Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1871-11-02

OF the people and the internal ORDER, Improve
ment and prosperity of the State'' But it is
said that old things have passed away, and all
things have become new, and that the late
amendments which give freedom to
the slave, and confer upon him the
right of suffrage. and guarantee to him the
equal protection of the law, vouchsafe, to him
also the right of intermarriage with the white
race The Fourteenth Amendment to the Con-
stitution of the United States, or so much of it
as is important to be considered here, is in the
words following ge8 - .ar l.a =,
"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 privl-
leges 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 jurls-
diction the equal protection of the laws
What is called the enforcement act, which was
passed to give effect to the provisions of the
Fourteenth Amendment as applicable to the
question before us, is as follows:
"All persons within the Jurisdiction of the
United States shall have the same right in eve
ry State and territory of the United States to
make and enforce contracts to sue, be parties,
give evidence, and to the full and equal benefit
of all laws and proceedings tor the security OF
person and property as is enjoyed by white cit
liens, and shall be subject to like punishment,
pains, penalties, taxes, licenses and exactions OF
every kind and none other; any law, statute,
ordinance, regulation or custom to the contrary
notwithstanding"
The Civil Rights Bill, passed to give effect to
tho Thirteenth Amendment, which gave free
dom to the slave, is substantially and almost
literally the same as the foregoing.
The enforcement Bill became q law on the
31st day of May. 1870, and the Civil Rights Bill
several years before.
If the African in this country has been ele
waited to perfect equality in social as well as
political rights with the Caucasian; If that race
can claim at all the right-to marry and be given
in marriage with the sons and daughters of our
people, it must be claimed alone by virtue of
the foregoing amendments and the laws enacted
for their enforcement The State then is for
hidden from making and enforcing any law
which shall abridge the privileges and lmmuni-
ties of citizens of the United States. 1t is said,
that 1.-THE words rights, privileges and immuni-
ties, are abusively used as if they were synony-
nous. The word rights, is generic, common,
embracing whatever may be lawfully claimed.
Privileges are special rights, belonging to the
individual or elias and not to the mass properly
are exemptions from some general burden or
duty; a right peculiar to some individual or
body Immunities are rights of exemption
only-freedom from what otherwise would be
duty or burden" Bates on Citizenship, Y.
These privileges and immunitles, SAID w ASH
ngton j. may be all comprehended under the
following general heads: Protection by the
government; the enjoyment of life and liberty
with the right to acquire and possess property
of every kind and to pursue and obtain happl-
ness and safety; subject, nevertheless to such
restraints as the Government may justly pre-
scribe for the general good of the achoIe. The
right of the citizen Of one State to pass through
or reside in any other State, for purposes of
trade agriculture professional pursuits or other
WISE to claim the benefit of the hGbeGS corpus;
to institute and maintain actions of every kind
in the courts of the State to take, hold and dis
pose of property both real and personal; and
an exemption from higher taxes or lmpositions
than are paid by the other citizens of the State
to which may be added the elective franchise
as regulated and established by the laws or con-
stitution of the State in which it is to be exer-
cised" Corfeld VS. Coryell, Wash. G. G. $50.
These are some of the privileges and lmmunl-
ties intended to be guaranteed to the cltI-
zen-"subject," says the learned judge, to such
prescribe for the general good of the
whole" There are many others not herein
enumerated and upon whichEthe courts will de-
eide as the cases arise. Conner VS.. Elliott Is
How. 591. The right of intermarrlage among
the races is in the opinion of the Court, not one
of them Nor is marriage a contract in the
sense of the constitution which may be made
and enforced" 1t is called in many of the
books civil contract, for the want OF better
phrase A contract in the sense OF these enact
ments is such an agreement as may be speclh-
caly enforced, like contract to pay money or
to deliver property Marriage is a mere cove
nant of the will; it may be considered while ex-
ecuory contract, the breach of which is expiated
in damages-but it reposes upon 1t the consent OF
the parties. If that consent is withdrawn, there
is no such thing known to our law as Its speclhc
enforcement. 1t, therefore, differs essentially
from that species of contract contemplated by
the Constitution, which may be- made and then
enforced in the courts, and the obllgatlon OF
which cannot be impaired by the legislative de-
partment In the ecclesiastical law, 1t is defined
to be a covenant between a man and woman,
in which they mutually promise coha6ltatlon
and a continual care topromote the comfort ana
happiness of each other. 1t is an institution OF
God and q very honorable state. The Savior
honored it by his presence and at such solem-
nifty wrought his first miracle. Buck Iheo.
Dict. 26l, Heb l3, Gen. 2, John 2. 1t is the
civil status says Mr.. Bishop, OF man and
woman united in law for life" In the sense
in which it is dealt with by decree of divorce
it is not contract, says he, Blu. one of the do
nestle relations. 1t derives both its right and
its duties from source higher than any con-
tract of which the parties are capable, and as to
these it is uncomfortable by any contract they
can make. Although it may be formed by con-
tract vet when formed, it has none of the attrl-
butes of contract, but becomes domestic re-
lation. And, SAYS he, it is no more q contract
than fatherhoOd or sonship, or serfdom, or
slavery, or apprenticeship are contracts
| Bish Mar. s. Div, TO- Thus, says Robertson,
G. j., marriage, though in one sense contract
| because, being both stipulatory and consensual-
| it cannot bevalid without OBSERVATION-DISCLOSURES
renee of two competent minds-is, nevertheless,
| SUI generiS and, unlike ordinary or COM
mercial contracts, is pp6tictl jurtS, because
it establishes fundamental and most important
domestic relations And, therefore, as every
well organized society is essentially interested
in the existence and harmony and decorum of
all its social relations marriage, the most ele,
meItary and useful of them all, is regulated and
controlled by the sovereign power of the State
Mcguire & Mcguire Z, Dana lSl. 1t is said,
| again, to be the particular glory of the social
system; and the idea that any government
could, consistently with the general veal, per-
NIT this institution to become merely matter of
bargain between men and women, and not reg
ulate it by its ewn power. is too absurd to re-
quire word of refutation. l Bsh. 13 2 Story
Conf. Laws p 10s, i Id. p 200. The highest and
hottest duty of every, government is to provide
ple How and in what manner this is to be best
subserved is question for the political power