12 F. Cas. 262 | U.S. Circuit Court for the Northern District of Georgia | 1871
Counsel for the relators rely upon the fourteenth amendment to the constitution, and the act of congress passed April 9, 1866, commonly known as the civil rights bill. 14 Stat. 27. The first section of the fourteenth amendment declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the .privileges or immunities of citizens of the United States; nor shall any -state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The fifth section provides that congress shall have power to enforce the amendment by appropriate legislation.
The civil rights bill was, as may be seen, passed a short time before the fourteenth amendment received the sanction of the people of the United States. In May, 1870. congress passed an act to. carry into effect the fourteenth and fifteenth amendments, and by section 18 re-enacted the civil rights bill. 16 Stat 140. The first section of this famous bill of rights is as follows: “That all persons bom in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every state and territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and'convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary, notwithstanding.”
The primary, but not the only question presented by the relators for consideration is, whether section 1707 of the Code (Irwin’s) of Georgia is repugnant to the fourteenth
[It may not be unworthy of observation that, since the decision of "the state supreme court, in Scott v. State, there have been two sessions of the general assembly — composed of colored members as well as white — yet no effort whatever was made at either session to repeal or modify section 1707. And in October, 1870, a law was enacted to “Establish a System of Education” [Laws Ga. p. 57]. By section 32, it was provided that the white and colored youth should be taught in separate schools. On the final passage of the bill all the colored and nearly every white member voted in the affirmative.]
In the case of Live Stock, etc., Association v. Crescent City, etc., Co. [Case No. 8,408], which was decided in New Orleans, a few days after the passage of the law reenacting the civil rights bill, but before the reenactment obtained publicity, Mr. Circuit Justice Bradley (Woods, Circuit Judge, concurring) remarked that the civil rights bill was in pari
In Gibbons v. Ogden, 9 Wheat. [22 U. S.] 188, Chief Justice Marshall said: “The framers of the constitution and the people who adopted it must be understood to have employed words in their natural sense, and to have understood what they meant.” And Judge Cooley, in his work on Constitutional Limitations (page 59), uses the following clear and attractive language: “Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” And now it may be asked, does section 1707 of the Code, conflict. with the fourteenth amendment, by abridging any of the privileges or immunities secured therein to the citizens — to the relators, white and colored, or deny to them the equal protection of the laws? Or does it conflict with the civil rights bill? The state law prohibits marriage between a white person and a person of African descent, and declares such marriage null and void. If this prohibition is transgressed, neither pains nor penalties follow to-either party. But if the parties cohabit, the law of the state deems them guilty of fornication, and punishes them by fine, imprisonment and labor on the public highway, or any one or more of these penalties in the discretion of the court. Code, §5 1707, 4245, 4487. In Barber v. Barber, 21 How. [62 U. S.] 582, Mr. Justice Wayne, speaking for the court, disclaimed any jurisdiction in the courts of the United States upon the subject of divorces. And Mr. Bishop says: “All our marriage and divorce laws * * * are state laws and state statutes; the national courts with us, not having cognizance of the matter within our localities.” 1 Bish. Mar. & Div. § 87. [Congress, however, has enacted laws regulating marriage and divorce in the District of Columbia; and has likewise prohibited polygamy in any “territory or other place over which the United States has exclusive jurisdiction.” Act 1860, c. 158 (12 Stat. 59); Act 1802, c. 126 (12 Stat. 501).]
I have given the matters involved in this suit careful consideration, and I am of opinion that neither congress, in framing the fourteenth amendment, nor the people, when they ratified it, contemplated that questions of this nature were- comprehended within the terms “privileges and immunities” as employed in that instrument. The marriage relation, which is a civil institution, has hitherto been regulated and controlled by each state within its own territorial limits, and I cannot think it was intended to be restrained by the amendment,' so long as the state marriage regulations do not deny to the citizen the equal protection of the laws. Nor do I think that the state law operates unequally; the marriage relation between whites and colored cannot exist under the statutes of this state— it is null and void as to both. And the punishment or penalty adjudged to the colored citizen found guilty of fornication is like that —and none other — which is inflicted on the white citizen, the co-offender. In my judgment, neither section 1707, which inhibits marriage between a white person and a person of African descent, nor sections 4245 and 4487 which provide for the punishment of colored and white persons who are found guilty of the crime of fornication, fall within the influence of the provisions contained in the fourteenth amendment or the civil rights bill.
It is therefore ordered that the relators be remanded to the custody of the jailer.
[From 4 Am. Law T. Rep. U. S. Cts. 190.]
[From 4 Am. Law T. Rep. U. S. Cts. 190.]
[Prom 4 Am. Law T. Rep. U. S. Cts. 190.]