Chapter 31

[680]Gardener, "A Battle for Sound Morality,"Arena, XIII, 354, 355.[681]Powell, inArena, XI, 195;cf.Gardener,ibid., XIII, 358.[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;ora fine of not less than $100 nor more than $500;orconfinement in the county jail not less than one month nor more than six months or both such fine and confinement:Laws(1895), 149; also inRev. Stat.(1899), I, 547.Cf.Rev. Stat.(1889), I, 850;Gardener, inArena, XIV, 31.[690]Laws of Arizona(1895), 48;ibid.(1899), 29; the same inRev. 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 inRev. 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: 1Supp. to U. S. Stat., c. 120, p. 641; alsoCode 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.: 1Supp. 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; andLaws(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; withLaws(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 notmorethan two years in the house of correctionorby a fine not toexceed$500:Prentiss'sSupp. 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 byDromgoole, inArena, XI, 209-12; and for the act consultLaws(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 theCode of N. C.(1883), 444, the age is ten; raised to fourteen byPub. Laws(1895), 374; but the crime is only "punished by fineorimprisonment at the discretion of the court, provided she has never previously had sexual intercourse with any male person."[703]TheCode 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 theCode, 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": seeGardener, inArena, XIV, 415, 416; but I have not been able to find this provision in the presentCode. 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: 11Ga., 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.[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. CompareRev. Stat. of Idaho(1887), 733;Laws(1893), 10, 11;Laws(1895), 19; andPenal Code(1901), 134, 139.[713]Raised from sixteen:Laws of N. Y.(1895), c. 460;Birdseye'sRev. 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'sCodes 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, inArena, 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'sCodes(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'sAnn. Stat.(1897), II, 3144, 3145: rape if the boy is over eighteen; penalty, three to twenty years in prison; lowered byActs(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]CompareStat. and Amend. to Codes(1889), 223, andibid.(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 inRev. 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'sRev. 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'sAnn. 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.[735]"When the question is asked, 'What is the best divorce law?' the only answer can be, 'There is no good divorce law.' There are some faults in human nature which always have existed and apparently always will exist; and there is no satisfactory method of dealing with them."—Bryce,Studies in Hist. and Jurisprudence, 853. This assertion would apply equally well to the whole body of laws dealing with questions arising in human conduct or social relations. It is misleading, and instead of helping to a solution tends to befog the issue.[736]See theReportsof the league and the numerous papers ofMr. Dikementioned in the fourth division of the "Bibliographical Index."[737]The evils which may result from conflicts of this kind in the divorce laws are discussed in a lively way byRichberg,Incongruity of the Divorce Laws, 69, 70. But the California act of 1903, if constitutional, may check the abuse: see pp. 150, 151, above.[738]SeeRealf, "The Sioux Falls Divorce Colony and Some Noted Colonists,"Arena, IV, Nov., 1891, 696-703, and compare the remarks ofDike, inRep. of Nat. Div. Ref. League(1891), 12, who has taken pains to correct the exaggerated accounts of the newspapers; those ofHare,Marriage and Divorce, 16 ff.; and see the articles ofA. R. KimballandR. Ogdenmentioned in Part IV of the Bibliographical Index.[739]Extract from an address delivered byHon. Carroll D. Wrightbefore the fourteenth National Conference of the Unitarian Society, Saratoga, N. Y., 1891: inArena, V, 143; printed entire in theChristian Register, Oct. 8, 1891; based on the statistics collected in hisReport, 193-206. Commenting on the passage quoted the editor of theArenasays (142):"Another charge made against our divorce laws is that, not being uniform, certain states are being overrun with persons of loose moral character, who seek release from marriage ties. Those who make this charge seem to overlook the fact that persons of loose moral character would not be liable to go to the trouble of leaving their home and state in order to gratify guilty passions. But those who find the marriage tie too galling for endurance and yet who wish to be law-abiding citizens presumably, will take advantage of liberal, enlightened, and humane laws, framed with a view to increase the happiness of the people rather than made in such a way as to foster immorality and enforced prostitution."[740]According to the method of determining the amount of interstate migration for the purpose of securing divorce suggested byWillcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 90-92.[741]Dike, "Statistics of Marriage and Divorce,"Pol. Sci. Quart., IV, 608-12.[742]See Streitwolfv.Streitwolf (1900),Opinions of U. S. Supreme Court, No. 13, p. 553, involving a decree of divorce granted in North Dakota to a resident of New Jersey; Bellv.Bell (1900),ibid., 551, voiding a similar judgment secured in Pennsylvania by a resident of New York; and S.v.Armington (1878), 25Minn., 29-39, in which a divorce granted in Utah to a resident of Minnesota in 1876 was declared void for want of jurisdiction. Similar decisions, involving the notorious fraudulent divorces obtained in Utah before the change of the law in 1878, "have been reached in criminal trials in New York, Indiana, and Iowa, and in civil suits in Massachusetts, Kansas, and Tennessee"—the earliest in 1877:Willcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 86 n. 1.[743]Wright,Report, 162-64. In the whole country, during the years 1867-86, 328,716 decrees were granted, representing probably 484,683 petitions.[744]In forty-five counties in twelve states, for the period 1867-86, notice was served by publication in 9,944 cases; in 17,040 cases personal service was made; and in 2,681 cases no evidence on the point was obtainable:Wright,Report, 201, 202.[745]For a good discussion of the scope of various statutory grounds of divorce, with the defenses, as actually interpreted by the courts, seeWhitney,Marriage and Divorce, 108-56; and compareBishop,Mar., Div., and Sep., I, 610 ff., II, 1 ff.;Stewart,Law of Mar. and Div., 203 ff.;Lloyd,Law of Div., 147 ff., 180 ff.;Convers,Mar. and Divorce, 180 ff.[746]The ninety-nine illustrations of the allegations of the plaintiff presented inWright'sReport, 172-78, constitute very interesting reading. Some of them are quoted byBryce,Studies in Hist. and Jurisp., 835, 836. The frauds arising in the procedure are forcibly described byJudge Jameson, "Divorce,"North Am. Rev., CXXXVI, 323, 324; and the conflicts in laws byPhillips, "Divorce Question,"Internat. Rev., XI, 139-52.[747]Wright,Report, 139-42.[748]According to the table by classified causes:Wright,Report, 181-83. However, the relative number of divorces granted on the wife's petition varies greatly among the states: from 39.3 per cent. in North Carolina to 77.9 in Nevada: compare the table inWillcox,The Divorce Problem, 34-37.[749]Dike, "Statistics of Marriage and Divorce,"Pol. Sci. Quart., IV, 607, summarizing the tables and figures inWright,Report, 135-39.[750]Wright,Report, 137.[751]Ibid., 147-49.[752]Willcox,The Divorce Problem(2d ed.), 16-19, and Appendix.[753]According toWillcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 78, the "number of persons divorced (not the number of divorces) to every 100,000 of the population" is as follows for various countries, the date being 1886 unless otherwise stated: Ireland, 0.28; Italy (1885), 3.75; England and Wales, 3.79; Canada, 4.81; Australia (including New Zealand and Tasmania), 11.14; German Empire, 25.97; France, 32.51; Switzerland, 64.49; United States, 88.71; Japan, 608.45. "In the year 1886," he adds, "there were in Japan 315,311 marriages and 117,964 divorces, more than one divorce to every three marriages and more than four and a half times as many divorces as there were in the United States, although the population of Japan was only about two-thirds as great."[754]Willcox,op. cit., 92-96.[755]Wright,Report, 158-63:Willcox,op. cit., 74, 75;Bertillon,Étude démographique du divorce, 54-57; andStatistik der Ehescheidungen der Stadt Berlin, vi, vii, showing that for each 10,000 married persons living in Berlin in 1867 29.85 divorces were granted, while in 1894 the rate had risen to 37.93.[756]Willcox,op. cit., 73 ff., 93 ff.Cf.Wright,Report, 145, 146. Within this group the New England states show a small decrease in the divorce rate; "while in New York, New Jersey, and Pennsylvania as a whole it has slightly increased, the two offsetting each other."[757]Dike, inRep. of Nat. League for Protection of the Family(1901), 6, 11. But in 1902, for the state, the ratio was 1 divorce to 7.6 marriages;ibid.(1903), 10.In 1896 the number of marriages celebrated to one divorce granted was 19.2 in Massachusetts, 15.7 in Vermont, 14.9 in Connecticut, 9.2 in Rhode Island, and only 8.3 in Maine. In 1901 the ratio in Rhode Island had fallen to 8.2; while it had risen in Connecticut to 15.8 and in Massachusetts to 20.2:Registration Report(Me., 1896), 91;ibid.(Vt., 1896), 96;DikeinReport(1901), 11. In 1902 the number of marriages to one divorce was sixteen in Massachusetts; 8.4 in Rhode Island; 10 in Vermont; and only about six in Maine; while in 1901 it was 8.3 in New Hampshire:Dike,op. cit.(1903), 9, 10.[758]For these facts see the parliamentaryReturn of the Number of Divorces in Foreign Countries(Part I, being Misc. No. 4, 1895), 3-5, 8, 9, 10, 12, 15, 16. See alsoBertillon,Étude démographique du divorce, 58 ff., 74 ff.; the table inStatistik der Ehescheidungen der Stadt Berlin, vi, vii, giving figures (1867-94) for German and other lands as well as for the city;Oettingen,Die Moralstatistik, 134-62,passim;Rubin and Westergaard,Statistik der Ehen(relating chiefly to Denmark and particularly to Copenhagen);Cadet,Le mariage en France(containing many statistical tables for marriage and divorce);Naquet,Le divorce(giving two tables for marriage and divorce, 1840-74);Woolsey,Divorce and Divorce Legislation, 181-93;Muirhead, "Is the Family Declining?"Internat. Jour. of Eth., Oct., 1896, 33 ff.;Mayo-Smith,Statistics and Sociology, 101 ff., 124;Wright,Report, 981 ff.; and the mass of marriage statistics inCauderlier,Les lois de la population et leur application à la Belgique.[759]Bryce,Studies in Hist. and Jurisp., 841.[760]Mill,Prin. of Pol. Econ.(Boston, 1848), I, 413.[761]Fawcett,Manual of Pol. Econ.(4th ed., London, 1874), 143.[762]Bodio,Del Movimento della populazione in Italia e in altri stati d'Europa(1876), 136, 137;Farr,Vital Statistics, 68-75; andidem, inReport of the Registrar General: quoted byOgle, "On Marriage Rates," etc.,Jour. of the Royal Statistical Society, LIII, 254 ff.Cf.Newsholme,Vital Statistics, 45, 46.[763]Ogle,op. cit., 256-63.Cauderlier,Les lois de la population, 71-74, 113, 114, has also shown in the case of England that foreign commercial relations must be considered in determining the condition of material well-being.[764]Oettingen,Die Moralstatistik, 89-94, and authorities there cited;Bertillon,Annales de démographie internationale, I, 24;Cauderlier,op. cit., 61-78, 102 ff., giving statistics for Germany, Belgium, England, and France.Cf.Mayo-Smith,Statistics and Sociology, 100, 101.[765]Ogle,op. cit., 255;cf.Oettingen,op. cit., 93, 94.[766]Willcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 76, 77.Cf.idem, "The Marriage Rate in Michigan,"Pub. Am. Stat. Assoc., IV, 7; andCrum, "The Marriage Rate in Massachusetts,"ibid., 328, 329.[767]Willcox,loc. cit., 76, 77, 79-82. On the increase of divorce among the southern negroes seeidem,The Divorce Problem, 21-23, 29-32.[768]Bertillon,op. cit., 20-28, 88-102;Wright,Report, 150.[769]See table inWright,Report, 145.[770]See the table inBottet,La famille, 47 ff. His figures do not agree with those quoted fromWright'sReport: According to his table, 3,010 separations were granted in 1883; 3,790 separations and divorces in 1884; 4,640 in 1885; 6,270 in 1886; 7,983 in 1887; and 7,430 in 1888. CompareKeller, "Divorces in France,"Procds. of the Am. Stat. Assoc., I, 469 ff., who summarizesTurquan,Résultats statistiques de cinq années de divorce. See also "Divorce: from a French Point of View,"North Am. Rev., CLV, 721-30, byNaquet, author of the law of 1884; and the vigorous criticism ofBrun, "Divorce Made Easy,"ibid., CLVII, 11-17. In 1897, 7,460 divorces were decreed; while in 1900 there were only 7,157;Dike,Rep. of the Nat. League for Protection of the Family(1903), 11.[771]Willcox,The Divorce Problem, 37, 38.[772]Ibid.(2d ed.), 45, 46;Wright,Report, 148, 169.[773]Wright,Report, 150 ff.[774]Including the repeal in 1878 of the celebrated Connecticut "omnibus clause" introduced in 1849. On the alleged influence of this clause seeDike, "Facts as to Divorce in New England," inChrist and Modern Thought, 197-202;idem, "Some Aspects of the Divorce Problem,"Princeton Review, March, 1884, 170, 171; and especiallyLoomis, "Divorce Legislation in Conn.,"New Englander, XXV, 436 ff., 441, 442, giving a table of Connecticut divorces by counties, 1849-65; andAllen, "Divorce in New England,"North Am. Rev., CXXX, 547 ff., giving statistics for the period 1860-78.[775]For example, Massachusetts created four new causes of divorce in 1870; and in 1873 reduced the time of desertion necessary to constitute a ground of divorce from five to three years. Divorces increased from 337 in 1872 to 611 in 1874. A part of this gain was probably due to the change in law, although in all the entire group of north Atlantic states there was at the same time a large increase which cannot be thus accounted for. The lax law of residence in Utah previous to 1878, and the reduction of the term of desertion from two years to one by the Dakota legislature in 1881, were each responsible for an increase in the divorce rate: compareWright,Report, 152 ff., 156, 203 ff.;Willcox,A Study in Vital Statistics, 85-90;idem,The Divorce Problem, 41-61; with the criticism ofDike, "Legislation and Divorce,"New York Eve. Post, July 2, 1891.

[680]Gardener, "A Battle for Sound Morality,"Arena, XIII, 354, 355.

[681]Powell, inArena, XI, 195;cf.Gardener,ibid., XIII, 358.

[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;ora fine of not less than $100 nor more than $500;orconfinement in the county jail not less than one month nor more than six months or both such fine and confinement:Laws(1895), 149; also inRev. Stat.(1899), I, 547.Cf.Rev. Stat.(1889), I, 850;Gardener, inArena, XIV, 31.

[690]Laws of Arizona(1895), 48;ibid.(1899), 29; the same inRev. 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 inRev. 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: 1Supp. to U. S. Stat., c. 120, p. 641; alsoCode 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.: 1Supp. 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; andLaws(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; withLaws(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 notmorethan two years in the house of correctionorby a fine not toexceed$500:Prentiss'sSupp. 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 byDromgoole, inArena, XI, 209-12; and for the act consultLaws(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 theCode of N. C.(1883), 444, the age is ten; raised to fourteen byPub. Laws(1895), 374; but the crime is only "punished by fineorimprisonment at the discretion of the court, provided she has never previously had sexual intercourse with any male person."

[703]TheCode 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 theCode, 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": seeGardener, inArena, XIV, 415, 416; but I have not been able to find this provision in the presentCode. 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: 11Ga., 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.

[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. CompareRev. Stat. of Idaho(1887), 733;Laws(1893), 10, 11;Laws(1895), 19; andPenal Code(1901), 134, 139.

[713]Raised from sixteen:Laws of N. Y.(1895), c. 460;Birdseye'sRev. 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'sCodes 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, inArena, 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'sCodes(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'sAnn. Stat.(1897), II, 3144, 3145: rape if the boy is over eighteen; penalty, three to twenty years in prison; lowered byActs(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]CompareStat. and Amend. to Codes(1889), 223, andibid.(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 inRev. 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'sRev. 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'sAnn. 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.

[735]"When the question is asked, 'What is the best divorce law?' the only answer can be, 'There is no good divorce law.' There are some faults in human nature which always have existed and apparently always will exist; and there is no satisfactory method of dealing with them."—Bryce,Studies in Hist. and Jurisprudence, 853. This assertion would apply equally well to the whole body of laws dealing with questions arising in human conduct or social relations. It is misleading, and instead of helping to a solution tends to befog the issue.

[736]See theReportsof the league and the numerous papers ofMr. Dikementioned in the fourth division of the "Bibliographical Index."

[737]The evils which may result from conflicts of this kind in the divorce laws are discussed in a lively way byRichberg,Incongruity of the Divorce Laws, 69, 70. But the California act of 1903, if constitutional, may check the abuse: see pp. 150, 151, above.

[738]SeeRealf, "The Sioux Falls Divorce Colony and Some Noted Colonists,"Arena, IV, Nov., 1891, 696-703, and compare the remarks ofDike, inRep. of Nat. Div. Ref. League(1891), 12, who has taken pains to correct the exaggerated accounts of the newspapers; those ofHare,Marriage and Divorce, 16 ff.; and see the articles ofA. R. KimballandR. Ogdenmentioned in Part IV of the Bibliographical Index.

[739]Extract from an address delivered byHon. Carroll D. Wrightbefore the fourteenth National Conference of the Unitarian Society, Saratoga, N. Y., 1891: inArena, V, 143; printed entire in theChristian Register, Oct. 8, 1891; based on the statistics collected in hisReport, 193-206. Commenting on the passage quoted the editor of theArenasays (142):"Another charge made against our divorce laws is that, not being uniform, certain states are being overrun with persons of loose moral character, who seek release from marriage ties. Those who make this charge seem to overlook the fact that persons of loose moral character would not be liable to go to the trouble of leaving their home and state in order to gratify guilty passions. But those who find the marriage tie too galling for endurance and yet who wish to be law-abiding citizens presumably, will take advantage of liberal, enlightened, and humane laws, framed with a view to increase the happiness of the people rather than made in such a way as to foster immorality and enforced prostitution."

"Another charge made against our divorce laws is that, not being uniform, certain states are being overrun with persons of loose moral character, who seek release from marriage ties. Those who make this charge seem to overlook the fact that persons of loose moral character would not be liable to go to the trouble of leaving their home and state in order to gratify guilty passions. But those who find the marriage tie too galling for endurance and yet who wish to be law-abiding citizens presumably, will take advantage of liberal, enlightened, and humane laws, framed with a view to increase the happiness of the people rather than made in such a way as to foster immorality and enforced prostitution."

[740]According to the method of determining the amount of interstate migration for the purpose of securing divorce suggested byWillcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 90-92.

[741]Dike, "Statistics of Marriage and Divorce,"Pol. Sci. Quart., IV, 608-12.

[742]See Streitwolfv.Streitwolf (1900),Opinions of U. S. Supreme Court, No. 13, p. 553, involving a decree of divorce granted in North Dakota to a resident of New Jersey; Bellv.Bell (1900),ibid., 551, voiding a similar judgment secured in Pennsylvania by a resident of New York; and S.v.Armington (1878), 25Minn., 29-39, in which a divorce granted in Utah to a resident of Minnesota in 1876 was declared void for want of jurisdiction. Similar decisions, involving the notorious fraudulent divorces obtained in Utah before the change of the law in 1878, "have been reached in criminal trials in New York, Indiana, and Iowa, and in civil suits in Massachusetts, Kansas, and Tennessee"—the earliest in 1877:Willcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 86 n. 1.

[743]Wright,Report, 162-64. In the whole country, during the years 1867-86, 328,716 decrees were granted, representing probably 484,683 petitions.

[744]In forty-five counties in twelve states, for the period 1867-86, notice was served by publication in 9,944 cases; in 17,040 cases personal service was made; and in 2,681 cases no evidence on the point was obtainable:Wright,Report, 201, 202.

[745]For a good discussion of the scope of various statutory grounds of divorce, with the defenses, as actually interpreted by the courts, seeWhitney,Marriage and Divorce, 108-56; and compareBishop,Mar., Div., and Sep., I, 610 ff., II, 1 ff.;Stewart,Law of Mar. and Div., 203 ff.;Lloyd,Law of Div., 147 ff., 180 ff.;Convers,Mar. and Divorce, 180 ff.

[746]The ninety-nine illustrations of the allegations of the plaintiff presented inWright'sReport, 172-78, constitute very interesting reading. Some of them are quoted byBryce,Studies in Hist. and Jurisp., 835, 836. The frauds arising in the procedure are forcibly described byJudge Jameson, "Divorce,"North Am. Rev., CXXXVI, 323, 324; and the conflicts in laws byPhillips, "Divorce Question,"Internat. Rev., XI, 139-52.

[747]Wright,Report, 139-42.

[748]According to the table by classified causes:Wright,Report, 181-83. However, the relative number of divorces granted on the wife's petition varies greatly among the states: from 39.3 per cent. in North Carolina to 77.9 in Nevada: compare the table inWillcox,The Divorce Problem, 34-37.

[749]Dike, "Statistics of Marriage and Divorce,"Pol. Sci. Quart., IV, 607, summarizing the tables and figures inWright,Report, 135-39.

[750]Wright,Report, 137.

[751]Ibid., 147-49.

[752]Willcox,The Divorce Problem(2d ed.), 16-19, and Appendix.

[753]According toWillcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 78, the "number of persons divorced (not the number of divorces) to every 100,000 of the population" is as follows for various countries, the date being 1886 unless otherwise stated: Ireland, 0.28; Italy (1885), 3.75; England and Wales, 3.79; Canada, 4.81; Australia (including New Zealand and Tasmania), 11.14; German Empire, 25.97; France, 32.51; Switzerland, 64.49; United States, 88.71; Japan, 608.45. "In the year 1886," he adds, "there were in Japan 315,311 marriages and 117,964 divorces, more than one divorce to every three marriages and more than four and a half times as many divorces as there were in the United States, although the population of Japan was only about two-thirds as great."

[754]Willcox,op. cit., 92-96.

[755]Wright,Report, 158-63:Willcox,op. cit., 74, 75;Bertillon,Étude démographique du divorce, 54-57; andStatistik der Ehescheidungen der Stadt Berlin, vi, vii, showing that for each 10,000 married persons living in Berlin in 1867 29.85 divorces were granted, while in 1894 the rate had risen to 37.93.

[756]Willcox,op. cit., 73 ff., 93 ff.Cf.Wright,Report, 145, 146. Within this group the New England states show a small decrease in the divorce rate; "while in New York, New Jersey, and Pennsylvania as a whole it has slightly increased, the two offsetting each other."

[757]Dike, inRep. of Nat. League for Protection of the Family(1901), 6, 11. But in 1902, for the state, the ratio was 1 divorce to 7.6 marriages;ibid.(1903), 10.In 1896 the number of marriages celebrated to one divorce granted was 19.2 in Massachusetts, 15.7 in Vermont, 14.9 in Connecticut, 9.2 in Rhode Island, and only 8.3 in Maine. In 1901 the ratio in Rhode Island had fallen to 8.2; while it had risen in Connecticut to 15.8 and in Massachusetts to 20.2:Registration Report(Me., 1896), 91;ibid.(Vt., 1896), 96;DikeinReport(1901), 11. In 1902 the number of marriages to one divorce was sixteen in Massachusetts; 8.4 in Rhode Island; 10 in Vermont; and only about six in Maine; while in 1901 it was 8.3 in New Hampshire:Dike,op. cit.(1903), 9, 10.

[757]Dike, inRep. of Nat. League for Protection of the Family(1901), 6, 11. But in 1902, for the state, the ratio was 1 divorce to 7.6 marriages;ibid.(1903), 10.

In 1896 the number of marriages celebrated to one divorce granted was 19.2 in Massachusetts, 15.7 in Vermont, 14.9 in Connecticut, 9.2 in Rhode Island, and only 8.3 in Maine. In 1901 the ratio in Rhode Island had fallen to 8.2; while it had risen in Connecticut to 15.8 and in Massachusetts to 20.2:Registration Report(Me., 1896), 91;ibid.(Vt., 1896), 96;DikeinReport(1901), 11. In 1902 the number of marriages to one divorce was sixteen in Massachusetts; 8.4 in Rhode Island; 10 in Vermont; and only about six in Maine; while in 1901 it was 8.3 in New Hampshire:Dike,op. cit.(1903), 9, 10.

[758]For these facts see the parliamentaryReturn of the Number of Divorces in Foreign Countries(Part I, being Misc. No. 4, 1895), 3-5, 8, 9, 10, 12, 15, 16. See alsoBertillon,Étude démographique du divorce, 58 ff., 74 ff.; the table inStatistik der Ehescheidungen der Stadt Berlin, vi, vii, giving figures (1867-94) for German and other lands as well as for the city;Oettingen,Die Moralstatistik, 134-62,passim;Rubin and Westergaard,Statistik der Ehen(relating chiefly to Denmark and particularly to Copenhagen);Cadet,Le mariage en France(containing many statistical tables for marriage and divorce);Naquet,Le divorce(giving two tables for marriage and divorce, 1840-74);Woolsey,Divorce and Divorce Legislation, 181-93;Muirhead, "Is the Family Declining?"Internat. Jour. of Eth., Oct., 1896, 33 ff.;Mayo-Smith,Statistics and Sociology, 101 ff., 124;Wright,Report, 981 ff.; and the mass of marriage statistics inCauderlier,Les lois de la population et leur application à la Belgique.

[759]Bryce,Studies in Hist. and Jurisp., 841.

[760]Mill,Prin. of Pol. Econ.(Boston, 1848), I, 413.

[761]Fawcett,Manual of Pol. Econ.(4th ed., London, 1874), 143.

[762]Bodio,Del Movimento della populazione in Italia e in altri stati d'Europa(1876), 136, 137;Farr,Vital Statistics, 68-75; andidem, inReport of the Registrar General: quoted byOgle, "On Marriage Rates," etc.,Jour. of the Royal Statistical Society, LIII, 254 ff.Cf.Newsholme,Vital Statistics, 45, 46.

[763]Ogle,op. cit., 256-63.Cauderlier,Les lois de la population, 71-74, 113, 114, has also shown in the case of England that foreign commercial relations must be considered in determining the condition of material well-being.

[764]Oettingen,Die Moralstatistik, 89-94, and authorities there cited;Bertillon,Annales de démographie internationale, I, 24;Cauderlier,op. cit., 61-78, 102 ff., giving statistics for Germany, Belgium, England, and France.Cf.Mayo-Smith,Statistics and Sociology, 100, 101.

[765]Ogle,op. cit., 255;cf.Oettingen,op. cit., 93, 94.

[766]Willcox, "A Study in Vital Statistics,"Pol. Sci. Quart., VIII, 76, 77.Cf.idem, "The Marriage Rate in Michigan,"Pub. Am. Stat. Assoc., IV, 7; andCrum, "The Marriage Rate in Massachusetts,"ibid., 328, 329.

[767]Willcox,loc. cit., 76, 77, 79-82. On the increase of divorce among the southern negroes seeidem,The Divorce Problem, 21-23, 29-32.

[768]Bertillon,op. cit., 20-28, 88-102;Wright,Report, 150.

[769]See table inWright,Report, 145.

[770]See the table inBottet,La famille, 47 ff. His figures do not agree with those quoted fromWright'sReport: According to his table, 3,010 separations were granted in 1883; 3,790 separations and divorces in 1884; 4,640 in 1885; 6,270 in 1886; 7,983 in 1887; and 7,430 in 1888. CompareKeller, "Divorces in France,"Procds. of the Am. Stat. Assoc., I, 469 ff., who summarizesTurquan,Résultats statistiques de cinq années de divorce. See also "Divorce: from a French Point of View,"North Am. Rev., CLV, 721-30, byNaquet, author of the law of 1884; and the vigorous criticism ofBrun, "Divorce Made Easy,"ibid., CLVII, 11-17. In 1897, 7,460 divorces were decreed; while in 1900 there were only 7,157;Dike,Rep. of the Nat. League for Protection of the Family(1903), 11.

[771]Willcox,The Divorce Problem, 37, 38.

[772]Ibid.(2d ed.), 45, 46;Wright,Report, 148, 169.

[773]Wright,Report, 150 ff.

[774]Including the repeal in 1878 of the celebrated Connecticut "omnibus clause" introduced in 1849. On the alleged influence of this clause seeDike, "Facts as to Divorce in New England," inChrist and Modern Thought, 197-202;idem, "Some Aspects of the Divorce Problem,"Princeton Review, March, 1884, 170, 171; and especiallyLoomis, "Divorce Legislation in Conn.,"New Englander, XXV, 436 ff., 441, 442, giving a table of Connecticut divorces by counties, 1849-65; andAllen, "Divorce in New England,"North Am. Rev., CXXX, 547 ff., giving statistics for the period 1860-78.

[775]For example, Massachusetts created four new causes of divorce in 1870; and in 1873 reduced the time of desertion necessary to constitute a ground of divorce from five to three years. Divorces increased from 337 in 1872 to 611 in 1874. A part of this gain was probably due to the change in law, although in all the entire group of north Atlantic states there was at the same time a large increase which cannot be thus accounted for. The lax law of residence in Utah previous to 1878, and the reduction of the term of desertion from two years to one by the Dakota legislature in 1881, were each responsible for an increase in the divorce rate: compareWright,Report, 152 ff., 156, 203 ff.;Willcox,A Study in Vital Statistics, 85-90;idem,The Divorce Problem, 41-61; with the criticism ofDike, "Legislation and Divorce,"New York Eve. Post, July 2, 1891.

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