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Front Page  Titles (by Subject) § 182.: Distinction between natural capacity and legal capacity.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2
§ 182.: Distinction between natural capacity and legal capacity.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]Edition used:A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
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- State and Federal Control of Persons and Property. Vol. II.
- Chapter X.: State Regulations of Real Property.
- § 133.: What Is Meant By “private Property In Lands?”—
- § 134.: Regulation of Estates—vested Rights.—
- § 135.: Interests In Expectancy.—
- § 136.: Limitation of the Right of Acquisition.—
- § 137.: Regulation of the Right of Alienation.—
- § 137 A.: the Right of Testamentary Alienation and Intestate Succession—taxation of Inheritances.—
- § 138.: Involuntary Alienation.—
- § 139.: Eminent Domain—general Propositions. 2 —
- § 140.: Exercise of Power Regulated By Legislature.—
- § 141.: Public Purpose, What Is A.—
- § 142.: What Property May Be Taken.—
- § 143.: What Constitutes a Taking.—
- § 144.: Compensation, How Ascertained.—
- § 145.: Regulation of the Use of Lands—what Is a Nuisance?—
- § 146.: What Is a Nuisance, a Judicial Question.—
- § 147.: The Regulation of Unwholesome and Objectionble Trades.—
- § 148.: Regulation of Mines and Mineral Products.—
- § 149.: Regulation of Burial-grounds.—
- § 150.: Laws Regulating the Construction of Buildings In Cities.—
- § 151.: Regulation of the Right to Hunt Game and to Catch Fish. 3 —
- § 152.: Abatement of Nuisances—destruction of Buildings.—
- § 153.: How Far Use of Land May Be Controlled By Requirement of License?—
- § 154.: Improvement of Property At the Expense and Against the Will of the Owner.—
- § 155.: Regulation of Non-navigable Streams—fisheries.—
- § 156.: Conversion of Non-navigable Into Navigable Streams.—
- § 157.: Statutory Liability of Lessors For the Acts of Lessees.—
- § 158.: Search Warrants—sanitary Inspection.—
- § 159.: Quartering Soldiers In Private Dwellings.—
- § 160.: Taxation—kinds of Taxes.—
- § 161.: Limitations Upon Legislative Authority.—
- Chapter XI.: State Regulation of Personal Property.
- § 162.: Laws Regulating the Creation and Acquisition of Interests In Personal Property—real and Personal Property Herein Distinguished.—
- § 163.: Statute of Uses and Rule Against Perpetuity As Regulations of Personal Property.—
- § 164.: Regulation and Prohibition of the Sale of Personal Property.—
- § 165.: Laws Regulating Disposition of Personal Property By Will. 2 —
- § 166.: Involuntary Alienation.—
- § 167.: Control of Property By Guardian.—
- § 168.: Destruction of Personal Property On Account of Illegal Use. 2 —
- § 169.: Destruction of Personal Property In the Interest of Public Health.—
- § 170.: Laws Regulating the Use of Personal Property.—
- § 171.: Prohibition of Possession of Certain Property.—
- § 172.: Regulation and Prohibition of Manufacture of Certain Property.—
- § 173.: Carrying of Concealed Weapons Prohibited.—
- § 174.: Miscellaneous Regulations of the Use of Personal Property.—
- § 175.: Laws Regulating Use and Keeping of Domestic Animals.—
- § 176.: Keeping of Dogs.—
- § 177.: Laws For the Prevention of Cruelty to Animals.—
- § 178.: Regulation of Contracts and Rights of Action.—
- § 179.: Regulation of Ships and Shipping.—
- Chapter XII.: State Regulation of the Relation of Husband and Wife.
- § 180.: Marriage, a Natural Status, Subject to Police Regulation.—
- § 181.: Constitutional Limitations Upon the Police Control of Marriages.—
- § 182.: Distinction Between Natural Capacity and Legal Capacity.—
- § 183.: Insanity As a Legal Incapacity.—
- § 184.: The Disability of Infancy In Respect to Marriage.—
- § 185.: Consanguinity and Affinity.—
- § 186.: Constitutional Diseases.—
- § 187.: Financial Condition—poverty.—
- § 188.: Differences In Race—miscegenation.—
- § 189.: Polygamy Prohibited—marriage Confined to Monogamy.—
- § 190.: Marriage Indissoluble—divorce.—
- § 191.: Regulation of the Marriage Ceremony.—
- § 192.: Wife In Legal Subjection to the Husband—its Justification.—
- § 193.: Husband’s Control of Wife’s Property.—
- § 194.: Legal Disabilities of Married Women.—
- Chapter XIII.: State Regulation of the Relation of Parent and Child, and of Guardian and Ward.
- § 195.: Original Character of the Relation of Parent and Child—its Political Aspect.—
- § 196.: No Limitation to State Interference.—
- § 196a.: People V. Turner.—
- § 197.: Compulsory Education.—
- § 198.: The Child’s Right to Attend the Public School—separate Schools For Negro Children—expulsion From School Must Be For a Reasonable Cause.—
- § 199.: Parent’s Duty of Maintenance.—
- § 200.: Child’s Duty to Support Indigent Parents.—
- § 201.: Relation of Guardian and Ward Altogether Subject to State Regulation.—
- § 202.: Testamentary Guardians.—
- Chapter XIV.: Police Regulation of the Relation of Master and Servant.
- § 203.: Terms “master and Servant” Defined.—
- § 204.: Relation Purely Voluntary.—
- § 205.: Apprentices.—
- § 206.: Regulation of Private Employment.—
- § 207.: Public Employments.—
- Chapter XV.: State Regulation of Corporations.
- § 208.: The Inviolability of the Charters of Private Corporations.—
- § 209.: Police Control of Corporations.—
- § 210.: Freedom From State Control, As a Franchise.—
- § 211.: Police Regulations of Corporations In General.—
- § 212.: Laws Regulating Rates and Charges of Corporations.—
- § 213.: Regulation of Foreign Corporations.—
- § 214.: Regulations of Railroads.—
- Chapter XVI.: The Location of Police Power In the Federal System of Government.
- § 215.: The United States Government One of Enumerated Powers.—
- § 216.: Police Power Generally Resides In the States.—
- § 217.: Regulations Affecting Interstate Commerce.—
- § 218.: License Tax Upon Drummers and Peddlers.—
- § 219.: Taxation of Interstate Commerce.—
- § 220.: State Regulation and Prohibition of Interstate Commerce, Particularly, Articles of Merchandise.—
- § 221.: State Regulation of Railroads and Other Common Carriers, and of Their Business, When an Interference With Interstate Commerce.—
- § 222.: The Jurisdiction of Anti-trust Laws, National and State, As Affected By the Interstate Commerce Clause.—
- § 223.: Control of Navigable Streams.—
- § 224.: Regulation of Harbors—pilotage Laws.—
- § 225.: National and State Quarantine Laws.—
- § 226.: Regulation of Weights and Measures.—
- § 227.: Counterfeiting of Coins and Currency.—
- § 228.: Regulation of the Sale of Patented Articles.—
- § 229.: War and Rebellion. 5 —
- § 230.: Regulation of the Militia.—
- § 231.: Taxation.—
- § 232.: Regulation of Offenses Against the Law of Nations.—
- § 233.: The Exercise of Police Power By Municipal Corporations.—
§ 182.
Distinction between natural capacity and legal capacity.—
While marriage, when consummated, constitutes a status, as a result of the execution of the contract to marry, a valid contract must precede a valid marriage; and the validity of the contract of marriage is determined by the same principles which govern ordinary contracts. Among those elementary principles are the requirement of two persons competent to contract, the agreement, and a consideration, which in the case of the contract of marriage constitutes each other’s promise respectively.
The law cannot compel an individual to marry against his will, for it is not a duty to the State to marry. His consent or agreement is necessary to the validity of the contract. When, therefore, the consent is not present, whether it arises from mental inability to give the consent, or from duress or fraud, the contract of marriage, and hence the marriage itself, must be declared void. Hence the marriages of the insane, except during a lucid interval, or of a child of such tender age and immature mind that he cannot be supposed to understand the nature of the contract, and therefore cannot be held to have given his consent, are void or voidable, from the very nature of the case. The rules of law, which provide for the avoidance of such marriages, only lend the aid of the courts to the more effective enforcement of the laws of nature, and do not involve the exercise of police power, since there are no restrictions imposed upon the right of marriage but those which nature herself commands. Police power is exerted only when an artificial incapacity is created.
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