460. Adelphi; York Buildings - Eugenics Education Society

8/7/2019 460. Adelphi; York Buildings - Eugenics Education Society.

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B 3 27'=^ '^OOfrom " The i-.ugciiics Keview," April, 1910]

Marriage Lawsand

atutory Experiments in Eugenicsin the

United StatesBY

R. NEWTON CRANE, M.A.

Price Fourpence

Eugenics Education Society6, York Buildings, Adelphi

London


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[Reprinted from " The Eugenics Review," April, 1910]

Marriage Lawsand

Statutory Experiments in Eugenicsin the

United StatesBV

R. NEWTON CRANE, M.A.

Price Fourpence

Eugenics Education Society6, York Buildings, Adelphi

London


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MARRIAGE LAWS AND STATUTORY EXPERI-MENTS IN EUGENICS IN THE UNITEDSTATES

By R. Newton Crane, M.A.There is no epoch in American History of greater interest or ofgreater importance to the student and the sociologist than that whichfollowed the landing of the Pilgrims upon the continent of NorthAmerica. In England and in the Netherlands and in Switzerland,they had lived in protest against the constituted authority oftheir native land in matters of faith and dogma. They claimed thefullest freedom of action where religious and social observanceswere concerned, and at the same time they denied to theiropponents a like liberty. Controversies which at first centredabout forms and ceremonies and vestments, were modified bydisputes over the personal character of the sovereign and becameidentified with the political parties in the state. Laws weregood or were bad according to the interpretation they put uponthem. But, however intolerant we, in this age, may be of theirintolerance, we cannot fail to recognise that they evinced apurity and consistency of conduct in morals which exalted theirlives and exercised a wholesome influence upon their domesticrelations.

These pilgrims, all Englishmen, self-exiled for their form ofreligion, disciplined by misfortune and by their sufferings forconscience sake, cultivated by extensive observation of the lawsof at least three countries, equal in rank as in rights, and boundby no code but that of religion and their idea of the public will,must have rejoiced, when they sailed from Plymouth, at theprospect of an opportunity to put into practice their exaltedideals with respect to liberty and their theories of what laws astate should have and how its government should be constituted

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^and administered. In the cabin of the " Mayflower," beforethey disembarked to establish their colony in the new country,they formed themselves into a self-governing political com-munity by a solemn voluntary compact, to which each of themale adventurers subscribed his name. There were but onehundred souls in all, men, women and children, and infantsborn during the voyage. In this compact they professed tocombine themselves together " into a civil body-politic for theirbetter ordering and preservation," and in order "to frame suchjust and equal laws, ordinances, acts, constitutions and offices,from time to time, as shall be thought most convenient for thegeneral good of the colony." They began with a clean slate.They were not bound by any local laws or traditions, for nonesuch existed in the wilderness in which they sought refuge.They had only themselves to govern, and they had the widestpossible field for experiment in legislation. Nearly a generationwas passed in a struggle with adversity, with the deep snows andthe cold of protracted winters, with the heat and droughts ofsummer, with famine and pestilence and with contests withsavage Indians. The instinct of legislation, nevertheless, wasinherent in them. They justified their compact, and theypassed laws for their " better ordering and preservation," accord-ing to their promise in the " Mayflower's " cabin. Some of thelaws were repressive enough to warrant the thought that theywere intended to wreak upon the less fortunate of their fellowcolonists the vengeance they had prayed Heaven to mete outto their oppressors in the land from which they had escaped.Liberty of worship was practically restricted to those, and thoseonly, who subscribed to the Westminster catechism, and anygarb save that of the covenant-pattern, and any conduct whichwas not a mild variation of austerity, were rigorously suppressed.

There is more truth than cynicism in the trite observationthat virtue is the absence of temptation. The paucity of numbersin the infant settlements, where attendance upon religious meetingswas strictly inforced by local civil ordinances, as well as bypublic sentiment, enabled every individual to be a censor of hisneighbour's morals. Infractions of virtue were practicallyimpossible, and consequently any lapse from the established law


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was quickly discovered and vigorously dealt with. Adulterywas a capital offence, and if the extreme penalty was mitigated,the reprieve assumed the less merciful form of the public badgeand the cruel social ostracism of which the pathetic story ofHester Prynne, in Hawthorne's Scarlet Letter is an illus-tration. But, however contemptuous modern criticism may beof the narrowness of these legislators, it must be admitted thattheir influence has been of a salutary character upon theAmerican people. The laws which the Puritans passed, thecustoms they established and the observances they instituted,still survive, after three centuries, in more or less modified form,and well-marked traces of them may be found impressed notonly upon the ideas of the populace but imprinted in the statutesof nearly all of the states which now, forty-six in number, con-stitute the great area of the United States of America, with itspopulation of approximately ninety millions of people, a peoplesprung from English stock but admixed with the flux of everydiverse kind of continental emigration.

Generally speaking, the traces of the most salutary of theold Puritan laws which are observable in the legislation ofthe various states, relate to the regulation of marriage, itsrestraint and its encouragement, the measures for preventingprocreation by undesirable spouses, the restriction cfLempIoy-ment of women_of^child-bearing age, the prevention of contagiousdiseases, the prohibition of the use of alcohol and drugs by adultsand tobacco by infants, and the regulation of what is commonlyand euphemistically known as the " social evil."

From the outset, long before the word " eugenics " had beencoined, or what it is supposed to mean had been formulated intoa science, American legislatures were moved to make laws andto enforce regulations with respect to marriages, not merely tothereby execute the ordinances of the Church or to promoteecclesiastical authority, which was held in scant respect, but

./^olely to insure a healthy product of the marriage. As Puritansand the descendants of Puritans they undoubtedly recognised theLevitical law, provided always that they could give it their owndogmatic interpretation, but they were very loth to acknowledgeany canons of ecclesiastical law, and certainly attached no


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sanctity to them. Such portions of the various statutes ofHenry VIII. on the subject, and particularly that of the thirty-second year of his reign, which declared lawful the marriage ofall persons "not prohibited by God's law " to marry, became, itis true, a part of the common law of the American states, but thetable of affinities was never at any time a part of that law.

For this reason consanguinity, as a bar to inter-marriagebetween those of the same blood, appears to have had more im-portance in public opinion, and consequent legislation, thanaffinity. Thus it happens that at the present time, where affinityis a legal impediment, such impediment continues only with themarriage which created it, and terminates, except in five of thestates, upon the death of one of the parties, leaving the survivorfree to marry the relative of the deceased. Thus, and for thisreason, the marriage of a deceased wife's sister is now, andalways has been, permissible in all the American states. InjBlodgett V. Brinsmead (g Vermont, ay) the Supreme Court ofVermont said, by way of dictum : " The relationship by con-sanguinity is, in its nature, incapable of dissolution, but therelationship by affinity ceases with the dissolution of the marriagewhich produced it. Therefore, though a man is, by affinity,brother to his wife's sister, yet upon the death of his wife he maylawfully marry her sister. Such is the law of this state, what-ever may be the statute of Henry VIII." This reasoning has"been followed in all the discussions upon the subject in America,and underlying them all is the idea that the inter-marriage ofaffinities is more likely to result in purer blood and greater virilitythan where those inter-marry who have any blood in common.

Each state of the United States is sovereign so far ai itsdomestic laws are concerned. There are, therefore, forty-sixdifferent codes in the United States, in each of which there areregulations with respect to marriage. Each of the forty-sixstates defines marriage, regulates the age at which minors arecapable of marrying, indicates below what age parental consentis required and the nature of the consent, establishes prohibiteddegrees, imposes rules respecting licenses to marry, explains whomay solemnise the marriage, and provides what, if any, form ofsolemnisation is necessary.


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The age at which minors were capable of marrying, knownas the age of consent, was fixed by the common law at fourteenyears for males and twelve years for females, and this was the rulein the earlier history of legislation in the United States. Butthere has been a steady advance in the age, until at the presenttime there is but one state, Virginia, which adheres to the oldcommon law rule. With but very few exceptions the limit isnow eighteen years for males and sixteen years for females. Butwhile a valid marriage may be contracted by a male of eighteenyears of age and a female of fourteen or sixteen years of age, asthe case may be, the consent of the parents is necessary to sucha union. All of the states now hav& statutes which require thatmales under twenty-one years of age and females under the ageof eighteen may not marry without parental consent, and licensesmay not be issued for such marriages. In some instances it isnecessary that both parents attend before the licensing authorityand signify such assent, but more generally it is sufficient if thewritten consent of the parents be produced at the time thelicense is applied for, or when the marriage ceremony is per-formed. In some states, in addition to the consent of the parentsor guardians, the Probate Judge, or other of^cial having jurisdic-tion in marital matters, must require a bond to be executed ina penal sum, generally of $200, payable to the state, with thecondition to be void if there is no legal cause why the marriageshould not be celebrated.

Recent legislation in California has resulted in an Act whichprovides that no license shall be issued when either party is animbecile or insane, or who at the time of making the applicationfor the license is under the influence of any intoxicating liquoror narcotic drug. In Indiana a similar Act provides that " nolicense to marry shall be issued where either of the contractingparties is an imbecile, epileptic, of unsound mind or underguardianship as a person of unsound mind, nor to any maleperson who is or has been within five years an inmate of anycounty asylum or home for indigent persons, unless it satisfac-torily appears that the cause of such condition has been removedand that the male applicant for the license is able to support afamily and likely to so continue, nor shall any license issue when


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either of the contracting parties is affected with a transmissibledisease, or at the time of making application is under the influ-ence of an intoxicating liquor or narcotic drug." The NewJersey law is practically to the same extent, the language beingthat " any person who has been confined in any public asylum orinstitution as an epileptic, insane, or feeble-minded -patient

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shall not inter-marry in that state, " without a certificate fromtwo regularly licensed physicians of the state, that he has beencompletely cured of such insanity, epilepsy, or feeble-mind, andthat there is no probability that such person will transmit anysuch defects or disabilities to the issue of such marriage." Thetendency of modern legislation is on these lines. The scope ofsuch Acts as have been passed or such legislation as is proposed,is based upon the requirement that all who enter into themarriage state shall be sound in mind and body, and unlikely tobring offspring into the world who may be tainted by the ail-ments, disorders and mental weaknesses of their progenitors. Itis for this reason that in a majority of the states marriagesbetween first cousins are forbidden, and that in some of themsuch marriages are declared incestuous and void. -^

The view upon which this legislation is based is expressed"by Governor Durban of Indiana, in his message in 1905 tothe legislature of that state. In it he uses the following language :"The state should exercise the right of preventing the contractof marriage between persons manifestly unfit to assume itsobligations, and particularly of such marriage as insures thepropagation of defectives who are certain to become a charge^6?_1^-?- ?.^.^^^ .... We may reasonably consider theadvisability of requiring, on the part of those applying for licensesto marry, medical evidence that the contraction of marriage willnot threaten society by the perpetuation of mental or physicaldeficiency." In certain of the states laws have been introducedmaking the passing of a medical examination a pre-requisite tothe obtaining of a license to marry, and for this purpose em-powering the licensing officer to call the parties before him andto examine them upon oath touching their physical condition.The Michigan Act provides that " no person who has beenafflicted with syphilis or gonorrhoea and has not been cured of the


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same shall be capable of contracting a marriage," and thoseoffending against this law incur a penalty of from $500 to $1,000fine, and imprisonment for five years, or both, and in case ofprosecution the husband and the wife may be examined againsteach other, and the attending physician may be compelled totestify and may not be permitted to shelter himself under theplea of professional privilege. In other states it is made a mis-demeanour for any clergyman or magistrate to perform a marriageceremony between persons one or other of whom was defectivein body or mind, and for any person to abet such a marriage.

The tendency to "race suicide" in the United States hasbeen emphasised by President Roosevelt, and a number ofsocieties have been organised to counteract its effect upon thecommunity, by encouraging marriage and by promoting allinfluences which tend to increase the birth rate. In the languageof Jtlr. Roosevelt, " the institution of marriage is at the veryfoundation of our social organisation, and all influences thataffect that institution are of vital concern to the people of thewhole country." Marriage is rendered easier by a law commonto a majority of the states which, in effect, provides that whereany husband abandons his wife, or a wife her husband, andresides beyond the limits of the state for five successive years,without being known to such person to be living during thattime, death is presumed, and any subsequent marriage enteredinto after the end of the five years, is as valid as if such husbandor wife were dead. Furthermore, to encourage matrimony it isnow an almost invariable rule that the subsequent marriage ofparents legitimatises children born out of wedlock, provided thefather recognises the child so born. In other instances thissalutary regulation has been advocated in the interests of childrenwho would otherwise have had to bear throughout their lives astigma which they would have no power to remove. But the rulehas been enacted in certain of the states as a direct encourage-ment to matrimony.

There is also an encouragement to marriage in the facilityafforded for its celebration. Marriage is defined by statute inmost of the states as a civil contract. It is not a sacrament,and it is not, in any state, necessarily attended or evidenced by


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8any religious rite. It may be performed at any time of the dayor the night, and anywhere. Until very recently no form what-ever was necessary. A mere agreement of the parties to be manand wife, provided the mutual consent is per verba de praesenti,followed by marital relations, sufficed, and at the present timeScotch, or common law, marriages are legal in a majority of thestates, even where licenses to marry are required, The variousstatutes on marriage indicate who may perform the ceremony,and a wide range, extending from ordained ministers to civilmagistrates, justices of the peace, aldermen and even coroners,is afforded to the intending celebrants. These officials usuallycharge a nominal fee and expense is therefore not a necessaryconsideration. It is a well-established fact that the marriagerate is quickly responsive to changes in economic conditions,increasing in periods of prosperity and declining after a com-mercial crisis or panic and during hard times. It is thereforefair to assume that those contemplating marriage, count thecost, at least so far as the expense is concerned.

Paradoxical as it may seem, the facility for divorce in theUnited States may be considered as an encouragement tomarriag?. Statistics which have been carefully collected by the -

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460. Adelphi; York Buildings - Eugenics Education Society