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Subject Area: Law
Topic: The American Revolution and Constitution

§ 184.: The disability of infancy in respect to marriage.— - 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.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 184.

The disability of infancy in respect to marriage.—

In the general law of contracts, all minors are declared incapable of making a valid contract, and the law determines the age when they attain their majority and are freed from this disability. In most of the States the age of twenty-one is selected for both sexes, while in some of the States females become of age at eighteen. It matters not what may be the age determined upon, the imposition of the disability is an exercise of police power, and is justified on the ground, that on account of his immaturity the minor is not on equal terms with the adult, and for his own protection he is rendered unable to subject himself to possible extortion or imposition. If it were the policy of the law to impose the same liability upon the right of marriage, the further, and perhaps more important, reason may be urged that persons of such youthful age are unable to provide properly for the wants of a family, and as a protection to the State against pauperism the youth may be prohibited from marriage altogether until he arrives at the age of twenty-one, and his marriage declared absolutely void. But for various cogent reasons, especially the danger of increasing immorality and the delicacy of the situation of both parties, arising from the avoidance of the marriage of persons under age, infancy is no disqualification1 to the entrance into a completely valid marriage. If the minor is of the requisite physical capacity, the marriage will be valid, notwithstanding infancy; while the contract to marry, like all other executory contracts, is voidable by the infant, although binding upon the adult with whom he may have contracted.2 But, arising out of the parental control, authorized by the law, a minor may be prevented by his parents from marrying, if he does not elude them. The law requires the consent of the parents to the marriage, only as a preliminary justification of the marriage; but the want of the consent does not invalidate the marriage if it is actually consummated. The present policy of the law is opposed to such stringency, but it would be a lawful exercise of police power to make the consent of the parents necessary to the validity of the marriage.

While infancy in itself does not furnish any ground for invalidating a marriage, the physical incapacity arising from a tender age constitutes a natural incapacity, like general impotence, to perform one of the obligations of the marital relation, and more or less affects the validity of the marriage. The physical incapacity of a child renders the marriage inchoate, and it is completely valid only when there is cohabitation after his arrival at the age of puberty. The incapacity is natural; but in order to avoid the necessity of an actual investigation, in each particular case, into the physical capacity of the infant bride or bridegroom, the law provides that males under fourteen, and females under twelve, shall be held to be physically incapable of performing the marital functions. This regulation was derived from the civil Roman law; and, in the warm southern climate, the law no doubt represented correctly the physiological fact that at these ages the average child attained the full powers of a man or woman. But in the more northern latitudes the growth is slower, and children are usually immature at these ages; and changes have constantly been made in the law, in order that it may more readily conform to the actual age of puberty. Such a change has been made in North Carolina and Iowa, and perhaps in other States.1 But the appointment of an age, when the physical capacity will be presumed, is a police regulation, and is plainly justifiable on the ground that it promotes the general welfare, to avoid the delicate examinations that would otherwise be necessary to establish the fact of capacity; and the law cannot be called into question if it should vary from the physiological facts.

The common law also provides that the marriage of persons, either of whom is under the age of seven, is a mere nullity.2 Probably the prohibition rests in this case upon the ground of absolute mental and physical incapacity.

In all of these cases of police regulation of marriage between or by minors, the immaturity of mind or body constitutes the justification for the interference with the natural right, and their constitutionality admits of no question.

[1]1 Bishop Mar. & Div., § 144; Gavin v. Burton, 8 Ind. 69.

[2]1 Bishop Mar. & Div., § 143; Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 17 Cow. 22; Hamilton v. Lomax, 26 Barb. 615; Cannon v. Alsbury, 1 A. K. Mar. 76; Kester v. Stark, 19 Ill. 328; Warwick v. Cooper, 5 Sneed, 659; Schouler Dom. Rel. 32.

[1]1 Bishop Mar. & Div., § 142.

[2]1 Bishop Mar. & Div., § 147