RESTRICTING MARRIAGE LICENSES.
Mr. Voyles' bill [S. 26] in relation to issuing of marriage license [described heretofore in proceeding of January 12], being read the second time with an adverse majority report, and a minority report recommending its passage--
Mr. VOYLES said: I hope the minority report will be concurred in. By concurring therein the bill having been read a second time, it will stand open for amendment or engrossment. I am no extremist, and no stickler for or against any proposition. This bill was not introduced by me for the purpose of trifling with the Senate, or for the purpose of impeding proper marriages. If the Senate will pardon me for a moment, I will only, at this time, discuss the legal bearing and practicability of the provisions of the bill, and leave the general features of the proposition to be discussed fairly and rightly when the bill shall have reached further along on the calendar. I believe the bill as it is drawn has the double merit of affirmative as well as negative restrictions against incongenial and improper matrimonial alliances. I do not claim for the provisions of the bill that they are a nostrum for the cure of all of the ills to which the greatest social problem subject, but I do certainly claim that the bill is feasible in point of its legal character and provisions. It provides first that the right of any person to have a marriage license who is an habitual drunkard shall be suspended and held in abeyance until the habit has been abandoned. Upon that subject the bill means that and nothing more. Is that not right? If not right, why not?
Secondly--It provides that one who has been adjudged guilty, by a Court of competent jurisdiction, of two or more several felonies shall not have the legal sanction to blur the social institution of marriage, or extend the influence of his outlawry. If this is not right, why not?
Why permit the law to aid acquiesce in that which we find is condemned by all well-meaning and well-disposed people?
Thirdly--The bill provides that persons who by imbecility of mind or idiocy are unable to manage and take care of their property and provide for their well-being and maintenance shall not have sanction of the law to marry.
Does it not increase unnecessarily the burdens of the public, to have such persons crowded upon us? Is it not enough to have our public charities strained, or shall we so act that they shall be overwhelmed? I could give instances, as doubtless every Senator in common with me could, proving that there is a class of marriages of the kind. I think this bill is designed in some degree to prevent, that are only fruitful for filling up our public Almshouses and Benevolent Institutions.
By the provisions of the bill no wrong can be possibly done to those to whom the bill is not made to apply, for if there should be any evasions of its provisions, they must necessarily be over the legal barriers of the bill, and consequently the violators will get the best of the law and the public the worst of the transaction.
But no law has yet been made even in defining crime, no matter how frightful the penalty, that absolutely prevented violations. When we shall page: 107[View Page 107] have reached that perfection, when there shall be no violations, possibly we may need no law.
Legislation must comport with the actual condition of things as we find them, rather than to that perfected state of things which would need no legislation.
Fourthly--The bill provides that any person who has been adjudged insane, and whose parents had also both been adjudged insane before him, is not a proper subject to whom a marriage license should issue.
Possibly it may be said that such a person could be hardly be found, yet I apprehend that if there be such a person in all Indiana, no reasonable being would say that he should be permitted to have a marriage license. Yet the law as it now stands, opens the door as wide to him as it does to any one. I do not believe that baleful hateful hereditary results follow inevitably from every case of insanity, but I do believe that in cases marked so strongly as those designated by this bill, that positive inherency has dispelled reasonable hope.
The bill provides in a second section that any person resident of the County may file a written objection to the issuing of any license to the person mentioned in his objection, and that the objector shall not be subjected to civil liability.
It will certainly be not improper to allow a citizen to interpose an objection of this kind to prevent the consummation of the evils which this bill seeks to guard against. Moreover, the bill prevents any lawsuit from growing out of the objection, by providing that the objector shall not be subject to civil prosecution, because if there were no civil immunity given, perhaps the bill, when it became a law, would have no friend good enough to aid its enforcement by an objection; fearing that the cost of defending captious suits by vicious or over persuaded persons, would be unprofitable. But have controverted cases no remedy? I answer yes. By the third section, it provides that any person against whom an objection has been filed may override the objection and have his license, by procuring the affidavit of three disinterested witnesses not of kin to him to the effect that the objection on file is not well-founded in fact. I have heard it remarked that it transforms the Clerk of the Circuit Court into a Judge with judicial functions in the matter, but certainly no good lawyer will so hold. The ministerial capacity of the Clerk remains unimpaired by the bill. He decides no more upon such an affidavit as is required by this act, than he decides upon the sufficiency of any other affidavit that is filed in his office in reference to the proper age of the party applying to obtain a license to marry.
The affidavit of the three persons must show that the witnesses are not interested in the marriage, and that they are not of kin to the applicant for license, and that the objection is not well founded in fact. When such an affidavit is filed, the duty of the Clerk is not discretionary, and he has no judicial question to determine; he must then perform a ministerial act, and that is to issue the license at once. This provision is plain, and compliance therewith can be had without delay and without a lawsuit. The last section simply provides a penalty to be enforced against any Clerk who shall issue a license where an objection is on file without first requiring the affidavit of the three persons.
I hope the minority report will now be adopted, so that the bill may have a fair and just consideration in the Senate.
Mr. BELL--I suppose the proper time to discuss the merits of this bill will be when it comes up on its third reading, but I desire to say a few words, on order that I may point out to the Senator from Washington (Mr. Voyles) some objections that occur to my mind in regard to this measure. I recognize and appreciate the law which provides for the survival of the fittest, and also understand the fact that almost all paupers and criminals spring from a disadvantageous parentage, which will account for the acts of the offspring, largely. The Senator's main idea, I admit, is correct. that such persons ought not to be allowed, if by human law we could restrain them from procreating and increasing their offspring and leaving them amongst us; and if the Senator will show me how his bill will prevent the propagation of those persons, I will be with him in its advocacy. He is not punishing in this bill the crime of begetting children that ought to be begotten, but he is withholding licenses to marry from persons who may beget such children without. There is a case of one woman, familiar probably to all of us--a single woman--who lived in New York, I think, from whom there sprung a progeny of no less than 800, every one of whom were idiotic, criminal or insane, and not one of whom was born in the bonds of lawful wedlock. It may be they were not all so, but a great majority were at least. I ask the Senator how the withholding of a marriage license from persons belonging to this class is going to prevent the begetting of children?
Mr. VOYLES--It is a restriction within legitimate bonds of wedlock that the bill is aiming at.
Mr. BELL--In my experience I find that you must take humanity as it is and deal with humanity as you find it, and not as you would have it. Take another provision of this bill-where a remonstrance is filed on the simple objection of some one person. I remember a class of persons once who were denominated idiots because they believed in saving money. I think the Senator who introduced this bill will agree with me that such a point should be carefully guarded. No doubt a restraint should be placed upon such matters, but I, for one, can not see how this bill would even restrain the evil. I think it embodies an idea that is good, but it seems to me it does not furnish the remedy for evil.
Mr. SHAFFER--This bill has been to a Committee, and has been carefully considered and acted upon, and while a minority of that Committee has reported in favor of it,a majority thought it unwise at the present time that this bill should pass. I am in favor of concurring in the minority report. There are principles in that bill which should arrest the attention of everyone of us. There are principles in it that need discussion to bring out their important ideas, and make them more plain, and I hope they will be brought out in a regular discussion in this body. As I have remarked, there are principles involved in this bill which are of great and vital interest to the people of the State of Indiana, as well as the society in which we live. As an illustration, take that clause in the bill intending to prevent the marriage of habitual drunkards. I have in my hand the proceedings of the Association of Medical Officers of American Institu1tions for idiotic and feeble-minded persons, and I find in a table of 100 idiotic and feeble-minded persons in the Institution at Barre, Mass., the cause of every feeble-minded child in that Institution can be traced back to its parents who were either feeble-minded themselves, or habitual drunkards. There were thirty-eight out of 100 whose father was an habitual drunkard. And so with other diseases. An habitual drunkard, as a matter of course, is a diseased person, and he will transmit that disease to his progeny. From 38 to 40 per cent. of all confined in that Prison are the direct result of idiocy, imbecility and feeble-mindedness. But I had not intended to say anything in regard to the merits of this bill. I hope the minority report will be adopted so that the bill may be placed on the tiles and be discussed in the Senate at some future time.
Mr. VAN VORHIS--This is one of probably the most important subjects that has ever attracted page: 108[View Page 108] the attention of science, concerning the social question. I have had no opportunity to examine this bill. I should like to have that opportunity. If the Senator has introduced a measure that willi any degree relieve society of some of the evils brought about by the causes he has mentioned even though it relieve society of but one of these evils, it is worth our while to carefully consider this bill and pass it into an act. I move--and I hope it will meet with the approval of the Senator--that the bill be recommitted to the Committee on Public Health and Vital Statistics.
The motion was agreed to.
Mr. Langdon's bill [S. 149] to amend Section 28, of the act of May 12, 1869, concerning the organization of Savings Banks was read the second time, and passed to the third reading.
Mr. Langdon offered the following:
Resolved, that the Committee on Prisons be and it is hereby directed to return, instanter, the resolutions on the subject of prison reform and the consolidation of the management thereof, referred to said Committee January 24, 1881.
On the adoption of this resolution, Messrs. Langdon and Yancey demanded the yeas and nays, which being ordered and taken discovered no quorum present.
On a call of the House ordered by the Lieutenant Governor, but thirty-one Senators answered to their names, and thereupon--
On motion, the Senate adjourned, under an order adopted this afternoon, till Wednesday at 10 o'clock a. m.
