The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-05-15

'NaHS#-soN'' ~ dbts IL -
only such as are legal that can be made and
enforced within the State by ..aIl persons
within the Jurisdiction OF the United
States" provided the State law does not
abridge right which person has in bis
character OF q citizen of the United States,
OF which marriage. as we have seen, is not
one. The State may declare ut will what
contracts are and what are not legal within
its Jurisdiction; and section 1877 confers
the right OF enforcing only such contracts
rs are legal. - 522 'aiG,3.ass,-s-
Congress has made no law for the States
relating 10 marriage. It has not done so
simply because it has no constitutional
power to make laws affecting the
.n.z DOMESTIC RELATIONS
and regulating the social intercourse of the
citizens OF o State, which power belongs all
the world over to The government Of the local
society. II 1t were to make such law for
the States, that law would be unconstitu.
tlonal, and the Federal courts would not
hesitate to declare it so. 1t is the State
which is endowed with the sovereign power
of making such laws ;.apd therefore only
those contracts OF marriage that are LEGAL
under State laws can be enforced or en-
1oyed within the Jurisdiction OF the State.
All this has been said on the hypnthesis
that the contract OF marriage is subject,
like pecunlary contracts, to the operation
OF section 1877. But marriage is more than
q contract. 1t may be entered into at the
will OF competent parties; but it cannot, as
other contracts may, be released ut their
will. Nor can its terms be shaped at their
will; it can be for so many years and then
cease, for it must be "until death us do
part"; it cannot be entered into with Que
or more Of the opposite sex at pleasure, but
must be with one only, for the joint lives
it cannot be confined in effect to single
territorial jurisdiction, but has the same
effect all over.the world, so far as permitted
by the law OF each State or nation. Ben
than calls il s
"a NOBLE CONTRACT,
the tie Of society, ane the basis OF civiliza-
ton" ....
1t is plain therefore that marriage is not,
in many of its qualities, OF the class OF con-
tracts contemplated by section 1877 OF the
Revised Statutes. And in. the Dartmouth
College case, Wheat, G29, it was held by
the Supreme Court OF the United States
that the clause Of article l., section 10, OF
the national Constitution, ,forbidding 4
State from passing any law impairing "the
obligation OF Contracts" does not embrace
marriage. it never having been intended to
forbid State Legislature to pass an act OF
divorce, or an act conferring power upon
State courts to grant DEGREES OF di-
vorce-the Supreme Court being OF opin-
ion that the contracts contemplated by
the clause were only such as relate to prop
ertY or pecuniary ualue.-1 Minors 1nsts.,
27j. Thus we see, from another point OF
view, that marriage is not one of the "pri-
vileges' in regard to which the national
Constitution and Congress can restrict the
power of the States.
1t is clear on the whole that section 1917
is not violated by the marriage laws of Fir-
ginia, and know OF no other act OF Con-
gress that has been, considering the petit
toner and his consort as citizens OF Vir-
ginia, and treating their case as il their mar
riage had been entered into in this State.
But this marriage was not entered into
here. The parties to it went to the District
OF Columbia fer the purpose OF contracting
it, did there contract 1t, and returned to re-
side and cohabit together in this State.
Yet this is not the case Of
CITIZENS OF ANOTHER STATE
lawfully married in that t,omicile and after
wards migrating thence in good faith into
this State. If this petitioner had been born
citizen of the District OF Columbia, and had
there married a white woman in conformity
to the laws Of that jurisdiction, and had af-
terwards migrated with his wife into Vir-
ginia, and had been after becoming thus
domiciled here prosecuted under that pro-
vision of the law OF Virginia which has been
quoted, and convicted and imprisoned, and
had fled bis petition here, praying for an
inquiry into the cause Of his detention in
prison, the case presented would have been
essentially different from that actually under
consideration. Then the question would
have been, whether such citizen OF another
State could claim here the protection OF the
second section OF the fourth article OF the
national Constitution. This section declares
that p" the citizens OF each State shall be en-
titled to all privileges and immunities o.
citizens in the several States."
at first blush it would seem that this pro-
vision would give citizen OF the District
of Columbia, lawfully married as citizen
there, and afterwards domici'iating here,
the right to reside here under that mar
riage. But even in such case the Supreme
Court has decided otherwise. That such Il
citizen would have 80. ...
RIGHT OF TRANSIT
with his wife through Virginia, and OF tenn
poraly stoppage, and OF carrying on any
business here not requiring residence, may
be conceded; because there are privileges
following citizen Of the United States as
given by the section just quoted, and by
the clause of the fourteenth amendment
previously considered. But it is equally
true that such citizen could not,
by becoming a citizen Of Virginia, bring
here the privilege Of exercising as such
a right legally enjoyed in the District, but
not. given. here. In the case OF Paul Us.
Virginia, 8 WALL, $50, the Supreme: Court
Of the United States held that especial
privileges enjoyed by citizens in their own
States are not secured in other States" by
the provision Of the. fourth article of the
Constitution, which has been quoted. Re-
viewing its decision in Bank Of Augusta
Us. Earle. 13 Pet, 58f, tie Court said that
it was never intended by this provision to
give to citizens from another State higher
and greater privileges IN any State than are
enjoyed by citizens Of that State; that it
''was not intended by the provision 70 give
to laws of one State any operation in other
States; that they can have no such operation
except by the permission, express or i'm
piled, OF those States; and that the special
privileges which they confer must be en-
loved at home, unless the assent OF other
States to their enjoyment therein be gwen
Up. 1SO-'S1 of Wallace).
The provision Of the Constitution in ques-
ton refers to the privileges given in
THE STATE INTO WHICH CITIZEN GOES,
and not to those given in the State from
which he comes. And so, even il this petl-
t;oner had been q citizen Of another state,
lawfully married there, and had come here,
bringing his wife, Intending TO live here IN
4 condition OF matrimony forbidden by our
laus- he could not claim the protection OF