A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

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.

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.

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.

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]

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.

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]

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.

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.

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]

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.