The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-05-15
WRIT REFUSED.
Decision OF Judge Hughes I'm the
'-..e. Kinnry Case.

Decision OF Judge Hughes I'm the
--.e. Kinnry Case.
WRIT OF HABEAs CORPUS DENIED THE
CONVICT KINNEY In NQUIRY WHETHER
THE VIRGINIA LAWS IN RELATION TO IN
rERMARRIAGE OF WHITES AND BLACKS
VIOLATE ANY PROVISION OF TIE FEDE-
RAJ CONSTITUTION OR LAws-rRoBA-
BILITY OF AN APPEAL. @t -
Tn the case OF Edmund Kinney. a negro
| man cont ned in the penitentiary Tor marry
| ing white woman in defiance OF the laws
OF Virginia, and who applied for writ OF
habeQS corpus. Judge Hughes yesterday de-
iiyered the following opinion:
The question presented by this petition
involves so seriously the relations OF the
Federal courts to the laws OF the States, and
their administration by State tribunals, that
! shall be excused for giving carefully
considered and pains.taking explanation OF
| the grounds OF my action In this matter.
Leaving ont OF The text such words and
| clauses as have no application 10 the case,
the following are the provisions OF law re-
lating to the Jurisdiction OF this Court on
the question OF awarding writ OF habedS
corpus on this petition:
Section 753 Of the Revised Statutes Of the
United States provides that the writ OF hd-
Jeas corpus shall in no case extend to a
prisoner IN Jail, unless {among other in
stances, OF which this is not one)" "where he
is in custody in violation OF the Constitu-
ton or Il law OF the United States."
Section 754 requires that the application
| for the writ shall be in writing, setting out
the facts concerning fhe petitioners deten-
tion, verified by affidavit; and section 755
authorizes the writ to issue i'unless it ap-
| pears from the petition itself that the appli-
cant is not entitled thereto" :.-. :
The writ, therefore, is not issued, as mat
ter OF course. Whether it shall 90 out or
not depends upon -.-.....-
THE FACTS PRESENTED
by the petition showing whether or not the
| petitioners detention in Jail is in violation
| OF the Constitution or law Of the United
States. II it appears from the petition
itself that the Constitution or law OF the
| United States has not been violated In the
petitoncr's arrest and imprisonment, then,
OF course, the writ must not go out.
1t must not be forgotten that the Fedora!
conrts are forbidden TO issue the writ OF
| hdbeaS corpus in favor OF prisoners in Jail
under conviction OF State courts unless the
petition makes case or jurisdiction under
section 753. am 10 inquire whether the
ayerments in this petition release me from
that inhibition. can imagine no subject
on which the Federal courts ought to be
more conslderate in assuming an excep-
tional iul isdiction.
The petitioner here is negro man; but
the question OF issuing the writ does not
turn upon any provision OF the Constitution
relating particularly 10 race or color. 1t is
! only the fifteenth amendment which makes
special mention of that subject--in proyl-
ding that the right OF q citizen Of the United
States to rOte shall not be denied or abridged
| on account OF race or color. No other pro-
vision relates particularly to the distinction
OF race OF color. And as no question OF 10
| tina is raised in this case, We have no con-
Germ with the fifteenth amendment.
THE QUESTION HERE
is one OF marrying; and there is nothing in
the national Constitution expressly forbid
ding q State from abridging the right Of
marrying, or indeed any right but that OF
voting, on account OF race or color. No
provision OF the Constitution relating par
ticularly to the colored man as such has
been violated by the State of Virginia in the
prosecution, conviction, and imprisonment
OF this petitioner.
Ii any constitutional provision has been
violated at all it is only some general proYi-
sion relating to the rights and privileges OF
citizens in general. ltis contended that the
first section OF the fourteenth amendment
has been thus violated. That section de-
clares that a." all persons born in the United
States are citizens oil, the United States and
OF the State wherein they reside" and pro-
vides that "no State shall make or enforce
any law which shall abridge the privileges
of citizens OF the United States, nor deny
to any person within its jurisdiction the
equal protection OF the laws"
J This section, after declaring that all per-
sons born in the United States hall be citi-
zens % OF the United States and (2l Of the
State wherein they reside, goes on in the
same sentence to provide that no State shall
abrdge the privileges OF citizens OF the
! United States, but does not go on to forbid
a State from abridging the privileges of its
own citizens. Leaving. .;.<...t,..z .
THE MATTER OF ABR1DGING a..
the privileges OF its own citizens as such to
the discretion OF each State,t the section pro-
, ceeds, in regard to the latter, only to pro-
vide that no State " snail deny 10 any per-
son within its jurisdiction the equal protec.
ton Of the laws" s'.. = .." '. va" !.
, Thus the fourteenth amendment itself
classifes the privileges Of citizens into those
(which they have as citizens OF the United
, States" and those which they have as
(" citizens OF the State ewherein they reside" y;
and this classification has been abundantly
recognized, illustrated, and enforced by the
Supreme Court of the United States in nu.
!, merous decisions: Trustees OF Dartmouth
College Us. Woodward, Wheaton, 629
Gibbons Us. Ogden, Wheaton, 203; New
York City Us. Milu, II Peters, 1873; Scott
Us. Sandford, 10 Howard, 1915 and $50;
Lcense-Tax Cases, Wall, All: Paul Us.
Virginia, 8 Wall, .1S0; United States u.s.
Witt, 8 Wall, Al; The Slaughter-House
Cases, 16 Wall, &c.; United States Us. Reese
ct al. 9 Otto, pa; and United States U.s.
Cruikshank ct at., Otto, 542. See also Cor
field Us. Corgeii, Wash. G. c.. 3ll; United
States Us. Petersburg. Judges OF Election, !
Hughes, sos; and The Federalist, No. 40.
THE RIGHTS WHICH A PERSON HAS ..
as citizen Of State are those which per.
tain TO him as q member OF society, and
which would belong to him if his State
were not q member OF the American Union.
lover these the States have the usual powers
; belonging to government; and these pow
ers s'eXtend TO all objects which in the or
dinary course OF affairs concern the lives,
! liberties [privieges], and properties Of the
: people, and the internal order, improve
ment, and prosperity OF the State."-Fede-
j ralist. No. is. "The trainers Of the Consti-
,,<,t mt to roStrain the STATES