Idaho Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

Idaho law came from two countries. Contract, crime, procedure, and the law of land titles are English: the common law of England, so far as it was not repugnant to or inconsistent with the Constitution or laws of the United States, was the rule of decision in every case the codes did not provide for¹. Marital property came from a different root. Community property — the rule that husband and wife each own half of what the marriage earns — is a Spanish civil-law institution. California kept it from its Mexican years and wrote it into the codes of 1872, and when Idaho drew its own codes from California's it took the system whole². This single fact changes how nearly every Idaho property and inheritance record reads.

The codes provided for a great deal, so the English common law operated mostly in the gaps. Because the statutes were copied from California, California decisions were treated as persuasive, and the 1908 codification prints the parallel California section beneath each of its own.

Idaho Territory was organized in 1863 out of what had been Washington Territory; the region had earlier been part of Oregon Territory. The first territorial legislature met in 1863–64 and adopted a body of statute law almost at once. Idaho became a state on 3 July 1890 under the Constitution of 1889. The law runs in an unbroken chain of compilations, and knowing the chain is how a rule is traced: the territorial session laws from 1864, the Revised Statutes of 1887, the Revised Codes of 1908, the Compiled Statutes of 1919, the Idaho Code Annotated of 1932, and the Idaho Code of 1947–48. Each compilation prints a history line under the section, which points back to the one before it.

Legal Age of Adulthood

Full majority came at different ages for the two sexes: males were minors until 21, females until 18³. That difference came into the territory in 1864 and lasted the whole of the period covered here. For a researcher the practical points are that a woman reached full legal capacity three years earlier than a man, and that the age attached to a record depends on the person's sex.

A minor's contract was voidable — good until the minor chose to undo it. A contract made while the person was under 18 could be disaffirmed, meaning undone, either before majority or within a reasonable time after⁴. A deed given by a minor fell under the same rule, which is why a minor's land was ordinarily sold for him by a guardian under a court order rather than by his own deed (see Property Ownership).

Marriage

Common-law marriage — the rule that shapes the records

Idaho recognized common-law marriage for the whole of this period. The statute made marriage a civil contract requiring consent, and then provided that consent alone would not constitute marriage: it had to be followed by a solemnization or by a mutual assumption of marital rights, duties, or obligations⁵. That last clause is the key. A couple who agreed to be married and then lived as husband and wife, assuming the rights and duties of marriage, were lawfully married with no ceremony and no license. The rule came in with the territorial marriage act of 1877 and held until Idaho abolished common-law marriage effective 1 January 1996, far outside this guide; marriages formed before that date remained valid⁶.

The consequence for research is large: a valid Idaho marriage may have left no marriage record at all. Where a couple has no license, that is not proof they were unmarried. Such a marriage is established the way a common-law marriage always is — by cohabitation, reputation in the community, the census, and later declarations — and it often first surfaces in a probate file when a widow claims her share.

Age and parental consent

Ceremonial marriage had a statutory age of capacity, and it changed once. Under the territorial law carried into the Revised Statutes of 1887, an unmarried male of 18 and an unmarried female of 16 were capable of consenting to and consummating marriage⁷. The fifteenth territorial legislature raised the female age, and from 1889 a person of either sex who was 18 or older could marry⁸.

Below those ages a parent's consent supplied what the age did not. The officiant had to satisfy himself that the parties were old enough and, where one of them was under the statutory age, that the father, mother, or guardian had consented — unless the under-age party had been married before⁹. The consent ages therefore tracked the capacity ages: before 1889 a male under 18 or a female under 16, and from 1889 anyone under 18. In 1921 the legislature tightened it: where either party was under 18, the recorder could not issue the license at all except on the consent of the father, mother, or guardian given in writing and duly acknowledged or sworn to¹⁰. From that year the consent is a signed, notarized document, and it sits in the county marriage application file with the rest of the papers.

In 1943 the legislature put a floor under that rule, and a court proceeding beneath the floor. Written consent now carried a marriage only where the under-age party, of either sex, was at least 15. Where the bride was under 15, the recorder could issue no license until the probate court ordered it — on the petition of an interested party, after a hearing to which the judge had to subpoena the county physician to examine her and give an expert opinion on whether she was sufficiently developed to assume full marital duties — and a certified copy of that order went to the recorder as his authority to issue the license¹¹. The act made no such provision for a boy under 15. So an Idaho marriage from 1943 with a bride under 15 leaves a probate file behind it — petition, hearing, physician's testimony, and order — and a copy of the order among the recorder's marriage papers.

How a marriage was recorded

The recorder had to know of his own knowledge that the parties were competent to marry, or else take their affidavit in writing, and he kept a book of the returns¹². The ceremony took whatever form the parties chose, provided they declared in the officiant's presence that they took each other as husband and wife; an officiant who married a couple without a license, or knowing a party incompetent, was punished, and the marriage stood¹³. The application file — where the competency affidavit and any parental consent sit — is often fuller than the license itself.

The restrictions on marriage

A marriage was void where the parties were too closely related — parents and children, ancestors and descendants of every degree, brothers and sisters of the half as well as the whole blood, and uncles and nieces or aunts and nephews¹⁴. A later marriage contracted while a former husband or wife was living was illegal and void from the beginning¹⁵. A marriage was voidable — valid until a court annulled it — where a party was physically incapable of entering the marriage state, or where consent had been obtained by fraud or force¹⁶.

A marriage contracted outside Idaho that was valid where it was celebrated was valid in Idaho¹⁷. A couple facing one of these impediments could therefore marry in another state and return, and their marriage will not appear in an Idaho recorder's book.

The race bar ran from the territory's first legislature to the eve of the civil-rights era. The act of 1864 made it a crime for a white person to marry someone of African descent, an Indian, or a Chinese, and punished the officiant as well; the fourth territorial session re-enacted the prohibition in the civil form the codes then carried, declaring such marriages void rather than merely punishable¹⁸. As carried into the codes the section read that all marriages of white persons with negroes or mulattoes were illegal and void¹⁹, and a single sentence of the 1921 amendment both added mongolians and prohibited marriage between first cousins²⁰. In 1959 the legislature struck the racial half of that sentence, leaving the cousin rule standing on its own²¹. A mixed-race couple in this period therefore either has no Idaho marriage or married elsewhere, and the prohibition reached the children's legitimacy and inheritance.

Property Ownership

Idaho's marital-property law is community property, and it governs how deeds and estates read. Property inside a marriage fell into three categories, and every deed and estate record turns on which one is involved²²:

Men, women, and land

A man owned land at any age, and at 21 he held full power to buy, sell, mortgage, and convey his own separate land in his own name.

A married woman's position differed sharply from that in the common-law states, where a wife lived under coverture — the doctrine that merged her legal identity into her husband's. In Idaho her separate property was hers, held to the same extent and with the same effect as the property of a husband similarly acquired²³, and she managed it herself, having the management, control, and absolute power of disposition of it, and the power to contract about it as a married man could²⁴. An Idaho married woman bought and held land in her own name throughout the period, which puts her in the land records under that name.

Idaho also swept away the common-law interests a spouse took in the other's land: dower and curtesy were both abolished²⁵ — dower being a widow's life interest, meaning the use of her husband's land for the rest of her life, and curtesy the widower's mirror-image right. The community-property system provided for the surviving spouse instead (see Inheritance).

Whose signature a deed carries

Because there was no dower, a husband's deed of his own separate land carried his signature alone, and the land passed free of any claim by his wife. Community land was different: the husband's power of disposition stopped at the homestead and at the part of the common property the couple used as a residence²⁶, and no conveyance or mortgage of community real property or of the homestead was valid unless both husband and wife joined in it and the wife acknowledged it²⁷ — acknowledgment being her appearance before an officer, who certified that she was the person named and had signed the deed.

Her own separate land is the case that changed during the period, and the date to know is 1903. Under the territorial rule carried into the Revised Statutes of 1887, no estate in a married woman's real property passed by her deed unless she acknowledged it and her husband, if he was a resident, joined in it²⁸ — the one exception being a husband who had not been a bona fide resident of Idaho at any time in the preceding year, in which case she conveyed alone²⁹. The married women's act of 1903 then gave her the power to sell and convey her own real property in the same manner and with like effect as a married man could his²⁴. The 1908 codifiers printed both provisions, the new one in the civil code and the old one in the conveyancing title, which is why the Revised Codes appear to say two things at once. The compilers of 1919 settled it by dropping the older sections altogether³⁰.

For a researcher the practical test is the date on the deed. Before 1903, a married woman's deed of her own land ordinarily carries her husband's signature beside hers, and one she signed alone points to a husband living outside Idaho. After 1903 she could convey alone, though conveyancers went on collecting both signatures for years out of caution, so a joint signature after that date proves nothing either way.

Witnessing a deed

Competency, not age, decided who could witness a deed — and in practice most Idaho deeds carry no witnesses at all. An instrument had to be acknowledged before an officer, or else proved, and the acknowledgment or proof certified, before the recorder would record it³¹; and instruments were recorded by the county recorder of the county where the land lay³². A witness mattered only on the second route. Where a deed was not acknowledged, its execution could be proved by a party to it or by a person who had signed as a subscribing witness; that witness had to be personally known to the officer, or proved to be the witness by the oath of a credible witness, and had to swear that the grantor was the person described in the deed and that he himself had signed as a witness³³. Anyone competent to testify could do that, so a deed witness was held to the same competency test as any other witness (see Courts). The practical point is that an Idaho deed usually yields the certifying officer's name rather than a neighbor's.

Children and land

A child could own land at any age, taking it by inheritance, gift, or devise. Conveying it was the probate court's business: a minor's real estate was sold under a court order, the sale carried out by a guardian who gave bond and accounted for the proceeds (see Inheritance). Where an Idaho deed conveys a child's land, the guardianship file in the probate court holds the family.

Restrictions on land ownership by minorities

Aliens generally could hold property in Idaho — the mining statute let any person, whether citizen or alien, take and hold mining claims and mining property³⁴ — but the same section carried a racial proviso. Chinese, and persons of Mongolian descent not born in the United States, were not permitted to acquire title to land or any real property; the bar was first enacted in 1890–91 and re-enacted in 1899³⁵, and the state constitution carried a parallel disqualification. In 1923 Idaho added a broader Alien Land Law, which confined aliens ineligible to citizenship — under the federal naturalization rules of the era, Japanese and other Asian immigrants — to the rights allowed by treaty, leaving them only short agricultural leases³⁶. These laws gave way after 1948 and the naturalization changes of 1952. An Asian-surnamed ancestor who farmed in this period may hold no land in his own name, or may hold it through a citizen child or a corporation.

Inheritance

A person who died without a will died intestate, and statutes divided the estate. Idaho ran two tracks, because separate property and community property descended differently. Either way the property passed to the heirs subject to the probate court's control and to administration³⁷. Throughout what follows, issue means a person's descendants — children, grandchildren, and on down.

Separate property of an intestate

The decedent's separate property passed by this schedule³⁸:

The widow's fraction is not fixed, and that is what trips up researchers: she took half against a single child, but only a third once there were two or more.

Community property at a spouse's death

On the death of either husband or wife, half of the community property went to the survivor, subject to the community debts, and the other half was subject to the deceased spouse's will. Where the deceased left no will, that half descended to the couple's legitimate issue; and where no issue survived, the whole of the community passed to the survivor³⁹. This community share is what stands in place of dower and curtesy.

Children born outside marriage

An illegitimate child was always an heir of its mother and inherited from her as though born in wedlock. The child was also an heir of the father where he had acknowledged himself to be the father in writing, signed in the presence of a competent witness⁴⁰. Two further routes made such a child legitimate outright: the subsequent marriage of its parents⁴¹, or the father's public acknowledgment of the child and reception of it into his family, with the consent of his wife if he was married, which made the child legitimate from the time of its birth⁴². A written acknowledgment before a witness, or a father taking a child into his household, therefore has direct inheritance consequences, and the document may sit in the probate or the county records.

Minors' inheritance and guardians

A minor's inheritance was administered by a guardian under the probate court's supervision and under bond. A guardian was needed whenever a minor took property or was left without a parent to manage it; the guardianship generated an inventory, periodic accountings, and a final settlement.

The ages are specific. A minor under 14 had a guardian appointed by the probate court; a minor above 14 could nominate his own guardian, subject to the court's approval⁴³. Guardianship ended at majority — 21 for a male ward, 18 for a female ward. Because the guardian settled the account when the ward came of age, that final settlement approximates the ward's twenty-first, or for a girl eighteenth, birthday, and can bracket a birth year that no vital record supplies.

Wills, executors, and witnesses

A person 18 or older, of sound mind, could make a will disposing of all his estate⁴⁴. A witnessed will had to be subscribed at the end by the testator, or by another person in his presence and at his direction, and attested by two witnesses who signed at his request and in his presence⁴⁵. Idaho also recognized the olographic will — also spelled holographic, meaning one entirely written, dated, and signed in the testator's own hand — which stood on the handwriting alone and was proved as other private writings are proved⁴⁶. One trap for the researcher: a married woman could dispose of her whole separate estate by will without her husband's consent, but her will had to be attested and witnessed like any other, so a handwritten, unwitnessed will offered as a wife's will was void⁴⁷.

Competency, not age, decided who could witness a will. Each witness had to write his place of residence beside his name, though a will was good even if he failed to; and a witness who was competent when he attested did not spoil the will by becoming incompetent later⁴⁸. Who was competent is the general test described under Courts, applied as of the day the will was signed.

An executor or executrix — the person named in a will to carry it out — had to be of the age of majority, a man at 21 and a woman at 18, and was disqualified by conviction of an infamous crime, meaning a serious offense such as a felony, or by a finding of unfitness for drunkenness, improvidence, or want of understanding or integrity⁴⁹. A person named as executor who was under age took no letters — the court's written authority to act — until reaching majority.

Taxation

Idaho taxed individuals in two ways: on what they owned, and by the head.

All property in the state, except what federal law exempted, was subject to taxation⁵⁰. The county assessor valued it at its full cash value, assessing land and the improvements on it separately⁵¹. The assessment roll that came out of that work names the owner, so it places a family in a county year by year, and the split between land and improvements shows when a house went up.

A poll tax, also called a capitation tax, is a flat tax charged on a person by the head rather than on property, and a "poll" is the taxable person.

So the age that put a man on a poll list was 21, and he came off it at 50. The statute exempted paupers, insane persons, "Indians not taxed," government pensioners, enrolled active members of volunteer fire companies, the permanently disabled, and honorably discharged soldiers — and a name once entered in the poll-tax book was struck only by order of the county commissioners. A man can therefore vanish from a poll list while alive and still resident, and the reason is often the exemption rather than a move.

Courts

Jury service

A juror had to be a citizen of the United States and an elector of the county, in possession of his natural faculties and not decrepit, with sufficient knowledge of the English language⁵⁵. Because an elector was a United States citizen of 21 or older⁵⁶, the jury age was 21. Those were the whole of the qualifications, so a man who owned no land served like any other elector, and the bystanders — talesmen, men summoned on the spot to fill out a short panel — were held to the same standard as the regular panel. A juror was disqualified by conviction of a felony, or of a misdemeanor involving moral turpitude, meaning an offense held to show dishonesty or depravity⁵⁷.

Women on the jury

Idaho women became electors — and so, on the face of the statute, eligible jurors — when the state adopted woman suffrage in 1896. Idaho's first trial with women on the jury came in October 1897, and Lewiston seated an all-woman civil jury the same year. The practice stayed rare. In 1924 the Idaho Supreme Court settled it against them, holding in State v. Kelley that voting and jury duty are separate things — the vote a right the constitution guarantees, jury service a duty the legislature defines — so a woman elector was not thereby a juror. Women could serve again only from 1943, when the legislature wrote "men or women or both" into the jury sections⁵⁸. For most of this period, an Idaho jury is a jury of men.

Chinese residents and Native people on the jury

The Idaho Constitution barred from voting, jury service, and civil office any Chinese or person of Mongolian descent not born in the United States, and any Indian not taxed who had not severed tribal relations and adopted the habits of civilization⁵⁹. The same clause reached bigamists and polygamists, a provision aimed at Mormons in the territory's test-oath years. Chinese residents and most Native Americans therefore could not sit on an Idaho jury in this period.

Age of criminal responsibility

A child under 14 could be convicted only on clear proof that at the time of the act he knew its wrongfulness; from 14 a person bore full criminal responsibility. The statute excused the insane on the same footing⁶⁰. From 1905 Idaho ran a juvenile system alongside the criminal law: a delinquent child was any child 16 or under who broke a law or ordinance or was incorrigible, and such a child was handled on the court's juvenile docket rather than tried as an adult⁶¹. After 1905, the record wanted for a child offender is likely in the juvenile files.

Witnesses

Competency, not age, decided who could testify. The statute named two classes of person who could not be witnesses: those of unsound mind at the time they were produced for examination, and children under 10 who appeared incapable of receiving just impressions of the facts or of relating them truly⁶². A child of any age who understood the obligation of an oath and could give a true account could take the stand, the judge deciding it witness by witness. Both grounds applied to every person alike, whatever their race or sex.

(Guide compiled by Jeniann Nielsen with AI assistance from Claude Opus 4.8 and Gemini Pro 3.1. Check primary sources as needed.)

Sources & Where to Verify

Every rule above is tagged with the law it rests on. The lists below show where to read those laws in full, and the reference works consulted, so anything here can be checked against the original sources.

Constitutions

• 50constitutions.org. Amendments to the Idaho Constitution, including the removal of the racial voting, jury, and office disqualifications. https://50constitutions.org/id/timeline (accessed 25 July 2026).
• Idaho Constitution of 1889. Art. VI, § 2 (qualifications of electors, as amended for woman suffrage in 1896); art. VI, § 3 (disqualification of certain persons). Idaho State Legislature. https://legislature.idaho.gov/statutesrules/idconst/ (accessed 25 July 2026).

Territorial and State Codes and Compilations

• The Compiled and Revised Laws of the Territory of Idaho. Boise: Milton Kelly, Territorial Printer, 1875. The general laws in force at the eighth session. Digital images. Internet Archive. https://archive.org/details/revisedlawsofidaho00 (accessed 25 July 2026).
• The Compiled Statutes of Idaho. Boise: Syms-York, 1919. The compilation between the 1908 codes and the Idaho Code Annotated of 1932. Each section is printed with the 1908 section number in brackets, which makes it the volume to use for tracing a rule across the 1919 line — it is how the disappearance of the married woman's joinder sections can be seen. Marriage, incest, and the mixed-marriage section run at §§ 4591–4596; husband and wife at §§ 4650–4668; transfers of real property at §§ 5373 following. Digital images. Internet Archive. https://archive.org/details/idcompstatutes00oppen (accessed 25 July 2026).
• Idaho Statutes and Constitution. Idaho State Legislature. The current code prints a history line after each section that chains back through the compilations. https://legislature.idaho.gov/statutesrules/idstat/ (accessed 25 July 2026).
• Revised Statutes of Idaho Territory. Boise City: Printed for the Territory, 1887. Enacted at the fourteenth territorial session and in force 1 June 1887; the foundational codification, and the volume every later history line points back to. Digital images. Internet Archive. https://archive.org/details/revisedstatuteso00idah (accessed 25 July 2026).
• The Revised Codes of Idaho. Vol. 1, Political and Civil. Prepared by John F. MacLane, Code Commissioner. Boise: Syms-York Co., 1908. Majority, marriage, community property and married women, dower and curtesy, legitimation, conveyancing, alien land, and the revenue and poll-tax titles, each section printed with its history line and the parallel California provision. Digital images. Internet Archive. https://archive.org/details/idahorevisedcode00idah (accessed 25 July 2026).
• The Revised Codes of Idaho. Vol. 2, Civil Procedure and Penal. Prepared by John F. MacLane, Code Commissioner. Boise: Syms-York Co., 1908. Wills and succession, which Idaho placed in the Code of Civil Procedure rather than the Civil Code; guardianship, executors, witness competency, jury qualifications, and criminal capacity. Digital images. Internet Archive. https://archive.org/details/revcodofidaho02maclane (accessed 25 July 2026).

Session Laws

• General Laws of the State of Idaho, 1905. Boise: Statesman Printing Company, 1905. H.B. 114, the delinquent-children act, 106–113. Digital images. Internet Archive. https://archive.org/details/genlawsidaho05idstate (accessed 25 July 2026).
• General Laws of the State of Idaho, 1923. Boise: Syms-York Company, 1923. Ch. 122, the Alien Land Law, 160–165. Digital images. Internet Archive. https://archive.org/details/genlawsidaho23idstate (accessed 25 July 2026).
• Laws of the Territory of Idaho. First session. Boise City, 1864. The original mixed-marriage act at 604, the marriage act at 613, and the age-of-majority provision at 515. Digital images. Internet Archive. https://archive.org/details/lawsterritoryid00tergoog (accessed 25 July 2026).
• Laws of the Territory of Idaho. Fourth session. Boise City: Frank Kenyon, Territorial Printer, 1866. The marriage-validity act at 71 — incest, the race bar, and recognition of out-of-territory marriages — which every later code traces back to. The scan is a poor one and searches badly; page images are more reliable than its text layer. Digital images. Internet Archive. https://archive.org/details/lawsterritoryid02tergoog (accessed 25 July 2026).
• Laws of the Territory of Idaho. Second session. Frank Kenyon, Territorial Printer, 1866. The session convened in November 1864; the volume was printed in 1866 and carries the territorial organic act. Digital images. Internet Archive. https://archive.org/details/lawsofterritoryo00idah (accessed 25 July 2026).
• Idaho Session Laws, 1943. Ch. 50, at 96–97, the last change to the marriage-age and consent rules inside this period. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=uc1.b3683677 (accessed 25 July 2026).
• Idaho Session Laws, 1959. Ch. 44, at 89, striking the racial half of the mixed-marriage section. The Idaho Legislature posts its session-law volumes back to 1945 as searchable PDFs. https://legislature.idaho.gov/statutesrules/sessionlaws/ (accessed 25 July 2026).
• Session Laws: General Laws of the State of Idaho, 1921. Boise: Secretary of State, 1921. Ch. 115, amending the mixed-marriage section. Digital images. Internet Archive. https://archive.org/details/genlawstofidaho21secstate (accessed 25 July 2026).
• Further acts cited in the notes, each to be read in the session volume for its year: the acts of the fourth territorial session (1867) on marriage, community property, and dower; the marriage act of the ninth session (1877); the act of the fifteenth session raising the female marriage age (1888–89), 44; the alien-land acts of 1890–91, 108 and 118, and 1899, 70; the revenue acts of 1893, 131, 1899, 215, and 1901, 233; the married-women's amendment of 1903, 345; the succession amendment of 1907, 338; the marriage-age and consent act of 1921, ch. 221; the jury act of 1943, ch. 158, 320; the marriage-age act of 1943, ch. 50, 96; the act of 1959, ch. 44, 89, striking the racial half of the mixed-marriage section; the abolition of common-law marriage by the act of 1995, ch. 104; and the equalization of the age of majority by the act of 1972, ch. 117, 233.

Court Cases

• Grice v. Woodworth. 10 Idaho 459, 80 P. 912 (1904). https://www.courtlistener.com/opinion/5337414/grice-v-woodworth/ (accessed 25 July 2026).
• N. W. & Pacific Hypotheek Bank v. Rauch. 5 Idaho 752, 51 P. 764 (1898).
• State v. Kelley. 39 Idaho 668, 229 P. 659 (1924). https://www.courtlistener.com/opinion/3416008/state-v-kelley/ (accessed 25 July 2026).
• Powell v. Spackman. 7 Idaho 692, 65 P. 503 (1901). https://www.courtlistener.com/opinion/5337160/powell-v-spackman/ (accessed 25 July 2026).
• Scott v. Harkness. 6 Idaho 736, 59 P. 556 (1899). https://www.courtlistener.com/opinion/5337041/scott-v-harkness/ (accessed 25 July 2026).
• Wilkins v. Wilkins. 137 Idaho 315, 48 P.3d 644 (2002). After this period, but it confirms that common-law marriages formed before 1 January 1996 remain valid.

Record Guides

• "Courthouse Records." Idaho: Local History and Genealogy Resource Guide. Library of Congress. What the counties hold and where the transferred series have gone. https://guides.loc.gov/idaho-local-history-genealogy/courthouse-records (accessed 25 July 2026).
• "Idaho, County Marriages." FamilySearch Research Wiki. Establishes what the county marriage files actually contain — certificates before 1895, licenses and applications after, with the parental consent for an under-age party filed in the application. https://www.familysearch.org/en/wiki/Idaho,_County_Marriages_-_FamilySearch_Historical_Records (accessed 25 July 2026).

Secondary and Reference Works

• de Funiak, William Q., and Michael J. Vaughn. Principles of Community Property. 2nd ed. Tucson: University of Arizona Press, 1971. Traces the system's civil-law origins and its adoption across the western states.
• Southeast Idaho Nikkei Project. "Alien Land Law." On the 1923 Idaho Alien Land Law and its effect on Japanese farming families. https://sites.google.com/isu.edu/seidaho-nikkei-project/blog-posts/alien-land-law (accessed 25 July 2026).
• U.S. Women's Bureau. The Legal Status of Women in the United States of America. Bulletin 157 series. The Idaho report digests majority, married women's property, dower and curtesy, wills, intestacy, guardianship, marriage, and jury service with citations to the then-current code; use it as a cross-check and confirm each citation against the statute. HathiTrust. https://catalog.hathitrust.org/Record/011418496 (accessed 25 July 2026).

Citations

1. The Revised Codes of Idaho, vol. 1, Political and Civil (Boise: Syms-York Co., 1908), § 18, "Common law in force"; digital images, Internet Archive (https://archive.org/details/idahorevisedcode00idah : accessed 25 July 2026). The section is carried without change from Revised Statutes of Idaho Territory (Boise City: Printed for the Territory, 1887), § 18; digital images, Internet Archive (https://archive.org/details/revisedstatuteso00idah : accessed 25 July 2026). ↩
2. Revised Codes of 1908, §§ 2676–2687, the husband-and-wife title, each section printed with the parallel California provision beneath it. The civil-law descent of the system is traced in de Funiak and Vaughn, Principles of Community Property (see the Source List). ↩
3. Revised Codes of 1908, § 2601, "Minors defined" (males under twenty-one, females under eighteen); carried from the act of the first territorial session, Laws of the Territory of Idaho, 1st sess. (1864), 515, through Revised Statutes of 1887, § 2405, the Compiled Statutes of 1919, § 4583, and the Idaho Code Annotated (1932), § 31-101. Idaho equalized the age of majority at eighteen for both sexes by the act of 1972, ch. 117, § 1, p. 233, in force 1 July 1972, outside the period of this guide. ↩
4. Revised Codes of 1908, § 2603 (the contract of a minor, if made while he is under eighteen, may be disaffirmed). ↩
5. Revised Codes of 1908, § 2611, "What constitutes marriage"; carried from the territorial marriage act, Laws of the Territory of Idaho, 9th sess. (1877), 24, § 1, through Revised Statutes of 1887, § 2420. ↩
6. Idaho abolished common-law marriage by the act of 1995, ch. 104, § 3; § 6 of that act put it in force on and after 1 January 1996. The codified section, Idaho Code § 32-201, runs from the act of 1876, 24, § 1, through Revised Statutes of 1887, § 2420, the Revised Codes of 1908, § 2611, the Compiled Statutes of 1919, § 4591, and the Idaho Code Annotated (1932), § 31-201. Unions formed before the abolition remained valid: Wilkins v. Wilkins, 137 Idaho 315, 48 P.3d 644 (2002). ↩
7. Revised Statutes of 1887, § 2421 (an unmarried male of eighteen and an unmarried female of sixteen are capable of consenting to and consummating marriage); digital images, Internet Archive (https://archive.org/details/revisedstatuteso00idah : accessed 25 July 2026). The rule reaches back to Laws of the Territory of Idaho, 1st sess. (1864), 613, § 2. ↩
8. Revised Codes of 1908, § 2612, "Persons who may marry" (eighteen for both sexes). The section's own history line runs from Revised Statutes of 1887, § 2421, as amended by the act of the fifteenth territorial session, Laws of Idaho Territory, 1888–89, 44, which raised the female age from sixteen to eighteen. The section continued as Compiled Statutes, § 4592, and Idaho Code Annotated (1932), § 31-202, and was amended by the acts of 1921, ch. 221, and 1943, ch. 50. ↩
9. Revised Codes of 1908, § 2621 (the officiant must be assured that the parties are of sufficient age, and, if the male or the female is under eighteen, that the consent of the father, mother, or guardian is given, or that the under-age party has been married before); carried from Revised Statutes of 1887, § 2430, where the figures were eighteen for a male and sixteen for a female, and amended alongside the marriage age by the act of the fifteenth territorial session, Laws of Idaho Territory, 1888–89, 44. ↩
10. General Laws of the State of Idaho, 1921, ch. 221 (H.B. 138), approved 14 March 1921, amending Compiled Statutes, § 4592; digital images, Internet Archive (https://archive.org/details/genlawstofidaho21secstate : accessed 25 July 2026). The act kept eighteen for both sexes and added a proviso that where either party is under eighteen the license shall not issue except on the consent in writing, duly acknowledged or sworn to, of the father, mother, or guardian. ↩
11. Idaho Session Laws, 1943, ch. 50 (H.B. 69), 96–97, approved 15 February 1943, amending Idaho Code Annotated, § 31-202; digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=uc1.b3683677 : accessed 25 July 2026). The act kept the capacity age at eighteen for both sexes; confined the written-consent route to a party under eighteen "and not less than 15 years of age"; and provided that where the female was under fifteen the license should not issue except on that consent and on an order of the probate court. The order was secured on the petition of any interested party, at a hearing to which the judge had to subpoena the county physician, who was to examine the minor and give his opinion as an expert whether she was sufficiently developed mentally and physically to assume full marital duties. A certified copy of the order was filed with the county recorder preliminary to the license, and was the recorder's authority to issue it. ↩
12. Revised Codes of 1908, § 2629 (the county recorder may issue marriage licenses); § 2631 (the recorder must know the parties are competent to marry or take their affidavit in writing); § 2630 (the officiant returns the license and certificate within thirty days); § 2635 (the recorder records the returns in a book kept for the purpose). The licensing chapter entered the law with the act of 1895, 166, and was re-enacted by the act of 1899, 278. ↩
13. Revised Codes of 1908, § 2623 (the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife); § 2634 (penalty on a minister or officer who solemnizes a marriage without a license or knowing a party incompetent — a penalty that came in with the licensing act of 1895, 166, § 6). Before 1895 the officiant gave the parties a certificate and the county recorder recorded it: Revised Statutes of 1887, §§ 2436, 2440. ↩
14. Revised Codes of 1908, § 2615, "Incestuous marriages"; carried from Laws of the Territory of Idaho, 4th sess. (1867), 71, § 2, through Revised Statutes of 1887, § 2424, and standing unchanged as Compiled Statutes, § 4595. The cousin prohibition sat in the neighbouring section; see the note on the act of 1921 below. ↩
15. Revised Codes of 1908, § 2617, "Polygamous marriages" (a later marriage contracted during the life of a former husband or wife is illegal and void from the beginning). ↩
16. Revised Codes of 1908, § 2614, "When voidable"; carried from Laws of the Territory of Idaho, 9th sess. (1877), 24, § 4, through Revised Statutes of 1887, § 2423. ↩
17. Revised Codes of 1908, § 2619, "Recognition of foreign marriages"; carried from Laws of the Territory of Idaho, 4th sess. (1867), 71, through Revised Statutes of 1887, § 2428. ↩
18. Laws of the Territory of Idaho, 1st sess. (1864), 604, "An Act to prohibit Marriages and Cohabitation of Whites with Indians, Chinese and persons of African descent," § 1 (a white person who intermarries with a person of African descent, an Indian, or a Chinese is guilty of a misdemeanor) and § 2 (like penalty on the officiant); digital images, Internet Archive (https://archive.org/details/lawsterritoryid00tergoog : accessed 25 July 2026). The fourth territorial session re-enacted the prohibition in the civil form that carried into every later code, at Laws of the Territory of Idaho, 4th sess. (Boise City: Frank Kenyon, Territorial Printer, 1866), 71, § 3, the same act declaring incestuous marriages void at § 2 and out-of-territory marriages valid at § 5; digital images, Internet Archive (https://archive.org/details/lawsterritoryid02tergoog : accessed 25 July 2026). ↩
19. Revised Codes of 1908, § 2616, "Marriages of Caucasians with negroes" (all marriages of white persons with negroes or mulattoes are illegal and void); carried from Laws of the Territory of Idaho, 4th sess. (1867), 71, § 3, through Revised Statutes of 1887, § 2425. ↩
20. General Laws of the State of Idaho, 1921 (Boise: Secretary of State, 1921), ch. 115 (H.B. 3), 291, approved 1 March 1921; digital images, Internet Archive (https://archive.org/details/genlawstofidaho21secstate : accessed 25 July 2026). The act rewrote Compiled Statutes, § 4596, to read that all marriages thereafter contracted of white persons with mongolians, negroes or mulattoes are illegal and void, and that all marriages between first cousins are prohibited — one sentence carrying both rules. The section runs on into the Idaho Code Annotated (1932), § 31-206, and the Idaho Code (1948), § 32-206. ↩
21. Idaho Session Laws, 1959, ch. 44 (H.B. 18), 89, approved 2 March 1959, "An Act amending section 32-206, Idaho Code, an act relating to miscegenation and marriages between first cousins, by deleting and eliminating therefrom the provision making marriages contracted of white persons with mongolians, negroes or mulattoes illegal and void." What the amendment left standing is the whole of the present section: all marriages between first cousins are prohibited. Digital images, Idaho State Legislature (https://legislature.idaho.gov/wp-content/uploads/sessionlaws/sessionlaws_1959.pdf : accessed 25 July 2026). ↩
22. Revised Codes of 1908, § 2676 (the wife's separate property), § 2679 (the husband's separate property), and § 2680 (all other property acquired after marriage, including the rents and profits of both separate estates, is community property). ↩
23. Revised Codes of 1908, § 2676, "Separate property of wife" (hers "to the same extent and with the same effect, as the property of a husband similarly acquired"); carried from Laws of the Territory of Idaho, 4th sess. (1867), 65, § 1, through Revised Statutes of 1887, § 2495, and amended by the act of 1903, 345, § 1. ↩
24. Revised Codes of 1908, § 2677, "Same: Management" (during the marriage the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property, and contract about it, in the same manner and to the same extent and with like effect as a married man may in relation to his). The section is not old territorial law: it comes from the married women's act of 1903, 345, § 2, and carries into the Compiled Statutes of 1919, § 4657. ↩ ↩
25. Revised Codes of 1908, § 2687 (no estate is allowed the husband as tenant by curtesy on the death of his wife, nor any estate in dower allotted to the wife on the death of her husband); carried from Laws of the Territory of Idaho, 4th sess. (1867), 65, § 10, through Revised Statutes of 1887, § 2506. ↩
26. Revised Codes of 1908, § 2686 (the husband has the management and control of the community property, with the like absolute power of disposition as of his separate estate, except the homestead and the part of the common property used as a residence); carried from Laws of the Territory of Idaho, 4th sess. (1867), 65, § 9, through Revised Statutes of 1887, § 2505. ↩
27. Revised Statutes of 1887, § 2921 (no conveyance or encumbrance of community real property or of the homestead is valid unless both husband and wife join in it and the wife acknowledges it), carried into the real-property title of the Revised Codes of 1908. ↩
28. Revised Statutes of 1887, § 2922 (no estate in the real property of a married woman passes by a grant purporting to be executed by her unless she acknowledges it and her husband, if a resident of the Territory, joins in it); reaching back to Laws of the Territory of Idaho, 8th sess. (1875), 596, §§ 2–3, and 4th sess. (1867), 138, §§ 1–2. The 1908 codifiers reprinted it as Revised Codes of 1908, § 3107, alongside the 1903 act, and it is annotated there with N. W. & Pac. Hypotheek Bank v. Rauch, 5 Idaho 752, 51 P. 764 (1898), and Grice v. Woodworth, 10 Idaho 459, 80 P. 912 (1904) (https://www.courtlistener.com/opinion/5337414/grice-v-woodworth/ : accessed 25 July 2026), the latter a homestead case rather than a separate-property one. ↩
29. Revised Codes of 1908, § 3108 (if her husband has not been a bona fide resident of the State at any time within the year next preceding her conveyance, a married woman may convey her separate real property by an instrument subscribed and acknowledged by her alone); carried from Revised Statutes of 1887, § 2923. ↩
30. The joinder rule left the statute books at the next compilation. The Compiled Statutes of Idaho (Boise: Syms-York, 1919) runs the transfer-of-real-property article straight through § 5373, which is the 1908 § 3105, to § 5374, which is the 1908 § 3110; the 1908 §§ 3106–3109, the married woman's conveyance sections among them, are dropped from the sequence. Digital images, Internet Archive (https://archive.org/details/idcompstatutes00oppen : accessed 25 July 2026). ↩
31. Revised Codes of 1908, § 3153 (before an instrument may be recorded its execution must be acknowledged by the person executing it, or proved, and the acknowledgment or proof certified). ↩
32. Revised Codes of 1908, § 3156 (instruments entitled to be recorded must be recorded by the county recorder of the county in which the real property lies); carried from Revised Statutes of 1887, § 2997, and reaching back to Laws of the Territory of Idaho, 1st sess. (1864), 528, § 23. ↩
33. Revised Codes of 1908, § 3136 (proof of the execution of an unacknowledged instrument may be made by a party to it or by a subscribing witness); § 3137 (the witness must be personally known to the officer or proved to be the witness by the oath of a credible witness); § 3138 (the subscribing witness must prove that the person named is the person who executed it and that the witness signed as a witness). ↩
34. Revised Codes of 1908, § 2610, "Same: Mining claims" (any person, whether citizen or alien, may take, hold and dispose of mining claims and mining property). ↩
35. Revised Codes of 1908, § 2610, proviso (Chinese, or persons of Mongolian descent not born in the United States, are not permitted to acquire title to land or any real property under this and the preceding sections), with the general alien-land section, § 2609. Both rest on the act of 1899, 70, §§ 1–2, which re-enacted the act of 1890–91, 108 and 118, § 1. ↩
36. General Laws of the State of Idaho, 1923 (Boise: Syms-York Company, 1923), ch. 122 (H.B. 108), 160–165, "An Act relating to the rights, powers and disabilities of aliens with respect to property in this state; providing for escheats," approved 9 March 1923; digital images, Internet Archive (https://archive.org/details/genlawsidaho23idstate : accessed 25 July 2026). Section 1 protects aliens eligible to citizenship; § 2 confines aliens ineligible to citizenship to the rights allowed by treaty and to term-limited agricultural leases. Compare Oyama v. California, 332 U.S. 633 (1948). ↩
37. The Revised Codes of Idaho, vol. 2, Civil Procedure and Penal (Boise: Syms-York Co., 1908), § 5701 (the property of one who dies without disposing of it by will passes to the heirs of the intestate, subject to the control of the probate court and to administration); digital images, Internet Archive (https://archive.org/details/revcodofidaho02maclane : accessed 25 July 2026). Carried from Revised Statutes of 1887, § 5701. ↩
38. Revised Codes of 1908, vol. 2, § 5702, "Succession to property," subdivisions 1–5; carried from the Probate Practice Act of 1864, § 315, through Revised Statutes of 1887, § 5702, and amended by the act of 1907, 338, § 1. ↩
39. Revised Codes of 1908, vol. 2, § 5713, "Devolution of community property" (on the death of either spouse one-half of the community goes to the survivor, subject to the community debts, and the other half is subject to the testamentary disposition of the decedent). ↩
40. Revised Codes of 1908, vol. 2, § 5703 (every illegitimate child is an heir of the person who, in writing signed in the presence of a competent witness, acknowledges himself to be the father, and is an heir of its mother); § 5704 (the mother succeeds to an unacknowledged illegitimate child dying intestate without issue); carried from the Probate Practice Act of 1864, § 316, through Revised Statutes of 1887, §§ 5703–5704. ↩
41. Revised Codes of 1908, § 2699 (a child born before wedlock is legitimated by the subsequent marriage of its parents); carried from Laws of the Territory of Idaho, 9th sess. (1877), 24, § 21, through Revised Statutes of 1887, § 2535. ↩
42. Revised Codes of 1908, § 2709, "Adoption of illegitimate child" (the father who publicly acknowledges the child and receives it into his family, with the consent of his wife if he is married, makes it legitimate from the time of its birth). ↩
43. Revised Codes of 1908, vol. 2, § 5771 (if the minor is under fourteen the probate court may nominate and appoint his guardian; if he is above fourteen he may nominate his own, subject to the court's approval); carried from Revised Statutes of 1887, § 5771. ↩
44. Revised Codes of 1908, vol. 2, § 5725, "Who may make a will" (every person over eighteen, of sound mind, may by last will dispose of all his estate, real and personal); carried from Revised Statutes of 1887, § 5725. ↩
45. Revised Codes of 1908, vol. 2, § 5727, "Execution of will" (subscribed at the end by the testator or by another in his presence and by his direction, and attested by two witnesses signing at his request and in his presence). ↩
46. Revised Codes of 1908, vol. 2, § 5728, "Olographic wills" (entirely written, dated and signed by the hand of the testator, subject to no other form, and need not be witnessed); § 5307 (an olographic will may be proved as other private writings are proved). ↩
47. Revised Codes of 1908, vol. 2, § 5726 (a married woman may dispose of all her separate estate by will without her husband's consent, but her will "must be attested, witnessed, and proved in like manner as all other wills"); and Scott v. Harkness, 6 Idaho 736, 59 P. 556 (1899) (https://www.courtlistener.com/opinion/5337041/scott-v-harkness/ : accessed 25 July 2026). ↩
48. Revised Codes of 1908, vol. 2, § 5729, "Requirements as to witnesses" (a witness must write his place of residence with his name, but a violation does not affect the validity of the will); § 5730 (subscribing witnesses competent when they attest do not spoil the will by later incompetency). ↩
49. Revised Codes of 1908, vol. 2, § 5341, "Qualifications of executors" (no person is competent to serve as executor who, when the will is admitted to probate, is under the age of majority, convicted of an infamous crime, or adjudged incompetent for drunkenness, improvidence, or want of understanding or integrity). The parallel section for an administrator, § 5355, adds a residence requirement. ↩
50. Revised Codes of 1908, § 1643, "Property subject to taxation" (all property in the State not exempt under the laws of the United States is subject to taxation); § 1644 (exemptions). ↩
51. Revised Codes of 1908, § 1652 (all taxable property must be assessed at its full cash value, and lands and the improvements on them assessed separately); resting on the revenue act of 1901, 233, § 10, and reaching back through Revised Statutes of 1887, § 1425, as amended by the act of 1893, 131, § 1, and re-enacted by the act of 1899, 215, § 1. ↩
52. Revised Codes of 1908, § 1842 (every male inhabitant of the State over twenty-one and under fifty, except paupers, insane persons, Indians not taxed, government pensioners, enrolled active members of volunteer fire companies, persons permanently disabled from manual labor, and honorably discharged soldiers, must pay an annual poll tax); §§ 1845–1861 (the poll-tax book, receipts, and the rule that a name once entered is struck only by order of the county commissioners). ↩
53. Revised Codes of 1908, § 894 (every male inhabitant of a road district over twenty-one and under fifty must perform two days' labor annually as the road poll tax); §§ 886, 892 (collection); carried from Revised Statutes of 1887, § 901. ↩
54. Revised Codes of 1908, vol. 1, title 10, ch. 5, "Transfer tax on successions, legacies and devises." ↩
55. Revised Codes of 1908, vol. 2, § 3941, "Qualifications of jurors" (a citizen of the United States and an elector of the county, in possession of his natural faculties and not decrepit, with sufficient knowledge of the English language); carried from Revised Statutes of 1887, and continuing as Compiled Statutes, § 6518, and Idaho Code Annotated (1932), § 2-201, until the act of 1943, ch. 158, § 3, p. 320. ↩
56. Idaho Const. of 1889, art. VI, § 2, "Qualifications of electors," as amended by the woman-suffrage amendment of November 1896. ↩
57. Revised Codes of 1908, vol. 2, § 3942, "Disqualification of jurors" (a person who lacks the qualifications of the preceding section, or who has been convicted of a felony or of a misdemeanor involving moral turpitude). ↩
58. Idaho women became electors, and so on the face of the jury statute eligible jurors, by the woman-suffrage amendment to Idaho Const. of 1889, art. VI, § 2, adopted November 1896. State v. Kelley, 39 Idaho 668, 229 P. 659 (1924) (https://www.courtlistener.com/opinion/3416008/state-v-kelley/ : accessed 25 July 2026), held that the vote and jury duty are separate things — the one a right guaranteed by the constitution, the other a duty fixed by statute — so a woman elector was not thereby a juror. The bar came down with the act of 1943, ch. 158, p. 320, which wrote "men or women or both" into the jury sections and amended the competency section at § 3. ↩
59. Idaho Const. of 1889, art. VI, § 3, "Disqualification of certain persons" (no Chinese, or person of Mongolian descent not born in the United States, nor Indian not taxed who has not severed tribal relations and adopted the habits of civilization, may vote, serve as a juror, or hold civil office); and Powell v. Spackman, 7 Idaho 692, 65 P. 503 (1901) (https://www.courtlistener.com/opinion/5337160/powell-v-spackman/ : accessed 25 July 2026). ↩
60. Revised Codes of 1908, vol. 2, § 6330 (all persons are capable of committing crimes except, among others, children under the age of fourteen, in the absence of clear proof that at the time of committing the act they knew its wrongfulness); carried from Revised Statutes of 1887. ↩
61. General Laws of the State of Idaho, 1905 (Boise: Statesman Printing Company, 1905), 106–113, H.B. 114, "An Act to Provide for the Care of Delinquent Children," approved 6 March 1905; digital images, Internet Archive (https://archive.org/details/genlawsidaho05idstate : accessed 25 July 2026). Section 1 limits the act to children sixteen years of age or under and defines a delinquent child as one of that age who violates a law or ordinance or is incorrigible. ↩
62. Revised Codes of 1908, vol. 2, § 5957 (the following persons cannot be witnesses: those of unsound mind at the time of their production for examination, and children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly); carried from Revised Statutes of 1887, § 5957. ↩