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which is opposed to the general conscience and to the results of scientific investigation? Dr. Reeve declares that the average age of puberty in the United States, as appears from Emmet's tables, made up of 2330 cases, is 14.23 years. These he believes to be the only American statistics, but he notes their correspondence with those of the four largest cities of France, which give 14.26 as the average.47 This must also be approximately that of England.
The absurdity of conferring capacity by law upon a class where there is average physical incapacity is apparent, and wherever the limit of the old Roman law still prevails we may hope for a change to one more in harmony with the spirit and needs of the age.
We have dealt with those considered "o'er young to wed.” Is there a period at which legislators deem men and women too old for matrimony? The Jewish patriarchs had certainly no limitation, but Montesquieu says that it was contrary to the Roman law, at one period, for a man of sixty to marry a woman of fifty. He continues:
"As they had given great privileges to married men, the law would not suffer them to enter into useless marriages. For the same reason the Calvisian senatus consultum declared the marriage of a woman above fifty with a man less than sixty to be unequal, so that a woman of fifty years of age could not marry without incurring the penalty of these laws. Tiberius added to the rigor of the Papian law and prohibited men of sixty from marrying women under fifty, so that a man of sixty could not marry in any case whatsoever without incurring the penalty.” 48
But Claudius abrogated this law made under Tiberius, and in the later period Roman citizens were never considered too old to marry. The only restrictions in modern law are those of Servia, where men of over sixty and women of over fifty may only be married by special license of the supreme ecclesiastical authorities;49 and in Russia, where the marriage of persons over eighty years of age is forbidden.50
67 Dr. Reeve, in 4 PEPPER'S SYSTEM OF MEDICINE 185. This average is likely to increase with compulsory education, and Spencer points out the connection between high cerebral development and prolonged delay of sexual maturity. PRINCIPLES OF BIOLOGY, $ 346.
48 SPIRIT OF THE Laws, Book XXIII, chap. 21.
As in all other contracts, consent is a requisite of legal marriage in every country. In China, however, the approval of the bride and groom is never sought. They are merely the objects of a nuptial agreement entered into by.“match-makers" or "go-betweens," who represent the parents.51 The only consensus required is that of these outside agents, with the restriction that no arrangement must be concluded until the families interested have assured themselves as to the physical fitness of the parties, astrologers have pronounced their horoscopes as favorable, and the relatives of the bride have signified their approval in writing. The consent of the father alone,
if he be dead, that of the mother, is sufficient.52 It is considered a grave breach of etiquette for young men and maidens to associate with each other, and authorities declare that in the vast majority of cases the bridegroom never sees his bride until the nuptial night. Many girls prefer going into Buddhist or Taoist nunneries, or even committing suicide, to trusting their future to men of whom they can know nothing but from the interested reports of the “gobetweens." 53 It is little wonder also that under such circumstances consent is occasionally obtained by fraud. Alabaster records the tragic case of Mrs. Wang where "an old reprobate,” knowing that the girl's parents would refuse him, sent a good-looking young fellow to represent him in the preliminary stages, thereby obtaining signature to the contract, and possession of his bride. He ill-treated her and she subsequently strangled him. The tribunal considered her as unmarried and she escaped the dire penalty attached to such an offense against a consort, the case being treated as simple unjustifiable homicide of a man by whom she had been injured.54
Amongst the Hindoos, while the law requires the formal consent
61 This is also the custom in Formosa, where marriage is arranged by the parents, through “go-betweens,” without regard to the feelings and preferences of the intended consorts. U. S. Report on Marriage and Divorce, 1909, part I, p. 378.
52 ALABASTER, 172 et seq.
63 DOUGLAS, CHINA, chap. 3. He cites Archdeacon Gray as authority for the statement that in 1873 eight young girls, residing near Canton, who had been affianced, drowned themselves in order to avoid marriage.
54 ALABASTER, 175.
of the future consort,56 in practice this is unthought of. Those who do not oppose the choice of their father are presumed to give a tacit consent. If the father is dead, or incapable, the right of disposal devolves upon the paternal grandfather, the brother, a kinsman on the father's side, or the mother, in the order named.56 The betrothal or binding ceremony may take place in infancy, provided the parties are of an age to understand what they are doing, a period supposed to be attained at their seventh year.57 If one of the two intended consorts refuses to marry, no compelling force may be exercised.58 Opposition on the part of the girl is hardly conceivable, for she remains the only person in the world doomed to a state of perpetual tutelage.59 “Their fathers protect them in childhood; their husbands protect them in youth; their sons protect them in old age; a woman is never fit for independence,” says Menu.60
The age of seven for betrothal was also the period adopted by the Romans, not with the object of securing celestial benefit from an early marriage, but in order to assure an heir to carry on the worldly succession. The Roman betrothal differed materially from that of the Hindoos. It was only a promise to marry at some future time (sponsalia sunt mentio et repromissio nuptiarum futurarum).61 Either party could renounce the engagement before the second ceremony, which could take place only after the age of puberty.62 Under early Roman law, when the paterfamilias held uncontrolled power over his family, even that of life and death, the consent of children was unnecessary.63 A father, if not himself under power, could select a wife for his son, or give his daughter in marriage, and they must submit. Late in the imperial period this privilege of dictation enjoyed by the head of the family had declined into a conditional veto. The consent of the contracting parties became
2 DIGEST OF HINDOO Law, Book IV, chap. 4, art. CLXIV. 56 Ibid., Book V, chap. 3, art. CXXXV.
1 GIBELIN, 20. 68 Ibid., 62. 59 MAINE, ANCIENT LAW, 14 ed., 153.
2 DIGEST OF HINDOO Law, Book IV, chap. 1, art. V. 61 Digest, XXIII. 1. I.
62 Betrothals were broken by announcing the wish in these words "conditione tua non utor," and forfeiting the arrhae, i. e., things given as earnest or security that the promise should be kept, if any had been given. SANDARS, INSTITUTES OF JUSTINIAN, 8 ed., 36.
63 MAINE, ANCIENT LAW, 14 ed., 138.
essential, but the paterfamilias still remained a formidable obstacle. His assent was necessary no matter what the age of those under his power.64 The son who was under the grandfather's control, must obtain his father's consent also, but this did not apply to daughters, who required only the consent of the person exercising authority over them.
This rigor of the patria potestas was later ameliorated in many ways. Emancipation gave freedom of choice to the son who was of age, and there were other avenues of escape. If the parties married without his consent, provided the paterfamilias knew of it and did not oppose, his approval was presumed; 66 or if he was absent for three years, either voluntarily or as a captive of war, this conferred upon his children the right to contract a marriage of which he could not afterwards disapprove.68 Moreover if the father was unwilling that his daughter should take a husband, or delayed his consent, she could exercise her free will in the matter on attaining the age of twenty-five years, provided the man of her choice was free-born.67
By such modifications the power of the father over the persons of such of his children as were adolescent became so reduced that it was almost nominal in the latter days of the empire. It disappeared quickly and completely from the usages of advancing communities,68 and the tendency of almost all modern legislation has been to lower the period at which full capacity is held to be attained. A wonderful advance in general education, coupled with the marvelous industrial growth which offers both greatly increased wages for home making and opportunities for independent enterprises, have quickened maturity. There has come to youth perhaps too great a confidence in its power to manage its affairs at an earlier age, particularly those matrimonial, and this resentment of restraint has impressed itself upon the laws, although some countries have shown stout resistance.69 The age of capacity to marry without consent
04 Tamen filiifamilias et consensum habeant parentum, quorum in potestate sunt. COD., V. 4. 25.
& SANDARS, INSTITUTES OF JUSTINIAN, 8 ed., 33. 46 Digest, XXIII. 2. 9. 10.
1 GIBELIN, 29.
68 MAINE, ANCIENT LAW, 14 ed., 135.
69 The statistics following are from the official reports of the United States and Great Britain, previously cited.
of parents is fixed in Denmark at twenty-five; in Italy at the same age for males and four years less for females; in Austria and Hungary at twenty-four; in Spain at twenty-three; in Germany, Servia, Brazil, Mexico, Portugal, England, Ireland, Wales, 70 and all the British colonies (except the Orient and two Canadian provinces) at twenty-one, and in Switzerland at twenty. In the Argentine Republic the limit is twenty-two, but if a man is eighteen or a woman fifteen consent cannot be withheld from mere caprice; there must be some special reason which the law will recognize. Bad conduct or immorality, want of means to maintain a home, and inability of acquiring them are among the causes which give rise to a right of denial.72
As was to be anticipated, it is in the United States that we find the greatest innovation. In the case of males the common law age of twenty-one has been generally adhered to, the States of North Carolina and Georgia, where restraint ceases at eighteen, and Tennessee, where it ends at sixteen, being exceptions. It is the ages at which females may exercise their own judgment that prove startling. Some States fix it at twenty-one; others — forming a large majority — at eighteen; Maryland and Tennessee at sixteen.73 The American girl stands in a class apart. Parental indulgence and almost unlimited social freedom, approved by friendly legislation, have caused the sex to become mistresses of their fate at the earliest ages recognized by modern law. It is a daring experiment, and the risk seems great. The two Canadian provinces of Ontario and New Brunswick, both neighboring on the United States, have been affected by this legislation and reduced the age of unrestricted choice from twenty-one to eighteen years for both sexes.74
Japan, on the contrary, has recoiled from the tendency of her great Pacific neighbor and adopted an extended period of control as best suited to her trend of development, believing that the fostering of veneration for parents, respect for their counsel, and sub
70 In Scotland consent of parents or guardians is in no case required. U. S. Report on Marriage and Divorce, 1909, part I, p. 371.
71 Ontario and New Brunswick. 72 British Report on Foreign Marriages, 1894, part II, p. 2. 73 U. S. Report on Marriage and Divorce, 1909, part I, P. 188. 74 Ibid., 350, and Rev. STAT. OF ONTARIO, 1897, chap. 162, § 15, subsec. I.