marriage for girls, and twenty-one years for boys?

On the other hand, some States fix twenty-one years as the legal age for both sexes. Have they concluded that the additional child or two that might have been born to the girl who married at eighteen (and who wants children) is less desirable than the added sense of married responsibility to be hoped for at twenty-one from girls and boys alike? Whatever the answer, we have to measure different things, and define equality, in terms which take account of difference. And is it not easier to imagine responsible motherhood at nineteen years than responsible fatherhood at that age?

These are questions of national and international import. Two of the commissions set up by the League of Nations, upon which the United States Government is officially represented, are trying to draft international conventions relating to child welfare and the traffic in women and children. In such draft proposals the legal age, the marriage age, the age of consent, and punishment for sex offenses are inevitably involved, and the question of equal treatment of the sexes must be dealt with. The International Labor Office has submitted, and many nations have adopted and ratified, labor conventions affecting employment conditions of women. There is pending now, before the Latin American governments, a proposed "Code of Private International Law" which will commit the signatories to significant changes in civil and social legislation directly affecting the rights and status of women.

International conventions, be it

remembered, if adopted by the governments to which they are submitted, become the law of the land, or else call for parliamentary action which becomes the law. And that law nullifies all existing laws that may conflict with it. Must we not, then, think these international legislative problems through constructively and intelligently, and, on the basis of facts and their effect upon existing law, determine whether the new proposals conform to our concept of sex equality in the phase of life concerned? Must we not, in other words, define equality before we approve or disapprove legislation which may affect it, and for each instance where we ourselves attempt to frame legislation which is to secure it for us? Or shall we, as our absolutists do, take a stubborn stand against any law that is applied to women and not to men? Or that is not applied alike to men and women -even though it be a maternity law, or a statute penalizing rape? Shall the law deny the existence of sex differences, and of any circumstances under which men's and women's needs are different?

The question comes to us in the United States in two proposals for alleged short cuts to "equal rights." It will doubtless come to the international congress of women next month in one of these forms at least. One proposal is for an amendment to the Constitution of the United States, the other for a treaty with the Latin-American states, which if feasible at all, may as well be made world-wide. Both proposals read, "Men and women shall have equal rights" in the designated jurisdictions. This brave declaration of principle would fit well in the preamble to the United States Constitution, or the preamble to a treaty. But the proposal is to write it into the body of the instrument, where it would become the law of the land, and nullify all State and Federal laws in conflict with it. "Which means," say the proponents, "that there could henceforth be no laws that do not apply alike to men and women."

At first glance, possibly, it looks like that. The general and apparently simple terms of the proposal have an especially plausible international appeal. Why not this simple formula, a world-wide international agreement that "men and women shall have equal rights"? Let women march upon their parliaments, their premiers, kings and presidents all over the world, with this righteous demand-which in these days can not be answered "No."

The reason why not, of course, is that the formula, applied anywhere outside Utopia, is anything but a simple one, and its results may not be what we want. It merely states the problem we have been discussing in reverse. It begs the entire question, for we must have a common concept of what constitutes equality in the conditions of life that we would change. We must have this common concept in order to be able to frame a law, or else we must be willing to leave the question to the judges and the courts, sublimely confident that they will do what neither men nor women, in all the history of the world, have ever been able to do-evolve a constant definition of equality.

What would result were such a formula applied to the laws of other

nations, we do not know without study of their codes and constitutions. But we have studied the proposal as to its probable results to the women of the United States, and we find that those results depend upon two things: What the existing law provides in each of our fortyeight States and the Federal statutes, and what the court may conceive equality to be the court nearly always being a man or men.

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For example, consider arising under a married woman's property law:

Mrs. R, whose husband has died without making a will, finds that under the law of her State, up to this date, she should inherit a life interest in one third of her husband's estate. But the same law provides that had she died first, without making a will, her husband would have inherited none of her property, because they had no children. And now, with an "equal rights" clause in the constitution, the question is how does the law apply to her? Is life interest in one third of an estate, unconditionally, equal to the whole of another estate, provided there are children? According to a professor of constitutional law, Professor Ernst Freund, of the University of Chicago, the court to which Mrs. R took her case would have to decide that it couldn't decide, until the legislature had passed some new law on the subject. So the amendment would not have done much for Mrs. R, who would not get any of her husband's property until the legislature had passed a law which the court would consider embodied satisfactorily equal terms of inheritance under the new constitutional mandate. But the legislature can pass that same law now, without the constitutional amendment, and without holding up the settlement of Mr. R's estate.

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Another case arises under the desertion laws. Mrs. X, the mother of six young children, has a neglectful husband, who finally deserts her. He makes a good deal of money, but he spends it on himself. For the children's sake she goes to court and sues him for maintenance. And he contests the suit. The law has, hitherto, in this State, held the husband liable for support of his wife and children. But, says the defense attorney, constitutional amendment provides that men and women shall have equal rights, and as the State law does not hold the wife responsible for support of the husband, as well as the husband responsible for support of the wife, the husband has not equal rights with his wife, and the law is unconstitutional. If the judge agrees with the defense attorney, Mrs. X can get no help through the courts. There are two ways to make things equal between two people to give one what the other has not, or to take away what the one has. Constitutional law, as it happens, can only take away, it cannot add to the law in order to equalize the provisions. So, thinks one of Philadelphia's able attorneys, Mr. Edward Clark Lukens, Mrs. X would lose her right to support from her husband, because she was not required to support him.

Still another example is the case of Mrs. Y, a miner's widow. She has claimed the benefits of the mother's pension law, in order to keep her

children with her. Next door to her is the motherless family of Mr. J, who is struggling hard to keep his children together under the care of the oldest child, a girl of twelve. This father is away all day at work, and he does not earn enough to employ somebody to keep his house. Could not he claim the benefits of the pension law, now that the constitution provides for "equal rights" for men and women?

He tries. But the law provides for payment of the benefits only to a needy mother, or some other woman who stands in that relation to the child. The question of constitutionality of the law is raised, and this case has to wait its turn on a crowded docket. Perhaps it is appealed from court to court. Meantime, Mrs. Y's case cannot be settled. The State disbursing officers hesitate to pay any claims while the constitutionality of the law is in question, and somebody applies for a writ of injunction against the enforcing officers.

The legislature meets, and a new law is proposed, making pensions for children's aid payable to fathers or other men, as well as to mothers or other women. This, if passed, might settle the question for both Mr. J and Mrs. Y, as well as the held-up payments to other claimants. But here we have a new issue, which staggers the legislature: Pensions, to be paid to able-bodied fathers, as a subsidy in lieu of the additional wage they need but are not earning. It is at the very least a proposal that calls for study, and that legislatures will be slow to adopt.

So the delay continues for Mr. J and Mrs. Y, and all the mothers and children previously benefited by the mother's pension law-or children's aid law, as you will. To call it such does not alter the legal situation, and by the time the question is settled, says Miss Sophonisba Breckinridge, lawyer, and professor of social economy at the University of Chicago, the State administrative machinery for mother's pensions would have gone to pot.

A dozen other confused and destructive situations can be visualized as consequences of a constitutional provision for "equal rights" such as is proposed. What would happen to the laws providing for penalties for rape? Here is an act of which either sex may be guilty in the sense of solicitation, but of which only the man is capable by means of physical force. Therefore State laws fix a lighter penalty for women than for men. The amendment itself could equalize the application to men and women only by removing the penalty (wholly or in part) for men. Which fact leaves us with the question: Is equality under this kind of law attainable in exactly the same terms for women and men? Must not the provisions differ? And shall we call upon judge and jury to make a definition for a kind of equality we ourselves are not agreed upon in such a case as this?

What the amendment would do to the marriage laws is another interesting consideration, though the effect would be not so crucial, perhaps, as the effect upon age of consent. Many of the States do not fix an age of consent for boys, but punish men for seduction of very young girls. In some States, on the other hand, the law is more lenient to illegiti

mate fathers than to illegitimate mothers. The constitutional amendment would not add to existing law, but only take away the element of inequality. If the woman were relieved of responsibility, or penalty, in the interests of "equal rights," would justice be served, either to the community or the illegitimate child?

Most destructive of all the effects of the amendment because affecting greater numbers of people who are already at a disadvantage in life's competition, would be the nullification of the large group of health regulations and hours-of-labor laws for women, which apply directly to at least three million women. Such laws do not apply to working-men, or else not to the same groups of working-men as women. They regulate the hours for women and girls in factories, stores, and workshops, provide for seats, and regulate conditions affecting the health of the workers. Some of them prohibit the employment of women in extrahazardous occupations, or under extra-hazardous conditions.

Not all of these are ideal laws, and a few are not defensible. But most of them are vitally important and could not be destroyed without lowering industrial standards for men and women both. Yet all of them, indiscriminately and ruthlessly, would go down before the amendment because they apply to women only. It matters not that men may not need them, or want them, or that there is no deep injustice in providing seats for women, when you cannot get seats for men, or pensions for mothers even though you cannot get them for fathers, too, as elsewhere we have pointed out. What