INTERMARRIAGE AND MISCEGENATION
One race distinction, which has not been confined to the South, and
which has, in a large measure, escaped the adverse criticism heaped upon
other race distinctions is the prohibition of miscegenation between the
Caucasian and the colored races. The term “miscegenation” includes both
intermarriage and all forms of illicit intercourse between the races.
Twenty-six States and Territories, including all the Southern States,
have laws forbidding the admixture of the races; applying not only to
Negroes, but also to Indians and Mongolians in States where the latter
races are present in considerable numbers.
INTERMARRIAGE DURING RECONSTRUCTION
It is significant that during the years of Reconstruction in the South,
when the Federal and State governments were endeavoring to eradicate
race distinctions, none of the statutes against miscegenation appear to
have been repealed. There is some meager authority—a case which arose in
Tennessee[150] in 1872, and two cases in North Carolina[151] in
1877—which might tend to show that the statutes of two Southern States
were repealed. The Tennessee court was of opinion that intermarriage was
not prohibited in Mississippi, and the North Carolina courts arrived at
the same conclusion about South Carolina; but neither court specified
the years to which its statement applied, and a careful examination of
the annual laws of Mississippi and South Carolina between 1865 and 1880
reveals no statutes repealing the laws against intermarriage in those
States. One is led to conclude, therefore, that the statutes against
miscegenation were disregarded in a few instances during Reconstruction,
rather than repealed. This conclusion is helped out by the fact that the
legislatures manifested no inclination to permit miscegenation. The
legislature of South Carolina,[152] for instance, in 1865, before the
State government went into the hands of the Reconstructionists, enacted
laws, covering twenty-five or more finely printed pages, defining the
rights of Negroes in the most minute details, as was seen in considering
the “Black Laws” of 1865–68. These laws were repealed nine months later,
but the legislature was careful to add that the repealing act did not
apply to that part of the Act of 1865 which said that marriage between a
white person and a person of color should be illegal and void. The
legislature of Texas,[153] in like manner, on November 10, 1866,
repealed most of its statutes relating to free Negroes, but added that
nothing in the act should be construed to repeal any laws prohibiting
intermarriage of the white and black races. The repealing statute of
Arkansas[154] of February 6, 1867, made practically the same exception
as to intermarriage.
Determined as many of the Reconstruction promoters were to wipe out
every vestige of legally recognized race distinctions, they did not
allow their zeal to carry them to the extent of legislating as to the
social relations of the races. Georgia, probably fearing that some
legislature might attempt to enact such measures, in its Constitutions
of 1868[155] and 1877[156] had this general statement: “The social
status of the citizen shall never be the subject of legislation.” It
would seem, on first thought, that this requirement would defeat its own
purpose. If marriage is a social status and if legislation as to the
social status of the citizen is forever prohibited, how can a law
prohibiting intermarriage be constitutional? In a test case[157] that
arose in 1869 the Supreme Court of the State very neatly explained away
this apparently embarrassing situation by saying, in effect, that the
clause in the Constitution applied only to future legislation, and it
did not affect the law prohibiting intermarriage then in force. After
quoting that clause in the Constitution, the court went on to say: “In
so far as the marriage relation is connected with the social _status_,
the very reverse is true. That section of the Constitution forever
prohibits legislation of any character regulating or interfering with
the social status. It leaves social rights and _status_ where it finds
them. It prohibits the legislature from repealing any laws in existence,
which protect persons in the free regulation among themselves of matters
properly termed social, and it also prohibits the enactment of any new
laws on that subject in the future.” The Constitution of Alabama[9] of
1901 provides against possible meddling by the legislature with domestic
relations in more outspoken terms: “The legislature shall never pass any
law to authorize or legalize any marriage between any white person and a
Negro or descendant of a Negro.”
PRESENT STATE OF THE LAW AGAINST INTERMARRIAGE
The present situation as regards intermarriage is as follows:
Intermarriage between the Caucasian and other races is prohibited by the
Constitutions of six States, all Southern, namely: Alabama,[158]
Florida,[159] Mississippi,[160] North Carolina,[161] South
Carolina,[162] and Tennessee.[163] Intermarriage is prohibited by
statute also in the above States and in twenty other States and
Territories, namely: Alabama,[164] Arizona,[165] Arkansas,[166]
California,[167] Colorado,[168] Delaware,[169] Florida,[170]
Georgia,[171] Idaho,[172] Indiana,[173] Kentucky,[174] Louisiana,[175]
Maryland,[176] Mississippi,[177] Missouri,[178] Nebraska,[179]
Nevada,[180] North Carolina,[181] Oklahoma,[182] Oregon,[183] South
Carolina,[184] Tennessee,[185] Texas,[186] Utah,[187] Virginia,[188] and
West Virginia.[189]
TO WHOM THE LAWS APPLY
In the interpretation of these statutes against intermarriage, it is
necessary, at the outset, to determine just who are included. If the
statutes had simply enacted that there should be no intermarriage
between Caucasians, on the one side, and Negroes, Indians, or
Mongolians, on the other, they would have left the great body of
mixed-blooded people to miscegenate as they pleased. Most of the States
avoided this difficulty by stating clearly to whom the laws apply.
Virginia and Louisiana are the only States simply to enact in general
terms that there shall be no intermarriage between white persons and
persons of color; and even in Virginia judicial decisions clearly define
the term “person of color,” so there is no difficulty in knowing who is
meant by the statute. Arkansas, Colorado, Delaware, Idaho, and Kentucky
prohibit intermarriage between white persons and Negroes or mulattoes.
Georgia, Texas, and Oklahoma place within the prohibition of their
statutes persons of African descent; West Virginia, Negroes; and
Florida, Negroes, expressly including every person with one-eighth or
more of Negro blood. Alabama makes its law apply to Negroes and their
descendants to the fifth generation, though one ancestor of each
generation was white. The Indiana and Missouri statutes extend to all
persons having one-eighth or more Negro blood; Maryland to Negroes or
persons of Negro descent to the third generation inclusive. Tennessee
includes within the prohibition Negroes, mulattoes, or persons of mixed
blood descended from a Negro to the third generation inclusive. The
Nebraska law applies to persons of one-fourth or more Negro blood.
The States which have a large Indian or Mongolian population include
these races within the prohibition. Thus, Arizona prohibits whites to
intermarry with Negroes, Mongolians, or Indians and their descendants;
California, with Negroes, Mongolians, or Indians and their descendants;
California, with Negroes, Mongolians, or mulattoes. It is interesting to
note that the word “Mongolian” was not added to the California
statute[190] till 1905. This addition, coming, as it does, so nearly
contemporaneous with the school trouble in San Francisco, is evidence
that California is facing a race problem which it considers serious. The
Mississippi law applies to Negroes, mulattoes, persons who have
one-eighth or more Negro blood, Mongolians or persons who have
one-eighth or more Mongolian blood. Nevada includes black persons,
mulattoes, Indians, Chinese; Oregon, in addition to Negroes, prohibits
intermarriage with Chinese and with persons having one-fourth or more
Negro, Chinese, or Kanaka blood or having more than one-half Indian
blood. Utah includes simply Negroes and Mongolians; North Carolina,
Negroes and Indians. South Carolina prohibits intermarriage between
whites and Indians, Negroes, mulattoes, mestizoes, or half-breeds.
EFFECT OF ATTEMPTED INTERMARRIAGE
Suppose a white person and a person within any of the prohibited classes
do attempt to intermarry. What is the legal result? Indiana, Kentucky,
Maryland, Nebraska, North Carolina, and Utah declare that such a
marriage is void; Colorado, Missouri, and Virginia, that it is
absolutely void; Arizona, Georgia, Oregon, and Tennessee, that it is
null and void; Delaware and Mississippi, that it is unlawful and void;
and Arkansas, California, and Idaho, that it is illegal and void. The
law of Florida declares that such a marriage is unlawful, utterly null
and void and the issue bastards and so incapable of inheriting.
Louisiana provides that such a marriage is prohibited, the celebration
of it forbidden, that the celebration carries with it no effect, and
that the marriage is null and void. South Carolina enacts that it is
“utterly null and void and of none effect.” The only legal effect of a
marriage thus declared void is to impose criminal liability upon the
parties to it. The result is precisely the same as if no license had
been obtained or ceremony performed and the parties had been indulging
in illicit relations. A Virginia decision says: “No matter by what
ceremonies or solemnities, such marriage would have been the merest
nullity, and the parties must have been regarded under our laws, as
lewdly associating and cohabiting together....”[191]
The other States which prohibit intermarriage simply declare that
marriage between white persons and Negroes is illegal and prescribe a
punishment for the violation of the statute against miscegenation, but
do not further define the legal effect of such a marriage contract. But
whether the marriage is declared “void” or “null and void” or
“absolutely void” or only “illegal,” the result is the same.
PUNISHMENT FOR INTERMARRIAGE
Persons of different races who attempt to intermarry in violation of the
laws subject themselves everywhere to severe penalties. In Alabama, the
law says they shall be imprisoned in the penitentiary for not less than
two, nor more than seven years. In Colorado, they are guilty of a
misdemeanor and punishable by a fine of from fifty dollars to five
hundred dollars, or imprisonment for not less than three months nor more
than two years, or both. In Delaware, they are guilty of a misdemeanor
and may be fined one hundred dollars. Florida says they shall be
imprisoned in the State penitentiary not exceeding ten years or fined
not exceeding one thousand dollars. In Indiana, if they knowingly
violate the law—that is, if the white person knows the other is a Negro
or of mixed blood—they are fined not less than one hundred dollars nor
more than one thousand dollars, or imprisoned in the State prison not
less than one nor more than ten years. Maryland declares that they are
guilty of an infamous crime, punishable by imprisonment in the
penitentiary not less than eighteen months nor more than ten years.
Mississippi makes the punishment a fine of five hundred dollars,
imprisonment not exceeding ten years, or both. The law of Missouri
declares that one who knowingly intermarries in violation of the statute
shall be punished by imprisonment in the penitentiary two years or by a
fine not less than one hundred dollars, or by imprisonment in the county
jail not less than three months, or by both such fine and imprisonment,
and adds that the jury shall determine the amount of Negro blood by
appearance. Nevada enacts that the parties are guilty of a misdemeanor
and shall be imprisoned in the State prison not less than one nor more
than two years. North Carolina brands an attempted intermarriage as an
infamous crime to be punished by imprisonment in the county jail or
State prison not less than four months nor more than ten years, and the
parties may also be fined at the discretion of the court. Oklahoma makes
it a felony and provides that the parties shall be punished by a fine of
not less than one hundred dollars nor more than five hundred dollars or
imprisonment not less than thirty days nor more than one year, or both.
Oregon simply makes it an offence punishable by imprisonment in the
penitentiary or county jail between three months and one year. South
Carolina[192] declares attempted intermarriage is a misdemeanor
punishable by a fine of not less than five hundred dollars or
imprisonment in the penitentiary from one to five years. Texas, by a law
of 1858, still in force in 1879, prescribed a punishment for the white
person who attempted to marry a Negro but no punishment for the Negro. A
Federal court[193] held that the difference of punishment was in
violation of the Fourteenth Amendment, but that the law against
intermarriage was constitutional. Virginia provides that the parties
shall be confined in the penitentiary not less than two nor more than
five years. West Virginia would confine them in jail not over one year
and fine them not exceeding one hundred dollars. Thus, it appears that
in most of the States intermarriage is considered a very serious
offence, ranking in Colorado, Delaware, Nevada, and South Carolina, as a
misdemeanor; in Louisiana and North Carolina as an infamous crime; and
in Tennessee and Oklahoma as a felony.
PUNISHMENT FOR ISSUING LICENSES
With no less severity do the States punish those who issue licenses to
persons of one race to marry those of another. Alabama declares that
anyone knowingly issuing a license for the marriage of a white and
colored person shall be fined not less than one hundred dollars nor more
than one thousand dollars and may also be imprisoned in the county jail
or sentenced to hard labor for the county for not more than six months.
Colorado makes it a misdemeanor punishable by a fine of one hundred
dollars. Florida punishes it by imprisonment not exceeding two years or
a fine not exceeding one thousand dollars. North Carolina simply
declares it to be a misdemeanor without prescribing any punishment
different from that for other misdemeanors. Oklahoma makes it a
misdemeanor punishable by a fine of not less than one hundred nor more
than five hundred dollars, or imprisonment in the county jail not less
than thirty days nor more than one year, or both.
PUNISHMENT FOR PERFORMING THE CEREMONY
A heavy penalty is laid also upon one who performs the ceremony for
those who marry in violation of the laws against miscegenation. Alabama
provides that any justice of the peace, minister, or other person, who
knowingly performs the marriage ceremony between a white and colored
person, shall be fined not less than one hundred dollars nor more than
one thousand and, at the discretion of the court, imprisoned in the
country jail or sentenced to hard labor for the county for not more than
six months. Arkansas makes anyone performing such a ceremony guilty of a
high misdemeanor punishable by a fine of not less than one hundred
dollars. Colorado declares that to perform the ceremony is a misdemeanor
punishable by a fine of between fifty dollars and five hundred dollars
or imprisonment between three months and two years, or both. In
Delaware, it is a misdemeanor, and the punishment is a one hundred
dollar fine. Florida either imprisons the person performing the ceremony
not over one year or imposes a fine on him not exceeding one thousand
dollars. North Carolina simply defines it as a misdemeanor. Indiana
declares that one who knowingly counsels or assists in such a marriage
shall be fined not less than one hundred dollars nor more than one
thousand dollars. Nevada makes one who performs the ceremony guilty of a
misdemeanor and subjects him to imprisonment in the State prison not
less than one year nor more than three years. Oklahoma makes it a
misdemeanor and imposes a fine of between one hundred dollars and five
hundred dollars, or imprisonment between three months and a year, or
both. The law of Oregon declares that one who wilfully and knowingly
performs such marriage ceremony shall be imprisoned in the penitentiary
or county jail from three months to one year and fined from one hundred
dollars to one thousand dollars. South Carolina provides that one who
knowingly and willingly unites persons of different races in the bonds
of matrimony shall be guilty of a misdemeanor and punished by a fine of
not less than five hundred dollars nor more than twelve months’
imprisonment, or both. Virginia declares that he shall forfeit two
hundred dollars, of which the informant shall get one-half; and West
Virginia provides that the one who knowingly performs the ceremony shall
be guilty of a misdemeanor and fined not over two hundred dollars.
COHABITATION WITHOUT INTERMARRIAGE
A few States have statutes relative to illicit relations between white
and colored persons, where no marriage is pretended to exist. Alabama
imposes for this offence upon both man and woman the same punishment as
for intermarriage; a living together in adultery one day with intent to
continue that relation has been held to constitute a violation of the
statute.[194] Florida declares that, if any white person and Negro or
mulatto shall live together in adultery or fornication with each other,
each shall be punished by imprisonment not exceeding a year, or by a
fine not exceeding a thousand dollars. The law adds that any Negro man
and white woman or any white man and Negro woman, not married to each
other, who habitually live in and occupy in the night-time the same
room, no other person over fifteen years of age being present, shall be
punished by imprisonment not exceeding twelve months, or by a fine not
exceeding five hundred dollars. Nevada provides that, if any white
person shall live and cohabit with any black person, mulatto, Indian, or
Chinese, in a state of fornication, such person so offending shall be
fined not over five hundred and not less than one hundred dollars, or
imprisonment in the county jail between one and six months, or both.
Louisiana[195] has the most recent and the most thorough-going statute
against miscegenation; it was adopted July 1, 1908. It provides that
concubinage between a white person and a Negro is a felony, punishable
by imprisonment for not less than one month nor more than one year.
Concubinage is defined as unlawful cohabitation of white persons and
Negroes whether open or secret. It was made the duty of the judges to
specially charge the grand juries upon this statute.
The most interesting feature about these statutes is that they impose a
heavier penalty for cohabitation between a white and a colored person
than between two members of the same race. Yet they have been held to
comply with the Constitution of the United States. The reasons why such
statutes are held to be constitutional will be considered later.
STATES REPEALING LAWS AGAINST INTERMARRIAGE
Only five States that once had laws against miscegenation have repealed
them since 1865. New Mexico,[196] in 1866, Rhode Island,[197] in 1881,
and Maine,[198] in 1883, repealed their laws against intermarriage
outright. A statute of Michigan[199] in 1883 provided that all marriages
theretofore contracted between white persons and those wholly or in part
of African descent should be valid and effectual and the offspring
legitimate, but it said nothing about marriages contracted in the
future. Professor Frederick J. Stimson[200] has apparently interpreted
the statute to apply to marriages in the future as well as to those
already contracted. Finally, Ohio[201] in 1887 repealed its law of 1877,
providing for the punishment of persons of “pure white blood” who
intermarry or have carnal intercourse with any Negro or person having a
distinct and visible admixture of African blood.
MARRIAGES BETWEEN THE NEGRO AND NON-CAUCASIAN RACES
It is significant that the States have not prohibited intermarriage
between two different races except where one is the Caucasian. In no
State is it unlawful for Mongolians and Indians, Negroes and Mongolians,
or Negroes and Indians to intermarry. The only exception to the last is
that in North Carolina[202] it is unlawful for Negroes to intermarry
with Croatan Indians or to go to the same school with them. To this
statute hangs a beautiful historical tradition. In 1585, the date of the
first attempt by Englishmen to colonize the New World, there was an
island off the coast of North Carolina called Croatoan. By the shifting
of the sands, it is now probably a part of Hatteras or Ocracoke Island.
In 1587, a colony of one hundred and seventy-seven persons under John
White was landed by Sir Walter Raleigh on this island. Here, the same
year, was born Virginia Dare, granddaughter of John White and the first
child of English parents born in America. Later, part of the colonists
under White had to go back to England to seek further aid. By agreement,
those left behind were to go over to the friendly Croatoan Indians if
they needed succor. When Governor White returned many months later, he
found the settlement deserted and carved upon a tree nearby the single
word “Croatoan.” This supposedly meant that the colonists had gone over
to the Croatoans. For some unexplained reason, the party under White
never went in search of their lost brethren. Not a word more has ever
been heard of Virginia Dare and the others. A tradition says that they
went over to the Croatoans and eventually became absorbed into that
tribe.[203] Credence is given to this by the fact that there are many
Croatoan Indians—now called Croatans—with light complexion and blue
eyes. Recently a considerable body of mixed-blooded Indians in Robeson
County, North Carolina, have laid claim to descent from this lost
colony, and the State has officially recognized them under a separate
name as the “Croatan Indians.” Thus, all that is left of Virginia Dare
and the Lost Colony is this tradition supported by the presence of
Indians with fair skin and blue eyes, and the statute of North Carolina
that the blood of these early settlers shall not be further adulterated,
by miscegenation, with the blood of the Negro.
EFFECT GIVEN TO MARRIAGES IN OTHER STATES
The next question is the interpretation of the laws against
intermarriage. What effect will a State that prohibits miscegenation
give to a marriage between a white person and Negro in a State that
permits intermarriage? What effect, for instance, will Virginia give to
a marriage of a white woman to a Negro man contracted in Massachusetts
if the parties go to Virginia to live? If the Negro and white woman were
residents in good faith of Massachusetts or of some State that permits
intermarriage at the time of their marriage, their marriage will, as a
general rule, be recognized as valid everywhere—even in the Southern
States. Several States, including Arkansas, Colorado, Idaho, Indiana,
Kentucky, and probably others, in their statutes prohibiting
intermarriage make the provision that, if the marriage is valid where
consummated, it will be considered valid by those States. A
Tennessee[204] court in 1872 did refuse to recognize as valid a marriage
celebrated in Mississippi when intermarriage was permitted in
Mississippi, but this appears to be the only case taking that view.
If, on the other hand, the parties leave a State which prohibits
intermarriage and go to another State which allows it, solely for the
purpose of evading the laws of the former State, the authority is
practically unanimous that the marriage is not valid in the State the
laws of which they attempted to evade. This point is covered both by
statute and by judicial decision. A Delaware statute, for instance,
declares that the Negro and white person are equally guilty if they are
married in another State and move into Delaware as if they had been
married in Delaware. Mississippi, also, punishes parties attempting to
evade its laws by marrying out of the State and returning to
Mississippi, to the same extent as if they had attempted to intermarry
in Mississippi. The Georgia statute, which is typical, is as follows:
“All marriages solemnized in another State by parties intending at the
time to reside in this State shall have the same legal consequences and
effect as if solemnized in this State. Parties residing in this State
cannot evade any of the provisions of its laws as to marriage by going
into another State for the solemnization of the ceremony.” Statutes to
the same effect are in force in Arizona, Virginia, West Virginia, and
possibly other States. In the absence of statute, the point is covered
with the same result by judicial decision. In the Tennessee case, to
which reference has already been made, the court said: “Each State is
sovereign, a government within, of, and for itself, with the inherent
and reserved right to declare and maintain its own political economy for
the good of its citizens, and cannot be subjected to the recognition of
a fact or act contravening its public policy and against good morals, as
lawful, because it was made or existed in a State having no prohibition
against it or even promoting it.”
In 1878, a Negro man and a white woman went over from Virginia[205] into
the District of Columbia, were married, and returned to Virginia, where
they were prosecuted. The Virginia court held that, although the forms
and ceremonies of marriage are governed by the laws of the place where
marriage is celebrated, the essentials of the contract depend upon and
are governed by the laws of the country where the parties are domiciled
at the time of the marriage, and in which the matrimonial residence is
contemplated. This case was affirmed by the Federal court[206] the next
year. A Georgia[207] couple who also went to the District of Columbia to
be married, returned to their native State, where they were indicted and
convicted for violating the Georgia statute against intermarriage.
It appears that Washington has been and is the City of Refuge for such
miscegenating couples. It has been held, however, in every case, that,
when these people return to Southern States, no matter where married,
they are amenable to the laws of those States. In fact, there appears to
be only one American case with regard to Negroes which holds a contrary
doctrine, the case of Medway v. Needham.[208] There a white person and
Negro, living in Massachusetts, which at the time, 1819, prohibited
intermarriage, went to Rhode Island, where they were married and whence
they immediately returned. The Supreme Court of Massachusetts held that
a marriage, if valid where celebrated, is valid everywhere; the court
taking no account of the purpose of the parties to evade the law. In
rendering this decision, the Court admitted that it was going counter to
the opinion of eminent jurists. The decision has not been followed, it
appears, by any other court. It may be taken as settled that, if the
parties leave the State for the purpose of evading its law, intending at
the time to return to that State, the marriage will not be recognized as
valid when they do return. But, if they leave the State to evade the
law, not intending at the time to return and do gain a _bona fide_
residence in another State and, after that, do return, the marriage will
be recognized. In other words, to furnish a State grounds to declare
void a marriage celebrated in another State where it is valid, the
parties must intend not only to evade the law but also not to gain a
_bona fide_ residence in the State to which they go.
Efforts have been made to prohibit intermarriage in the District of
Columbia. At the last session of the Sixtieth Congress, Senator Milton,
of Florida, introduced a bill to make intermarriage between white
persons and Negroes a crime punishable by imprisonment for ten years and
a fine of one thousand dollars, providing that one with one-eighth or
more Negro blood should come within the prohibition, declaring such
marriages to be null and void and the issue resulting from them
illegitimate and so incapable of inheritance. This bill apparently died
in the committee room. A resolution in the Senate to recall it from the
Committee on the Judiciary was tabled on March 1, 1909, by a vote of 43
to 21.
INTERMARRIAGE AND THE FEDERAL CONSTITUTION
The constitutionality of State statutes and judicial decisions which
have refused to recognize marriages between Negroes and white persons
celebrated in other States or in the District of Columbia have been
attacked on two grounds: First, that they are in violation of article
one, section ten, of the Constitution of the United States, which says,
in part, that no State shall pass any law impairing the obligation of
contracts; and, secondly, that they contravene that part of the
Fourteenth Amendment which says that no State shall make or enforce any
law which shall abridge the privileges and immunities of citizens of the
United States.
Marriage is declared by the statutes of the States which prohibit
intermarriage, just as by other States, to be a civil contract. If it is
a contract and if marriage between a white person and a Negro in
Massachusetts, for instance, is valid, when the parties go to South
Carolina to live, how can the South Carolina courts declare the marriage
a nullity and prosecute the parties for fornication and adultery without
contravening the Federal Constitution? The only answer is: Marriage is a
civil contract, but it is something more. Almost without exception, the
courts have held that a State has the absolute control of the marriage
status within its borders. The early case of State v. Gibson,[209]
coming in 1871 during Reconstruction, sounded a warning to the Federal
Government’s interfering with the laws of marriage. The court said: “In
this State [Indiana] marriage is treated as a civil contract, but it is
more than a mere civil contract. It is a public institution established
by God himself, is recognized in all Christian and civilized nations,
and is essential to the peace, happiness, and well-being of society. In
fact, society could not exist without the institution of marriage, for
upon it all the social and domestic relations are based. The right of
all the States to regulate and control, to guard, protect, and preserve
this God-given, civilizing, and Christianizing institution is of
inestimable importance, and cannot be surrendered, nor can the States
suffer or permit any interference therewith. If the Federal Government
can determine who may marry in a State, there is no limit to its
power....”
The Supreme Court of Alabama[210] in 1872 declared that the laws against
intermarriage did contravene the Civil Rights Bill and the Fourteenth
Amendment. But this case was expressly overruled by Green v. State,[211]
in which the court, answering both of the objections, said, “Marriage is
not a mere contract, but a social and domestic institution upon which
are founded all society and order, to be regulated and controlled by the
sovereign power for the good of the State; and the several States of the
Union in the adoption of the recent Amendments to the Constitution of
the United States designed to secure to citizens rights of a civil or
political nature only, and did not part with their hitherto unquestioned
power of regulating, within their own borders, matters of purely social
and domestic concern.”
There are Federal cases to support the position of the State Courts. But
it is of no use to pile up citations of decisions further to establish
the well-accepted doctrine that marriage is more than a civil contract,
that it is a domestic institution, and that a State, by virtue of its
police power, has absolute control as to who may contract marriages or
live in that relation within its borders.[212]
Twenty-six States and Territories prohibit intermarriage between the
white and other races. They recognize as valid such marriages when
contracted in a State which allows them, unless the parties are trying
to evade the laws of the State of their domicile or of their intended
matrimonial residence. The States prescribe a heavier penalty for
illicit intercourse between white persons and persons of another race
than for the same offence between two persons of the same race; they
inflict heavy punishments upon ministers and other officials who perform
a marriage ceremony between a white person and one of another race, and
upon those who issue licenses for such a marriage; and they declare the
offspring of such marriages illegitimate and incapable of inheritance.
In each of these positions, the courts, Federal as well as State, have
upheld the twenty-six States and Territories.
Twenty-four States and Territories do not prohibit intermarriage between
the white and other races. It is not within the province of this study
to consider the actual amount of admixture that is going on in these
States. But inasmuch as Boston has often been cited as the city in which
the number of marriages between white persons and Negroes is very large
(estimated by Senator Money, of Mississippi, at 2,000 in 1902), the
report of the registry department of Boston for the years 1900–1907 is
here added:
INTERMARRIAGES IN BOSTON
Colored man White man Total Number of
White woman Colored woman Mixed Marriages
1900 32 3 35
1901 30 1 31
1902 25 4 29
1903 27 2 29
1904 27 1 28
1905 17 2 19
1906 17 2 19
1907 28 4 32
From this it appears that the number, never appreciably large, has been
steadily decreasing.
The following is what Mr. Ray Stannard Baker[213] has to say about the
precise fact of intermarriages in the Northern States in general: “In
the great majority of intermarriages the white women belong to the lower
walks of life. They are German, Irish, or other foreign women,
respectable but ignorant. As far as I can see from investigating a
number of such cases, the home life is as happy as that of other people
in the same stratum of life. But the white woman who marries a Negro is
speedily declassed: she is ostracised by the white people, and while she
finds a certain place among the Negroes, she is not even readily
accepted as a Negro. In short, she is cut off from both races. When I
was at Xenia, O., I was told of a case of a white man who was arrested
for living with a Negro woman. The magistrate compelled him to marry the
Negro woman as the worst punishment he could invent.
“For this reason, although there are no laws in most Northern States
against mixed marriages, and although the Negro population has been
increasing, the number of intermarriages is not only not increasing, but
in many cities, as in Boston, it is decreasing. It is an unpopular
institution.”
NOTES
Footnote 150:
State v. Bell, 1872, 7 Baxter (Tenn.) 9.
Footnote 151:
State v. Ross, 1877, 76 N. C. 242; State v. Kennedy, 1877, 76 N. C.
251.
Footnote 152:
Laws of S. C., 1866, extra sess., pp. 393–94.
Footnote 153:
Laws of Tex., 1866, p. 131.
Footnote 154:
Laws of Ark., 1866–67, p. 99.
Footnote 155:
Art. I, sec. 11.
Footnote 156:
Art. I, par. 18.
Footnote 157:
Scott v. State, 1869, 39 Ga. 321.
Footnote 158:
Sec. 102.
Footnote 159:
Const., 1885, art. XVI, sec. 24.
Footnote 160:
Const., 1890, art. XIV, sec. 7.
Footnote 161:
Const., 1875, art. XIV, sec. 8.
Footnote 162:
Const., 1895, art. III, sec. 33.
Footnote 163:
Const., 1870, art. XI, sec. 14.
Footnote 164:
Code, 1907, III, sec. 7421.
Footnote 165:
Revised Stat., 1901, secs. 3092 and 3094.
Footnote 166:
Kirby’s Digest, 1904, secs. 5174, 5177, and 5183.
Footnote 167:
Civil Code, 1906, sec. 60.
Footnote 168:
Revised Stat., 1908, secs. 4163 and 4165.
Footnote 169:
Revised Code, 1852, as amended in 1893, p. 593.
Footnote 170:
General Stat., 1906, secs. 2579, 3529, and 3531–32.
Footnote 171:
Code, 1895, II, secs. 2422–25.
Footnote 172:
Revised Code, 1908, I, secs. 2616 and 2619.
Footnote 173:
Annotated Stat., 1908, secs. 2641, 2642, 8360, and 8367.
Footnote 174:
Statutes, 1909, secs. 4615 and 4619.
Footnote 175:
Merrick’s Revised Civil Code, 1900, art. 94.
Footnote 176:
Public Gen. Laws, I, sec. 305, p. 878.
Footnote 177:
Code, 1906, secs. 1031 and 3244.
Footnote 178:
Annotated Stat., 1906, II, sec. 2174.
Footnote 179:
Compiled Stat., 1907, sec. 4275.
Footnote 180:
Compiled Laws, 1861–1900, secs. 4851–52.
Footnote 181:
Pell’s Revisal of 1908, I, secs. 2083 and 3369–70.
Footnote 182:
General Stat., 1908, secs. 3260 and 3262.
Footnote 183:
Bellinger and Cotton’s Codes and Stat., I, secs. 1999–2001 and II,
sec. 5217.
Footnote 184:
Code, 1902, I, sec. 2664.
Footnote 185:
Code, 1896, secs. 4186–87.
Footnote 186:
Sayles’s Civil Stat., I, art. 2959.
Footnote 187:
Compiled Laws, 1907, sec. 1184.
Footnote 188:
Pollard’s Code, 1904, sec. 2252.
Footnote 189:
Code, 1899, p. 972.
Footnote 190:
Laws of Calif., 1905, p. 554.
Footnote 191:
Kinney’s Case, 1878, 30 Grat. (Va.) 858, 861.
Footnote 192:
Code of Criminal Procedure, 1902, sec. 293.
Footnote 193:
_Ex parte_ Francois, 1879, Fed. Case No. 5,047.
Footnote 194:
McAlpine v. State, 1897, 117 Ala. 93; 23 So. 130.
Footnote 195:
Acts of La., 1908, pp. 105–06.
Footnote 196:
Laws of N. M., 1866, p. 90.
Footnote 197:
Acts of R. I., Jan. sess., 1881, p. 108.
Footnote 198:
Laws of Me., 1883, p. 167.
Footnote 199:
Pub. Acts of Mich., 1883, p. 16.
Footnote 200:
Frederick J. Stimson, “American Statute Law,” I, p. 668.
Footnote 201:
Laws of O., 1877, p. 277; 1887, p. 34.
Footnote 202:
Laws of N. C., 1887, p. 494.
Footnote 203:
Edward Channing, “History of the United States,” The Macmillan Co.,
1905, I, pp. 128–30.
Footnote 204:
State v. Bell, 1872, 7 Baxter (Tenn.) 9.
Footnote 205:
Kinney v. Com., 1878, 30 Grat. (Va.) 858.
Footnote 206:
_Ex parte_ Kinney, 1879, Fed. Case No. 7,825.
Footnote 207:
State v. Tutty, 1890, 41 Fed. 753.
Footnote 208:
16 Mass. 157 (1819).
Footnote 209:
36 Ind. 389 (1871).
Footnote 210:
Burns v. State, 1872, 48 Ala. 195.
Footnote 211:
58 Ala. 190 (1877).
Footnote 212:
State v. Hairston, 1869, 63 N. C. 451; Lonas v. State, 1871, 50 Tenn.
(3 Heisk) 287; Frasher v. State, 1877, 3 Tex. Ap. 263.
Footnote 213:
“Following the Colour Line,” pp. 172–73.