Chapter XXIII: Part II: , being for British Colonies; and Reports of the Laws of (2)

It appears, then--to summarize the details presented in the foregoing discussion--that twenty-three states and territories have already sanctioned or favored the common-law marriage; while twelve others are soon likely to do so, unless the statutes shall be changed. On the contrary, eighteen commonwealths have repudiated or are inclined to repudiate the informal agreement. Six of these, it should be noted, have liberated themselves by statute; five--Mississippi, California, Utah, New York, and Porto Rico[657]--having done so within the last ten years. This is a fact of vast social importance. From it the reformer may gather new courage. In such legislation, in response to a better-educated popular sentiment, lies the hope of the future: to free American society from the manifold evils which lurk in the doctrine of the common-law marriage. It is, indeed, marvelous that a progressive people with respect to an institution which is the very basis of the social order should so long neglect the function of proper public control. For what, according to its nature, is the common-law marriage? Its possibilities for anarchy are realistically described by Chief Justice Folger, of New York, in 1880, when that state was still exposed to them. "A man and a woman," he declares, "who are competent to marry each other, without going before a minister or magistrate, without the presence of any person as a witness, with no previous public notice given, with no form or ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves, to the state, and to society."[658] Verily this is individualism absolutely unrestrained! It is the simple truth, as already suggested, that in principle the canon law as it existed in Catholic lands before the Council of Trent, and in England until the marriage act of 1753, with a possibility of all of its attendant scandals and hardships, still survives in the United States.[659] The apology of the Middle Ages was found in the sacramental dogma. Matrimony as such, under whatever conditions contracted, was too "holy" to be dissolved or effectively hindered for the ordinary prudential reasons which appeal to the statesman or legislator. Today there is doubtless a lingering tradition of the same false sentiment. Yet the common-law marriage is now supported on two principal grounds. The innocent offspring, we are told, ought not to suffer because the parents have neglected the formalities prescribed by a mere statute. Moreover, to declare an irregular, perhaps a clandestine, union void is to invade the most sacred right of the individual. There is urgent need that the American people should realize the fallacy of such arguments. Far better that the children of a delinquent minority should bear the stain of illegitimacy than that the welfare of the whole social body should be endangered. For the same reason the supposed right of the individual must yield to the higher claims of society. In no part of the whole range of human activity is there such imperative need of state interference and control as in the sphere of the matrimonial relations. In this field as in others we are beginning to see more clearly that the highest individual liberty can be secured only when it is subordinated to the highest social good. It is, however, not merely the public which suffers. "Our common-law marriage fails to protect not only the contracting parties, but also the families to which they belong. Indeed to protect the latter it makes not the least attempt, and in this respect it is far behind the law of Western Europe."[660] As a preliminary to a general reform of our marriage laws as a whole it is earnestly to be desired that every state or territory not already emancipated should enact a statute as clear and decisive as that of Kentucky, Utah, or New York, absolutely repudiating the common-law contract. It is only through legislation that this revolution can be effected. It is not the proper function of the courts to attempt it. It may be that those states which have superseded the common law through judicial interpretation of their statutes have done well. The end has perhaps justified the means. It is quite possible that in those cases it was the intent of the lawmaker to render the statute mandatory. Nevertheless he did not express his intent in the form which has itself become a part of the common law. Chief Justice Parsons and his followers may have been enforcing a "higher law;" but it was a "judge-made" law. History is on the side of Chief Justice Kent and the great number of jurists who have followed him. Moreover, it is evident from the trend of recent decisions that not much more can be expected from the courts. According to the overwhelming weight of juridical opinion, to go farther in this way would be to legislate consciously through the bench. Besides "bench-made" law is always _ex post facto_. The only practical course is to create or further develop a sound popular sentiment in favor of proper social control of the marital relation; and then to express that sentiment in statutes whose terms are mandatory beyond the possibility of evasion.

[657] Of course the statute of Porto Rico must be regarded as
preventing, not abolishing, the common-law marriage.

[658] Quoted by COOK, "The Mar. Cel. in the U. S.," _Atlantic_,
LXI, 526. On the frauds perpetrated under the guise of the
common-law marriage see also the opinion of Judge Pryor of New
York: quoted by RICHBERG, _Incongruities of the Divorce Laws_,
61, 62. "It is singular," said Chief Justice Gilchrist in 1848,
"that the most important of all human contracts, on which the
rights and duties of the whole community depend, requires less
formality for its validity than the conveyance of an acre of
land, a policy of insurance, or the agreements which the statute
of frauds requires should be in writing."--Dumbarton _v._
Franklin, 19 _N. H._, 264, 265.

[659] Except, perhaps, in practically getting rid of the subtle
doctrine of marriage _per verba de futuro cum copula_: see the
decision in Starr _v._ Peck (1841), 1 HILL, _N. Y._, 270; EWELL,
_Cases_, 403. _Cf._ Cheney _v._ Arnold (1857), 15 _N. Y._, 345;
EWELL, 407-13; this being followed in Duncan _v._ Duncan, 10
_Ohio_, 181; but discarded in Port _v._ Port, 70 _Ill._, 484; and
Peck _v._ Peck, 12 _R. I._, 484; 34 _Am. R._, 702. _Cf._ BISHOP,
_Mar., Div., and Sep._, I, secs. 353-77, pp. 147-62; KENT,
_Commentaries_, II, sec. 87 ff., pp. 119 ff.

[660] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 528.

_b_) _Resulting character of matrimonial legislation._--The absurd and demoralizing conflict between common-law validity and statutory legality ought first to be abolished, because in large measure it hinders, even frustrates, the effort to develop a thorough and uniform system of matrimonial administration in the United States. This once effected, there will remain plenty of hard work to do. If we consider the details of our legislation, as already analyzed in the sixteenth chapter, we perceive in nearly every department urgent need of reform, often of radical innovation. Almost everywhere there is a want of clearness, certainty, and simplicity; and this defect is all the more harmful because of the lack of uniformity among the different states. Diversity, even conflict, in every branch of state legislation is a burdensome incident of the federal system; and in no branch is the evil more formidable than in the field of marriage and divorce. As hereafter suggested, we need not despair of eventually overcoming it; but from the very nature of the case it may be many years before an effective remedy can generally be applied. In the meantime it is all the more necessary that the laws of each individual state should be made as clear, simple, and efficient as possible, and that every opportunity should be seized to prepare the way for a common matrimonial code for the whole country.

First of all, the statutes relating to the preliminaries of marriage ought to be overhauled. Already during the past century progress has been made. Within the last two decades in particular many reforms in matters of detail have been carried out in various states. Furthermore, in the broad features or outlines of the law throughout the country an approximation to a uniform system has been attained; and this fact may be of great significance when the task of securing absolutely the same law for all the states is earnestly taken in hand. Thus there is practical agreement among the states and territories in requiring a license from a local civil officer before a marriage may be legally celebrated. The dual system of banns or license survives only in Maryland, Georgia, Delaware, and Ohio. All the other states and territories, except Alaska, New Mexico, and South Carolina, where there is no statute governing the subject, with New York and New Jersey, where there is a substitute plan, have each adopted a system of civil license or certificate, the same in its purpose, though varying widely in the forms and procedure prescribed. This is a stride in the direction at once of simplicity and harmony; and besides, for its own sake, it is well to get rid of the ancient device of oral banns, which has proved as unsatisfactory in America as in the Old World. Again, we have developed substantially a common statutory law regarding the manner of entering into the marital relation. Everywhere, except in Maryland and West Virginia, where a religious ceremony is essential to a valid union, the optional civil or religions ceremony, at the pleasure of the persons contracting, is sanctioned by the law. As already seen, this dual system has its roots planted deeply in the history of two centuries. It is clearly entitled to be regarded as the American plan; although since 1836, with important modifications, it has also been accepted in the British Isles. It does not follow, however, that it is the ideal plan. It is too complex; and it is an obstacle in the way of developing the most efficient system of matrimonial administration. It is inconsistent with a proper social control. It will prevent the attainment of the "maximum of simplicity and the maximum of certainty" in matrimonial legislation. It is awkward, thoroughly illogical, to intrust the execution of that part of the law on which publicity and security so much depend to two different classes of persons: the one consisting of civil officers created and wholly under control of the state; the other in its origin, its personnel, and its character completely beyond such control, and only subject to administrative rules and restraints. With this system it will be very difficult to establish a proper standard of special fitness, of special knowledge, such as is highly needful to exact from public servants intrusted with functions of vast social importance. European peoples have reached a wiser solution of the problem in prescribing in all cases without exception, as the prerequisite of a valid marriage, the obligatory celebration before an authorized civil officer, leaving the wedded pair to decide, as wholly a private matter, whether a religious ceremony shall be added.

It is, however, highly probable that the optional system of celebration is too firmly grounded in popular sentiment to be soon discarded. The practical reformer must perforce content himself with striving to make it as effective as possible. At present the law is very lax in providing proper safeguards for the religious solemnization. In the first place, the qualified minister should be authorized to act only within the local district of his permanent residence, the limits thereof to be defined by statute. By the early laws of New England, as we have already seen, the clergyman's functions were carefully confined to his own town, district, or county; and similar requirements appear elsewhere in some of the older statutes. This wise policy has been gradually abandoned, so that now in no instance is there such a restriction. Only in a very few cases, as in Massachusetts, Rhode Island, and Vermont, is authority conferred only upon ministers dwelling within the state. Apparently in the great majority of states and territories, although the statutes are often far from clear, all qualified ministers, residing anywhere in the United States, may act. Indeed, Louisiana is still more generous, granting full privilege to celebrate wedlock to any clergyman or priest "whether a citizen of the United States or not." Another useful lesson may be learned from the early laws. Proofs of ordination by the filing of credentials were often demanded. Some of the southern states went farther, exacting from the minister a bond for the faithful performance of his trust, in addition to credentials of ordination and good standing. Both these conditions are still enforced by the statutes of Kentucky,[661] Virginia, and West Virginia. Some other states have contented themselves with less severe requirements. Rhode Island has thus a careful system of local registration; in Maine and New Hampshire the clerical celebrant must secure a "commission" from the governor; in Minnesota, Wisconsin, Nevada, and Arkansas he must file his credentials with the proper county officer and receive a certificate; Ohio requires a license from the county judge of probate; a license from the proper authority is also demanded in Hawaii;[662] but in the majority of cases no such precautions are specified in the statutes. Here is need of reform. Under present social conditions, and considering the vast multiplication and subdivision of religious sects, the Virginia system is not too rigorous to justify its adoption throughout the land. Furthermore, the future lawmaker may perhaps get a suggestion from English legislation, which has had to deal with the same problem. The ministers of every religious sect are authorized to celebrate marriages according to its own rites; but, aside from Jews, Quakers, and the Church of England, otherwise provided for in the statute, they may do so only in a "registered building" and in the presence of the civil registrar of the district and two witnesses.

[661] _Kentucky Stat._ (1903), 843, 844.

[662] _Civil Laws of the Hawaiian Islands_ (1897), 700.

The laws regarding the civil ceremony are also seriously defective, if not in all respects equally lax. The magistrate in the exercise of his functions is not usually restricted to a local district sufficiently small to guarantee safe administration. In this regard the colonial and early state legislation was superior. At present in twenty-two states and territories the justice of the peace, or the corresponding local officer, is confined to his own county or district. Elsewhere he may act anywhere within the commonwealth; and this is almost universally the rule with the higher judges and officials who are granted the same authority. In no case, except in Virginia, and in Massachusetts under the act of 1899, is there any provision for the appointment of a person to celebrate wedlock for an area of less extent than the county. Nor are the persons to whom is confided this important social trust possessed of the needful qualifications. They are not selected because of special fitness. In no instance, unless in Virginia, does the law provide for the separate office of marriage celebrant. The duties of such a post are conferred, _ex officio_, in a haphazard fashion, upon a great variety of functionaries, who are either incompetent or else too busy with other matters to discharge them properly. As a rule, the justice of the peace is thus notoriously unfit; and there is something grotesque in giving authority to solemnize marriages to aldermen and police justices, as in New York; to speakers of the house and senate, as in Tennessee; or to the county supervisors, as in Mississippi. In this regard we have much to learn from European states, some of which have created special local officers for this branch of administration. Thus in France[663] all marriages are regularly celebrated before the mayor of the commune; in Germany,[664] before the registrar of the district in which one of the betrothed persons resides, or before some civil officer designated by him in writing; while in England the legal celebrant in case of civil procedure is also the district registrar, whose presence is likewise requisite at the religious ceremony when conducted according to the rites of the nonconformist sects. Massachusetts alone has taken a step in the right direction. The act of 1899, already summarized, not only provides that no justice of the peace--except when the holder of a specified clerical office--shall solemnize marriage unless specially designated therefor by the governor's certificate, but it also limits the number of justices who may be thus licensed. Touching another point in this connection the American lawmaker is at fault. Often there is no direct provision to secure evidence of the contract. Only nineteen of the fifty-three[665] states and territories expressly require the presence at the ceremony of even one witness; while in two or three other cases the statute appears to take their presence for granted.

[663] BODINGTON'S KELLY, _French Law of Marriage_, 12.

[664] By the law of 1875 marriages are thus celebrated before
the local _Standesbeamten_: KOHLER, _Das Eherecht des bürg_.
_Gesetzbuches_, 16, 17, 55 ff.

[665] Counting Hawaii which was not included in chap. xvi.

The license system is uncertain and complex in many of its features. To guard against the clandestine marriage of minors, an affidavit from either the bride or bridegroom ought to be made obligatory in all cases, instead of leaving its requirement to the discretion of the officer, as is now usually the practice where there is any provision at all regarding the matter. In several instances the age below which parental consent is required is still too low; and the laws of some states are entirely silent on the subject. Throughout the country the limit for each sex ought to coincide with the attainment of legal majority.[666] More care should be taken to prevent deception when consent of parent or guardian is produced in writing. At the very least, in harmony with the requirement of many states, the affidavit of one witness to the signature should always be made obligatory; and in every such case it might be well as a guaranty to exact a license bond.[667] There is a still graver fault in the license laws of nearly the whole country. Nowhere, except in Porto Rico, is there any adequate provision regarding notice or the filing and trial of objections to a proposed marriage. Maine and Wisconsin have each made a start in requiring the certificate or license to be procured five days before the celebration. No other state, except New Hampshire[668] and New Jersey in the case of non-residents, seems to have provided for such a delay; and in all cases apparently, except Porto Rico, the license is issued at the time the notice of intention to marry is filed.[669] All this is contrary to sound public policy. The notice of intention should be recorded for a reasonable period, say ten days, before issuance of the license; and during this term it should be officially posted, and also published in the newspapers--not merely concealed in the register or published at the discretion of the official, as is now the usual course. Objections might then be filed, and in case of need tried in a court clothed with proper jurisdiction, before the celebration were allowed to proceed. Under the existing state legislation it would be difficult, certainly awkward, to stop a proposed marriage on the ground of alleged legal impediments. To make an objection effective, it might be necessary either to "anticipate the notice" or to interrupt the nuptial ceremony.[670] There is also much confusion, and uncertainty regarding the place of obtaining the license and that of making return. In no instance is a definite term of residence for either the man or the woman prescribed; and this is a fruitful source of clandestine marriage.[671] A glance at the facts collected in the sixteenth chapter will show that in some states the license must be secured in the place of the bride's residence; in others, in that of the marriage; while in a third group it may be issued in the place where either dwells. Indeed, Pennsylvania, more liberal still, allows a choice among all three places. The same laxity exists regarding the place of return; and sometimes the place of return is not the same as that of issue. A reasonable term of residence ought always to be required; and, unless in cases of emergency, the license should be issued by, and return made to, the same official in the district where the woman dwells. Even the lack of uniformity in license fees is sometimes the cause of migration to neighboring districts for the sake of cheaper weddings.[672] Finally, a marriage entered into without license, just as without authorized celebration, should be declared null and void by the statute.

[666] In "Diagnostics of Divorce," _Jour. of Soc. Sci._ (Am.
Assoc.), XIV, 136, PROFESSOR ROBERTSON takes the extreme view
that "no person should be marriageable under the age of 21, and
a marriage ceremony celebrated between persons either of whom is
under age should be _ipso facto_ void."

[667] Neither in England nor anywhere in the United States is
a marriage declared void for want of parental consent. The
leading case on the point is Parton _v._ Hervey, 1 GRAY, 119.
"Some years ago a young girl, only thirteen years of age, named
Sarah Hervey, was enticed away from her widowed mother's house
by a young fellow, named Parton, of bad character and dissolute
habits, who by false representations as to the age of the girl,
procured a marriage license, and persuaded a magistrate to
formally marry them. She returned to the house of her mother
who forbade the young man to see her. Upon his petition against
the mother for writ of habeas corpus, the Supreme Court of
the Commonwealth, after full consideration, ordered the young
wife to be surrendered to the husband, and he bore her away in
triumph.... The mother then brought suit against a confederate
of the husband, who had aided in enticing away the girl and in
practising the fraud upon the magistrate; but the mother again
failed in her efforts to vindicate her rights to protect her
daughter, since it distinctly appeared that the marriage was
with the daughter's full and free consent."--Hervey _v._ Moseley
(1856), 7 GRAY, 449; as summarized by BENNETT, "Uniformity in
Mar. and Div. Laws," _Am. Law Register_, N. S., XXXV, 222.

[668] _Laws of N. H._ (1903), 79.

[669] Louisiana formerly had a law requiring notice of intention
to be filed fifteen days before issue of license; but it appears
to have been repealed. In Porto Rico the period of delay is ten
days.

[670] As suggested by COOK, "The Mar. Cel. in the U. S.,"
_Atlantic_, LXI, 687.

[671] The laxity of the law in this respect, coupled with that
of permitting the license to be issued without delay, is the
most fruitful source of clandestine marriages. There are many
so-called "Gretna Greens" in the United States. One is (or was)
at Aberdeen, O.: WHITNEY, _Marriage and Divorce_, 43; another at
Greenwich, Conn. Oct. 2, 1900, the San Francisco _Chronicle_ had
the following telegram: "Greenwich's reputation as a Gretna Green
and that of Judge Burns of Greenwich of the Borough court as one
who marries all who come, appears to have extended to the Pacific
Slope. On Saturday there arrived in town ---- ---- of Alameda,
California, and ---- ---- of Los Angeles, California. They went
to Judge Burns' office, arranged for the marriage ceremony,
and then secured a marriage license from the town clerk....
Immediately after the ceremony" they "left town, maintaining the
greatest secrecy as is the usual custom." Another wedding resort,
for the benefit of Chicago, is the little town of St. Joseph,
Mich., where in the four years, 1897-1900, 1,594 licenses are
said to have been issued to persons residing outside the state,
the ceremony being performed by ministers. In 1903 an attempt
to adopt the Wisconsin plan, requiring an interval of five days
between the issue of the license and the celebration, failed by a
very few votes.

[672] Examples are given by DIKE, "Statistics of Marriage and
Divorce," _Pol. Sci. Quart._, IV, 597.

During the last fifteen years considerable progress has been made in the state systems of registration; but in most cases the laws are still exceedingly lax; and too frequently they are badly executed, or remain a "dead letter" on the statute book.[673]

[673] On the faults of the registration laws see _ibid._, 594,
595.

The radical reform of the administrative division of our matrimonial laws on some such lines as those suggested will be a worthy task for the future legislator. As a necessary antecedent of more detailed action the official system should be entirely reconstructed. The simplest mechanism is likely to prove the best. Its elements are close at hand in the local constitution. Every county should be divided into districts, for each of which a registrar should be authorized to license, solemnize, and register all marriages civilly contracted therein;[674] and to license, register, and attend religious celebrations. His authority should be carefully restricted to the district and no other person should be permitted to share his functions. The district registrars should report at short intervals to the county registrar, who in turn should annually submit a summary of statistics to the registrar-general for the state, by whom the local registrars should be commissioned. If desirable for the sake of economy, especially in states of sparse population, the collection and registry of all vital statistics might be intrusted to the same series of officials.[675] The moral influence of the creation of a distinct system, such as that outlined, would itself be of great value. It would effectively accent the high relative importance to society of matrimonial law and of intelligent service in its administration.

[674] In his enlightening criticism of our matrimonial laws COOK,
"The Mar. Cel. in the U. S.," _Atlantic_, LXI, 688, has suggested
the division of the county into districts for the appointment of
registrars.

[675] In England the registration of births and deaths in the
district is intrusted to a separate registrar: Compare the
details of the British system as presented in chap. x, sec. iii.

By the law of Massachusetts towns of more than 2,000 inhabitants
may choose a separate registrar to record and license, but not to
celebrate, marriages: see chap, xvi, sec. i, _c_).

Aside from its public features, just considered, the future matrimonial code of the United States will have to remedy numerous defects in the substance of the law. These may be seen by reference to the detailed examination elsewhere presented. In particular, it will be necessary to get rid of the appalling chaos of state regulations regarding void and voidable contracts. The absurd conflicts touching the forbidden degrees of relationship are a positive social menace. The most serious complications may arise. For instance, a man and a woman who may be legally wed in the place where they dwell might, should they move a mile across the state line and then marry, be guilty of incestuous union and their children become bastards. Surely it ought to be possible for an enlightened people to agree upon a common rule in a matter of such vital concern.[676]

[676] _Cf._ RICHBERG, _Incongruity of the Divorce Laws_, 65 ff.

In many of the states the laws governing the "age of consent"--that is, the age below which a person may not legally consent to carnal union[677]--are still very defective, although distinct progress has been made since 1885. In that year Mr. W. T. Stead's exposure of the frightful traffic in young girls then tolerated in London aroused the social conscience on both sides of the sea. The "old common law period of ten, sometimes twelve, years" was then "the basis of the age of consent legislation of most of the states, and also of the law of congress pertaining to rape in the District of Columbia and other territory under the immediate jurisdiction of the national government.... It was not until after the astounding revelations made by Mr. Stead ... that the age of consent laws in the United States began to attract attention.... Even then the age of consent in England was thirteen years. One outcome of Mr. Stead's shocking exposures was the speedy raising of the age by the British parliament from thirteen to sixteen years, Mr. Gladstone and others advocating eighteen." The New York Committee for the Prevention of State Regulation of Vice was already engaged in its long struggle to "thwart the periodical efforts[678] made to introduce in New York and other American cities the odious old-world system of licensed and state-regulated vice; but its members were quite unaware, until Mr. Stead's startling London revelations suggested the inquiry here, that, by the age of consent laws of New York and of most of the states, young girls of ten years were made legally capable of consenting to their own ruin, and that at that time in one state, Delaware, the age was at the shockingly low period of seven years! Bad as English law had been shown to be in its inadequate protection of girlhood our own legal position ... was found to be still worse. The New York committee, as soon as the facts were known, inaugurated a campaign of petitions to sundry state legislatures and to the congress of the United States, asking that the age be raised to at least eighteen years, and the work was also entered into earnestly and effectively by the Woman's Christian Temperance Unions and the White Cross societies."[679] Under the leadership of Helen H. Gardener, Frances E. Willard, and others, the women of the country conducted a veritable "crusade" of education against the existing state laws, which for zeal, ability, and effective method may well serve as a model for future united efforts in favor of social reforms. It was pointed out as a notorious fact "that brothels and vice-factories get their recruits from the ranks of childhood--from the ignorance which is unprotected by the law;" that "children's lives are thus wrecked, and the state is burdened with disease and vice and crime and insanity, which is transmitted and retransmitted until its proportions appall those who understand;" and that it is absurd to make the legal age for consent to a valid marriage higher than that for consent to prostitution. It was urged that the age of consent ought to be advanced to that of legal majority; that girls "have a right to legal protection of their persons, which is more imperative by far than is the protection which every state has recognized as a matter beyond controversy when applied to a girl's property or her ability to make contracts, deeds, and wills, or to her control of herself in any matters which are of importance to her as an individual, and to the state, because she is one of its citizens whose future welfare is a matter of moment to the commonwealth;" and that in respect to her person, as well as regarding property or marriage, she should be protected even against her own will.[680] As a result of the campaign of 1895 alone the age of consent was raised in no less than fifteen states and territories; and in the outset it was significantly pointed out that the "two states in which the age of legal protection for girlhood has been raised to eighteen years are states in which women vote--Wyoming, upon equal terms with men, and Kansas, in municipal elections."[681] A brief summary of the laws of the states and territories regarding the subject under consideration may now be presented.

[677] "Age of consent laws, in their usual acceptation, refer
to the crime of rape, and designate the age at which a young
girl may legally consent to carnal relations with the other sex.
Statutes pertaining to rape provide, in varying phrase, for the
punishment of 'whoever ravishes and carnally knows a female by
force and against her will,' at any age; and also penalties for
whoever unlawfully and carnally knows a female child, with or
without consent, under a given age."--POWELL, in _Arena_, XI, 192.

[678] "In the New York senate, in 1890, a bill was introduced
to lower the age of consent from sixteen to fourteen years. It
was reported favorably by the senate judiciary committee, but
vigorous protests against the proposed retrograde legislation
were promptly sent to Albany by the friends of purity, and the
disreputable scheme was defeated. It was understood to have
originated with Rochester attorneys who sought thus to provide
a way of escape for a client, a well-to-do debauchee guilty
of despoiling a young girl under the legally protected age of
sixteen." A similar attempt, in the house, in 1892, in the
interest of the New York brothel-keepers, was barely defeated by
calling for the yeas and nays. "In the Kansas senate, in 1889, a
bill was introduced and passed to lower the age ... from eighteen
to twelve years. The house was flooded with earnest protests, and
its judiciary committee reported adversely the disgraceful senate
bill."--POWELL, _loc. cit._, 194, 195.

[679] AARON M. POWELL, editor of the _Philanthropist_, in the
_Arena_ (1895), XI, 192-94. The _Arena_ was the principal
medium of publication for the reformers: see the symposium by
POWELL, GARDENER, and others, "The Shame of America," _Arena_,
XI, 192-215; the symposium by GARDENER, ROBINSON, and others,
_ibid._, XIII, 209-25; the symposium by LEACH and CAMPBELL,
_ibid._, XII, 282-88; SMITH, "Age of Consent in Canada," _ibid._,
XIII, 81-91; and especially GARDENER, "A Battle for Sound
Morality," _ibid._, XIII, 353-71; XIV, 1-32, 205-20, 401-19.
_Cf._ FLOWER, "Wellsprings of Immorality," _ibid._, XII, 337-52.

[680] GARDENER, "A Battle for Sound Morality," _Arena_, XIII,
354, 355.

[681] POWELL, in _Arena_, XI, 195; _cf._ GARDENER, _ibid._, XIII,
358.

Encouraging progress has been made in New England, although, in comparison with some of the new commonwealths of the West, the facts are not very creditable. By the Rhode Island statute the age of consent is sixteen.[682] In New Hampshire it was raised from thirteen to sixteen in 1897;[683] in Vermont, from fourteen to sixteen in 1898;[684] and in Connecticut, from fourteen to sixteen in 1895, while in 1901 the maximum term of imprisonment for abusing a girl under sixteen was increased from three to thirty years.[685] The age limit was only ten in Maine until 1887. It was then raised to thirteen, and in 1889 to fourteen years.[686] In Massachusetts likewise the disgracefully low age of ten years for a girl was sanctioned by statute from 1852 until 1886, when thirteen was substituted. Two years later it was increased to fourteen; and by an act of 1893 an offense against a female under sixteen may be punished by imprisonment for life or for any shorter term of years.[687] The results are even less satisfactory in the southern and southwestern group of states. Florida now heads the list, but with a rather inadequate penalty, the age of consent being raised from sixteen to eighteen years in 1901.[688] Missouri in 1889 increased the age from twelve to fourteen, and in 1895 advanced it nominally to eighteen; but the provisions of the law are such as practically to leave the limit of protection at fourteen years.[689] Previous to 1895 in Arizona the age of consent was fourteen. In that year it was raised to eighteen; but unfortunately it was reduced to seventeen in 1899.[690] In Arkansas[691] it was raised from twelve to sixteen years in 1893; in Louisiana,[692] from twelve to sixteen in 1896; in the District of Columbia[693] and in Indian Territory[694] it has been sixteen since 1889; in Oklahoma[695] it was increased from fourteen to sixteen in 1895; in Maryland,[696] from ten to fourteen in 1890, and to sixteen in 1898; in Tennessee,[697] from ten to sixteen years and one day in 1893; but the statutes of the three states last named are so lax as really to leave the age of consent at twelve in Tennessee and at fourteen in Maryland and Oklahoma. Texas advanced the limit from ten to twelve in 1891, and to fifteen in 1895;[698] South Carolina,[699] from ten to fourteen, and Virginia,[700] from twelve to fourteen, in 1896; West Virginia,[701] from twelve to fourteen in 1901; North Carolina,[702] from ten to fourteen in 1895; Alabama,[703] from ten to fourteen in 1897; while fourteen is likewise the age in New Mexico[704] and possibly also in Georgia;[705] but because of vicious clauses in their statutes a girl is in fact only given effectual protection below the age of ten in Alabama and North Carolina, and by common law at the same age in Georgia. Twelve is the limit in Kentucky;[706] and Mississippi[707] still retains the shamefully low age of ten years.

[682] _Gen. Laws of R. I._ (1896), 999.

[683] _Laws of N. H._ (1897), 30, 31; _Pub. Stat._ (1900), 832.

[684] _Vermont Stat._ (1895), 877; _Acts and Resolves_ (1898),
90, 91.

[685] _Gen. Stat. of Conn._ (1887), 325; _Pub. Acts_ (1887), 669;
_ibid._ (1895), 580; _ibid._ (1901), 1208; _Gen. Stat._ (1902),
350.

[686] _Rev. Stat. of Me._ (1884), 883; _Acts and Resolves_
(1887), 110; _ibid._ (1889), 170.

[687] _Mass. Acts and Resolves_ (1886), 270; _ibid._ (1888), 40;
_ibid._ (1893), 1381; _Rev. Laws_ (1902), II, 1745.

[688] _Laws of Fla._ (1901), 111; penalty, not less than ten
years' imprisonment, or a fine not exceeding $2,000, or both.

[689] Up to fourteen carnally knowing a girl is rape, punishable
by death or imprisonment for not less than five years, at the
discretion of the jury: _Rev. Stat._ (1899), I, 547. Between
fourteen and eighteen, not only must the girl be "of previously
chaste character"--which begs the whole question--but the penalty
is ridiculously light: imprisonment in the penitentiary for two
years; _or_ a fine of not less than $100 nor more than $500; _or_
confinement in the county jail not less than one month nor more
than six months or both such fine and confinement: _Laws_ (1895),
149; also in _Rev. Stat._ (1899), I, 547. _Cf._ _Rev. Stat._
(1889), I, 850; GARDENER, in _Arena_, XIV, 31.

[690] _Laws of Arizona_ (1895), 48; _ibid._ (1899), 29; the same
in _Rev. Stat._ (1901), 1226: penalty, imprisonment for life or
for not less than five years.

[691] Act of April 1, 1893: _Digest_ (1894), 572: penalty,
not less than five nor more than twenty-one years in prison.
In Arkansas rape is punished by death, and, by exception, the
execution is to be public; but this does not apply in case of
conviction under the consent law.

[692] Act 115 (1896), 165; also in _Rev. Laws_ (1897), 196: "if
any person over the age of 18 years shall have carnal knowledge
of any unmarried female between the ages of 12 and 16 with her
consent he shall be deemed guilty of felony," and be imprisoned
with hard labor not exceeding five years.

[693] Act of Feb. 9, 1889: 1 _Supp. to U. S. Stat._, c. 120, p.
641; also _Code of D. C._ (1902), 170: penalty not less than five
nor more than thirty years' imprisonment, or death when the jury
so determines.

[694] Act of Feb. 9, 1889, applying to all territory in exclusive
jurisdiction of the U. S.: 1 _Supp. to U. S. Stat._, c. 120, p.
641; _Ann. Stat. Ind. Ter._ (1899), 845: first offense, not more
than fifteen years in prison; each later offense, not more than
thirty years.

[695] When the girl is under fourteen the offense is rape
punishable by not less than ten years in the territorial prison;
between fourteen and sixteen the penalty is not less than five
years' such imprisonment, if she be of "previous chaste and
virtuous character": _cf._ _Stat. of Okla._ (1893), 467; and
_Laws_ (1895), 104, 105.

[696] Up to fourteen for the girl the penalty is death or
imprisonment for life or for any definite term from eighteen
months to twenty-one years: _cf._ _Pub. Gen. Laws of Md._ (1888),
I, 533, 534; with _Laws_ (1890), c. 410, p. 447. By the act of
1898, c. 218, abuse of a girl between fourteen and sixteen is
only a misdemeanor punishable by not _more_ than two years in
the house of correction _or_ by a fine not to _exceed_ $500:
PRENTISS'S _Supp. to Code_ (1898), 195.

[697] In Tennessee the offense against a girl below twelve years
of age is punishable, as in case of rape, by death or, if the
jury please, by imprisonment for life or not less than ten years;
from twelve to sixteen, it is a felony, with three to ten years
in prison, if the child be of previous chaste character, and if
she can bring witnesses to support her statements. The one day
was added by way of a joke! See the interesting account of the
passage of the act by DROMGOOLE, in _Arena_, XI, 209-12; and for
the act consult _Laws_ (1893), c. 129, § 1, 273, 274; _Code_
(1896), 1593, 1594.

[698] _Laws of Tex._ (1891), 96; _ibid._ (1895), 79, 104: not
less than two years in the penitentiary.

[699] _Acts of S. C._ (1896), 223: a felony; penalty, death or
imprisonment for life, unless the jury recommends the offender to
mercy, when the court shall reduce the punishment to imprisonment
for a term not exceeding fourteen years.

[700] Act of March 3, 1896: _Acts_ (1895-96), 673: penalty, death
or imprisonment from five to twenty-one years, as the jury may
determine.

[701] _Acts of W. Va._ (1901), 218: penalty, death or
imprisonment from seven to twenty years, as the jury may decide;
but the penalty does not apply to a boy under fourteen ravishing
a girl over twelve "with her free consent."

[702] By the _Code of N. C._ (1883), 444, the age is ten; raised
to fourteen by _Pub. Laws_ (1895), 374; but the crime is only
"punished by fine _or_ imprisonment at the discretion of the
court, provided she has never previously had sexual intercourse
with any male person."

[703] The _Code of Ala._ (1897), 460, punishes the abuse of a
girl below fourteen, at the discretion of the jury, either by
death or by not less than ten years in prison; but an act of
1897, also in the _Code_, punishes carnal knowledge of a female
between ten and fourteen only by a fine of $50 to $500, and the
offender "may be imprisoned in the county jail for six months."
This provision appears to reduce the protection of a child above
ten to little more than a pretense: _Acts_ (1897), 944.

[704] _Comp. Laws of N. M._ (1897), 344: penalty, five to ten
years' imprisonment.

[705] For Georgia, in 1895, the age of consent was reported as
fourteen, or any younger age if the jury finds that "by reason
of her intelligence she knows good from evil": see GARDENER, in
_Arena_, XIV, 415, 416; but I have not been able to find this
provision in the present _Code_. The penalty for rape is death,
unless the jury recommend to mercy, when it is one to twenty
years' imprisonment at hard labor: _Code_ (1896), III, 36, 39.
This penalty applies when the girl is under ten: 11 _Ga._, 227.

[706] _Ky. Stat._ (1899), 516: penalty, ten to twenty years in
prison.

[707] _Ann. Code_ (1892), 372: penalty, death, unless the jury
fix the punishment at life imprisonment. There is in Mississippi
an abduction law to protect girls below sixteen: but the
age-of-consent law stops at ten. _Cf._ GARDENER, _loc. cit._, 416.

The most enlightened legislation regarding the age of consent is found among the states of the middle and western group. Kansas[708] in 1887, and Wyoming[709] in 1890, set a good example by raising it to eighteen years. The same limit was adopted by Nebraska,[710] Colorado,[711] Idaho,[712] and New York[713] in 1895; by Utah[714] in 1896; by Washington[715] in 1897; and by North Dakota in 1903.[716] Until 1889 Delaware sanctioned the barbarous age of seven years. It was then advanced to fifteen, and in 1895 to eighteen, for both sexes; but the penalties prescribed by the statute are far too lenient to guarantee entire protection beyond the age of seven.[717] Next come ten states and districts in which the age is actually or nominally placed at sixteen years. Minnesota[718] in 1891, South Dakota[719] in 1893, Michigan,[720] Montana,[721] and Oregon[722] in 1895, Ohio[723] in 1896, and California[724] in 1897, each advanced to this limit from fourteen. Sixteen is also the age in Alaska.[725] But in 1902 Ohio took a backward step, so lowering the penalty for the offense as nearly to destroy the force of her law. Pennsylvania[726] and New Jersey[727] each raised the age from ten to sixteen in 1887; but in Pennsylvania the girl must prove previous good character, and in both states the penalties are too lax to secure adequate protection beyond the age of ten. Since 1896 the age of consent has been fifteen in Iowa.[728] In Illinois[729] since 1887, Nevada[730] since 1889, Indiana[731] since 1893, Wisconsin[732] since 1895, and in Porto Rico by the code of 1902,[733] it is fourteen; while in Hawaii it is but ten years.[734]

[708] _Laws of Kan._ (1887), c. 150, § 1: _Gen. Stat._ (1901),
437: penalty, five to twenty years in prison.

[709] Act of Dec. 18, 1890, amending an act of March 14, 1890,
which fixed the age at fourteen: _Laws of Wyo._ (1890), 130:
_ibid._ (1890-91), 85, 86; _Rev. Stat._ (1899), 1236; penalty,
rape, with imprisonment "not less than one year or during life."

[710] Raised from fourteen: _Laws of Neb._ (1895), 314, 315;
_Comp. Stat._ (1901), 1409: penalty three to twenty years in
prison. But the value of the law is lessened by the provision
that it shall not apply in case of a girl over fifteen if
"previously unchaste."

[711] _Laws of Col._ (1895), 155: penalty, one to twenty years in
prison; raised from sixteen to eighteen.

[712] Raised from ten to fourteen in 1893, and advanced to
eighteen in 1895: penalty, imprisonment for life or not less than
five years. Compare _Rev. Stat. of Idaho_ (1887), 733; _Laws_
(1893), 10, 11; _Laws_ (1895), 19; and _Penal Code_ (1901), 134,
139.

[713] Raised from sixteen: _Laws of N. Y._ (1895), c. 460;
BIRDSEYE'S _Rev. Stat._ (1901), III, 3012: rape in second degree;
penalty, not more than ten years in prison; rape in first degree,
with not less than twenty years in prison, when an imbecile, etc.

[714] _Laws of Utah_ (1896), 87; _Rev. Stat._ (1898), 902, 877:
felony, penalty, not more than five years in prison.

[715] From 1881 to 1897 the age in Washington was twelve: _cf._
_Laws_ (1897), 19; BALLINGER'S _Codes and Stat._ (1897), II,
1951, note. Present penalty, imprisonment for life or any term of
years.

[716] Abuse of a female below eighteen is now made rape in the
first degree: _Laws of N. D._ (1903), 200.

[717] _Laws of Del._ (1889), 951; _ibid._ (1895), 192; _Rev.
Stat._ (1893), 924: when below seven, rape, with death penalty:
when between seven and eighteen, misdemeanor, punished by not
more than seven years in prison or a fine of not exceeding $1,000
or both, at the discretion of the court. _Cf._ GARDENER, in
_Arena_, XIV, 411, 412.

[718] _Gen. Laws of Minn._ (1891), c. 90, § 1, p. 162; _Stat._
(1894), II, 1747: penalty, confinement in the state prison for
life, when the girl is under ten; when between ten and fourteen,
seven to thirty years; between fourteen and sixteen, one to seven
years in state prison, or in county jail three months to one year.

[719] _Laws of S. D._ (1893), c. 138; _Ann. Stat._ (1901), II,
1916, 1917: rape in second degree; penalty, not less than five
years in the state prison.

[720] _Pub. Acts of Mich._ (1895), 170: penalty, imprisonment for
life or any term of years.

[721] _Codes and Stat. of Mont._ (1895), 1062, 1063: penalty,
imprisonment for life or not less than five years.

[722] From 1864 to 1895 the age was fourteen: HILL'S _Codes_
(1892), I, 897; _Laws of Ore._ (1895), 67: penalty, three to
twenty years in prison.

[723] Ohio raised the age from ten to fourteen in 1887, and
advanced it to sixteen by the act of March 3, 1896: _Acts_
(1875), 93 (age made ten years); _ibid._ (1887), 65; _ibid._
(1896), 54: BATES'S _Ann. Stat._ (1897), II, 3144, 3145: rape
if the boy is over eighteen; penalty, three to twenty years in
prison; lowered by _Acts_ (1902), 344, to one to twenty years,
"or 6 months in the county jail or workhouse at the discretion
of the court, which is hereby authorized to hear testimony in
mitigation or aggravation of sentence." _Cf._ BATES, _Ann. Rev.
Stat._ (1903), III, 3307-8.

[724] Compare _Stat. and Amend. to Codes_ (1889), 223, and
_ibid._ (1897), 201: penalty, not less than five years in prison.

[725] _Laws of Alaska_ (1900), 4.

[726] _Pub. Laws of Pa._ (1887), 128; PEPPER AND LEWIS, _Digest_
(1896), I, 1318, 1319: penalty, when the woman child is between
ten and sixteen, fine not exceeding $1,000 and imprisonment not
exceeding fifteen years, if she "was of good repute;" below ten,
without this condition. Thus there is no sure protection beyond
ten. No conviction when boy is under sixteen.

[727] _Laws of N. J._ (1887), 230; _Gen. Stat._ (1896), I, 1096:
penalty, not exceeding $1,000, or imprisonment at hard labor not
more than fifteen years, or both. There is also an abduction law
to protect a female under fifteen: _Gen. Stat._ (1896), I, 1064.
The age is ten in _Rev. Stat._ (1874), 148.

[728] Raised from thirteen; _Acts of Ia._ (1896), 71; _Ann. Code_
(1897), 1888: penalty, imprisonment for life or any term of years.

[729] _Laws of Ill._ (1887), 171; HURD'S _Rev. Stat._ (1901),
634: penalty, when male is above sixteen, imprisonment for life
or not less than one year.

[730] Raised from twelve: _Stat. of Nev._ (1889), 74; _Comp.
Laws_ (1900), 914, 915: rape when the boy is fifteen or more;
penalty, imprisonment for life or not less than five years.

[731] Raised from twelve: _Acts of Ind._ (1893), 22; BURNS'S
_Ann. Stat._ (1901), I, 790: penalty, one to twenty-one years in
prison.

[732] Raised from twelve: _Laws of Wis._ (1895), c. 370, sec. 1;
_Wis. Stat._ (1898), 2668: penalty, five to thirty-five years in
prison.

[733] _Rev. Stat. and Codes of Porto Rico_ (1902), 532, 533:
penalty, not less than five years in the penitentiary.

[734] _Penal Laws of Hawaiian Islands_ (1897), 73.

It appears, then, although in many cases the statutes are very imperfect, that of the fifty-three states and territories twelve have actually or nominally advanced the age of consent to eighteen; one to seventeen; twenty-two to sixteen; two to fifteen; thirteen to fourteen; while two still retain the low age of twelve and one that of ten years. It should everywhere be raised to eighteen or twenty-one--the age of legal majority for a woman in her business or political relations--by a statute as rigorous as that of Idaho or Kansas. A wide field for beneficent legislation therefore remains; and, although morality "can not be legislated into a people," it is precisely by wise measures of this character that the lawmaker can render powerful aid in the creation of an environment favorable to moral and social progress.