However, a century and one half ago, the Supreme Court of the Massachusetts had a different view, in Parton v. Hervey (1854). Basically, a man married a 13-year-old girl. Her mother found the girl and kidnapped her. Mom held daughter captive for her own good, in the mother’s opinion.
The husband sued. The majority opinion included:
…I was entirely satisfied by the testimony, that the marriage of the petitioner with the daughter of the respondent was not procured or solemnized clandestinely, or through fraud and deceit practised on the wife; but that she freely and willingly assented thereto, without undue influence or persuasion; that she was not of weak or impaired intellect, but of competent understanding, and of the ordinary degree of intelligence of persons of her age; and that the respondent had restrained her of her liberty against her will, and had prevented her by force from joining the petitioner and living with him as his wife.
Upon this state of facts, the only remaining question raised by the respondent is whether, under the laws of this commonwealth, a marriage by a female infant of the age of thirteen years is legal and valid, if had and solemnized with the free assent of such infant, but without the knowledge or consent of her parent and guardian…
Absent a state statute at the time that set a lower limit on marriage, the court decided to turn to common law, in Massachusetts and England. As the old standard was age 12 for a girl, that is what the court used.
Interestingly enough, the decision noted that the legistature had recently had the opportunity to set the age of consent for marriage. The recommendation was 17 for boys and 14 for girls. Other recommendations became law, but the state legislators struck the consent provision. This reinforced the court’s opinion that common law prevailed. The court ordered the girl’s release from her mother to her husband.