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4

constantly put forth that common-law marriage afforded some protection to the woman and children involved. Members of the legislature and interested individuals in the lay public were amazed to learn that the children of a common-law union in Minnesota were illegitimate until there had been a court decision giving such a union the status of marriage. In the light of this situation, the usual methods of legitimizing children by civil marriage or by court procedure is just as easy as to secure the consent of the court to the common-law arrangement. After the bill reached the legislature the time was too short either to educate the members of the legislature or to create the popular demand for this much-needed change in statute.

While Minnesota's standard regarding youthful marriages is not as low as that of some states, there are thirteen states ahead of us prohibiting the marriage of any girl under sixteen, even though she has the consent of her parents. The proposed bill would have raised the present age at which marriage may be contracted by a girl, with her parent's consent, from fifteen to sixteen, and would have required that the consent be given in writing and under oath. People had not realized that our compulsory education laws had outrun our marriage laws in the protection afforded children, and that it is entirely possible for a fifteen-year-old girl to be legally married and also be compelled to attend school for another year. We certainly needed Miss Richmond's book on Child Marriages to enlighten people on this subject. One representative in the legislature was quite appalled to learn that several girls had, through the perjury of their parents, been married at the age of twelve or thirteen. In the light of this information it was easy to convince this legislator of the value of having both applicants appear at the license bureau. There were many members of the legislature, however, who were not reached with definite concrete illustrations of the failure of our present statute in the protection of very young girls.

Probably the most-needed change in the marriage laws of forty of our states Pis provision for a waiting period of at least five days between the application for and the issuance of the license. Without such delay, the clerk of the marriage license bureau is helpless in determining the eligibility of the applicants. A conflict in rural and urban viewpoints as to the length of the waiting period appeared in the Minnesota campaign. In order to have names of applicants printed in rural newspapers, a delay of ten days would be necessary, while urban residents feel this would be a real hardship when the bridegroom comes from outside the state.

The bill also carried a proviso which would make the license valid for one year only. Eight states have already legislated in a similar manner. Such a limitation on the life of the license might help to protect our immigrant brides who are often told that in America a license is the sole prerequisite for a legal marriage.

The need for such changes in our marriage statutes as the last two mentioned is not obvious to the average citizen because he has not yet begun to

think of marriage as a social institution. It seems rather to him to be a very personal relationship which is no one else's business, and consequently any attempt to make marriage more difficult is likely to be vigorously resented until we can change at least one social attitude.

The present Minnesota law specifies as unfit for marriage the feebleminded, insane, and epileptic. The proposed bill added persons infected with venereal disease, but did not provide for a medical examination. The requirement of a medical examination can scarcely be really successful until the state is willing to employ specialists in venereal disease who will examine all applicants for a marriage license. At the present time in Minnesota the only way by which such a law could be even partially enforced would be to have the division of venereal disease of the state board of health furnish to the clerks of the license bureaus lists of individuals who should be refused a license. This procedure is being followed by the state board of control with reference to the feebleminded, but of course only a very small proportion of either the feebleminded or venereally diseased would be prevented from marriage in this way. Such a provision, however, might be an opening wedge for more efficient legislation later, and should prove easier to pass than a law requiring a physical examination. The mere mention of the term "venereal disease" was sufficient, though, to prevent consideration of this section of the bill.

These suggested changes in the laws concerning applicants are the ones most vitally needed in the present statutes, but those involving changes in administration are equally difficult to pass. The cooperation of marriage license officials in this portion of the bill was secured by providing for an increased fee to compensate for additional clerical services such as are involved in state registration.

The present fee of $2.25 for a marriage license was in the bill raised to $3.00; and after the legislature was in session a proposal was adopted by the proponents of the bill, after a conference with the clerks of the bureau, to raise the fee to $4.00. The discussion of this administrative detail occupied an entire afternoon of the committee in charge of the bill, and in deference to the announced economy program of the ruling administration was again reduced to $2.25. This discussion clouded the real issues in the bill and undoubtedly helped to defeat it.

As long as the clerks of the license bureaus are on a fee basis rather than a salary basis such scenes are likely to occur. The clerks are constantly tempted to increase the number of licenses issued, when such an increase means more money for them, instead of scrutinizing carefully each application for possible violations of the law.

We have had already at least one demonstration in this country of a transfer of the position of clerk of the license bureau from a fee to a salary basis, with the result that the money received from fees proved to be sufficient not only for the salary of the clerk, but to buy fireproof filing cases for the marriage records!

When the position is controlled by civil service, as it may sometime be,

perhaps some professional case workers will enthusiastically seize the opportunity to make a new application of case work technique. Then our marriage license bureaus will become matrimonial advice bureaus like the one in Vienna described by Miss Colcord. Until Utopia arrives we can expend our efforts in strengthening the present laws along the lines already indicated!

A few other changes were included in the defeated Minnesota bill, such as penalties for the violation of the act, in which the present law is quite defective, and, in the question of voidable marriages, a provision that mere defects in jurisdiction or form will not invalidate a marriage if the contract was entered into in good faith by both parties concerned. This point was stressed by one opponent of the bill who tried to prove that common-law marriages were necessary to take care of situations in which the celebrant was really disqualified from performing the ceremony.

After such a brief survey of some of the most obvious marriage reforms we are confronted with the far more difficult problem of accomplishment. Shall our efforts be directed toward federal legislation or state legislation, or both simultaneously? Most people who have followed closely the history of legislation in another field-namely, child labor—are inclined to feel that federal legislation can never be secured until the local standards have reached minimum requirements in at least two-thirds of the states. Such a method seems painfully slow, but even a little legislative experience has a sobering effect. We are forced back to the position, not of what we want or what is needed, but of what we can get.

Some of us go even one step farther back and question whetherit is advisable to attempt all the reforms needed in a state in a single bill. Perhaps several different bills, each covering one specific reform, will stand a better chance of survival than the blanket form of bill which was so badly mutilated in Minnesota.

Since the close of the legislature a uniform marriage act has been proposed by the League of Women Voters which has several features on which there is likely to be a divergence of opinion. The act would require physicians' statements that the applicants for a license are free from venereal diseases, but does not require a specialist's report or a diagnosis based on laboratory findings except in the case of an individual who has previously had a venereal disease. Such a person may not marry if the disease is in a communicable stage.

The act would be unable to do much toward preventing child marriages, since parties are not required to appear at the license bureau. Moreover, the consent of the parents of girls under sixteen or boys under eighteen does not need to be in writing or under oath.

The statement regarding common-law marriages is vague, and by the very use of the term would precipitate opposition, whereas the bill proposed in Minnesota this year did not use the term "common law," but merely stated that

in order to be valid any marriage must be consummated with a license and a ceremony.

The celebrant is not required to file with the license official any credentials as to his right to perform marriage ceremonies, and does not receive any certificate of his eligibility.

The celebrant is permitted to return the certificate of marriage to the bureau at any time within thirty days, instead of three days. Such a delay is especially unfortunate when evidence is found that a license has been issued illegally and it is necessary to find the couple as quickly as possible.

State registration of marriages is provided for in this bill, but the local clerk of the marriage license bureau is required to make the returns to the state only once a year, instead of monthly. This method does not permit the state department to check as closely on the licenses and the returns in the different counties as a monthly report would.

One serious omission in the bill is no statement regarding the legal status of illegitimate children, whose parents marry later, or regarding the status of the children of a marriage which proved to be voidable. Other provisions regarding void or voidable marriages are equally incomplete or totally lacking.

Among the people who are qualified to act as celebrants appears the superintendent of the state school for the deaf and dumb. Why such discrimination! Certainly the superintendents of other state institutions should have the same privilege. This brief comment on this proposed bill, which will probably be widely circulated, should make social workers on the watch for its appearance and ready to participate in discussions of it.

Before questions as to the form of the bill, or even state or federal legislation, are determined, there is a more immediate program which should challenge the interest of every case worker, that is, the enlightenment of the general public on the need for reform in the field of marriage legislation. Family case workers, especially, have more first-hand information than anyone else in the country, and yet comparatively little of this telling evidence is being utilized. The directors of every social agency should assume the responsibility not only of permitting, but of urging or even requiring, the members of the staff to help in an educational campaign on this subject. The assistance must be a quadruple one: first, in forming the policies of the campaign; second, in furnishing leaders for study groups; third, in providing speakers for larger meetings; and fourth, in making local studies. Such a program must be put into effect in non-legislative years in the states where the legislature does not meet annually.

The local chapters of the American Association of Social Workers might profitably initiate such a plan through its committee on social legislation or, through affiliation with some organization like the League of Women Voters, it may contribute the technical knowledge which must be popularized and broadcasted.

As usual, it is far easier to advocate a campaign than to execute one. In a non-legislative year it is extremely difficult to arouse sufficient interest (in the general public) to secure a discussion of legislative proposals. The attempt must be made, however, because the enlightenment of more people on the evils of our present marriage laws is the only sound basis for reform. Perhaps women's organizations might be appealed to with the argument that women must become better informed on such a vital matter in order to perform their duties of citizenship.

The fourth part of the program is by no means the least. Each state and each community must study the operation of its present marriage laws, because such study is the only sound basis for further legislation, and secondly, because only illustrations of what is happening now in your own state will really influence your legislature.

THE FAMILY AND THE LAW

Sophonisba P. Breckinridge, Associate Professor of Social
Economy, University of Chicago

The great range of subject-matter and of interest indicated by the subject of this paper requires a limitation of the discussion either by way of selecting certain aspects of the subject or by way of dealing with many aspects in a rather general way. The latter process of elimination has been chosen because it seemed that perhaps a comprehensive view might have its special value for a group of workers necessarily so absorbed in the particulars of family case work that they are not often tempted into the intricate and often forbidden pathways of the law.

The following paper will therefore assume the form of general and, on the whole, categorical statement, with the understanding that multiplication in data and elaboration in detail would serve to substantiate or to interpret, but are not necessary to secure correctness of impression.

The first point to be made is that within the fairly recent past a radical change has been brought about in the legal relationships existing within the family group, that is, between husband and wife on the one hand, and parent and child on the other, and in the relationship between the group as a whole and the community of which it is a part.

The change has been far greater than has generally been recognized. This is partly because an attempt has been made to bring the law into accord with moral and ethical judgments of the community, and even great legal commentators have often alleged that the two were always identical and have so given an erroneous impression of the actual legal situation.

For example, the legal nonentity of the married woman was veiled by the gracious suggestion that she was under "coverture." Lord Bryce characterizes Blackstone's references to her status as "sleek optimism," not to be justified!