Popular Science Monthly/Volume 83/November 1913/Legal Limitations of Marriage

Legal Limitations of Marriage

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Athlete Making Standing High Jump.


A Pennsylvania law became operative in August, requiring those wishing to marry to appear at the license bureau and answer under oath some fifty questions. It is rather absurd to swear that one is not an imbecile, and a physician's certificate, as required by a law passed by the last Colorado legislature, is a better guard against communicable disease than a statement of the patient. Still such a law may be of use, though not so much in punishment following its violation as in the reflections and precautions which it may occasion in those who propose to marry. The laws of the different states limiting marriage relations have recently been summarized in a bulletin prepared by Dr. Charles B. Davenport and issued by the Eugenics Record Office. They are more numerous and complicated than most people suppose.

Marriages of idiots and the insane are illegal in about half the states and those marriages are presumably invalid everywhere, as such persons can not make contracts. On similar grounds in three states a marriage is invalid when one of the parties is intoxicated. Only five states forbid the marriage of those suffering from venereal disease. It should surely be made as serious a crime to communicate diseases as to commit larceny or assault and battery, and public sentiment would probably uphold legislation to this effect. In only a few cases have laws been passed with direct reference to the eugenic aspect of the case. Connecticut and Kentucky forbid illicit union with imbeciles, the latter state under penalty of twenty years' imprisonment. In Delaware a child of a parent insane before it was born can not marry. In Utah, an epileptic woman may marry after the age of forty-five, but not before.

Laws limiting closeness of relationship in marriage are based on social rather than on biological considerations. Indeed we have no scientific knowledge that would enable us to prescribe limits of consanguinity within which marriage is undesirable from the point of view of heredity or eugenics. The marriage of first cousins is illegal in about half of the states, including Pennsylvania and Illinois, yet such marriages have been and are common in all classes of society. The most distinguished family known to the writer
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Front and Side Views of Twelve Positions.

are the seven children of Charles Darwin, who married his first cousin. The royal families of Europe are closely inbred, but form a superior group. A consideration of their heredity shows, as might have been anticipated, that both desirable and undesirable qualities are enhanced by the marriage of those related by blood.

The social reasons making it desirable to forbid the marriage of those who become related through marriage are not urgent; indeed they have practically disappeared since segregation of the sexes has been largely abandoned. The limitations do not exist in many of the states and in others are curiously inconsistent. Marriage with a deceased wife's sister is not prohibited, but in West Virginia a man may not marry his deceased wife's step-daughter and in Massachusetts he may not marry his deceased wife's grandmother.

The laws in regard to intermarriage of races differ greatly in different states, as does public sentiment. Just now southern newspapers are urging the dismissal of a university professor because in an article in this journal he spoke kindly of the mulattoes. In Maryland whites and negroes or mulattoes who intermarry are deemed "guilty of an infamous crime," and are subject to ten years' imprisonment, while a mile away such marriages are legal. Apparently a white person and a mulatto who marry in Pennsylvania can return to live in Maryland, but would be subject to five years' imprisonment if they went to Texas. In California and in several other states marriage of a Caucasian with a Mongolian is illegal, and several states have laws against marriage with a North American Indian.

The diversity of the laws of the different states, marriages that are legal and approved by public sentiment in one part of the country being crimes elsewhere, indicates that it may be less difficult to apply eugenics in practise than it is to determine which kind of eugenics it would be desirable to apply.


We record with regret the death of Dr. Reginald Faber Fitz, professor emeritus in the Harvard Medical School; of Dr. John Green Curtis, from 1876 to 1909 professor of physiology in Columbia University; of Professor Lucien Augustus Wait, emeritus professor of mathematics in Cornell