Stranger than Fiction:
The Survival of a Roman Rule
in the Common Law of Twenty-First-Century
Colorado
Thomas A. J. McGinn
It is well known that the system of private law that the U.S.
inherited from England in colonial times is that of common
law, something typically thought to be entirely independent
of, and in many respects markedly different from, the civil
law regimes of continental Europe, influenced as they have
been by Roman law.1 There are exceptions, of course. Louisiana is perhaps the best known. This state has traditionally
enjoyed the status of a civil law jurisdiction thanks to its
experience under French and Spanish rule. Some other states
show a distinct but lesser influence of this kind. In general,
however, American private law is based on common law, a
legacy of its colonial past.
How, then, could a Roman law rule survive in the context of
a solidly common law state such as Colorado, well into the
twenty first century, or midnight on August 31, 2006, to be
I have attempted to preserve as much as possible the quality of this paper in
its original form as an oral presentation, keeping citations to the indispensable.
An elementary “first edition” was given as an invited lecture at a meeting of the
Colonial Williamsburg Foundation at the American Academy in Rome (in October
2006, not long after the Colorado court decision discussed below), and in later versions in Mexico City, at the Universidad Nacional Autónoma de México during the
Tercer Congreso International de Estudios Clásicos and at the annual meeting of
the Société “Fernand de Visscher” pour l’Histoire des Droits de l’Antiquité in
Liège (both in September 2011). It is my great pleasure to thank the organizers
of these conferences, above all, Prof. Martha Irigoyen and Prof. Jean-François
Gerkens, for their excellent hospitality, as well as Prof. Martha Montemayor, an
organizer of the conference in Mexico City and the editor of this collection, for her
kind assistance in seeing this article through to publication.
1
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exact? The short answer is that this rule eluded detection because it successfully masqueraded, for many years in fact, as
a common law rule. To explain how this happened I will set
out the details of the original Roman rule, then elaborate on
the sensation it caused in Colorado in the spring and summer
of 2006, and, finally, connect the two. I’m going to suggest
that when in Rome it might be fine to do as the Romans do,
but when in Colorado... perhaps not.
This mysterious Roman law rule concerns the minimum
age at which one can legally marry. But worth noting first is
that among the requirements for a valid Roman marriage was
consent to the union. As is well known, the rules laid down
that the consent of both parties was of course necessary as
well as that of their patres familias, if any.2
As for minimum age, a modern lawmaker might aim to set
one that will prevent unwise marriages of immature persons,
perhaps as part of an effort to reduce the divorce rate and promote marital stability. Or it might be hoped that a certain minimum age will encourage young people (and especially young
women) to complete their educations and become economically independent, perhaps as part of a larger effort to restrain
population growth. Modern societies typically distinguish at
law between a minimum age for marriage and a minimum
Paul. (35 ad edictum) D. 23, 2, 2: “Nuptiae consistere non possunt nisi consentiant omnes, id est qui coeunt quorumque in potestate sunt”. (Paul in the thirtyfifth book on the Edict: “A marriage is not valid unless everyone agrees, that is,
[both] those who marry and those in whose power they are”.) Pomp.-Paul. (1 ad
Sabinum) D. 23, 2, 3: “Si nepotem ex filio et neptem ex altero filio in potestate habeam, nuptias inter eos me solo auctore contrahi posse Pomponius scribit et verum
est”. (Pomp.-Paul in the first book on Sabinus: “If I have a grandson by one son
and a granddaughter by another, [and both these grandchildren are] in my power,
Pomponius says that they can marry each other on my authority alone; and this
view is correct”.) Paul. (35 ad edictum) D. 23, 2, 16, 1: “Nepote uxorem ducente
et filius consentire debet: neptis vero si nubat, voluntas et auctoritas avi sufficiet”.
(Paul in the thirty-fifth book on the Edict: “When a grandson marries, his father
ought also to agree; but should a granddaughter marry, the consent and authority of
the grandfather will be enough”.) Frier and McGinn, pp. 212-213.
2
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age of consent to sexual relations, with a few exceptions, for
example, those which do not permit sexual relations outside
of marriage.3
The point to make is that although biology can play a role
in such decisions, they are also affected by other factors that
are directly related to a given society and its values. The minimum legal age for marriage is thus a classic example of a
social construct. This suggests as a premise that the Romans
might have had different reasons than a modern lawmaker.
The ancient evidence bears this out. First a text from the midsecond century jurist Gaius that concerns precisely the question of legal majority, and so the capacity to marry:
Gaius Institutiones 1, 196: Masculi autem cum puberes esse coe­
perint, tutela liberantur. puberem autem Sabinus quidem et Cassius ceterique nostri praeceptores eum esse putant, qui habitu
corporis pubertatem ostendit, id est eum qui generare potest; sed
in his qui pubescere non possunt, quales sunt spadones, eam aetatem esse spectandam, cuius aetatis puberes fiunt. sed diversae
scholae auctores annis putant pubertatem aestimandam, id est
eum puberem esse existimant, qui XIIII annos explevit...
[(Gaius in the first book of his Institutes): When males reach
puberty, they are freed from guardianship (tutela). Sabinus, Cassius, and the rest of our teachers think that a male reaches puberty when he displays this physically, that is, when he is able to
procreate. But for those persons, like eunuchs (spadones), who
cannot undergo puberty, the age at which they become adults
should be used. By contrast, the authors of the other (Proculian)
school think that puberty should be reckoned in years, that is,
they judge that a male reaches puberty if he has completed fourteen years.]
This text can be supplemented by another, which is from a
late-antique collection, but which modern scholars typically
assume reflects classical law:
3
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Waites, p. 42, cites post-revolutionary Iran as an example.
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Tituli ex Corpore Ulpiani 11, 28: Liberantur tutela masculi quidem pubertate. puberem autem Cassiani quidem eum esse dicunt,
qui habitu corporis pubes apparet, id est qui generare possit:
Proculeiani autem eum, qui quattuordecim annos explevit: verum
Priscus eum puberem esse, in quem utrumque concurrit et habitus corporis et numerus annorum.
[(Excerpts from Ulpian’s Writings). Males, to be sure, are freed
from guardianship (tutela) through the advent of puberty. The
Cassians, however, declare that a male reaches puberty who
is seen to have done so because of his physical development,
that is, a male who is able to procreate, while the Proculians
say that a male who has completed his fourteenth year has reached puberty. But Priscus holds that he has reached puberty who
fulfils both criteria: physical development and the number of
years.]
The central question raised in these texts is: when does a person cease being a child and become an adult? In determining this,
the Romans, or at least some of them, made use of the physical
changes associated with the onset of puberty. This text reflects a
controversy between two groups of early imperial jurists that
was evidently not resolved until Justinian:4 the Sabinians or
Cassians (Gaius’ school), who in general required a boy to
have the actual physical ability to procreate and who therefore
presumably required physical inspection, and the Proculians,
who simply set an age of fourteen for boys. The Sabinian
4
Imp. Iustinianus A. Menae pp. Codex Iustinianus 5, 60, 3: Indecoram observationem in examinanda marum pubertate resecantes iubemus: quemadmodum feminae post impletos duodecim annos omnimodo pubescere iudicantur, ita et mares
post excessum quattuordecim annorum puberes existimentur, indagatione corporis
inhonesta cessante. Emperor Justinian Augustus to Menas, Praetorian Prefect; A.D.
529: “In terminating the indelicate practice of examining males to ascertain that
they have reached the age of puberty (and so of legal majority). We order the following: In the same way that females, once they have completed twelve years of
age, are deemed to have reached in every sense the age of puberty (and legal majority), so also males, after they have completed fourteen years, shall be considered
to have reached puberty, and the dishonorable physical examination is abolished”.
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view, grounded as it is in the capacity to procreate, suggests
that this controversy was relevant to the question not only of
guardianship but of the minimal age for marriage, which is the
position adopted by most modern historians. A third opinion,
registered in the passage from the Tituli ex Corpore Ulpiani
and attributed to a jurist identified only as “Priscus”, attempts
to resolve the debate by adopting both criteria.5
It seems that the Romans valued physical development
over social maturity in setting these rules. They appear to
have been motivated by concerns with biological and social
reproduction, the latter meaning particularly the transfer of
significant amounts of property and the securing of politically
important connections through ties of marriage. So concerns
with the transmission of status and especially property from
one generation to the next loomed large. Also relevant was
a question of sheer demographics, in terms of a concern that
young adults live long enough to produce children and then to
see them properly married off, at an age that allowed for some
prospect of oversight by their elders.
Of course, just because it was legally possible to marry at
these early ages that does not mean that this was the typical
practice. Most Romans married for the first time in the late
teens if they were women and in the late twenties if they were
men. Age at first marriage for members of the upper classes
was a bit younger: mid teens for women and early to mid
twenties for men.6 Even so, a surprisingly large number of Roman legal, literary, and epigraphical sources suggest that in the
case of women the minimum age was not always observed.7
On the controversy between the Sabinians and Proculians, and in particular on
scholarly opinion over the identity of the jurist “Priscus”, see recently Leesen, pp.
45-57, not all of whose conclusions I share.
5
6
For this double pattern of ages at first marriage, see McGinn, p. 20.
See, for example, Labeo-Iul.-Pap.-Ulp. D. 24, 1, 32, 27. For the relevant literary evidence, as well as a small number of inscriptions, mostly from Rome and
Italy, see the discussion in Shaw.
7
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mcginn / stranger than fiction: the survival of a roman rule
The fact is illustrated in dramatic fashion by the following
text:8
Ulp. (2 de adulteriis) D. 48, 5, 14, 8: Si minor duodecim annis in
domum deducta adulterium commiserit, mox apud eum aetatem
excesserit coeperitque esse uxor, non poterit iure viri accusari ex
eo adulterio, quod ante aetatem nupta commisit, sed [vel] quasi
sponsa poterit accusari ex rescripto divi Severi, quod supra relatum est.
[(Ulpian in the second book On Adulteries): A girl less than
twelve years old was led into the home (of her prospective husband) and (then) committed adultery; soon thereafter she passed
the age (of marriage) in his house and began to be his wife. He
cannot use a husband’s right to accuse her of an adultery which
she committed when married before the (legal) age; but she can
be accused as a betrothed woman (sponsa), in accord with the
rescript of the deified Emperor Severus that was set out above.]
Let us fast forward to the twentieth century. What happened in Colorado back in 2006? Details are provided by an
Associated Press report dated June 15, 2006 and published
under the title: “Girls Can Marry at Age 15, Colorado Court
Finds”.9
A 15-year old girl can enter into a common-law marriage in Colorado, and younger girls and boys possibly can, too, a state appeals court ruled Thursday. While the three-judge panel stopped
short of setting a specific minimum age for such marriages, it
said they could be legal for girls at 12 and boys at 14 under English common law, which Colorado recognizes. The ruling overturned a lower-court judge’s decision that a girl, now older than
18, was too young to marry at 15. The panel said there was no
clear legislative or statutory [sic] guidance on common-law marriages, and that Colorado courts have not determined an age of
8
9
Suplemento5.indb 188
For a discussion of this text, see Frier and McGinn, pp. 27-28.
Sarche, published on the day of the court’s decision.
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189
consent. For traditional ceremonial marriage, Colorado law sets
the minimum age at 18, or 16 with parental or judicial approval.
Colorado is one of 10 states, plus the District of Columbia, that
recognize common-law marriage, which is based on English law
dating back hundreds of years.
The Colorado Court of Appeals ruled unanimously in the
case, known as “In re the Marriage of J.M.H. and Rouse,
and Concerning Weld County Dept. of Human Services”.10
The court found that the Colorado Uniform Marriage Act sets
forth the rules and requirements for ceremonial marriage, for
which it establishes a minimum age of 18, and expressly disavowed the intention of altering those holding for common
law marriage. A key part of its decision runs as follows:
Thus, in the absence of a statutory provision to the contrary, it
appears that Colorado has adopted the common law age of consent for marriage as fourteen for a male and twelve for a female, which existed under English common law. Nevertheless, we
need only hold here that a fifteen-year-old female may enter into
a valid common law marriage.
J.M.H. was fifteen when she allegedly entered into a common law marriage with Rouse. Therefore, if all other elements
for common law marriage were satisfied, Rouse’s marriage to
J.M.H. was valid ab initio because J.M.H. was competent at
common law on the date she was married. Accordingly, the trial
court erred in ruling that the common law marriage was invalid
on the ground that neither J.M.H. nor Rouse obtained judicial
approval of the marriage.
The Court’s decision led to an immediate uproar. In just
over a month, the legislature passed, and the governor then
signed, a bill that raised the minimum legal age for common
law marriage to eighteen, consistent with the age set for ce10
Suplemento5.indb 189
In re the Marriage of J.M.H. and Rouse 143 P.3d 1116; 2006 Colo. App.
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remonial marriage by the state’s Uniform Marriage Act. The
new law took effect on September 1, 2006.11 A chief concern
expressed by legislators was that the common law age requirements would be exploited by sexual predators. This concern
seems to have arisen in part out of the facts of the case on
which the appeals court ruled. A fourteen year old girl had
married a thirty-four year old man with her mother’s consent. The husband was unable to attend hearings in connection
with the appeals process because he had been jailed. What had
happened is that, after the trial court ruled his marriage invalid, he was arrested for sexual assault, and he pleaded guilty
to a charge of stalking.12
So how do we trace a line from ancient Rome to twentyfirst-century Colorado?
We begin with the reception of the Roman rules by the
Church in the late antique and early medieval periods.13 We
can generalize by saying that the particular ages were usually
not given, but reference was made, for example, in the canons of Church Councils, to the age of puberty or majority as
the legal minimum for marriage, which was of course set by
civil, meaning ultimately Roman, law. The legal authorities in
these periods, meaning kings and Popes, found themselves
in the position of resisting downward pressure from parents
who wanted to marry off their children before they reached
puberty. In the mid-twelfth century, Gratian’s Decretum received these rules, albeit with some ambiguity.
This ambiguity was eliminated by Pope Alexander III
(reigned, 1159-1181) later in the same century, when he made
a clear distinction between agreements known as sponsalia
per verba de futuro (cum copula) and those termed sponsa11
Jansen.
The husband was reunited with his wife and their child upon his release from
prison in September 2007: Mitchell.
12
13
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Here I depend on the reconstruction by Onclin, pp. 237-240.
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191
lia per verba de praesenti.14 This is widely understood to
have resolved a difference of opinion between Gratian, who
emphasized the importance of sexual intercourse to marriage
formation, and Peter Lombard, who asserted the key role of
the consent of the parties, (largely) in favor of the latter. As
a consequence, in the classical canon law only those children aged seven or older could become engaged, and this
relationship became marriage if the parties had intercourse at
any time afterwards or if they exchanged “present consent”
after reaching puberty. For “adults”, meaning those who had
reached puberty as defined by the canon law, strictly speaking mere agreement between the parties, and only the parties,
was required for valid marriage if this was exchanged in the
present tense. Worth noting is that unlike for the Romans of
course divorce was impossible in the strict sense.
A number of Church councils, and Alexander III himself,
strongly recommended, to the point at times of punishing the
failure to comply with this recommendation, resort to prior
announcement of banns and solemnization in facie ecclesiae,
or in front of the local church, as this phrase is usually understood. Nevertheless, these rules, in terms of establishing
the validity of the union as marriage, were merely directory
and not mandatory for the medieval period. There was a great
concern with clandestine marriage.
Alexander’s rulings (advanced in papal letters known as
decretales) seem to have encouraged uncertainty however on
the related subject of the definition of puberty, meaning the
minimum age for lawful marriage. In a sense the ensuing debate reproduced the controversy among the classical Roman
jurists, as the question turned on over whether an objective
limit (meaning the ages of fourteen and twelve) or a subjective
14
In the undated decretal Veniens ad nos (X 4, 1, 15). On this and what follows in the text, see the accounts in Brundage, Helmholz, and Donahue, all with
literature.
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evaluation (based on physical development) should determine
this. In this case, however, the debate was resolved for most
authorities in the sense that persons physically mature but underage could marry, as could those of age but not physically
mature. So we have evidence of this same downward pressure
on the age requirement we see in earlier periods.
The rule, such as it was, spread along with the developing
body of Church or canon law throughout the Christian world,
including England. An independent system of ecclesiastical
courts arose that successfully claimed jurisdiction over marriage and related matters. A recent study of Church courts in
York and Ely in late medieval England shows that few of the
many cases over the validity of marriages concerned underage unions.15 It seems that most if not all of such cases that
do surface concerned arranged marriages that went awry. One
reason for this paucity of examples might lie in the fact that
the average age of first marriage (or, better, the average range
of ages in which people wed for the first time) in this period
was in the mid to late twenties for both men and women.16
Members of the elite tended to marry earlier, and with what
appears to have been a larger gap in the ages of the spouses.
Few of them, however, seem to have done so at or before the
minimum ages.
Its practical irrelevance for the vast majority of first-time
spouses may have contributed to the rule’s longevity. In 1753
an act of Parliament sponsored by Lord Hardwicke required
consent of parents or guardians for spouses of both sexes
under twenty-one, while it maintained the traditional minimum ages.17 Lord Hardwicke’s Act is perhaps better known
for establishing a ceremonial requirement for most marriages
Donahue, whose examination of the evidence extends also to Brussels, Cambrai, and Paris in this period.
15
16
17
Suplemento5.indb 192
See McGinn, pp. 52-53.
26 George II c. 32: text in Outhwaite, pp. 173-180.
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in England and Wales, meaning that to be valid they had to
be performed, after the publication of banns or the grant of a
valid license, in an Anglican church before at least two witnesses by an Anglican minister, who was charged with recording the marriage in a parish register.18 The Act did not apply
overseas. It essentially promulgated a reform of the Council
of Trent put into place for Catholic areas of Europe nearly two
centuries before seeking to repress “clandestine” marriages,
the famous decree Tametsi from 1563.19 One important difference, however, is that Tametsi did not require parental consent
for anyone otherwise eligible to marry.
Since Lord Hardwicke’s Act was not valid for the American
colonies, the default position there was that no ceremony was
necessary for a marriage to be valid. Because the ecclesiastical courts did not find a home in the New World, the default
rules came to be identified with the common law, thus the
term “common-law marriage”.20 Its real significance lies in
the fact that the power to regulate marriage resides with the
state, rather than with any religious authority.
So what exactly is common law marriage? The answer is
not as easy as one would like. Aside from capacity requirements, like a minimum age limit, there is, not surprisingly,
general agreement that consent by the parties to marriage is
necessary, meaning consent expressed per verba de praesenti.
Cohabitation, often but not always defined in terms of sexual
relations, and the couple publicly holding themselves out as
married are frequently cited as two further requirements, but
Thus the statute’s title: “An Act for the Better Preventing of Clandestine
Marriages”.
18
19
Tametsi stipulated that marriage, to be valid, had to be performed in facie
ecclesiae before a (parish) priest and at least two or three witnesses, following the
publication of banns, and accompanied by registration in written form (this last a
Lutheran innovation): Brundage, pp. 563-565; Harrington, p. 96.
The bibliography on this subject is vast. See recently Lind, who must be used
with caution, however, especially regarding points of historical detail.
20
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not everyone agrees, with some authorities arguing that these
are at most elements of proving a common law marriage, and
not requirements thereof. Often the teleology of the decision
plays a key role so that courts tend to be more generous in
finding a common law marriage where a surviving spouse’s
claim to workmen’s compensation or a pension is concerned.
There is some debate whether other subtypes of what might
be described as “informal” marriage, such as presumptive and
putative marriage, ought to be identified as common law marriage.
The issue is clouded by a widespread animus against the
institution, exacerbated in no small measure by considerations
of class bias, misogyny, and racism, to name only three relevant factors. There is no small amount of uncertainty, confusion, and controversy over what U.S. jurisdictions have at
various times recognized common law marriage.
This complexity dates back to colonial times. Some colonies, like Massachusetts, legislated a series of requirements,
as early as 1636, that regulated marriage. These included the
granting of consent by parents and other authorities, as well
as solemnization by clergy and secular public officials. Such
requirements were cemented by key court decisions, not least
of which was an 1810 case, Milford v. Worcester.21 Despite
the differences in religious creed in play, the results align
broadly with the decree Tametsi of the Council of Trent and
Lord Hardwicke’s Act. A central aim was to protect the interest of parents and other authorities in the marriage choices of
young persons.
Elsewhere, common law marriage experienced increasing
acceptance, especially after independence from England. A
turning point came in 1809 in a N.Y. case, Fenton v. Reed,
which signaled the reception of the institution in that state.22
21
22
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Milford v. Worcester 7 Mass. 48, 1810.
Fenton v. Reed 4 Johns. 52 N.Y., 1809.
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The opinion, written per curiam by Chancellor James Kent,
concerned a marriage where the wife had been married previously to a man who had disappeared for several years and
was assumed to be dead. When this turned out not to be the
case, the court held that, while the marriage was invalid while
the first husband lived, when he did in fact die, no proof of
ceremony was required to legitimize the second union as marriage. The court in its holding uses language that had originated in medieval canon law. Its opinion reads in part (references
to prior cases are omitted):
It is stated, that there was not proof of any subsequent marriage
in fact, and that no solemnization of marriage was shown to have
taken place. But proof of an actual marriage was not necessary.
Such strict proof is only required in prosecutions for bigamy,
and in actions for criminal conversation. A marriage may be
proved, in other cases, from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage may be inferred. No formal
solemnization of marriage was requisite. A contract of marriage
made per verba de presenti amounts to an actual marriage, and
is as valid as if made in facie ecclesiæ.
Kent recorded the holding in his Commentaries on American Law, one of the most influential legal treatises in the
nineteenth-century U.S.23
By the mid- to late nineteenth century the majority of American jurisdictions recognized common law marriage. In 1877,
the U.S. Supreme Court joined the trend, in a case, Meister v.
Moore, that had an especially powerful impact given the way
its holding was articulated.24 Ruling on a Pennsylvania case
that interpreted a Michigan statute, the court in Meister held
This is in the second volume, which was first published in 1827: Kent, vol.
II, p. 76. The work subsequently appeared in numerous editions, in, for example,
the twelfth in 1896 with Oliver Wendell Holmes Jr. as editor.
23
24
Suplemento5.indb 195
Meister v. Moore 96 U.S. 76, 24 L. Ed. 826, 1877.
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that all state statutes that established registration and ceremonial requirements for marriage were merely directory, not mandatory, in nature, unless they explicitly prohibited common law
marriage:
Marriage is everywhere regarded as a civil contract. Statutes in
many of the States, it is true, regulate the mode of entering into the
contract, but they do not confer the right. Hence they are not within the principle, that, where a statute creates a right and provides
a remedy for its enforcement, the remedy is exclusive. No doubt, a
statute may take away a common-law right; but there is always a
presumption that the legislature has no such intention, unless it be
plainly expressed. A statute may declare that no marriages shall
be valid unless they are solemnized in a prescribed manner; but
such an enactment is a very different thing from a law requiring
all marriages to be entered into in the presence of a magistrate or
a clergyman, or that it be preceded by a license, or publication
of banns, or be attested by witnesses. Such formal provisions
may be construed as merely directory, instead of being treated as
destructive of a common-law right to form the marriage relation
by words of present assent. And such, we think, has been the
rule generally adopted in construing statutes regulating marriage.
This holding made common law marriage into a kind of
default arrangement, almost a kind of recessive gene in the
marital relations law of the United States.
The Supreme Court’s language in Meister helps explain
how the Colorado court came to assert what seemed to contemporaries in 2006 to be very low minimum age requirements for marriage. Deriving ultimately from Roman and canon law as we have seen, these were by that time the common
law default rules. They are explicitly accepted as such in the
Supreme Court’s opinion in Meister, which relies on an 1854
Massachusetts case that recognizes fourteen and twelve as the
minimum ages, despite the existence of statutory law forbidding duly constituted authorities from marrying women under
eighteen without parental consent:
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197
In Parton v. Hervey (1 Gray (Mass.), 119), where the question
was, whether a marriage of a girl only thirteen years old, married
without parental consent, was a valid marriage (the statute prohibiting clergymen and magistrates from solemnizing marriages
of females under eighteen, without the consent of parents or
guardians), the court held it good and binding, notwithstanding
the statute.
At the time the Colorado Court of Appeals issued its ruling
in the case of In re the Marriage of J.M.H. and Rouse, that
state’s statute law had laid down a minimum age only for ceremonial marriage, meaning that the common law rules still
held, in the logic of Meister.
It is worth noting that there was no foundation, even an implicit one, for the Supreme Court’s decision in 1877, in terms
of marriage practice. The data show that, in the nineteenth
century, persons in the U.S. tended to marry for the first time
in a range of ages from the early to late twenties for both
sexes, with women starting a bit earlier than men.25
In retrospect, Meister marks the high-water mark for common law marriage or close to it.26 In subsequent years, most
states that at one time recognized the institution have renounced it, though the process has been a slow and gradual
one: as late as 1929, over half a century after that decision,
about half the states retained it. At least a dozen or so jurisdictions still have it, a list that is easy to extend on a more generous definition.27 Because they are broadly dispersed geographically, and because most states that do not recognize such
marriages contracted within their own borders recognize those
25
26
See McGinn, p. 107.
See Lind, pp. 142-147, 174-176.
The lists given by scholars vary, depending of course on their date, the quality of the information available to them, and the criteria they use for inclusion. See,
for example, Lind, pp. 9-11, who includes ten states, plus the District of Columbia
and adds four others that have eliminated it relatively recently, but not retroactively, so that they still contain a large number of common law marriages.
27
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mcginn / stranger than fiction: the survival of a roman rule
contracted legally elsewhere, the institution, in the face of
much criticism, continues to thrive. Another reason for this is
that there are states, like New York and Tennessee, that do not
recognize common law marriage, but that routinely recognize
common law marriages.
So, in summary, how do we evaluate common law marriage, with its minimum age requirements, as a legal transplant? Such rules, when torn from their original social, demographic, and even legal context, and then transported into
an alien culture, seem almost bound to cause problems, and
these particular rules have been causing trouble for centuries.
For example, the idea, supported by canon law, that persons
of such tender ages could, without their parents’ knowledge
or consent, enter into permanent, inescapable unions with deep
consequences for transmission of property and status (not to
speak of the problem of sexual exploitation) was one of the
grievances that initiated and sustained the Protestant Reformation, especially in Germany.28 Reactions were forthcoming,
from the Catholic Church at the Council of Trent, the Puritans in
Massachusetts, and, eventually, the Anglican establishment
in England, introducing significant restrictions on the freedom
to marry, as we have seen.
In this context, the durability, until relatively recently, of
the traditional minimum age limits at law is rather striking.
We have found it impossible to locate a purely demographic
rationale for this development, at least in terms of ages at first
marriage, with the complicated and partial exception of the
Romans themselves. There instead appear to be three principal explanations. The first is the force of legal tradition, never
something to be discounted. Second is the ideal of freedom to
marry, not to be denied, in the eyes of many, even to relatively young persons at least notionally capable of procreation.
Third is that, in practice, it was generally easier for parents
28
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See for example Harrington, pp. 56-59, 91-97, 122, 145, 169-214.
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199
and guardians to impose their will on just such younger persons. The paradox represented by the latter two reasons may
be in part explained by the fact that under neither tradition,
meaning neither the more liberal Alexandrian nor the more restrictive Tridentine, was the tension ever completely resolved
between the desires and determination of brides and grooms
on the one hand and the demands and expectations of society on
the other. One might well doubt how easy it would be to enforce the rules of any legal regime that attempted purposefully
to accomplish such a thing.
Bibliography
Brundage, J. A., Law, Sex, and Christian Society in Medieval Europe,
Chicago, University of Chicago Press, 1987.
Codex Iustinianus, in Corpus Iuris Civilis II, P. Krueger (ed.), 14th ed.,
Berlín, Weidmann, 1967.
D. = Digesta, in Corpus Iuris Civilis I, T. Mommsen and P. Krueger
(eds.), 17th ed., Berlín, Weidmann, 1963.
Donahue, C., Law, Marriage, and Society in the Later Middle Ages: Arguments About Marriage in Five Courts, Cambridge, Cambridge University Press, 2007.
Frier, B. W. and T. A. J. McGinn, A Casebook on Roman Family Law,
New York, Oxford University Press, 2004.
Harrington, J., Reordering Marriage and Society in Reformation Germany, Cambridge, Cambridge University Press, 1995.
Helmholz, R. H., The Oxford History of the Laws of England, Volume
1: The Canon and Ecclesiastical Jurisdiction from 597 to the 1640s,
Oxford, Oxford University Press, 2004.
Jansen, J., “New Colorado Law Raises Age of Consent for Common-Law
Marriage”, Jurist: Legal News & Research, 19 July 2006, jurist.
law.pitt.edu/paperchase/2006/07/new-colorado-law, accessed 5 September, 2006.
Kent, J., Commentaries on American Law, 4 vols., New York, O. Halsted,
1826-1830.
Leesen, T. G., Gaius Meets Cicero: Law and Rhetoric in the School Controversies, Leiden, Brill, 2010.
Suplemento5.indb 199
17/6/13 13:43:16
200
mcginn / stranger than fiction: the survival of a roman rule
Lind, G., Common Law Marriage: A Legal Institution for Cohabitation,
Oxford, Oxford University Press, 2008.
McGinn, T. A. J., Widows and Patriarchy: Ancient and Modern, London,
Duckworth, 2008.
Mitchell, K., “She Was 14: He Was 34”, Denver Post, 10 September
2007, www.denverpost.com/fdcp?unique=113260434762, accessed 13
August 2011.
Onclin, W., “L’áge requis pour le mariage dans la doctrine canonique
médiévale”, in S. Kuttner and J. J. Ryan (eds.), Proceedings of the Second International Congress of Medieval Canon Law: Boston College
12-16 August 1963, 237-247, Vatican City, S. Congregatio de Seminariis et Studiorum Universitatibus, 1965 (= Monumenta Iuris Canonici
Series C: Subsidia, 1).
Outhwaite, R. B., Clandestine Marriage in England, 1500-1850, London,
The Hambledon Press, 1995.
Sarche, J., “Girls Can Marry at 15, Colo. Court Finds”, Associated Press,
15 June 2006, www.breitbart.com/news/2006/06/15/D818Q3CO0.html,
accessed 5 September, 2006.
Shaw, B. D., “The Age of Roman Girls at Marriage”, Journal of Roman
Studies, 77, 1987, pp. 30-46
Waites, M., The Age of Consent: Young People, Sexuality and Citizenship,
Houndmills / Basingstoke / Hampshire, Palgrave Macmillan, 2005.
Suplemento5.indb 200
17/6/13 13:43:16