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9 A.B.A. J. 429 (1923)
Currtent Legislation

handle is hein.journals/abaj9 and id is 455 raw text is: CURRENT LEGISLATION EUGENICS AND LIMITATIONS OF MARRIAGE By J. P. CHAMBERLAIN HE effect of the modern doctrine of eugenics is being felt in state legislative halls. The feeble- minded and other defectives are increasingly the subject of attention, both in their own interest and in that of society. There is a growing tendency to segre- gate them in colonies for their own well being and to protect society against possible petty criminals and de- pendents on public or private charity, and along with this repressive legislation is another trend based on the realization that the misfortune is transmissible, which seeks to protect succeeding generations from an increasing flood of incompetents. A natural expression of this solicitude for the fu- ture is the legislation limiting the rights of certain classes of persons to marry and requiring preliminary evidence of the fitness of the parties to the ceremony. The common law considered marriage as an institution to be highly favored and therefore looked with a jeal- ous eye on any limitation upon the right of contracting it. Nevertheless it approved a very ancient principle perhaps, as has been suggested, the result of intuitive eugenics by which marriage between relatives within certain degress was prohibitgd.1 This prohibition was not wholly, however, in the interest of the children. It was extended to certain relatives by marriage and the long fight over the deceased wife's sister's bill in Eng- land is one of the most interesting evidences of the doubts and hesitations of a modern society when con- fronted with an ancient rule.2 From the point of view of the individual and not from that of public policy the common law recognized the invalidity of a marriage where one of the parties was induced to enter into it by the other through a fraud going to the essence of the marital relationship. In America local conditions introduced into state legislation statutes prohibiting marriage between col- ored and white persons and in the western states very generally a like prohibition in respect to Asiatic races. Against attempts to have such legislation declared un- constitutional as contrary to the 14th and 15th Amend- ments and the federal civil rights act, this limitation on marriage has been upheld as within the police power of the state ;3 the federal statute prohibiting polygamy, was also declared constitutional.4 Recent legislation limiting the right to marry is based not on historic rules or race feeling but on scien- tific facts. It is directed against two evils, the bringing into the world of children with hereditary taints and the protection of the public health by preventing the spread of disease through marriage. The first statutes of this type forbade the marriage of epileptics, imbeciles and feeble-minded. Enforce- ment was sought through penal provisions imposing prison sentences on violators of the law. Connecticut passed the first such act in 1895, the minimum prison term being 3 years. The purpose of preventing child- birth is evident by making the act apply to women only if under forty-five, and by the application of the pen- I. Gould v. Gould. 78 Conn., 242. 2. Brook v. Brook. 9 H. D. Cases 19. Schouler; Mfarriage, Divorce, Separation. Domestic Relations. 6th Ed. 1090. :3. See note to Gould v. Gould. 2 L. R. A.. N. S. p. 531. 4. Reynolds v. United States. 98 U. S.. 145. alty to unmarried persons. The act did not come be- fore the Supreme Court till 1905 when it was attacked as contrary to the section of the state Constitution guaranteeing to the people life, liberty, and the pur- suit of happiness. Judge Baldwin, however, in a de- cision which has ever since been looked upon as author- ity, upheld the act so far as epilepsy was concerned, as a reasonable limitation on the right of the individual to freely contract matrimony. The court said: Laws of this kind may be regarded as an expression of the conviction of modern society that disease is largely pre- ventable by proper precautions, and that it is not un- just in certain cases to require the observation of these, even at the cost of narrowing what in former days was regarded as the proper domain of individual right. The court, however, would not admit that the pro- hibition of itself affected a marriage contracted in di- rect violation of the act. The statute fastened upon the defendant an incapacity which made the marriage fraudulent if it had been dishonestly concealed from the plaintiff, so a divorce could be granted under the statute allowing divorce from fraudulent contract. That the court and the legislature were in agreement on the point of the validity of the marriage is shown by the change in the statute as it appears in the Revised Statutes of 1902, §1354. The Revised Statutes do not expressly forbid such marriages, but merely punish those who enter into them. The minimum punishment is also made the maximum, and no minimum estab- lished. Revised Statutes, 1918, §6428. In Re Jansa's Estate, 171 N. W., 947, the Supreme Court of Wisconsin citing the Gould case approvingly, held a marriage valid against third parties though one of the parties was epileptic and the law of the state set forth that no man or woman either of whom is in- sane, mentally imbecile, feebleminded, or epileptic shall intermarry. Violation of this section was punished by fine or imprisonment. The Minnesota Court, apply- ing Section 7990 of the general statutes which provided that no marriage shall be contracted . . . between persons either of whom is epileptic, imbecile, feeble- minded or insane, held that a marriage could not be annulled at the suit of the husband where the wife had been epileptic at the time of marriage if she had not concealed her ailments from the plaintiff, and he had lived with her for some years before discovering the nature of the malady. There was no such fraud in this case as would justify the court in avoiding the mar- riage.5 A very recent statutory declaration of this princi- ple is contained in Delaware, 1921, Chap. 182. That statute goes far in its limitation on marriage. It makes it unlawful for an epileptic or a person of any de- gree of unsoundness of. mind, or a person who is vener- eally diseased, or a person who is suffering from any other communicable disease the nature of which is un- known to the other party to the proposed marriage, to marry. The act provides further that such marriages are voidable at the instance of the innocent party and a penalty of a $100 fine or on default of its payment im- prisonment of 30 days, is inflicted. The difference be- 5. Bebsmap v. Behsman, 174 N. W.. 611.

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