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How old did they have to be?

Reader Marian Corya was stumped on an issue of Kentucky law.

“How do I find the legal age for marriage for men and women in various time periods and places?” she asked The Legal Genealogist. “I want to know how old a person needed to be in Kentucky in 1857 to marry without permission. They were both over 21, but I would like to be able to cite a law showing that this is correct. I tried looking online for the Kentucky Revised Statutes, and found them, but wasn’t able to find laws that far back.”

ky-marrDoing online research for statutes truly isn’t difficult, but it may mean looking in a number of sources to get a definitive answer — and finding those sources in places where we as genealogists don’t look often enough.

The sources we need are either — or both — the compiled laws of the jurisdiction (the state or the federal government) and the session laws.

Let’s define terms here.

Session laws are purely chronological publications of laws passed in each session of the legislature.1 In the federal system, for example, the laws are published after every session of Congress in what are called the Statutes at Large.2 The books begin with the very first law passed and signed into law in the session and continue through the very last law passed and signed into law in the session.

You can imagine that, if there was a marriage law passed in year one and that was amended in year three and amended again in year eight, pretty soon you’d need to look at a bunch of books just to find out what the whole marriage law was in that state. So, every so often, the legislatures would order the laws codified.

Codification is the “process of collecting and arranging the laws of a country or state into a code, i.e., into a complete system of positive law, scientifically ordered, and promulgated by legislative authority.”3

The codification, then, called compiled laws or codes or revised laws or whatever term is used in that jurisdiction, puts all of the marriage laws from the jurisdiction in order in one place so they can be more easily consulted and understood.

Each jurisdiction will organize, or codify, its laws on its own schedule. Except for the federal government, which began codifying its laws on a fairly regular basis back in the 19th century, the frequency of codification was pretty uneven around the country. But even with the hit-or-miss nature of codification, you’ll usually find some attempt to organize the laws every so often.

And it’s those codes, filled in by the session laws between the codes, that help us get the answers to questions like Marian’s.

Here’s how.

First, I would look to see if I won the legal research lottery and found that there was a compiled set of statutes published for the year I was trying to research. If so, I can just check that one set of compiled statutes and have my answer.

In this case, I’m not going to be so lucky. It turns out that Kentucky codified its laws — published a compiled set of statutes called the Revised Statutes of Kentucky, in 1852.4 It published its next set of compiled statutes in 1860,5 but only one volume of that two-volume code is readily available online — and it isn’t the volume with the marriage laws. The next codification that is easily found online was in 1867.6

So what I would do would be to look at the compiled laws both before and after that target date of 1857 and see if they’re the same. If they are, then chances are they didn’t change in the interim. To be 100% sure, I could also look at the session laws for each year in between the two sets of compiled laws, just as a doublecheck that the law wasn’t amended to something different and then amended back.

In Kentucky’s compiled laws of 1852, a boy could marry legally at 14 and a girl at 12.7 An underage marriage involving a boy at least 16 years old or a girl at least 14 years old who didn’t have parental consent could nonetheless be validated by living together as husband and wife after those ages.8 And to have a completely valid, non-voidable marriage, both males and females not previously married needed parental consent if they were under age 21.9

In the compiled laws of 1867, guess what? The law was exactly the same: a boy could marry legally at 14 and a girl at 12.10 An underage marriage involving a boy at least 16 years old or a girl at least 14 years old who didn’t have parental consent could nonetheless be validated by living together as husband and wife after those ages.11 And to have a completely valid, non-voidable marriage, both males and females not previously married needed parental consent if they were under age 21.12

Now… where do we find these laws? First, always do a search of your favorite search engine for a state-specific resource. For New Jersey, just as one example, all of the codes and session laws can be found in one place through the State Library of New Jersey.13

Then go on to search for the statutes at all of the three big online resources for digitized books:

Google Books: “a service from Google Inc. that searches the full text of books and magazines that Google has scanned, converted to text using optical character recognition (OCR), and stored in its digital database.”14

HathiTrust Digital Library: “a partnership of academic & research institutions, offering a collection of millions of titles digitized from libraries around the world.”15

Internet Archive: “a non-profit library of millions of free books, movies, software, music, websites, and more.”16

Even if you find what you’re looking for on one of these, it’s often worth checking more than one. Sometimes a book will be digitized only on one service, and that’s where you’ll need to review it, but sometimes there’s a better copy on another service.

So… bottom line … how old did someone have to be to marry without parental consent in Kentucky in 1857? The answer is 21… and the law can be found to say so.


SOURCES

  1. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1086, “session laws.”
  2. See “United States Statutes at Large,” Federal Digital System, U.S. Government Printing Office (https://www.gpo.gov/ : accessed 12 Feb 2017) (“The United States Statutes at Large, typically referred to as the Statutes at Large, is the permanent collection of all laws and resolutions enacted during each session of Congress”).
  3. Black, A Dictionary of Law, pp, “codification.”
  4. C.A. Wickliffe, S. Turner and S.S. Nicholas, compilers, The Revised Statutes of Kentucky (Frankfort, Ky. : State Printer, 1852); digital images, Google Books (http://books.google.com : accessed 12 Feb 2017).
  5. Richard H. Stanton, compiler, The Revised Statutes of Kentucky, 2 vols. (Cincinnati, Ohio : Robert Clarke & Co., 1860).
  6. Richard H. Stanton, compiler, The Revised Statutes of Kentucky, 2 vols. (Cincinnati, Ohio : Robert Clarke & Co., 1867), ; digital images, Google Books (http://books.google.com : accessed 12 Feb 2017).
  7. §2-5, Chapter 47, “Husband and Wife,” in Wickliffe, et al., comps., The Revised Statutes of Kentucky, at 384.
  8. Ibid., §5, at 384-385.
  9. Ibid., §11, at 385-386.
  10. §2-5, Chapter 47, “Husband and Wife,” in Stanton, comp., The Revised Statutes of Kentucky, at 2: 4.
  11. Ibid., §5.
  12. Ibid., §11, at 2: 6.
  13. See “New Jersey Historical Laws, Constitutions and Charters,” New Jersey State Library (http://www.njstatelib.org/ : accessed 12 Feb 2017).
  14. Wikipedia (http://www.wikipedia.com), “Google Books,” rev. 9 Feb 2017.
  15. Homepage, HathiTrust Digital Library (https://www.hathitrust.org/ : accessed 12 Feb 2017).
  16. Homepage, Internet Archive (https://archive.org/ : accessed 12 Feb 2017).
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