tory, over which the inhabitants are thinly settled, an arrange. ment or classification going far into detail, providing different schools for pupils of different ages, of each sex, and the like, would require the pupils to go such long distances from their homes to the schools, that it would be quite unreasonable. But in Boston, where more than one hundred thousand inhabitants live within a space so small, that it would be scarcely an inconvenience to require a boy of good health to traverse daily the whole extent of it, a system of distribution and classification may be adopted and carried into effect, which may be useful and beneficial in its influence on the character of the schools, and in its adaptation to the improvement and advancement of the great purpose of education, and at the same time practicable and reasonable in its operation.

In the absence of special legislation on this subject, the lav has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted by colorable pretences, the decision of the committee must be deerned conclusive. The committee, apparently upon great deliberation, have come to the conclusion, that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt, that this is the honest result of their experience and judgment.

It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the commu nity, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper ques tion for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their de cision upon it is not founded on just grounds of reason aud

experience, and in the results of a discriminating and honest judgment.

The increased distance, to which the plaintiff was obliged to go to school from her father's house, is not such, in our opi• nion, as to render the regulation in question unreasonable, still less illegal.

On the whole the court are of opinion, that upon the facts stated, the action cannot be maintained.

Plaintiff nonsuit.

EDWARD WINSOR & another vs. GEORGE GRIGGS.

One who signs a subinission to arbitration, as agent, without disclosing the name of his principal, or the name of the principal being knowu to the other party, is personally bound by the submission.

It is no objection to an award, that the arbitrator, after the hearing, received a pay 9: relating to the case from one of the parties, with the assent of the other.

THIS was an action of assumpsit on an award, to which the defendant specified in defence, among other things: 1st. That he was not a party to the submission; 2d, That the award was void, because evidence was received by the arbitrator in the absence of the defendant; and 3d, Because the award was made before the hearing was closed.

At the trial, before Bigelow, J., in the court of common pleas, the plaintiffs produced the submission, the signatures to which were admitted. The defendant signed the same "George Griggs, Agent"; and it did not appear, that he dis closed, or that the plaintiffs knew, the name of his principal. The plaintiffs produced the award, and called the arbitrator, as a witness, to prove the same, who testified that it was the a ward signed by him, and sent by him to the parties.

The arbitrator was then examined by the defendant, and testified as follows: "The hearing took place at the defend ant's office, and when it was closed, the defendant was told, in my presence, by Winsor, one of the plaintiffs, that there was a particular document in existence, which the defendant

THE STATE v. GIBSON.

(36 Indiana 389 (1871))

CRIMINAL LAW.-Marriage Between Whites and Negroes.-Fourteenth Amend ment.-Civil Rights Bill.-Neither the Fourteenth Amendment to the Constitution of the United States nor the Civil Rights Bill passed by Congress has impaired or abrogated the laws of this State on the subject of the marriage of whites and negroes. Such a union between members of the different races is a criminal offense by the statutes of this State.

APPEAL from the Vanderburg Criminal Court.

BUSKIRK, J.—It appears of record in this cause, that appellee was charged by indictment in the court below with having unlawfully and knowingly married, in the county and State aforesaid, one Jennie Williams, a white woman of this State, he then and there having one-eighth part or more of negro blood.

The indictment was, upon the motion of the appellee, quashed, and the State, by her prosecuting attorney, excepted and prosecutes this appeal to obtain a reversal of the judg

ment.

The indictment was based upon the forty-seventh section of the act defining felonies, which reads as follows:

"Section 47. No person having one-eighth part or more of negro blood shall be permitted to marry any white woman of this State, nor shall any white man be permitted to marry ar.y negro woman, or any woman having one-eighth part or more of negro blood, and every person who shall knowingly marry in violation of the provisions of this section, shall, upon conviction thereof, be imprisoned in the State's prison not less than one, nor more than ten years, and be fined not less than one thousand nor more than five thousand dollars." 2 G. & H. 452.

The sole question which is presented for our consideration and decision is as to the correctness of the ruling of the court in quashing the indictment. It seems to be conceded by the appellee, that the indictment, under our code of criminal procedure, is good, in substance and matter of form, if the section of our statute above quoted is still in force; but it is earnestly maintained that all the laws of our State prohibiting the intermarriage of negroes and white persons were abrogated by the ratification of the fourteenth amendment of the constitution of the United States, and the passage of the civil rights bill. The position assumed by the attorney of the appellee is stated in these words:

"The appellee contends that all the laws of this State prohibiting the marrying of blacks and whites are abrogated by the fourteenth amendment to the constitution of the United States, and the law of Congress passed in pursuance to that amendment, which, in express terms, confers upon colored people the power of making contracts.

"Marriage, by the laws of Indiana, being only a civil contract, I G. & H. 428, sec. 1, it follows that the marriage specified in this indictment was lawful; and hence the judgment of the court is correct."

The only question presented for the decision of this court is, whether the position assumed by the appellee is correct. The magnitude and importance of the question involved cannot be overestimated, and we have given it our best and most thoughtful consideration. We approach its investiga

tion, profoundly impressed with the weight of responsibility that our oath to support the Constitution of the United States and of the State of Indiana has imposed upon us. The first section of the fourteenth amendment is in these words:

"Sec. 1. 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 privileges 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 jurisdiction the equal protection of the law.'

This amendment was proposed by Congress, June 16th, 1866, and declared by the Secretary of State to have been ratified July 28th, 1868.

This amendment contains four separate and distinct propositions: first, it confers the right of citizenship upon all persons born or naturalized in the United States, and who are subject to the jurisdiction thereof; second, it declares that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; third, it prohibits any state from depriving any citizen of life, liberty, or property, without due process of law; fourth, it provides that no state shall deny to any person within its jurisdiction the equal protection of the law.

It is settled by very high authority, that, in placing a construction upon a constitution or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy. The court should also look to the nature and objects of the particular powers, duties, and rights in question, with all the light and aids of cotemporary history, and give to the words of each provision just such operation and force, consistent with their legitimate meaning, as will fairly secure the end proposed.