February 17, 2008

Age of Consent vs Age of Majority Explained

author J. Brian Gilchrist,
gilchrists@idirect.com
Published with permission of author


There is confusion over two totally distinct terms: "age of consent" is not the same as "age of majority" (often known as "full age"). These terms are also affected by different types of laws: Canon Law, Common Law, Civil Law and Criminal Law (noting that the last three are now very much connected and often thought of in the public mindset as one, though still distinct).

Some of my comments below also do not necessarily apply to the United States of America following the War for Independence - although the section of Wills does.

When you reached the "age of majority" this would be when the person become of "full age" to own or lease land, sign contracts, etc.

Under English Common Law, the age of consent to marry was 14 for males and 12 for females - but this required permission from an individual of authority (parental consent is usually thought of as being required but that is not the case, for if it was withheld or unavailable - there were other options).

Under English Civil Law, the age of majority is usually considered to be 21 for males, and 18 for females.

Exception: unless the person was married previous to those ages. Example, in England, after 1754, if either the bride and or groom had been married as teenagers (with consent? remembering they could also have eloped to a big city and lied about ages and even their names to hide the event) and was soon widowed (by child birth, a farming / labour accident, disease, military action - or whatever) the surviving partner could be listed as "full age" (or "widowed") when they marry again.

Yet another aspect which is a subject unto itself, is that in England the age of consent for (heterosexual) sex was raised to 13 (from 12!) in 1875, and to 16 in 1885. This was due to the Victorian changes in the Criminal laws regarding operating a brothel, seduction, abduction and the changing rape and carnal knowledge laws, etc.

As to inheritances left in a Will, people were absolutely free to make their own "rules" regarding who should and could inherit, one major example being the difference between "fee entail" (aka "fee tail") and "fee simple". Fee tail can also be further subdivided into "fee tail male" and "fee tail female". This is another topic, and further whether any stipulation made in a Will or Codicil was legal or not, that too is also another topic.

However the Rules of Court at the time and place where the Will was being settled had to be followed.

An example of an estate situation could be where single uncle Angus Macdonald "entailed" his estate to his namesake nephew Angus Sheepway (son of his sister) so long as Sheepway changes his name to "Macdonald" when he "comes of full age", etc.

It was, and is not, illegal to use any name so long as it not for fraudulent purposes, and gaining an inheritance by changing one's name was not only legal, it happened more than we think. It is difficult to prove until one becomes involved in "whole family" genealogy and a general study of all the families of the area where your ancestors lived.

Another aspect of the age of "consent" and the "age of majority" can also be applied to being "indentured" and or "apprenticed" - again this is another subject. For example, Benjamin Franklin was apprenticed (with the consent of his father) to Ben's brother - James Franklin - at the age of 12.

So try to remember what my friend, Donald J. Steel, the eminent English genealogist and family historian and myself have been teaching for years - the term "Environmental Genealogy" - place your ancestor in the context of the location, the time period and the society in which they lived in - not ours.

It is often difficult of younger people of today to comprehend but may I remind everyone that it has been less than 80 years since "The Famous Five" did their thing in Canada in 1929 to help make women "people". Try and read about "The Peoples Case" of 1929.

So in summary - there are indeed differences to the terminology "age of consent", "age of majority" and "full age" in different places, in different times, for different reasons.

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