The consenting adults

Reader Cathy Holcombe was puzzled by a marriage record.

It looked like it might be a marriage bond.

But it didn’t have the language of a typical marriage bond.

Yet it had something most marriage bonds have: signatures of other people.

So what was this document… and why did it exist?

The record is of a marriage in Pike County, Alabama, in January, 1850, when Joel Barefoot married Margaret Baker. The copy Cathy was working from was attached to an Ancestry family tree, but it’s from the marriage records of Pike County.¹ You can then find the happy couple on the 1850 U.S. census there in Pike County.²

But the record isn’t just a marriage license. It also does have those signatures — well, marks, since they were apparently not literate — of other people, specifically of Miles Barefoot, Joel’s father, and John Osteen, a neighbor of the Barefoots.³ Those are the kind of people you’d often see acting as surety on a marriage bond back in the days when marriage bonds were used.⁴

Now the language just before those signatures pretty much explains what’s going on. It reads: “This is to certify that I have no objection to license being issued to my son Joel. Therefore you are at liberty to act on this for I have no objections.” That’s followed by Miles Barefoot’s mark, witnessed (test) by John Osteen.

So… Why is this language there? Here’s the answer, and you already know where it comes from, right?

It comes from the law.

Because (repeat after me) if we want to understand the records, we have to understand the law.

And not just the law in general, but the law of the time and the place where the record was created.

Alabama law at the time had moved beyond marriage bonds and required a license to marry: “No marriage shall be solemnized without a license, to be issued by the judge of probate of the county in which the female resides…”⁵

The marriage laws went on to provide as follows with respect to the age of marriage that you couldn’t get married at all if you were a male and under the age of 17 or a female and under the age of 14.⁶ And then came the language that drove the creation of this particular record.

First, the law provided:

If the male intending to marry be under twenty-one, and the female under eighteen years of age, and have not had a former wife, or husband, the judge of probate must require the consent of the parents, or guardians of such minor to the marriage, to be given, either personally, or in writing ; and if the latter, the execution thereof must be proven.⁷

And then, it went on:

The judge of probate must keep a book, in which is to be registered all licenses issued by him, and must state whether the parties, or either of them, were of the age specified in the preceding section. If not, he must also state whether either of them had been previously married, or if consent had been given to the marriage by the parent or guardian. If such consent was in writing, he must transcribe it on the same page on which he records the license, and the record so made, or a certified copy thereof, is presumptive evidence of the facts.⁸

So what we have here is evidence that Joel Barefoot was (a) not yet 21 in January of 1850, and (b) not previously married, and (c) the son of Miles Barefoot. All of which was dutifully recorded by the clerk in the marriage book.

It’s a classic example of why we need to know the law — and why the law had such an impact on genealogical records:

• This record wouldn’t even exist but for the law: it’s the law that specifically required this record to be kept.

• The specific information recorded in the document is there because it was required by the law.

• How much we can rely on it as genealogical — and legal — evidence is even set out in this law: this document is “presumptive evidence of the facts” set out here.

Now that doesn’t mean that people still didn’t lie on occasion to get married when they shouldn’t have. But it takes us a long way towards crediting that Joel Barefoot wasn’t a consenting adult at the time of that marriage under Alabama law. For his father’s consent to have been required, he must have been under the age of 21.

And, by the way, it’s also presumptive evidence of the fact that Margaret must have been over the age of 18. That’s because no consent was required for her to be married to Joel.

Are we right?

Well, take a look back at that 1850 census. It records Joel Barefoot as age 20… and Margaret as age 24.

So the explanation of this record is that it’s a marriage license, not a marriage bond, and the signatures are all a matter of consent. And the consenting adults to this marriage… Margaret… and Joel’s father.

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