58 Ala. 190 | Ala. | 1877
The question this record presents is, whether or not the State may make the marriage of a white person with a person of the negro race, a punishable offense. The statute is as follows: “If any white person and any negro, or the descendant of any negro to the third generation inclusive,-though one ancestor of each generation was a white person, intermarry, or live in adultery or fornication, with each other, each of them must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than two, nor more than seven years.” — § 4189 (3602) of Code of 1876.
In Burns v. The State, (48 Ala. 195,) according to tbe 4th head-note, the decision in Ellis v. The State (supra), was overruled. Burns, a justice of tbe peace, bad as such performed tbe rites of matrimony between a white person and a negro, contrary to a statute; and having been convicted of and fined for the offense, our immediate predecessors reversed tbe judgment; bolding, that tbe section first above cited and that under which tbe conviction was had, were in conflict with tbe act of congress referred to, and therefore void.
The argument in support of this decision was as follows : “ Marriage is a civil contract, and in that character alone is dealt with by tbe municipal law. Tbe same right to make a contract as is enjoyed by white citizens — means tbe right to make and contract which a white citizen may make. Tbe law intended to destroy tbe distinction of race and color, in respect to tbe rights secured by it.” And again: “ One of tbe rights secured by citizenship, therefore, is, that of suing any other citizen. Tbe civil rights bill now confers this right upon tbe negro in express terms, as also tbe right to make and enforce contracts,” [neither of which was ever denied to a free person of any color, in the courts of this State,] “amongst which, is that of marriage with any citizen capable of entering into that relation.”
This seems to us a very narrow and an illogical view of the subject. And it might, perhaps, be a sufficient answer to it to say: What the law declares to be a punishable offense, is, marriage between a white person and a negro. And it no more tolerates it in one of the parties than the other — in a white person than in a negro or mulatto; and each of them is punishable for the offense prohibited, in precisely the same manner and to the same extent. There is no discrimination made in favor of the white person, either in the capacity to enter into such a relation, or in the penalty. Moreover, at the time of the passage of the so-called “ civil right's act,” similar laws to those of Alabama existed against such inter
But the subject should be regarded with a broader view. Is marriage, as the argument objected to assumes, nothing more than a civil contract ? Is it, “in that character alone,” dealt with by the municipal law ?
Doubtless, it is by a contract — that is, by the ‘agreement of the parties — that they enter into the state of marriage. .But, as was said by the Supreme Court of Delaware, it is a contract “ of a peculiar character and subject to peculiar principles. It may be entered into by persons who are not capable of forming any other lawful contract; it can be violated and annulled by law, which no other contract can be; it can 'not be determined by the will of the parties, as any othey contract may be; and its rights and obligations are derived rather from the- law relating to it, than from the con-, tract itself.” — Townsend v. Griffin, 4 Harrington, 440. According to Judge Story: “ Marriage is not treated as a mere contract between the parties, subject as to its continuance, dissolution and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most interesting and important in its nature, of any in society.” — Confl. of Laws, § 200. Oh. J. Bobertson, of Kentucky, said of it: “As every tuell organized society is essentially interested in the existence and harmony and decorum of all its social relations, mar-rige, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the State, and can not, like mere contracts, be dissolved by the mutual consent only of contracting parties, but may be abrogated by the sovereign will, either'with or without the consent of both parties, whenever the public good, or justice to both or either of the parties will be thereby subserved. Such a remedial and conservative power is inherent in every independent nation, and cannot be subjected to political restraint or foreign control, consistently with the public welfare. And, therefore, marriage, being much more than a contract, and depending essentially on the sovereign will, is not, as we presume, embraced by the constitutional interdiction of legislative acts impairing the obligation of contracts.” — Maguire
This institution is, indeed, “ the most interesting and important in its nature of any in Society.” It is through the marriage relation that the homes of a people are created— those homes in which, ordinarily, all the members of all the families of the land are, during a part of every day, assembled together; where the elders of the household seek repose and cheer, and reparation of strength from the toils and cares of life; and where, in an affectionate intercourse and conversation with them, the young become imbued with the principles, and animated by the spirit and ideas, which in a great degree give shape to their characters and determine the manner of their future lives. These homes, in which the virtues are most cultivated and happiness most abounds, are the true officinai gentium — the nurseries of States. Who can estimate the evil of introducing into their most intimate relations, elements so heterogeneous that they must naturally cause discord, shame, disruption of family circles and estrangement of kindred ? While with their interior administration, the State should interfere but little, it is obviously of the highest public concern that it should, by general laws adapted to the state of things around them, guard them against disturbances from without.
Hence it is, that, if not in every State of the Union, in all of them in which any considerable numbers of the negro race resided, statutes have been enacted prohibiting marriages between them and persons of the white race. Said the Supreme Court of Pennsylvania, in a recent case : “ Why the Creator made one white and the other black, we do not know; but the fact is apparent, and the races are distinct, each producing its own kind and following the peculiar law of its constitution. Conceding equality, with natures as perfect and rights as sacred, yet God has made them dissimilar. . The natural law, which forbids their intermarriage and that amalgamation which leads to a corruption of races, is as clearly divine as that which' imparted to them different natures.” — Phila. & W. Chester R. R. Co. v. Miles, 2 Amer. Law Bev. 358 — (cited in State v. Gibson, 36 Ind. 404.)
It depends very much, of course, upon the relative proportions and condition of the two races in any State, whether legislation of the kind in question is necessary there or not.
How, then, can it be maintained that the States of this Union, in adopting amendments which make no allusion to such intermarriages, intended to deprive themselves of the important power of regulating matters of so great consequence aud delicacy within their own borders for themselves, as it always was their undoubted right to do. In an able and. emphatic opinion, the Supreme Court of Indiana unanimously decided, that this had not been done. — State v. Gibson, 36 Ind. 389. A similar decision has been lately made in Texas, in a case of Frasher v. The State, according to a note in the Central Law Journal, (vol. 6, p. 1). We have not, however, any report of the case. The jurisdiction of the State of North Carolina over the same subject, and the validity of her laws prohibiting such intermarriages, are assumed to be beyond question, by the Supreme Court of that State, in the cases of The State v. Ross and the Same v. Kennedy, 76 N. C. 242 and 251. And, in a case on habeas corpus, before him, Judge Duvál, a Federal judge, holding the District Court of the United States at Austin, Texás, commenting on the same statute of Texas which was held valid by the Supreme Court of that State, as mentioned above, said: “ Marriage between the two races is wholly abhorrent to my sense of fitness and propriety; and I presume it would be no violation of the constitution and laws of the United States — inasmuch as marriage is but a civil contract, to be regulated by the laws of the several States — were the State of Texas now
The amendments to the Constitution were evidently designed to secure to citizens, without distinction of race, rights of a civil ■ or political kind only — not such as are merely social, much less those of a purely domestic nature. The regulation of these belongs to the States. It is a. satisfaction to find this recognized, impliedly, in an opinion of the Chief Justice of the United States, announcing the recent decision of the Supreme Court upon the civil rights act of Louisiana. This statute required those engaged in the transportation of passengers to carry colored persons in the same cars, cabins, &c., as whites : And the Supreme Court decided that so far as it applied to foreign and inter-State commerce, it was void, because the regulation of such commerce was, by the constitution, reserved to the congress of the United States. Of the statute, the Chief Justice said: “ It does not act upon the business, through the local instruments to be employed after coming within the State — but directly upon the business as it comes into the State from without, or goes out from within. . A passenger in the cabin set apart for whites without the State, must, when the boat comes within, share the accommodations of that cabin, with such colored persons as may come on board afterwards, if the law is enforced. . . . The river Mississippi passes through, or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction; .... it could prescribe rules by which the carrier must be governed within the State, in respect to passengers and property brought from without. On one side of the river, or its tributaries, he might be required to observe one set of rules, and on the other another. Commerce can not flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line, his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other kept separate.”
Eor these reasons, and to the extent mentioned, the “ civil rights ” law of Louisiana was declared to be unconstitutional and void. — 6 Cent. L. J. 102.
It will be observed, that it is not asserted by the court,
No amendment to the Constitution, nor any enactment thereby authorized, is in any degree infringed by the enforcement of the section of the Code, under which the appellant in this cause was convicted and sentenced.
In view of the decision made by our predecessors in Burns v. The State, supra, which is hereby overruled, we trust that the Executive of the State will find just reasons in this case, why appellant should receive a pardon.
In performance of our duty, the judgment of the circuit court must be affirmed.