Chapter 30

[588]Cal. Stat. and Amend. to the Codes(1891), 279;ibid.(1893), 48;ibid.(1900-1901), 444;Rev. Stat. of Ill.(1898), 633, 634;Rev. Stat. of Ind.(1896), I, sec. 2129;Bates,Ann. Rev. Stat. of Ohio(1897), II, 3218;Ann. Codes and Stat. of Wash.(1897), II, 1987, 1988;Gen. Laws of Minn.(1901), 286. ByLaws of N. Y.(1902), I, 536, this offense is made a misdemeanor.Cf.Laws of Montana(1903), 146.[589]Rev. Stat.(1896), I, 1049.[590]Act of Feb. 11, 1897:Pub. Acts of Mich., 12;ibid.(1899), 69.[591]See chap, viii, sec. i; and consultGlasson,Le mar. civil et le divorce, 210 ff., 232-51.[592]On the revolutionary legislation regarding marriage and divorce (1792-1816) seeNaquet,Le divorce(Paris, 1877), 37-56, 153-353, containing extracts from the debates, text of the laws, reports, and other documents;Archives parlementaires, XXVI, 166-86, giving the report on the proposed civil marriage law;Wright,Report, 1004-6, presenting summaries of the laws;Champion, "La revolution et la réforme de l'état civil,"La révolution française, June 14, 1887;Colfavru, "La question du divorce devant les législateurs de la révolution,"ibid., March 14, 1884;Koenigswarter,Histoire de l'organisation de la famille en France, 268 ff.;Glasson,Le mar. civil et le divorce, 252-75;Legrand,Le mariage et les mœurs en France, 196-99;Durrieux,Du divorce, 99 ff.;Féval,Pas de divorce, 74 ff.;Fiaux,La femme, le mariage, et le divorce, 25 ff.;Vraye and Gode,Le divorce et la séparation du corps, I, 7-26;Bertillon,Étude démographique du divorce, 89 ff.; and in generalLasaulx,Uebereinstimmung der französischen Ehetrennungsgesetze mit Gotteswort(Koblenz and Hadamar, 1816).A powerful influence on revolutionary opinion must have been exerted by the remarkableContrat conjugal, published in 1781, again in 1783, and in German translation in 1784, which advocated civil marriage and free divorce, while attacking the ecclesiastical system of impediments and dispensations. The revolutionary ideas regarding divorce are also vigorously presented byHennet,Du divorce(3d ed., Paris, 1792); and byBouchotte,Observations sur le divorce(Paris, 1790). On the other hand, the divorce law of 1792 is criticised and divorce opposed byMadame Necker,Réflexions sur le divorce(Paris, 1792; Lausanne, 1794); as inDu divorce(Paris, 1801), 1 ff., byBonald, who opposed the law of 1803 and secured its repeal in 1816. SeePère Daniel'sLe mariage chrétien et le Code Napoléon(Paris, 1870); and for an examination of the literature of the period,Tissot,Le mariage, la séparation, et le divorce, 174 ff., 180 ff., 196 ff., 211 ff., 222 ff.[593]In Paris alone during the first twenty-seven months after the passage of the act 5,994 divorces were granted; while in 1797 the divorce decrees in that city actually outnumbered the marriages:Glasson,Le mar. civil et le divorce, 261, 262. Accordingly, in 1798, the law was amended so as to make divorce for "incompatibility allowable only six months after final failure of attempts at reconciliation;" and this law also required all municipal authorities to proceed, and all teachers of public and private schools to take their pupils, "to the usual meeting places of the community every ten years in person and in state, there to make stern proclamation of the parties divorced during the previous decade, with the view of thus checking divorces."—Wright,Report, 1005;Naquet,Le divorce, 212-37, giving documents;Brun, "Divorce Made Easy,"North Am. Rev., CLVII (July, 1893), 12, 13; citingDuval,Souvenirs thermidoriens, I, 60, 61. See also theRapport(27 thermidor, an. V) of Portalis, who was the chief advocate of the amendment. In 1800, it is alleged, there were about 4,000 marriages and 700 divorces in Paris. To what extent the relative decrease was due to the change in the law can only be conjectured.[594]On this doctrine, with the leading cases, seeKent,Commentaries(14th ed., Boston, 1896), II, secs. 87 ff., pp. 119 ff.;Reeve,The Law of Husband and Wife("Domestic Relations"), 250-58;Greenleaf,Law of Evidence(16th ed., Boston, 1899), II, secs. 460-64, pp. 441-47; and especiallyBishop,Mar., Div., and Sep., I, secs. 409 ff., pp. 176 ff.[595]See chaps. xii-xv, inclusive.[596]Cook, "The Marriage Celebration in the United States,"Atlantic, LXI, 521. "But in the early part of this century there arose in the courts a discussion regarding the nature of our common law, and the relation of that law to our statute law in governing the celebration of marriage—a discussion which since then has constantly increased, and has gradually brought about a revolution unparalleled in the history of our subject."—Ibid.[597]Chap. xv, sec. ii; chap. xiii, sec. iv.[598]Chap. xiii, sec. i.[599]Hening,Statutes, I, 252, 253. See chap. xiii, sec. i.[600]For these colonies see chap. xiii, secs, iii, iv.[601]Chap. xiv, sec. i,c).[602]Chap. xii, sec. vi.[603]MSS. Records of the County Court of Middlesex(Apr. 1, 1656), I, 80.[604]See the case of Usherv.Troop (Throop), 1724-29, in which is raised the question as to whether the "constitutions and canons ecclesiastical of the Church of England" are binding in Massachusetts:MSS. Records of the Superior Court of Judicature, 1725-30, fol. 236.Cf.chap. xii, secs, i, ii.[605]Cook, "The Mar. Cel. in the U.S.,"Atlantic, LXI, 520-32, has given a systematic account of the subject to the year 1888. To this article, and to his "Reform in the Celebration of Marriage,"ibid., 680-90, I am indebted; as also toBennett, "Uniformity in Marriage and Divorce Laws,"Am. Law Register, N. S., XXXV, 221-31.Cf.Convers,Mar. and Divorce, 15-119;Stewart,Mar. and Divorce, 78 ff.[606]In the case of Fentonv.Reed (1809), 4Johns., 52; 4Am. D., 244;Ewell,Cases on Domestic Relations, 397-99. Following are the essential facts in this celebrated case. In 1785 John Guest "left the state for foreign parts." During his absence, in 1792, his wife Elizabeth married Reed. Subsequently in the same year her first husband, Guest, returned to the state and there resided until his death in June, 1800. He professed to have no marital claim upon Elizabeth; so she lived with Reed as a wife continuously from 1792 until the latter's death in 1806. Was she the lawful wife of Reed from 1792 to 1800 during the lifetime of Guest? If not, was she, without the observance of any formalities, his lawful wife from 1800 to 1806 after Guest's demise? To the first question the court answered "no," holding that "the statute concerning bigamy does not render the second marriage legal, notwithstanding the former husband or wife may have been absent above five years, and not heard of. It only declares that the party who marries again in consequence of such absence ... , shall be exempted from the operation of the statute, and leaves the question of the validity of the second marriage just where it found it." To the second question the court answered "yes," as explained in the text.Cf.Starrv.Peck, 1Hill,N. Y., 270.[607]The doctrine of his own decision was formulated in 1826 byKentin the first edition of hisCommentaries. Ten years earlier, in 1816, it had been accepted byReeve, former chief justice of Connecticut, in his treatise on theLaw of Husband and Wife. It was followed in 1842 byGreenleafin his work onEvidence; and later byBishopin his well-known book onMarriage and Divorce. On the other hand, the youngerParsons, the first edition of whoseContractsappeared in 1853, is inclined to reject the Kent doctrine: see the 8th ed., II, 78 ff.; and compareCook, "The Mar. Cel. in the U. S.,"Atlantic, XLI, 521, 522.[608]See Fryerv.Fryer (1832),Richardson'sEquity Cases, 92 ff.Cf.the case of Vaigneurv.Kirk (1808), 2S. C. Equity Reports, 640-46; and 10McCord'sStatutes, 357, ed. note;ibid., II, 733, ed. note.[609]Holmesv.Holmes (1833), 6La., 463. In this state, under influence of French and Spanish law, the common-law contract appears always to have been regarded as valid.[610]Askewv.Dupree (1860), 30Ga., 173;cf.Clarkv.Cassidy, 64Ga., 662.[611]Blackburnv.Crawfords (1865), 3Wall., 175; Diggsv.Wormley (1893), 21D. C., 477, 485; Jenningsv.Webb (1896), 8App. D. C., 43, 56.Cf.Greenv.Norment (1886), 5Mackey, 80-92.[612]In Campbellv.Gullatt (1869), 43Ala., 57. But see the earlier decisions in S.v.Murphy (1844), 6Ala., 765-72; 41Am. D., 79; and Robertsonv.S. (1868), 42Ala., 509; being conflicting and indecisive as to whether the statute is merely "directory."[613]Jonesv.Jones (1872), 28Ark., 19-26. According to S.v.Willis (1848), 9Ark., 196-98, consent of the parent is not essential.[614]Dyerv.Brannock (1877), 66Mo., 391; 27Am. R., 359. The license required by statute is not essential to a valid marriage: S.v.Bittick (1890), 103Mo., 183.[615]Danielv.Sams (1880), 17Fla., 487-97.[616]In Bashawv.S. (1829), 1Yerg., 177; affirmed in Grishamv.S. (1831), 2Yerg., 589; opposed in Andrewsv.Page (1871), 3Heisk., 653-71; and apparently questioned in Johnsonv.Johnson (1860), 1Coldw., 626.[617]Dumasv.S. (1883), 14Tex. Cr. App., 464-74; Tel. Co.v.Procter (1894), 6T. C. A., 300, 303.[618]Cumbyv.Henderson (1894), 6T. C. A., 519-23; 25S. W., 673; Ingersolv.McWillie (1895), 9T. C. A., 543, 553; 30S. W., 56; Chapmanv.Chapman (1897), 16T. C. A., 384; and especially Railway Co.v.Cody (1899), 20T. C. A., 520-24.[619]Hantzv.Sealey (1814), 6Binn., 405; also Rodebaughv.Sanks (1833), 2Watts, 9-12; and Commonwealthv.Stump (1866), 53Pa., 132-38.[620]Carmichaelv.S. (1861), 12Ohio, 553-61.[621]Portv.Port (1873), 70Ill., 484; Bowmanv.Bowman (1887), 24Ill. App., 165-78.[622]Hutchinsv.Kimmel (1875), 31Mich., 126-35; 18Am. R., 164-69.[623]Blanchardv.Lambert (1876), 43Iowa, 228-32. Since 1851 the statutes of Iowa have clearly accepted the common-law marriage:Code of Iowa(1851), secs. 1474, 1475;ibid.(1897), 1124.[624]S.v.Worthington (1877), 23Minn., 528.[625]Williamsv.Williams (1879), 46Wis., 464-80; Spencerv.Pollock (1892), 83Wis., 215-22.[626]Teterv.Teter (1884), 101Ind., 129; 51Am. R., 742. In Rochev.Washington (1862), 19Ind., 53, the opposite position is taken.[627]S.v.Walker (1887), 36Kan., 297; 59Am. R., 556.[628]Baileyv.S. (1893), 36Neb., 808-14.[629]Israelv.Arthur (1893), 18Col., 158, 164; Taylorv.Taylor (1897), 10C. A., 303, 304.[630]S.v.Zichefield (1896), 23Nev., 304-18.[631]Wyckoffv.Boggs (1824), 2Halst., 138-40; and especially Pearsonv.Howey (1829), 6Halst., 12, 18, 20.[632]Jewellv.Jewell (1843), 1Howard, 219-34.[633]Meisterv.Moore (1877), 96U. S., 76-83.[634]SeeBennett, "Uniformity in Mar. and Div. Laws,"Am. Law Register, N. S., XXXV, 223 ff., who points out that the statutes of Alabama, Pennsylvania, and Missouri, where the common-law marriage is valid, are far more prohibitory than those of Massachusetts, Maryland, or West Virginia, where it is void. The statute of Alabama says positively that "no marriage shall be solemnized without a license issued by the judge of probate of the county where the female resides;" but a marriage so solemnized is nevertheless valid.[635]Cook, "The Mar. Cel. in the U. S.,"Atlantic, LXI, 523.[636]Milfordv.Worcester (1810), 7Mass., 48-58. See also, to the same effect, Commonwealthv.Munson (1879), 127Mass., 459-71; 34Am. R., 411. In this case it is correctly held that Justice Bigelow's decision in Partonv.Hervey (1854), 1Gray, 119, that the statute is merely "directory," relates to banns and parental consent, and not to solemnization; for Milfordv.Worcester is cited as authority.[637]See the opinion of Judge Redfield in Northfieldv.Plymouth (1848), 20Vt., 582, holding that a common-law marriage could not be regarded as valid without "virtually repealing our statutes," thus reversing the doctrine of Newburyv.Brunswick (1829), 2Vt.151; 19Am. D., 703; and consult especially Morrillv.Palmer (1895), 68Vt., 1-23, holding "that what ... Kent calls the 'loose doctrine of the common law,' in relation to marriage, was never in force in this state."[638]See the opinion of Chief Justice Gilchrist in Dumbartonv.Franklin (1848), 19N. H., 257, rejecting as irrelevant Judge Woodbury'sobiter dictumin Londonderryv.Chester (1820), 2N. H., 268-81, usually cited to sustain the common-law marriage; but this objection to it is scarcely valid.[639]S.v.Hodskins (1841), 19Me., 155-60; 36Am. D., 743.Cf.Ligoniav.Buxton, 2Me., 95. According to Hiramv.Pierce, 45Me., 367, the statute of Maine, like that of Massachusetts, is only directory regarding parental consent in case of minors.[640]Gen. Stat. of Ct.(1902), 1086. According toReeve,Law of Husband and Wife, 252 ff.; followed byKent,Commentaries, II, secs. 87 ff., the common-law marriage was formerly good in Connecticut.[641]The common-law marriage was sustained in Cheseldinev.Brewer (1739), 1Har. and McH., 152; overruled and the opposite doctrine supported in Denisonv.Denison (1871), 35Md., 361. In Jacksonv.Jackson (1894), 80Md., 176-96, it is held that the "fact that the marriage was performed by a clergyman may be inferred from the evidence."Cf.Bishop,Mar., Div., and Sep., I, sec. 416, p. 179.[642]S.v.Samuel (1836), 2Dev. and Bat., 177-85; followed in S.v.Patterson (1842), 2Iredell,N. C., 346-60; left undecided in S.v.Ta-cha-na-tah (1870), 64N. C., 614.Cf.S.v.Robbins (1845), 6Iredell,N. C., 23-27, where apparently a celebration, but not a license, is held essential to a valid marriage (25); and especially S.v.Wilson (1897), 121N. C., 657, where it is declared that a marriage "pretendedly celebrated before a person not authorized would be a nullity."[643]Beverlinv.Beverlin (1887), 29W. Va., 732-40.[644]Dumareslyv.Fishly (1821), 3A. K. Marshall, 368-77. See also Commonwealthv.Jackson, 11Bush.,Ky., 679.[645]Acts(1850-51), 212-16 (law in force July 1, 1852); sustained in Estillv.Rogers (1866), 1Bush.,Ky., 62; Stewartv.Munchandler, 2Bush.,Ky., 278.[646]Hargrovesv.Thompson (1856), 31Miss., 211; Dickersonv.Brown (1873), 49Miss., 357; Floydv.Calvert (1876), 53Miss., 37; Rundlev.Pegram (1874), 49Miss., 751.[647]Ann. Code of Miss.(1892), 679.[648]Rev. Stat. and Codes of Porto Rico(1902), 805.[649]Holmesv.Holmes (1870), 1Abb.,Cir. Ct.(U. S.), 525, declaring the statute regarding the solemnization of marriage mandatory.[650]In reMcLaughlin's Estate (1892), 4Wash., 570; 30Pac. R., 651;in reWilbur's Estate (1894), 8Wash., 35.[651]It may require judicial interpretation to determine the law of California. Sec. 55 of theCivil Code, since the act of 1895, does not contain theusualwords of nullity; but sec. 68 declares that a marriage is not invalidated by violation of the provisions governing solemnization, license, authentication, and record "by other than the parties themselves." One or two of the superior court judges have already decided that the statutory formalities are mandatory.[652]TheRev. Stat. of Utah(1898) rendered marriage void when not celebrated before an authorized person. Before this date a common-law contract was binding: U.S.v.Simpson, 4Utah, 227; 7Pac., 257.[653]See chap. xvi, sec. iii,a).[654]In Peckv.Peck (1880), 12R. I., 485-89, the court declined to decide whether a common-law contract is valid, there being no prohibitory language in the statute.Cf.also S.v.Boyle (1882), 13R. I., 537; and Ben. Associationv.Carpenter (1892), 17R. I., 720. In Williamsv.Herrick (1899), 21R. I., 401-3, the court appears to favor the validity of a marriage without a formal ceremony, if begun with "matrimonial intent."[655]According to Connorsv.Connors (1895), 40Pac., 966, a license is not essential in Wyoming.[656]In Beverlinv.Beverlin, 29W. Va., 736, the judge says, "I have been unable to find any case in which the courts of Virginia or this state have ever held that a common-law marriage was held valid;" and this, he adds, is "persuasive evidence" that it is not. In Colstonv.Quander (1877), 1Va. Decisions(not officially reported), license is declared not essential; but in this case there was a formal celebration. On the probable position of the states which have not decided seeCook,The Mar. Cel. in the U. S., 525, 526.[657]Of course the statute of Porto Rico must be regarded as preventing, not abolishing, the common-law marriage.[658]Quoted byCook, "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 byRichberg,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."—Dumbartonv.Franklin, 19N. H., 264, 265.[659]Except, perhaps, in practically getting rid of the subtle doctrine of marriageper verba de futuro cum copula: see the decision in Starrv.Peck (1841), 1Hill,N. Y., 270;Ewell,Cases, 403.Cf.Cheneyv.Arnold (1857), 15N. Y., 345;Ewell, 407-13; this being followed in Duncanv.Duncan, 10Ohio, 181; but discarded in Portv.Port, 70Ill., 484; and Peckv.Peck, 12R. I., 484; 34Am. 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.[661]Kentucky Stat.(1903), 843, 844.[662]Civil Laws of the Hawaiian Islands(1897), 700.[663]Bodington's Kelly,French Law of Marriage, 12.[664]By the law of 1875 marriages are thus celebrated before the localStandesbeamten:Kohler,Das Eherecht des bürg.Gesetzbuches, 16, 17, 55 ff.[665]Counting Hawaii which was not included in chap. xvi.[666]In "Diagnostics of Divorce,"Jour. of Soc. Sci.(Am. Assoc.), XIV, 136,Professor Robertsontakes 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 beipso factovoid."[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 Partonv.Hervey, 1Gray, 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."—Herveyv.Moseley (1856), 7Gray, 449; as summarized byBennett, "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 byCook, "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 FranciscoChroniclehad 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 byDike, "Statistics of Marriage and Divorce,"Pol. Sci. Quart., IV, 597.[673]On the faults of the registration laws seeibid., 594, 595.[674]In his enlightening criticism of our matrimonial lawsCook, "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).[676]Cf.Richberg,Incongruity of the Divorce Laws, 65 ff.[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, inArena, 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 thePhilanthropist, in theArena(1895), XI, 192-94. TheArenawas the principal medium of publication for the reformers: see the symposium byPowell,Gardener, and others, "The Shame of America,"Arena, XI, 192-215; the symposium byGardener,Robinson, and others,ibid., XIII, 209-25; the symposium byLeachandCampbell,ibid., XII, 282-88;Smith, "Age of Consent in Canada,"ibid., XIII, 81-91; and especiallyGardener, "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.

[589]Rev. Stat.(1896), I, 1049.

[590]Act of Feb. 11, 1897:Pub. Acts of Mich., 12;ibid.(1899), 69.

[591]See chap, viii, sec. i; and consultGlasson,Le mar. civil et le divorce, 210 ff., 232-51.

[592]On the revolutionary legislation regarding marriage and divorce (1792-1816) seeNaquet,Le divorce(Paris, 1877), 37-56, 153-353, containing extracts from the debates, text of the laws, reports, and other documents;Archives parlementaires, XXVI, 166-86, giving the report on the proposed civil marriage law;Wright,Report, 1004-6, presenting summaries of the laws;Champion, "La revolution et la réforme de l'état civil,"La révolution française, June 14, 1887;Colfavru, "La question du divorce devant les législateurs de la révolution,"ibid., March 14, 1884;Koenigswarter,Histoire de l'organisation de la famille en France, 268 ff.;Glasson,Le mar. civil et le divorce, 252-75;Legrand,Le mariage et les mœurs en France, 196-99;Durrieux,Du divorce, 99 ff.;Féval,Pas de divorce, 74 ff.;Fiaux,La femme, le mariage, et le divorce, 25 ff.;Vraye and Gode,Le divorce et la séparation du corps, I, 7-26;Bertillon,Étude démographique du divorce, 89 ff.; and in generalLasaulx,Uebereinstimmung der französischen Ehetrennungsgesetze mit Gotteswort(Koblenz and Hadamar, 1816).A powerful influence on revolutionary opinion must have been exerted by the remarkableContrat conjugal, published in 1781, again in 1783, and in German translation in 1784, which advocated civil marriage and free divorce, while attacking the ecclesiastical system of impediments and dispensations. The revolutionary ideas regarding divorce are also vigorously presented byHennet,Du divorce(3d ed., Paris, 1792); and byBouchotte,Observations sur le divorce(Paris, 1790). On the other hand, the divorce law of 1792 is criticised and divorce opposed byMadame Necker,Réflexions sur le divorce(Paris, 1792; Lausanne, 1794); as inDu divorce(Paris, 1801), 1 ff., byBonald, who opposed the law of 1803 and secured its repeal in 1816. SeePère Daniel'sLe mariage chrétien et le Code Napoléon(Paris, 1870); and for an examination of the literature of the period,Tissot,Le mariage, la séparation, et le divorce, 174 ff., 180 ff., 196 ff., 211 ff., 222 ff.

A powerful influence on revolutionary opinion must have been exerted by the remarkableContrat conjugal, published in 1781, again in 1783, and in German translation in 1784, which advocated civil marriage and free divorce, while attacking the ecclesiastical system of impediments and dispensations. The revolutionary ideas regarding divorce are also vigorously presented byHennet,Du divorce(3d ed., Paris, 1792); and byBouchotte,Observations sur le divorce(Paris, 1790). On the other hand, the divorce law of 1792 is criticised and divorce opposed byMadame Necker,Réflexions sur le divorce(Paris, 1792; Lausanne, 1794); as inDu divorce(Paris, 1801), 1 ff., byBonald, who opposed the law of 1803 and secured its repeal in 1816. SeePère Daniel'sLe mariage chrétien et le Code Napoléon(Paris, 1870); and for an examination of the literature of the period,Tissot,Le mariage, la séparation, et le divorce, 174 ff., 180 ff., 196 ff., 211 ff., 222 ff.

[593]In Paris alone during the first twenty-seven months after the passage of the act 5,994 divorces were granted; while in 1797 the divorce decrees in that city actually outnumbered the marriages:Glasson,Le mar. civil et le divorce, 261, 262. Accordingly, in 1798, the law was amended so as to make divorce for "incompatibility allowable only six months after final failure of attempts at reconciliation;" and this law also required all municipal authorities to proceed, and all teachers of public and private schools to take their pupils, "to the usual meeting places of the community every ten years in person and in state, there to make stern proclamation of the parties divorced during the previous decade, with the view of thus checking divorces."—Wright,Report, 1005;Naquet,Le divorce, 212-37, giving documents;Brun, "Divorce Made Easy,"North Am. Rev., CLVII (July, 1893), 12, 13; citingDuval,Souvenirs thermidoriens, I, 60, 61. See also theRapport(27 thermidor, an. V) of Portalis, who was the chief advocate of the amendment. In 1800, it is alleged, there were about 4,000 marriages and 700 divorces in Paris. To what extent the relative decrease was due to the change in the law can only be conjectured.

[594]On this doctrine, with the leading cases, seeKent,Commentaries(14th ed., Boston, 1896), II, secs. 87 ff., pp. 119 ff.;Reeve,The Law of Husband and Wife("Domestic Relations"), 250-58;Greenleaf,Law of Evidence(16th ed., Boston, 1899), II, secs. 460-64, pp. 441-47; and especiallyBishop,Mar., Div., and Sep., I, secs. 409 ff., pp. 176 ff.

[595]See chaps. xii-xv, inclusive.

[596]Cook, "The Marriage Celebration in the United States,"Atlantic, LXI, 521. "But in the early part of this century there arose in the courts a discussion regarding the nature of our common law, and the relation of that law to our statute law in governing the celebration of marriage—a discussion which since then has constantly increased, and has gradually brought about a revolution unparalleled in the history of our subject."—Ibid.

[597]Chap. xv, sec. ii; chap. xiii, sec. iv.

[598]Chap. xiii, sec. i.

[599]Hening,Statutes, I, 252, 253. See chap. xiii, sec. i.

[600]For these colonies see chap. xiii, secs, iii, iv.

[601]Chap. xiv, sec. i,c).

[602]Chap. xii, sec. vi.

[603]MSS. Records of the County Court of Middlesex(Apr. 1, 1656), I, 80.

[604]See the case of Usherv.Troop (Throop), 1724-29, in which is raised the question as to whether the "constitutions and canons ecclesiastical of the Church of England" are binding in Massachusetts:MSS. Records of the Superior Court of Judicature, 1725-30, fol. 236.Cf.chap. xii, secs, i, ii.

[605]Cook, "The Mar. Cel. in the U.S.,"Atlantic, LXI, 520-32, has given a systematic account of the subject to the year 1888. To this article, and to his "Reform in the Celebration of Marriage,"ibid., 680-90, I am indebted; as also toBennett, "Uniformity in Marriage and Divorce Laws,"Am. Law Register, N. S., XXXV, 221-31.Cf.Convers,Mar. and Divorce, 15-119;Stewart,Mar. and Divorce, 78 ff.

[606]In the case of Fentonv.Reed (1809), 4Johns., 52; 4Am. D., 244;Ewell,Cases on Domestic Relations, 397-99. Following are the essential facts in this celebrated case. In 1785 John Guest "left the state for foreign parts." During his absence, in 1792, his wife Elizabeth married Reed. Subsequently in the same year her first husband, Guest, returned to the state and there resided until his death in June, 1800. He professed to have no marital claim upon Elizabeth; so she lived with Reed as a wife continuously from 1792 until the latter's death in 1806. Was she the lawful wife of Reed from 1792 to 1800 during the lifetime of Guest? If not, was she, without the observance of any formalities, his lawful wife from 1800 to 1806 after Guest's demise? To the first question the court answered "no," holding that "the statute concerning bigamy does not render the second marriage legal, notwithstanding the former husband or wife may have been absent above five years, and not heard of. It only declares that the party who marries again in consequence of such absence ... , shall be exempted from the operation of the statute, and leaves the question of the validity of the second marriage just where it found it." To the second question the court answered "yes," as explained in the text.Cf.Starrv.Peck, 1Hill,N. Y., 270.

[607]The doctrine of his own decision was formulated in 1826 byKentin the first edition of hisCommentaries. Ten years earlier, in 1816, it had been accepted byReeve, former chief justice of Connecticut, in his treatise on theLaw of Husband and Wife. It was followed in 1842 byGreenleafin his work onEvidence; and later byBishopin his well-known book onMarriage and Divorce. On the other hand, the youngerParsons, the first edition of whoseContractsappeared in 1853, is inclined to reject the Kent doctrine: see the 8th ed., II, 78 ff.; and compareCook, "The Mar. Cel. in the U. S.,"Atlantic, XLI, 521, 522.

[608]See Fryerv.Fryer (1832),Richardson'sEquity Cases, 92 ff.Cf.the case of Vaigneurv.Kirk (1808), 2S. C. Equity Reports, 640-46; and 10McCord'sStatutes, 357, ed. note;ibid., II, 733, ed. note.

[609]Holmesv.Holmes (1833), 6La., 463. In this state, under influence of French and Spanish law, the common-law contract appears always to have been regarded as valid.

[610]Askewv.Dupree (1860), 30Ga., 173;cf.Clarkv.Cassidy, 64Ga., 662.

[611]Blackburnv.Crawfords (1865), 3Wall., 175; Diggsv.Wormley (1893), 21D. C., 477, 485; Jenningsv.Webb (1896), 8App. D. C., 43, 56.Cf.Greenv.Norment (1886), 5Mackey, 80-92.

[612]In Campbellv.Gullatt (1869), 43Ala., 57. But see the earlier decisions in S.v.Murphy (1844), 6Ala., 765-72; 41Am. D., 79; and Robertsonv.S. (1868), 42Ala., 509; being conflicting and indecisive as to whether the statute is merely "directory."

[613]Jonesv.Jones (1872), 28Ark., 19-26. According to S.v.Willis (1848), 9Ark., 196-98, consent of the parent is not essential.

[614]Dyerv.Brannock (1877), 66Mo., 391; 27Am. R., 359. The license required by statute is not essential to a valid marriage: S.v.Bittick (1890), 103Mo., 183.

[615]Danielv.Sams (1880), 17Fla., 487-97.

[616]In Bashawv.S. (1829), 1Yerg., 177; affirmed in Grishamv.S. (1831), 2Yerg., 589; opposed in Andrewsv.Page (1871), 3Heisk., 653-71; and apparently questioned in Johnsonv.Johnson (1860), 1Coldw., 626.

[617]Dumasv.S. (1883), 14Tex. Cr. App., 464-74; Tel. Co.v.Procter (1894), 6T. C. A., 300, 303.

[618]Cumbyv.Henderson (1894), 6T. C. A., 519-23; 25S. W., 673; Ingersolv.McWillie (1895), 9T. C. A., 543, 553; 30S. W., 56; Chapmanv.Chapman (1897), 16T. C. A., 384; and especially Railway Co.v.Cody (1899), 20T. C. A., 520-24.

[619]Hantzv.Sealey (1814), 6Binn., 405; also Rodebaughv.Sanks (1833), 2Watts, 9-12; and Commonwealthv.Stump (1866), 53Pa., 132-38.

[620]Carmichaelv.S. (1861), 12Ohio, 553-61.

[621]Portv.Port (1873), 70Ill., 484; Bowmanv.Bowman (1887), 24Ill. App., 165-78.

[622]Hutchinsv.Kimmel (1875), 31Mich., 126-35; 18Am. R., 164-69.

[623]Blanchardv.Lambert (1876), 43Iowa, 228-32. Since 1851 the statutes of Iowa have clearly accepted the common-law marriage:Code of Iowa(1851), secs. 1474, 1475;ibid.(1897), 1124.

[624]S.v.Worthington (1877), 23Minn., 528.

[625]Williamsv.Williams (1879), 46Wis., 464-80; Spencerv.Pollock (1892), 83Wis., 215-22.

[626]Teterv.Teter (1884), 101Ind., 129; 51Am. R., 742. In Rochev.Washington (1862), 19Ind., 53, the opposite position is taken.

[627]S.v.Walker (1887), 36Kan., 297; 59Am. R., 556.

[628]Baileyv.S. (1893), 36Neb., 808-14.

[629]Israelv.Arthur (1893), 18Col., 158, 164; Taylorv.Taylor (1897), 10C. A., 303, 304.

[630]S.v.Zichefield (1896), 23Nev., 304-18.

[631]Wyckoffv.Boggs (1824), 2Halst., 138-40; and especially Pearsonv.Howey (1829), 6Halst., 12, 18, 20.

[632]Jewellv.Jewell (1843), 1Howard, 219-34.

[633]Meisterv.Moore (1877), 96U. S., 76-83.

[634]SeeBennett, "Uniformity in Mar. and Div. Laws,"Am. Law Register, N. S., XXXV, 223 ff., who points out that the statutes of Alabama, Pennsylvania, and Missouri, where the common-law marriage is valid, are far more prohibitory than those of Massachusetts, Maryland, or West Virginia, where it is void. The statute of Alabama says positively that "no marriage shall be solemnized without a license issued by the judge of probate of the county where the female resides;" but a marriage so solemnized is nevertheless valid.

[635]Cook, "The Mar. Cel. in the U. S.,"Atlantic, LXI, 523.

[636]Milfordv.Worcester (1810), 7Mass., 48-58. See also, to the same effect, Commonwealthv.Munson (1879), 127Mass., 459-71; 34Am. R., 411. In this case it is correctly held that Justice Bigelow's decision in Partonv.Hervey (1854), 1Gray, 119, that the statute is merely "directory," relates to banns and parental consent, and not to solemnization; for Milfordv.Worcester is cited as authority.

[637]See the opinion of Judge Redfield in Northfieldv.Plymouth (1848), 20Vt., 582, holding that a common-law marriage could not be regarded as valid without "virtually repealing our statutes," thus reversing the doctrine of Newburyv.Brunswick (1829), 2Vt.151; 19Am. D., 703; and consult especially Morrillv.Palmer (1895), 68Vt., 1-23, holding "that what ... Kent calls the 'loose doctrine of the common law,' in relation to marriage, was never in force in this state."

[638]See the opinion of Chief Justice Gilchrist in Dumbartonv.Franklin (1848), 19N. H., 257, rejecting as irrelevant Judge Woodbury'sobiter dictumin Londonderryv.Chester (1820), 2N. H., 268-81, usually cited to sustain the common-law marriage; but this objection to it is scarcely valid.

[639]S.v.Hodskins (1841), 19Me., 155-60; 36Am. D., 743.Cf.Ligoniav.Buxton, 2Me., 95. According to Hiramv.Pierce, 45Me., 367, the statute of Maine, like that of Massachusetts, is only directory regarding parental consent in case of minors.

[640]Gen. Stat. of Ct.(1902), 1086. According toReeve,Law of Husband and Wife, 252 ff.; followed byKent,Commentaries, II, secs. 87 ff., the common-law marriage was formerly good in Connecticut.

[641]The common-law marriage was sustained in Cheseldinev.Brewer (1739), 1Har. and McH., 152; overruled and the opposite doctrine supported in Denisonv.Denison (1871), 35Md., 361. In Jacksonv.Jackson (1894), 80Md., 176-96, it is held that the "fact that the marriage was performed by a clergyman may be inferred from the evidence."Cf.Bishop,Mar., Div., and Sep., I, sec. 416, p. 179.

[642]S.v.Samuel (1836), 2Dev. and Bat., 177-85; followed in S.v.Patterson (1842), 2Iredell,N. C., 346-60; left undecided in S.v.Ta-cha-na-tah (1870), 64N. C., 614.Cf.S.v.Robbins (1845), 6Iredell,N. C., 23-27, where apparently a celebration, but not a license, is held essential to a valid marriage (25); and especially S.v.Wilson (1897), 121N. C., 657, where it is declared that a marriage "pretendedly celebrated before a person not authorized would be a nullity."

[643]Beverlinv.Beverlin (1887), 29W. Va., 732-40.

[644]Dumareslyv.Fishly (1821), 3A. K. Marshall, 368-77. See also Commonwealthv.Jackson, 11Bush.,Ky., 679.

[645]Acts(1850-51), 212-16 (law in force July 1, 1852); sustained in Estillv.Rogers (1866), 1Bush.,Ky., 62; Stewartv.Munchandler, 2Bush.,Ky., 278.

[646]Hargrovesv.Thompson (1856), 31Miss., 211; Dickersonv.Brown (1873), 49Miss., 357; Floydv.Calvert (1876), 53Miss., 37; Rundlev.Pegram (1874), 49Miss., 751.

[647]Ann. Code of Miss.(1892), 679.

[648]Rev. Stat. and Codes of Porto Rico(1902), 805.

[649]Holmesv.Holmes (1870), 1Abb.,Cir. Ct.(U. S.), 525, declaring the statute regarding the solemnization of marriage mandatory.

[650]In reMcLaughlin's Estate (1892), 4Wash., 570; 30Pac. R., 651;in reWilbur's Estate (1894), 8Wash., 35.

[651]It may require judicial interpretation to determine the law of California. Sec. 55 of theCivil Code, since the act of 1895, does not contain theusualwords of nullity; but sec. 68 declares that a marriage is not invalidated by violation of the provisions governing solemnization, license, authentication, and record "by other than the parties themselves." One or two of the superior court judges have already decided that the statutory formalities are mandatory.

[652]TheRev. Stat. of Utah(1898) rendered marriage void when not celebrated before an authorized person. Before this date a common-law contract was binding: U.S.v.Simpson, 4Utah, 227; 7Pac., 257.

[653]See chap. xvi, sec. iii,a).

[654]In Peckv.Peck (1880), 12R. I., 485-89, the court declined to decide whether a common-law contract is valid, there being no prohibitory language in the statute.Cf.also S.v.Boyle (1882), 13R. I., 537; and Ben. Associationv.Carpenter (1892), 17R. I., 720. In Williamsv.Herrick (1899), 21R. I., 401-3, the court appears to favor the validity of a marriage without a formal ceremony, if begun with "matrimonial intent."

[655]According to Connorsv.Connors (1895), 40Pac., 966, a license is not essential in Wyoming.

[656]In Beverlinv.Beverlin, 29W. Va., 736, the judge says, "I have been unable to find any case in which the courts of Virginia or this state have ever held that a common-law marriage was held valid;" and this, he adds, is "persuasive evidence" that it is not. In Colstonv.Quander (1877), 1Va. Decisions(not officially reported), license is declared not essential; but in this case there was a formal celebration. On the probable position of the states which have not decided seeCook,The Mar. Cel. in the U. S., 525, 526.

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

[658]Quoted byCook, "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 byRichberg,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."—Dumbartonv.Franklin, 19N. H., 264, 265.

[659]Except, perhaps, in practically getting rid of the subtle doctrine of marriageper verba de futuro cum copula: see the decision in Starrv.Peck (1841), 1Hill,N. Y., 270;Ewell,Cases, 403.Cf.Cheneyv.Arnold (1857), 15N. Y., 345;Ewell, 407-13; this being followed in Duncanv.Duncan, 10Ohio, 181; but discarded in Portv.Port, 70Ill., 484; and Peckv.Peck, 12R. I., 484; 34Am. 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.

[661]Kentucky Stat.(1903), 843, 844.

[662]Civil Laws of the Hawaiian Islands(1897), 700.

[663]Bodington's Kelly,French Law of Marriage, 12.

[664]By the law of 1875 marriages are thus celebrated before the localStandesbeamten:Kohler,Das Eherecht des bürg.Gesetzbuches, 16, 17, 55 ff.

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

[666]In "Diagnostics of Divorce,"Jour. of Soc. Sci.(Am. Assoc.), XIV, 136,Professor Robertsontakes 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 beipso factovoid."

[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 Partonv.Hervey, 1Gray, 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."—Herveyv.Moseley (1856), 7Gray, 449; as summarized byBennett, "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 byCook, "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 FranciscoChroniclehad 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 byDike, "Statistics of Marriage and Divorce,"Pol. Sci. Quart., IV, 597.

[673]On the faults of the registration laws seeibid., 594, 595.

[674]In his enlightening criticism of our matrimonial lawsCook, "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).

[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).

[676]Cf.Richberg,Incongruity of the Divorce Laws, 65 ff.

[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, inArena, 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 thePhilanthropist, in theArena(1895), XI, 192-94. TheArenawas the principal medium of publication for the reformers: see the symposium byPowell,Gardener, and others, "The Shame of America,"Arena, XI, 192-215; the symposium byGardener,Robinson, and others,ibid., XIII, 209-25; the symposium byLeachandCampbell,ibid., XII, 282-88;Smith, "Age of Consent in Canada,"ibid., XIII, 81-91; and especiallyGardener, "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.

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