1. BUT little need be added to what has been said in the preceding chapter respecting the nature of voidable marriages. In discussing the question as to what matters render a marriage void, it became necessary, to some extent, to consider and point out the distinction between void and voidable marriages, and to show what rights attach upon such marriages as are voidable only; particularly where no sentence of nullity has passed during the joint lives of the parties. We have also seen, in that connection, that while the canonical disabilities of consanguinity or affinity, at common law render a marriage voidable merely, in many of the United States, marriages within the prohibited degrees are pronounced void by express statute. We pass now to the consideration of other topics connected with the same general subject.

Marriage within the age of consent.

2. Marriages contracted within the age of consent are frequently spoken of as wholly void, and as conferring none of the civil rights of marriage; but in reality they belong rather to the class of voidable marriages, and unless avoided by the parties upon arriving at the age of consent, are as good in law as if contracted between persons of the proper age. There is, however, this difference between marriages of this description and of the class usually denominated voidable marriages, that in the latter a decree of a competent tribunal is necessary to dis

1 Chap. 7, 1, 2.

2 Chap. 7, 31.

3 See Elliott v. Gurr, 2 Phill. 16; 1 Eng. Ecc. 166, 168; Bishop, Mar. and Div. 153.

solve the marriage, while in the former no such decree is necessary. The parties may, at the proper time, by their own act, disaffirm the contract, and will thereupon stand discharged from all its obligations.'

3. It has been stated that at common law the age of consent is fourteen for males and twelve for females." "The full age of male and female, according to common speech," says Littleton, "is said the age of twenty-one years. And the age of discretion is called the age of fourteen years; for at this age, the infant which is married within such age to a woman, may agree or disagree to such marriage." This language would appear to import that the age of consent, for both sexes, is fourteen; but Lord Coke, in commenting upon this section, says: "The time of agreement or disagreement, when they marry infra annos nubiles, is for the woman at twelve or after, and for the man at fourteen or after." And Mr. Hargrave adds: "It seems more proper to consider twelve as the age of discretion for women; for Lord Coke himself, a few lines lower, states that to be their time for agreeing or disagreeing to a marriage." This view has been generally concurred in, and the rule has become well established in the law."

4. In many of the States the rule of the common law as to the age of consent has been considerably varied by statute, while in others that rule substantially remains in force. But whatever may be the age of consent established by statute, it would seem, in the absence of any provision to the contrary, that marriages contracted within that age are subject to the same rule obtaining in that class of cases at common law; and that whatever rights are recognized at common law as attaching upon marriages within the age of consent, will also, as a general rule, be recognized and enforced in the several States

1 [See Lyndon v. Lyndon, 69 Ill. 43; Beggs v. The State, 55 Ala. 108; Cooley v. The State, Id. 162.] As to contracts of marriage per verba de futuro, where one of the parties is within the age of consent, and the other has attained that age, see post, % 7. 2 Ante, chap. 3, 3. 3 Litt. sec. 104.

+ Co. Litt. 79, a.; see, also, p. 33, a.

5 Co. Litt. 79, a., note 3, 13 ed.

6 Ayl. Parer. 361; Pool v. Pratt, 1 D. Chip. R. (2 Verm.) 252; 1 Bright, Hush. and Wife, 4; Arnold v. Earle, Lee, 529; 1 Roper, Husb. and Wife, 335; 1 Bl. Com. 436; 2 Kent, 78; Bishop, Mar. and Div. 144; The Governor v. Rector, 10 Humph. (Tenn.) R. 57; Parton v. Hervey, 1 Gray, 119; Rex v. Gordon, Russ. & Ry. 48; Reeve's Dom. Rel. 200, 237.

7 See 2 Kent, 79, notes; Reeve's Dom. Rel. 200, notes.

where the only material change made by legislation is in respect to the time when the parties are competent to contract matrimony.

5. Allusion has been made to the rule enabling either of the parties to affirm or disaffirm a marriage contract entered into within the age of consent. Lord Coke, after stating the age of agreement or disagreement of the woman at twelve, and of the man at fourteen, adds: "And there need no new marriage if they so agree; but disagree they can not before the said ages, and then they may disagree and marry again to others without any divorce; and if they once after give consent they can never disagree after. If a man of the age of fourteen marry a woman of the age of ten, at her age of twelve he may as well disagree as she may, though he were of the age of consent; because in contracts of matrimony, either both must be bound, or equal election of disagreement given to both; and so e converso, if the woman be of the age of consent, and the man under."

6. The rule thus succinctly stated needs little in the way of explanation or amplification. Either party may take advantage of the non-age of either, even though one of them may have been of full age at the time of the marriage; but neither can avoid the marriage by reason of such non-age until both have reached the age of consent. And so, when both parties have arrived at that age, they may affirm the contract, and it will thenceforth be binding upon them, and constitute a complete marriage. Evidence of such affirmance is furnished by their continued cohabitation; by sexual intercourse, or other acts clearly indicating a purpose on their part to regard each other as husband and wife. But in England, by the marriage act of 26 Geo. II., c. 33, the agreement to affirm the contract would not be binding on the infant if the marriage was without bans, or by license and without consent of parent or guardian, unless the infant was a widow or widower.

7. To the rule allowing either party to disaffirm the contract by reason of non-age, there is this exception: Where a person

1 See ante, 2, and post, 15, 16.

2 Co. Litt. 79, b.; see, also, p. 33, a.; 2 Kent, 78; Bishop, Mar. and Div. & 147 ; Swinb. Spousals, 34; Reeve's Dom. Rel. 237; 1 Bl. Com. 436.

3

Ayl. Parer, 250; 5 Dane's Ab. 301; Coleman's case, 6 N. Y. City Hall Recorder,

3; Com. Dig. Bar. and Feme, B. 5; Hubback on Succession, 272; Bishop, Mar. and Div.

149.

of full age enters into a contract of marriage per verba de futuro with a person under the age of consent, the former is absolutely bound, and the contract is only voidable at the election of the infant. "This doctrine of reciprocity," remarks Mr. Hargrave, "where one of the parties is an infant, or under the age of discretion, however true it may be in its application to actual marriages or to contracts of marriage per verba de præsenti, must not be considered as extending to other contracts with an infant, not even contracts of marriage per verba de futuro; for in them, the person of full age may, it is said, be bound at all events by our law, and yet as to the infant the contract may be voidable." It would seem, therefore, that where a contract of marriage per verba de futuro is consummated by copula, though within the age of consent of one of the parties, the contract is voidable only at the election of such party.

8. A statute was enacted in New York, many years since, by which it was provided that where either of the parties to a marriage contract was incapable, by reason of want of age, from entering into such contract, it should be void only from the time its nullity was declared by a court of competent jurisdiction.3 This law was substantially re-enacted in Wisconsin, and perhaps in some other States. The effect of this legislation is to take from the parties to a marriage contracted within the age of consent, the right to disaffirm it by their own act, and compels them to resort to the courts for a decree of dissolution.

9. In the case of Goodwin v. Thompson," a very interesting question, in regard to the effect of a statute fixing the age of consent at eighteen years in males and fourteen in females, was discussed and decided by the court. The point considered and determined was, whether the statute, by implication, abrogated the rule of the common law. It was held that it did not, but was merely cumulative thereto. "There is no prohibition of the marriage of a minor," say the court, "who may be under fourteen years of age, expressed. The statute is merely cumulative in its operation, and cannot have the effect of repealing

1 2 Kent, 78.

2 Harg. note, Co. Litt. 82, a. and b. 13 ed.; see, also, Holt v. Ward Clarencieux, 2 Str. 937; contra, Swinb. Spousals, 36.

3 Rev. St. N. Y. 139, 4. [Rev. Stat. 1882, vol. 3, p. 2332.]

4 R. S. Wisconsin, c. 79, 82. [Rev. Stat. 1878, § 2350.]

5 Goodwin v. Thompson, 2 Greene's (Iowa) Rep. 329.