The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1879-05-22


previous condition, for it prevents white
persons from marrying colored persons
as much as it prevents colored persons
from marrying white persons. 1t is,
therefore, equal in its operations on both
races, and makes no distinction against
one or in favor of the other. He holds
that although marriage is contract that
it is not an ordinary contract, for it can
not be rescinded by mutual consent of
the contracting parties as other contracts
may, and no person can make more than
one contract of the kind at the same
time, even though all of the contracting
parties might agree to it. And though
Section 1877 of the Revised Statutes Sc
cures to all persons within the United
States the right to make contracts and
enforce them in all of the States, Judge
Hughes holds that even if marriage were
an ordinary contract, the privilege of en-
forcing it extends only to lawful mar
riages, and that if a citizen of Virginia
went to the District of Columbia or the
Territory of Utah and was there mar
ried in accordance with the local law, he
could not return with his cousort or con-
sorts to Virginia and expectssto subordi-
nate her laws of marriage to the laws of
the other Jurisdiction. From these con-
siderations Judge Hughes holds that the
regulation of the marriage relation is
peculiarly the province of the States,
with which the United States Courts
have no right to interfere.
The reasons given for this decision are
equally forcible IN support of the posi-
ton assumed by the advocates of the bill
now pending before the South Carolina
Legislature, "to prevent the intermarry-
ing of the races" which was postponed
to the next session. Our Constitution
provides, Art. I, Sec. 80, y n "Dis-
tinction on account of race or color, in
any case whatever, shall be prohibited,
and all classes of citizens shall enjoy
equally all common, public, legal and
political privileges" This section has
been seized upon by those who are op-
posed to the law, and is held by some
who would otherwise favor it, to make it
unconstitutional to pass any law prevent
ing the races from intermarrying. The
foregoing views of Judge Hughes vindi-
Gates the position assumed by the advo-
Gates of the bill that it does not make
any distinction between the races. 1t
affects them equally, and therefore does
not violate this clause of the Constitu
ton. Then if it be unconstitutional, it
must deny to some class of citizens the
equal enjoyment of some common, pub
lie, legal or political privilege. Mar
riage will not be contended to be COM
mon privilege anywhere in America out
side of the Oneida community in New
York, where all property and all wives
are held in common. Under our laws
marriage is an exclusive and not q COM
mon privilege. 1t is also an individual
and not public privilege, and is not
political privilege. If, therefore, it
comes under this section at all it must be
as legal privilege. Now is it legal
privilege? We think not, for to be such
it must be privilege conferred by the
laws of the country. Marriage isa social
custom which was given to man by the
Creator, and is not conferred upon him
by any law in this country. So far as
laws have been enacted on the subject,
they have simply been regulatory.
There is no law which secures to any
man or woman the right to marry. On
the contrary, the only laws which have
been passed on the subject tend to re-
strict the marriage relation. Then, as
marriage is not privilege created by
law, it cannot come under the head of a
legal privilege, and as the right to regu-
late the custom is nowhere denied in the
Constitution, the Legislature is the judge
of what regulation is right and proper,
and the act proposed is not repugnant to
any provision of our State Constitution.
If, however, it is admitted for the sake of
argument that it is legal privilege, still
the act proposed would not violate the
section quoted, for it does not propose to
take away from one class privileges which
would be allowed another class. 1t pro-
poses to take away from both classes the
same privilege, which would still leave
them equal in privileges-thatis is, neither
would have any privilege at all to marry
the other. 1t rests upon precisely the
same grounds as does the question of its
being distinction on account of race or
color, and the decision that it is no dis
tinction to take privilege away from
both, implies too strongly to be debated
that it is no inequality to take q privilege
away from two classes of citizens en-
tirely.
The act proposed in this State is there
fore constitutional, and should by all
means be adopted, as it will put an end
to practice which, though not common,
is entirely too frequent, and which tends
to the decentralization of both races with
out benefting either of them.
The Attorney General is about to in
stitute proceedings for the forfeiture of
the charter of the Charlotte, Columbia
and Augusta Railroad Company, on the