictly voidable, but inchoate and imperfect.
In Smith v. Smith, 84 Ga. 440; 11 S.E., 496; 8 L.R.A., 362, the Court says:
"Between 7 and 14 in males, and 7 and 12 in females, they (the authorities) all agree that an inchoate and imperfect marriage may take place, which is subject to be made good by mutual ratification or confirmation after the age of consent is attained."
Mr. Addison (3 Addison on Contracts, § 1374) says that the engagement of the parties is inchoate and imperfect, not absolutely void. Pollock on Contracts, star page 57, declares that it is not absolutely void, but good, if agreed to at the age of consent. Story on Contracts, § 124, that it is voidable at the will of either party. Stewart, M. D., § 51, declares it void for all intents and purposes unless and until duly confirmed. *Page 87
In the quotation from Blackstone, contained in the opinion of Mr. Justice Blease, this appears:
"Therefore if a boy under 14, or a girl under 12 years of age, marries, this marriage is only inchoate and imperfect."
To this I agree, and think that it correctly states the status of the parties under those circumstances. If "inchoate and imperfect," the very terms declare that it is not a marriage, and it is a misnomer to characterize as a "voidable marriage" that which is no marriage at all. All that that relation produces is the capacity of being validated by consent or cohabitation after the age of consent has been reached. If this be the proper interpretation of the relation, which strikes me as inevitable from the very description of it as inchoate and imperfect, requiring confirmation upon reaching the age of consent, there is not a particle of evidence tending to furnish this essential element.
But in addition to this lack of evidence, there is the conceded fact that after a period of four weeks, before Linnie attained the age of consent, she and Reynolds "separated by mutual agreement." If Linnie, at the age of 11 years, had capacity to enter into a relation susceptible of confirmation when she reached the age of 12 years, can any one suggest a sound reason why, at the age of 11 years and one month, she did not have the capacity to withdraw from that relation?
In the opinion of Mr. Justice Blease it is said: "When she came to the age of consent, namely, 12 years, with or without the consent of Reynolds, she had the right to declare the marriage void, and it was not required of her to go into any Court for that purpose." Why wait 11 months to do what she declared her purpose to do four weeks after the alleged marriage? While it is perfectly true that when the not absolutely void, but was merely an imperfect or inchoate imperfect contract may be disaffirmed, that does not necessarily *Page 88 imply that it cannot be disaffirmed before that time arrives; and I can see no valid reason for so holding.
The quotation from 7 C.J., 1159, set forth in the opinion of Mr. Justice Blease, contains this statement:
"A prior marriage, voidable for the want of legal age of either or of both of the contracting parties, will sustain a conviction for bigamy, * * * unless there was a separation with the consent of the minor before attaining majority" (which I take to mean the age of consent to marriage).
In People v. Slack, 15 Mich., 193, it is held:
"Defendant married a woman under the age of consent and separated from her before she became of the age of consent, afterwards marrying another woman. Upon these facts a verdict of guilty was directed. Held error, as, if the separation was with the consent of the woman, the first marriage was void; otherwise, if it amounted to a desertion, instead of a separation."
In 38 C.J., 1283, it is said:
"The rule is clear that the marriage of an infant over seven years of age, but below the age of legal consent, was not absolutely void, but was merely an imperfect or inchoate marriage, subject to avoidance by a party at any time within nonage, but voidable only at the election of a party, and valid and binding until so avoided."
In Tyler on Infancy, 126, it is said:
"The better opinion now is, that parties marrying before the age of consent, may dissent to the marriage within nonage, and thus avoid it in toto."
In Eliot v. Eliot, 77 Wis. 634; 46 N.W., 806; 10 L.R.A., 568, the Court said:
"If the plaintiff had capacity to become a party to such imperfect and inchoate or conditional marriage, he should have capacity to disaffirm it any time thereafter, before it has ripened into an absolute marriage, by invoking the authority of the Court to annul it under the Statute. (In *Page 89 Wisconsin it is required by the Statute that the decree of the Court be applied for.) No good reason is perceived why the parties should be compelled to remain in so unfortunate a position until the plaintiff becomes 18 years of age (the statutory age of consent)."
In the argument of counsel for the appellant occurs this statement:
"The agreed facts are that Reynolds and Linnie Bailey married in Dillon county in 1908, lived together about four weeks and separated by mutual agreement."
If that be true, the marriage of Linnie Bailey and Reynolds was annulled by Linnie before she reached the age of consent; the case falls squarely within the rule declared in the Michigan case. Consequently the marriage of Linnie with Dock Sellers in 1920 was valid, and that of Dock Sellers with Edith Hewitt in 1924 bigamous.
It does not appear that Linnie had any communication with Reynolds after she reached the age of consent; she did not go back to him after the first disaffirmance of their relations. The fact that she remained away from him when she reached the age of consent, and ever afterwards, was in effect an affirmance of her previous disaffirmance of the relation, made within a month after the alleged marriage in 1908. There was, therefore, not only an absence of evidence of affirmance when she reached the age of consent, but the strongest evidence that by her conduct she affirmed her previous disaffirmance. If she had done nothing up to the time that she reached the age of consent, and continued to cohabit with Reynolds thereafter, it would have been held that she had affirmed the inchoate marriage; it is but fair to give her the benefit of her inaction after that period as evidence of her disaffirmance. If on the day she reached the age of consent, she had left Reynolds, under an agreement of separation, there could have been no doubt of her disaffirmance. How that would make out a stronger case of disaffirmance than disaffirming within a month of the *Page 90 marriage and keeping away from him ever thereafter it is difficult to see.
The quotation from 7 C.J., 1159, in the opinion of Mr. Justice Blease, above partially reproduced, contains also the following statement:
"A prior marriage, voidable for the want of legal age of either, or of both, of the contracting parties, will sustain a conviction for bigamy, unless such marriage has been judicially annulled because contracted under the statutory age of consent * * * unless the marriage was not confirmed by cohabitation after arriving at the age of consent."
A somewhat involved statement, meaning obviously, that if the parties did not cohabit after arriving at the age of consent, a Court proceeding would not be necessary. This fact clearly appears in the case at bar.
As Judge Richardson remarks in the Barefoot case: "Now, then, laying aside the striking inconsistency of a man offering to defend himself by insisting that the first marriage was intrinsically immoral and sinful, and therefore a nullity, in order to arrest the criminal consequences and legal punishment of bigamy" — a position that the defendant assumes in this case, it must be borne in mind that the burden of proof is upon him to show that his marriage with Linnie was void because her marriage with Reynolds was still in force, a contention that is overthrown by the facts that Linnie disaffirmed it within a month, that she continued to disaffirm it after she reached the age of consent, and that Reynolds in 1916 disaffirmed it.
I have stated above that the ruling of the Circuit Judge that the marriage entered into when Linnie Bailey was only 11 years of age was absolutely void "may have been inerror," and I advisedly underscored these words. I am convinced that he was right, and that the spirit of our laws, regardless of what has been enacted or decided elsewhere, sustains that view. *Page 91
All concede that the common-law rule as to the age of marital consent obtains in South Carolina; that under the age of 12 years a woman child is incapable of consenting to marriage. It is held by practically an unbroken line of text-writers, regardless of South Carolina Statutes and decisions, that between the years of 7 and 12 a woman child may lawfully establish a relation which by cohabitation or affirmance at and after attaining the age of 12 years is made to date back to the tentative marriage and validate what she then was incapable of establishing. The doctrine appears to me as illogical and savage. Under it a child who has passed her seventh birthday by a day may be seduced into a relation, which if not disaffirmed when she passed her twelfth, then in a state of helpless immaturity, ties her forever to a human brute.
I think that we had much better stand by the rule announced by the court 80 years ago in the case of State v.Barefoot, 2 Rich. (S.C.), 209:
"And true it is, if the first marriage had been thus absolutely void in law, as if a boy under 14 and a girl under 12 years of age had passed through the form and ceremony of marriage, such would be the inconsequential operation and effect, and the second marriage of either, when of lawful age, and to another person, would not constitute bigamy."
The Constitution and the General Assembly have fixed the age at which the maid is supposed to be —
"Standing with reluctant feet Where the brook and river meet, Womanhood and childhood fleet,"
— at 14 and 16 years respectively; and while those provisions fixing that "age of consent" have no application to the age of marital consent, it is naturally indicative of the legislative sentiment against a marriage under the age of marital consent. *Page 92
And, too, Section 374 of the Criminal Code, which, although as held in Davis v. Whitlock, 90 S.C. 233;23 S.E., 171; Ann. Cas., 1913-D, 538, "related only to exemptions from criminal prosecution, and conferred no civil rights; * * * it had no effect on the matrimonial bond or civil status of the parties," strongly indicates that such marriages are void. It provides as an exemption to a prosecution for bigamy "where the first marriage took place where either was under the age of consent." Under this protection Linnie Bailey (Reynolds) could not have been convicted of bigamy by reason of her marriage with the defendant, Sellers. If not, was it not a valid marriage? The implication is strong that the Legislature intended to enact that the previous child marriage was void; for it can be only upon that theory that she would not be guilty of the crime of bigamy.
We know nothing of course of the parties connected with this malodorous quadrangle, but a situation is readily conceivable under which the doctrine proposed to be promulgated in this case would work most deplorable circumstances. Let us suppose the case of a young girl, a child of 11 years, led into a most distressing marriage relation; it continues for a period of a month and a separation takes place; after 12 years of virtuous living and deep regret, she marries a worthy man, bears him children, and leads a happy life; the recording angel has blotted from the scroll the youthful indiscretion. Under the Statute she could not be convicted of bigamy, yet under the proposed judgment in the case at bar she would wear the "Scarlet Letter," an adulteress, with a brood of bastard brats.
Naturally one would suppose that an act which is specifically excepted from the operation of the criminal Statute is specifically permitted. Shall the law say to the woman: "You may not be convicted of bigamy in marrying again under these circumstances, but if you do, I will brand you as an adulteress and your offspring as bastards?" I cannot think so. If not, the marriage of Linnie with Dock Sellers *Page 93 was a valid marriage, and the marriage of Dock Sellers with Edith Hewitt was bigamous.
Attention must be called to the quotation from 3 R.C.L., 796, in the opinion of Mr. Justice Blease, which is emphasized with apparent approval:
"So a marriage with a person under the age of consent * * * may be a valid basis for a prosecution for bigamy."
I assume that this was cited in support of the general proposition that a voidable marriage may be the basis of a prosecution for bigamy; as a specific statement of the law in this State, it is in conflict with the section from the Criminal Code (374) above referred to, which makes those circumstances a complete defense to the prosecution.
But it is insisted by the learned Justice, upon an analysis of various sections of the Code, that the right of an infant, under the age of consent, either before or at the time of reaching that age, personally, by her own act of disaffirmance, to annul the tentative marriage, has been abrogated by Statute, and that she is remitted to a proceeding in court to have the marriage annulled. He declares:
"We hold that while the common-law rule as to the age of consent for marriage has not been changed in this State, we do conclude that the common-law right of a person to a marriage contract, voidable because of want of age of one of the contracting parties, to annul the same by his or her own act, without a decree of the Court of Common Pleas, has been abrogated, and such marriage may only be declared void by that Court where there has been no cohabitation between the contracting parties."
And again:
"When she came to the age of discretion, to wit, 12 years, if there had been no consummation of the marriage by cohabitation, she could have made application to the Court of Common Pleas for an annulment of that voidable contract, and that Court had the power, for proper cause, to set the marriage aside." *Page 94
I have not been able, after careful, laborious study of the sections quoted, to find justification for this conclusion.
Section 5531, I respectfully submit, is clearly without application to the point at issue. It provides:
"When the validity of a marriage shall be denied or doubted by either of the parties, the other may institute a suit for affirming the marriage; and, upon due proof of the validity thereof, it shall be decreed to be valid; and such decree shall be conclusive upon all persons concerned."
This statute was intended for the benefit of the party whose marriage was being questioned; not for that of one who desire the annulment of the marriage; and it was specifically held in the case of Davis v. Whitlock, supra, cited by Mr. Justice Blease, that that section did not at all affect the jurisdiction of the Court to entertain a suit to have a marriage declared void. If not, it could not affect the right of one, an infant, of his or her own motion, within the proper time, to disaffirm the tentative marriage without the intervention of the Court.
Of course, if the infant either before or at the period of the age of consent disaffirm the marriage, there could be no objection to her going into Court and securing a decree annulling the marriage, but that decree would be only a judicial determination that the marriage had already been annulled by her disaffirmance. If both parties affirmed the marriage when the incompetent had reached the age of consent, the Statute referred to would not be applicable, for there would be no one to doubt or deny the validity of the marriage. As in the other instance, there could be no objection to her going into Court and securing a decree affirming the marriage, but that decree would be only a judicial determination that the marriage had already been confirmed by the affirmation of the parties or by their continued cohabitation after the age of consent had been reached.
I think that Section 5532 is equally inapplicable to, and not decisive of, the point at issue. It provides: *Page 95
"The Court of Common Pleas shall have authority to hear and determine any issue affecting the validity of contracts of marriage, and to declare said contracts void for want of consent of either of the contracting parties, or for any other cause going to show that, at the time the said supposed contract was made, it was not a contract: Provided, that such contract has not been consummated by the cohabitation of the parties thereto."
That section was never intended to apply to child marriages, for several reasons: In the first place, if an issue should arise between the parties as to the nonage of one of them, or as to the affirmance of the marriage when such one had attained the age of consent, or as to cohabitation after that time, the Court under its general powers, as indicated in the Davis v. Whitlock case, could have entertained jurisdiction independently of the Statute. In the second place, assuming that the appellant's position that the infant marriage was voidable and not void is correct, the ground of want of consent could not be sustained to avoid the marriage, for that is necessarily present in all marriages where one of the parties is under the age of consent; and by the contention of the appellant the child marriage was not void. In the third place, the ground that at the time the supposed contract was made it was not a contract could not be sustained, for, according to the contention, it was a quasi contract, susceptible of being confirmed, and therefore not a void contract. In the fourth place, the proviso shows that child marriages were not considered, for it is expressly reserved that the section does not apply where the contract has been consummated by cohabitation.
In the concluding clause of the extract above quoted from the opinion of Mr. Justice Blease, it is declared:
"And such marriages (child marriages, where one is under the age of consent) may only be declared void by that Court, when there has been no cohabitation between the contracting parties." *Page 96
If it be true that the child wife of her own motion, even at the time of attaining the age of consent, repudiate or annul the marriage and is obliged to enter the Court to obtain a decree confirming her renunciation of it, she will be met with the proviso relating to cohabitation, and there can be no hope for her anywhere. I do not believe that this is the law; I do not believe that the child wife is capable of consummating that relation by cohabitation; and the fact that she cannot do so is proof conclusive to my mind that the section has no application. "Voluntary cohabitation before the age of consent will not defeat an action for annulment." Eliot v. Eliot, 77 Wis. 634; 46 N.W., 806; 10 L.R.A., 568.
If Section 5532 is made applicable, the adherent of that view is obliged to take the further position that cohabitation will bar relief under it, for it is held in the extract from R.C.L., quoted by Mr. Justice Blease, and in the case ofDavis v. Whitlock, that it applies to all cases of voidable marriages; that is, such as are susceptible of confirmation.
It appears to me an awfully harsh interpretation of the law to declare that a child 11 years old, who may repent of a foolish venture, must, although repudiating it within a month, wait until she becomes of the age of consent and then must go into Court to confirm her renunciation. I think that that is too much to require of one whose immaturity appeals to the protection of the Court and which should exempt her from the operation of a law which not one in a thousand dreamed to exist.
Again it is suggested by the learned Justice that Section 5533 is conclusive of the question at issue. That section provides:
"All marriages contracted while either of the parties has a former wife or husband living shall be void: Provided, that this section shall not extend to a person whose husband or wife shall be absent for the space of seven years, the one not knowing the other to be living during that time; nor to *Page 97 any person who shall be divorced, or whose first marriage shall be declared void by the sentence of a competent Court."
His conclusion is as follows:
"That section declares outright that Linnie's marriage to the defendant was void if her former husband (Reynolds) was living at the time she contracted the marriage with the defendant, unless Reynolds had been absent for the space of seven years and Linnie was not aware that he was living during that time, or unless Linnie had been legally divorced, or unless her marriage to Reynolds had been declared void by the sentence of a competent Court. Since Reynolds had not been absent for the space of seven years, as there had been no divorce, and as her marriage had not been declared void by the sentence (decree) of a competent Court, the language of the section preceding the proviso therein condemned her marriage to the defendant, for the reason that her former husband, Reynolds, was living at that time."
This conclusion is reached upon the assumption that no other exemptions than those mentioned in the proviso can be urged against the validity of the first marriage; with which assumption I do not agree.
It is distinctly held in the Davis v. Whitlock case that the exemption in the proviso in reference to seven years' absence cannot have the effect of validating the second marriage, which would be the natural effect of the language employed, for the reason that "this broad construction is not admissible in this State, for under it the State would be unconstitutional as an attempt to provide in effect for a dissolution of the marriage tie. Marriage being indissoluble in this State, the General Assembly cannot enact a Statute providing that absence or any other fact shall produce dissolution while both parties are alive, so that a second marriage would be valid in any sense whatever. The second marriage during the life of the first husband must under the Constitution be absolutely void." So that this exemption in the proviso necessarily passes out. *Page 98
The section will then read:
"All marriages contracted while either of the parties has a former husband or wife living, shall be void: Provided, That this section shall not extend * * * to any person who shall be divorced, or whose first marriage shall be declared void by the sentence of a competent Court."
The Statute does not purport to be exclusive in its proviso, but was intended to provide an exemption for these two particular classes, leaving all other classes to be determined under the main portion of the Section:
"All marriages contracted while either of the parties has a former husband or wife (that is, under a marriage valid at the time of the second marriage) living shall be void."
Section 5522 excepts idiots and lunatics from the statutory authority to contract matrimony; it also expressly forbids marriages between persons sustaining to each other any of the close relationships of affinity and consanguinity therein set out.
Section 5536 declares that any marriage or attempted marriage between a white person and a person of Indian or negro blood shall be unlawful and shall be utterly void and of no effect.
In Davis v. Whitlock, supra, it is said of these Statutes and Section 5533:
"Here are three Statutes of the State, declaring that no ceremony and no attempted contract of marriage can have the effect of establishing the relation of husband and wife between persons of the status and the classes mentioned in the Statutes."
Much to my surprise the Court held in State v. Smith,101 S.C. 293; 85 S.E., 958; Ann. Cas., 1917-C, 149, that notwithstanding the express provisions in Section 5522, prohibiting marriages between persons of certain relationship, and notwithstanding the pain implication to the contrary in the cases of State v. Barefoot, 2 Rich. (S.C.), *Page 99 209, and Davis v. Whitlock, 90 S.C. 233; 23 S.E., 171; Ann. Cas., 1913-D, 538, the marriage of a man and a niece of the half blood, was only voidable, and was sufficient to sustain a charge of bigamy. It is not held, however, in that case or in any other to which my attention has been directed that even in the case of a voidable marriage it is essential that a Court decree be obtained to declare it void. Certainly not in the cases of marriages between idiots and lunatics and persons of different prohibited races, which are absolutely void, would such recourse be necessary; and that establishes my position that the proviso in Section 5533 was not intended to be exclusive. If a white man should marry a negro woman, should leave her and afterwards marry a white woman, and should then be indicted for bigamy in marrying the white woman, would his defense that his negro marriage was "unlawful," "void, and of no effect," under the Statute, fail him because he had not gone into Court and obtained a decree of annulment before he married the second time? I hardly think that such a contention would even be suggested.
It is conceded on all sides that if the marriage relation continues after the incompetent party has attained the age of consent, the parties will be deemed to have ratified the prior incomplete contract. The argument that such a marriage cannot be annulled except by a decree of Court would apply as well to the matter of affirmance. I hardly think that any one would take the position that subsequent cohabitation would not, without a Court decree, validate the inchoate imperfect child marriage.
It is said in the opinion of Mr. Justice Blease:
"Prior to the passage of the laws now set forth in the sections to which we have invited attention, it must have been apparent that it was harmful to womanhood and to public morals in general to follow the rule of the common law that either or both parties to a marriage, where the boy had been under 14 years of age, or the girl under 12 years *Page 100 of age, should have the right to annul their marital vows where either or both of them had come to the age of discretion, and thus bastardize children who would have been made legitimate in all respects if their father and mother had seen fit to live together for even a day after their arrival at the age of consent. The General Assembly of SouthCarolina undoubtedly intended to correct this evil, and wethink the Statutes mentioned were enacted for that purposeand have aided in doing so." (Italics supplied.)
My opinion is that the common law did not go as far as it should have gone. It should have declared such child marriages absolutely void, and, as I have argued, such is the spirit and the decisions of this State. I cannot conceive how the common-law rule of individual annulment can be considered "harmful to womanhood"; it is for her protection, not injury. The improbability of a woman child having children at 12 years is so manifest that the protection of such offspring from the stain of illegitimacy could hardly have entered into the minds of those who established the rule.
It is also said in the opinion:
"It cannot be doubted that one of the main purposes of the proviso in Section 5532 (relating to cohabitation) was to keep children from the stain of illegitimacy."
This necessarily implies that Section 5532 is applicable to child marriages, and, if so, it would in the nature of things be practically impossible, even by a Court decree, ever to get relief; for cohabitation would have occurred in 99 if not 100 per cent. of cases. As I have endeavored to show above it would be monstrous to hold a child bound by cohabitation before the age of consent, and that for that reason the section cannot have any application.
The learned Justice does not appear to have realized that in sustaining the validity of the marriage between Linnie and Reynolds, as of the date of her marriage with Dock Sellers, the Court would go far afield from a commendable *Page 101 purpose of protecting the young womanhood of the State. The effect of course is to invalidate the latter marriage, and but for the saving clause in Section 374 of the Criminal Code Linnie would be indictable for bigamy. As it is, she would be branded as an adulteress and her children as bastards. If she had been the defendant, upon a charge of adultery with Dock Sellers, I have little doubt that the conclusions would and should have been quite different from those announced in the opinion which has been submitted. It seems to me that the status of the child wife and the legitimacy of her children, after a second marriage, coming as it did after her renunciation of the first, has received scant consideration, that the highly approved argument in favor of the protection of the young women and relieving their offspring from the stain of illegitimacy, has been misapplied, and that her status is much more deserving of the consideration of this Court than that of the grown man of uxorious inclinations, who will be acquitted and free to graze in other pastures green.