Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1879-05-15
The 3Iiscsgeuefloa Case.

nOLSi SNSbSiNsSi - h.it ~ ASS-eS W. pN' 49,
tic niEcegeualon case of tho negro, Edmund
Kinney. ard the white Eonaa, Mary H.!l, cow
confined 10 the penieDliary fer violation OF the
statute prohibiting tic intermarriage Of races,
vas refused b. Judge Hughes On the ground
that the United States Courts have DO iursdic.
| lion over ques!iors Of m,rIsge, the judiciary
| &C! forbiddiug Federal court to issue the writ
Of habes5 corpus 10 favor Of prisoner 10 Jail
en- conviction Of Stat, court, unless the con.
violou vas upon State law passed in viola.
ZION Ct the Constitution or laws Ct the Uuitcd
States
The opinion enters mioutely toto tho Inquiry
whether he laws Of NirpDa fortlddipg mar
ria4cs within certain degrees Ct relationship,
marriages OF persons already married, and mar
1isges between white person and negro, do,
a0y Of them particularly the last, violate any
provision of the Federal Constitution or laws.
The Fifteenth amendment is the only one
which iorbids Stale from sbridgiDg the priv
iIcge5 Of State cltizens. and that amendment
declares 0riy that cli;Z,ns RICH. Ct voting
shall COT be abridged acd Is silent as 10 all other
lishta. That amendment, therefore, could not
be considered 10 connection with case D7Oviog
the privilege CT marrying.
The Fourteenth amendno declares that
The privileges and immul,ies OF ctiZ ms OF the
Uoited States shall not be abridged By State
laws. The opinion cUters into discussion OF
what privileges were i.tended TO be embraced
by tho language, and shows from large nun
Der + the decisions OF the Supreme Court Of
the U0itcA States that only those privileges
are intended which belong to a person 10 his
character as ctiZan OF the United States, and
cot The ordinary privileges which belong TO bm
SIS member OF society ADD citi2an ct i Sta,e.
Chief Jusiic, Marshall, 10 the Dartmouth Col
lego ccse, expressly held that similar pro
vision 10 the fourth article of the Constitution
did not embrace tho sutitc. of marrisgc, sod
that that relation was wIthln the uuresiraincd
con'ro # The States themselves.
The opinion illustrates the dltf=rcrca between
these two classes CT privileges by supposiog
hpt this petitioner had baen q cit2, 20 Of the
District If Columbia when be married there
(whcrc marriage between a white person nod
negro is legal, aud had then come into VIZ
suia with his wife. II he came as nero Vii
tor be would have tho right Of transit. tho
right OF temporary journ and tho right CT DO
ing business not requiring residence, tor these
arc privileges following him as q citZ,D of the
Ubiled States but il be came 10 live here, lG
violation of an express law of Ercio!a, then
his rights after thus becoming citiZ,a u flt
eria would be of The class which belong to hin
in his character as citizen Of the STATE, aod
would be subordinate 10 her Own laws. 10 The
case of Paul vs. Virginia the Supreme Court,
reviewing previous decisions, decided by itera.
ton that it vas never intended by the trainers
Ct the Constitution to give TO cIizans from
another State, other. higher or greater pIv.
leges than those clj)yed By citizcDO Of that
State, CT to give the laws Of one State any
operation in other States.
But the oas, OF the petitioner is weaker than
the one supposed. He is not here as citiz 70
cf the District cf-Columbs or temporary So
i0urnor 10 Virginia, or IS All immi grant. He
was ciliz,n Of Virginia before ard at the time
Of mtrdage, aud Was rcsiaiug here ia state Of
malrimony FORBIDDEN by our laws wheI alrast
ed and convicted. He went abroad 10 evasion
Of positive law, acd be returned TO reside, aad
did reside in positive violation OF express law
slI 10 tia character OF citizen Of Virginia amen
able TO her lava. IT the bona fide c:tiZ:n of
ab3thcr State, migrating here III good taitn
aud becoming n cuizan horo, could not Dr:uk
lhe marriage laws OF apotber Iursdlctlon to
| NigiIis, much iess csn - citizen OF Virginia.
married abroad IN ,rdRttem (cgjS TOMBSTONE,
tring into Virginia foreign law violently 10
conflict with her own laws.
The doctrine OF the opinion F, that the laws
of marriage sro at tho sovereign control and
vii! Of each State, unaffected by any provision
OF any article Of the Constitution el the United
States; that the obso!u;c and entire power over
these la - is necessarily !, t. all over tho word
aud 10 this Uni0n Of States to the government
Of tho local society, aud that, 10 the language
Of Judge Marshall the trainers Of tho Nstona!
Constitution did not iuteud to restrain thr
| Statns n thr r5uualInn' nj thrrD
This peliiioner was convicted under the law
of March II, 1873. declaring tina. ii any per
BOD, 10 Violation OF csrtGio laHs prohibiting
marriages Of persons within certain degrees Of
| relationship or any white person ard negro,
shall 60 OUT Ct this State lJr tho purpose OF be.
| ing married with Intention Of returning. are
married abroad and do return md live together
as tOau and wife, they shall DO punished Us tho
law p.cscribls. This law PUBLISHES the &C: Ct
going out Of the State for the purpose Of max
iug marriage either ilcasluous, bigamous, or
contrary to public polc7.
| The OPT i shows, hat while toe great publ =
cists have been divided in opinion whether llI.'
gal marriages abroad, 10 the a6seucs Of positive
law totbddiog the going abroad TO contract
them, ought, 10 tho spirit OF Interstate ccn-
! ily, to be treated by the home State az illegal;
yet that they all coDccdo tho right OF State
10 its discretion 10 pass such c Lag as that just
described; aud holds, there fore, that that is 20
longer an omen question n Virginia.
1t shows that whla Virginia has indulgently
refrained from passing such law ss TO the or.
| diusry class Of runaway matches" yet she his
passed such law 10 to toe three classes of mar
risgts defined in her act of 1873; and holds tnst
this Isw was within the unrestraineo. Legislative
power Of Virginia 10 exact it; ih.t it ia not pro-
| nlbited By any provision OF tho National Cou.ti-
tuition, and that therefore o Federal court has
no Jurisdiction to -slieve sgainsta conviction I'M
| der il, by habeas corpus.
Passing from the Constitution, the opinion ex'
amines whether any l.w oflhs United States has
been violated by tie otste law in question. No
one contends that this has been the Case sc to any
other ls~ than the frat section OF IN Civil Ke his
bill of 1865 section 1917 of tho Revised otut-
ules. That section simply secures to ''sli per-
sons within the United States the right in every
Stale ard territory 10 mako and enforce cen
tracts = AS Is enjoyed by white cIt2sur,
and be subject 10 like punishmenss," &c, &c.
a TO making contracts the opinion holds that
hi. law can only refer to lawful contrscts-con.