EFFECT GIVEN TO MARRIAGES IN OTHER STATES
The next question is the interpretation of the laws against intermarriage. What effect will a State that prohibits miscegenation give to a marriage between a white person and Negro in a State that permits intermarriage? What effect, for instance, will Virginia give to a marriage of a white woman to a Negro man contracted in Massachusetts if the parties go to Virginia to live? If the Negro and white woman were residents in good faith of Massachusetts or of some State that permits intermarriage at the time of their marriage, their marriage will, as a general rule, be recognized as valid everywhere—even in the Southern States. Several States, including Arkansas, Colorado, Idaho, Indiana, Kentucky, and probably others, in their statutes prohibiting intermarriage make the provision that, if the marriage is valid where consummated, it will be considered valid by those States. A Tennessee[[204]] court in 1872 did refuse to recognize as valid a marriage celebrated in Mississippi when intermarriage was permitted in Mississippi, but this appears to be the only case taking that view.
If, on the other hand, the parties leave a State which prohibits intermarriage and go to another State which allows it, solely for the purpose of evading the laws of the former State, the authority is practically unanimous that the marriage is not valid in the State the laws of which they attempted to evade. This point is covered both by statute and by judicial decision. A Delaware statute, for instance, declares that the Negro and white person are equally guilty if they are married in another State and move into Delaware as if they had been married in Delaware. Mississippi, also, punishes parties attempting to evade its laws by marrying out of the State and returning to Mississippi, to the same extent as if they had attempted to intermarry in Mississippi. The Georgia statute, which is typical, is as follows: “All marriages solemnized in another State by parties intending at the time to reside in this State shall have the same legal consequences and effect as if solemnized in this State. Parties residing in this State cannot evade any of the provisions of its laws as to marriage by going into another State for the solemnization of the ceremony.” Statutes to the same effect are in force in Arizona, Virginia, West Virginia, and possibly other States. In the absence of statute, the point is covered with the same result by judicial decision. In the Tennessee case, to which reference has already been made, the court said: “Each State is sovereign, a government within, of, and for itself, with the inherent and reserved right to declare and maintain its own political economy for the good of its citizens, and cannot be subjected to the recognition of a fact or act contravening its public policy and against good morals, as lawful, because it was made or existed in a State having no prohibition against it or even promoting it.”
In 1878, a Negro man and a white woman went over from Virginia[[205]] into the District of Columbia, were married, and returned to Virginia, where they were prosecuted. The Virginia court held that, although the forms and ceremonies of marriage are governed by the laws of the place where marriage is celebrated, the essentials of the contract depend upon and are governed by the laws of the country where the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. This case was affirmed by the Federal court[[206]] the next year. A Georgia[[207]] couple who also went to the District of Columbia to be married, returned to their native State, where they were indicted and convicted for violating the Georgia statute against intermarriage.
It appears that Washington has been and is the City of Refuge for such miscegenating couples. It has been held, however, in every case, that, when these people return to Southern States, no matter where married, they are amenable to the laws of those States. In fact, there appears to be only one American case with regard to Negroes which holds a contrary doctrine, the case of Medway v. Needham.[[208]] There a white person and Negro, living in Massachusetts, which at the time, 1819, prohibited intermarriage, went to Rhode Island, where they were married and whence they immediately returned. The Supreme Court of Massachusetts held that a marriage, if valid where celebrated, is valid everywhere; the court taking no account of the purpose of the parties to evade the law. In rendering this decision, the Court admitted that it was going counter to the opinion of eminent jurists. The decision has not been followed, it appears, by any other court. It may be taken as settled that, if the parties leave the State for the purpose of evading its law, intending at the time to return to that State, the marriage will not be recognized as valid when they do return. But, if they leave the State to evade the law, not intending at the time to return and do gain a bona fide residence in another State and, after that, do return, the marriage will be recognized. In other words, to furnish a State grounds to declare void a marriage celebrated in another State where it is valid, the parties must intend not only to evade the law but also not to gain a bona fide residence in the State to which they go.
Efforts have been made to prohibit intermarriage in the District of Columbia. At the last session of the Sixtieth Congress, Senator Milton, of Florida, introduced a bill to make intermarriage between white persons and Negroes a crime punishable by imprisonment for ten years and a fine of one thousand dollars, providing that one with one-eighth or more Negro blood should come within the prohibition, declaring such marriages to be null and void and the issue resulting from them illegitimate and so incapable of inheritance. This bill apparently died in the committee room. A resolution in the Senate to recall it from the Committee on the Judiciary was tabled on March 1, 1909, by a vote of 43 to 21.