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into a perfect marriage state ; (2) those which require certain forms of ceremony; and (3) those which are intended to provide for proper harmony and conduct of the parties to each other in the marriage state, in respect to their actions generally and also in respect to the control of their property. The constitutionality of police regulations of marriage will be discussed in this order.

§ 151. 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.

$ 152. Insanity as a legal incapacity. - If the parties to the contract of marriage are of sane mind when the contract of marriage is made and performed, the subsequent or previous insanity does not affect the validity of the marriage status. Having entered into the status through a valid contract, the capacity to contract ceases to be of value, since the contract is merged by its performance into a status. But if the blood of either of the parties is tainted with insanity, there is imminent danger of its transmission to the offspring, and through the procreation of imbecile children the welfare of the State is more or less threatened. It may not be the policy of the State to impose restrictions upon the marriage of those who suffer from mental unsoundness of a constitutional character, or the danger to the State may not be sufficiently threatening; but if the proper legislative authority should determine upon the establishment of such restrictions, even though they amounted to absolute prohibition, there can be no question as to their constitutionality. The danger to the State arising from the imbecility of the offspring has always been considered an all-sufficient justification of the State interference and regulation of marriage.

$ 153. 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 disqualification to the entrance into a completely valid marriage. If the minor is of the requisite physical capacity, ihe 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. 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

1 1 Bishop Mar. & Div., § 144; Gavin 0. Burton, 8 Ind. 69.

: 1 Bishop Mar. & Div., $ 143; Hunt o. Peake, 5 Cow. 475; Williard v. Stone, 17 Cow. 22; Hamilton v. Lomax, 26 Barb. 615; Cannon o. Alsbury, 1 A. K. Mar. 76; Kester v. Stark, 19 III. 328; Warwick o. Cooper, 6 Sneed, 659; Schouler Dom. Rel. 32.

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.' 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? 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

1 1 Bishop Mar. & Div., $ 142. • 1 Bishop Mar. & Div., $ 147.

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.

§ 154. Consanguinity and affinity. - In all systems of jurisprudence, beginning with the laws of Moses, marriages between persons of the nearer degrees of relationship by consanguinity have been probibited; and in some of these cases, notably that of parent and child, the act of marriage has been declared a crime and punishable as such. The legal justification of this prohibition lies in the birth of imbecile and frail offspring, which is the constant if not invariable fruit of such marriages. The injury to be avoided by the prohibition consists not only of that which threatens the State in the increase of pauperism through the birth of persons likely to become paupers, but also the injury to the offspring. One might, if allowed a certain latitude of speech, be said to have a natural right to come into this world with normal faculties of mind and body, and the prevention of the birth of issue is justifiable when the parties cannot transmit, at least to a reasonable degree, a mens sana in corpore sano. It can never be questioned that the marriage of very near relations has this disastrous effect, although it may be a proper subject for debate at what degree of relationship marriage would be safe. Still, granting the danger of such marriages, the determination of the degrees of relationship, within which marriage is to be prohibited, must be left to the legislative discretion ; and although it is strictly a judicial question whether consanguinity is likely to make a particular marriage disastrous or dangerous, it must be a flagrant case of arbitrary exercise of legislative power, in order to justify judicial interference. It is a general rule of constitutional construction

$ 154

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