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“Section 47. 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
Kendall v. The U. wealth, 16 Pet. 539
Guided by these tion, we proceed t under consideratio under examination uralized in the Unit intended to be bene sest that it did not persons of that rac by birthright citize have been naturali come citizens of t they reside. Wel
tion, profoundly impressed with the weight of responsibility
The first section of the fourteenth amendment is in these
“ Sec. I. 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 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.
main purpose of the citizenship upon pa viously not been ci zens, they were en cured to all citizen declares that “the all privileges and in but the framers and be unwilling to rely added the other cla the newly made cit law.
The learned atto in his brief, which had the effect to ab riage of persons of cannot be the first, clause was to con
classes of persons
among these classes
Nor can the seco The purpose of this ated citizens the sai
Kendall v. The U. S., 12 Pet. 524; Prigg v. The Commonwealth, 16 Pet. 539.
Guided by these wise and well settled rules of interpretation, we proceed to place a construction upon the section under consideration. The persons referred to in the section under examination are described as "all persons born or naturalized in the United States:" The race or class of persons intended to be benefited are not described. It is quite manifest that it did not refer to persons of the white race, for when persons of that race are born in the United States, they are by birthright citizens, and when they are born elsewhere and have been naturalized under the law of Congress, they become citizens of the United States and of the state where they reside. We know from the history of the times that the main purpose of this amendment was to confer the right of citizenship upon persons of the African race, who had previously not been citizens. When these persons became citizens, they were entitled to the privileges and immunities secured to all citizens by section two, of article four, which declares that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,' but the framers and advocates of this amendment seemed to be unwilling to rely upon the above section, and therefore added the other clauses which were intended to secure to the newly made citizens the full and equal protection of the law.
The learned attorney for the appellee has not informed us, in his brief, which one of the clauses of the said section has had the effect to abrogate our laws prohibiting the intermarriage of persons of the white and black races. It certainly cannot be the first, for the only object and effect of that clause was to confer the right of citizenship upon certain classes of persons who had not been theretofore citizens, and among these classes were persons of the African race.
Nor can the second clause be construed to have that effect. The purpose of this clause was to secure to the newly created citizens the same privileges and immunities which had
laws as were the white deprive them of privileg citizens of the white ra protection of life, liberty protection of the laws amendment in any man ened, or taken away any
, as they had existed a department of the nati This amendment confer African race, but we wil citizenship conferred or persons of the white ra
theretofore been enjoyed by the former citizens of the United States. It is quite probable that this clause had reference to the political rights and privileges of the persons who had by the first clause been made citizens of the United States and of the state wherein they resided. The purpose of the third clause was to protect the persons referred to and embraced in the first clause, in life, liberty, and property. The plain and manifest intention was to make all the citizens of the United States equal before the law in all the states of the Union. The fourth clause seems to have been added in the abundance of caution, for it provides in express terms what was the fair, logical, and just implication from what had preceded it, and that was, that the persons made citizens by the amendment should be protected by the laws in the same manner, and to the same extent, that white citizens were protected.
The fourteenth amendment contains no new grant of power from the people, who are the inherent possessors of all power, to the federal government. It did not enlarge the powers
of the federal government, nor diminish those of the states. The inhibitions against the states doing certain things have no force or effect. They do not prohibit the states from doing any act that they could have done without them. The constitution was made for the protection of all citizens. It is adapted to our condition in every state of our national advancement. When new territory is acquired or new citizens created, the constitution extends itself over and protects the territory and citizen in the same manner that it extended over and protected the original thirteen states and the men who achieved our independence, and made the constitution, and formed the union of the states. From the Atlantic to the Pacific, and from the lakes to the borders of Mexico, it has stretched forth its cherishing arm over our people, and diffused its blessings on all alike. The only effect of the amendment under consideration was to extend the protection and blessings of the constitution and laws to a new class of persons. When they were made citizens they were as much entitled to the protection of the constitution and the
But it is urged that t section of our statute w to marry a white woma: marry a negro woman. of the said act which race the right to make
lawful for negroes, in a into contracts of marri The
argument is, that us tract, and as negroes are therefore, they can ma standing the contract m independent and soverei the power of Congress of persons to make and ceed to examine the first to determine whether th
is sustained thereby. In and that this is demonst doubted language of the The first section of the
persons born in the U foreign power, excluding clared to be citizens of
laws as were the white citizens, and the states could no more deprive them of privileges and immunities than they could citizens of the white race. Citizenship entitled them to the protection of life, liberty, and property, and the full and equal protection of the laws. Nor has the ratification of this amendment in any manner or to any extent impaired, weakened, or taken away any of the reserved rights of the states, as they had existed and been fully recognized by every department of the national government from its creation. This amendment conferred citizenship upon persons of the African race, but we will hereafter inquire and decide whether citizenship conferred on them the right to intermarry with persons of the white race.
But it is urged that the civil rights bill has abrogated the section of our statute which renders it a felony for a negro to marry a white woman of this State, or for a white man to marry a negro woman. It is claimed that the first section of the said act which confers upon persons of the African race the right to make and enforce contracts has made it lawful for negroes, in all of the states, to make and enter into contracts of marriage with persons of the white race. The argument is, that under our laws marriage is a civil contract, and as negroes are authorized to make contracts, that, therefore, they can make any kind of contracts,. notwithstanding the contract may be in violation of the laws of an independent and sovereign state. Waiving for the present the power of Congress to pass a law authorizing any class of persons to make and enforce contracts in a state, we proceed to examine the first section of the civil rights bill, and to determine whether the position assumed by the appellee is sustained thereby. In our opinion it is wholly untenable, and that this is demonstrated by the plain, express, and undoubted language of the said section.
The first section of the said act is in these words: "That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and that such