[148]. Down v. Allen, 1882, 78 Tenn. (10 Lea) 652.
[149]. 17 Stat. L., 570, chap. 234, par. 11.
CHAPTER VI
INTERMARRIAGE AND MISCEGENATION
One race distinction, which has not been confined to the South, and which has, in a large measure, escaped the adverse criticism heaped upon other race distinctions is the prohibition of miscegenation between the Caucasian and the colored races. The term “miscegenation” includes both intermarriage and all forms of illicit intercourse between the races. Twenty-six States and Territories, including all the Southern States, have laws forbidding the admixture of the races; applying not only to Negroes, but also to Indians and Mongolians in States where the latter races are present in considerable numbers.
INTERMARRIAGE DURING RECONSTRUCTION
It is significant that during the years of Reconstruction in the South, when the Federal and State governments were endeavoring to eradicate race distinctions, none of the statutes against miscegenation appear to have been repealed. There is some meager authority—a case which arose in Tennessee[[150]] in 1872, and two cases in North Carolina[[151]] in 1877—which might tend to show that the statutes of two Southern States were repealed. The Tennessee court was of opinion that intermarriage was not prohibited in Mississippi, and the North Carolina courts arrived at the same conclusion about South Carolina; but neither court specified the years to which its statement applied, and a careful examination of the annual laws of Mississippi and South Carolina between 1865 and 1880 reveals no statutes repealing the laws against intermarriage in those States. One is led to conclude, therefore, that the statutes against miscegenation were disregarded in a few instances during Reconstruction, rather than repealed. This conclusion is helped out by the fact that the legislatures manifested no inclination to permit miscegenation. The legislature of South Carolina,[[152]] for instance, in 1865, before the State government went into the hands of the Reconstructionists, enacted laws, covering twenty-five or more finely printed pages, defining the rights of Negroes in the most minute details, as was seen in considering the “Black Laws” of 1865–68. These laws were repealed nine months later, but the legislature was careful to add that the repealing act did not apply to that part of the Act of 1865 which said that marriage between a white person and a person of color should be illegal and void. The legislature of Texas,[[153]] in like manner, on November 10, 1866, repealed most of its statutes relating to free Negroes, but added that nothing in the act should be construed to repeal any laws prohibiting intermarriage of the white and black races. The repealing statute of Arkansas[[154]] of February 6, 1867, made practically the same exception as to intermarriage.
Determined as many of the Reconstruction promoters were to wipe out every vestige of legally recognized race distinctions, they did not allow their zeal to carry them to the extent of legislating as to the social relations of the races. Georgia, probably fearing that some legislature might attempt to enact such measures, in its Constitutions of 1868[[155]] and 1877[[156]] had this general statement: “The social status of the citizen shall never be the subject of legislation.” It would seem, on first thought, that this requirement would defeat its own purpose. If marriage is a social status and if legislation as to the social status of the citizen is forever prohibited, how can a law prohibiting intermarriage be constitutional? In a test case[[157]] that arose in 1869 the Supreme Court of the State very neatly explained away this apparently embarrassing situation by saying, in effect, that the clause in the Constitution applied only to future legislation, and it did not affect the law prohibiting intermarriage then in force. After quoting that clause in the Constitution, the court went on to say: “In so far as the marriage relation is connected with the social status, the very reverse is true. That section of the Constitution forever prohibits legislation of any character regulating or interfering with the social status. It leaves social rights and status where it finds them. It prohibits the legislature from repealing any laws in existence, which protect persons in the free regulation among themselves of matters properly termed social, and it also prohibits the enactment of any new laws on that subject in the future.” The Constitution of Alabama[[9]] of 1901 provides against possible meddling by the legislature with domestic relations in more outspoken terms: “The legislature shall never pass any law to authorize or legalize any marriage between any white person and a Negro or descendant of a Negro.”
PRESENT STATE OF THE LAW AGAINST INTERMARRIAGE
The present situation as regards intermarriage is as follows: Intermarriage between the Caucasian and other races is prohibited by the Constitutions of six States, all Southern, namely: Alabama,[[158]] Florida,[[159]] Mississippi,[[160]] North Carolina,[[161]] South Carolina,[[162]] and Tennessee.[[163]] Intermarriage is prohibited by statute also in the above States and in twenty other States and Territories, namely: Alabama,[[164]] Arizona,[[165]] Arkansas,[[166]] California,[[167]] Colorado,[[168]] Delaware,[[169]] Florida,[[170]] Georgia,[[171]] Idaho,[[172]] Indiana,[[173]] Kentucky,[[174]] Louisiana,[[175]] Maryland,[[176]] Mississippi,[[177]] Missouri,[[178]] Nebraska,[[179]] Nevada,[[180]] North Carolina,[[181]] Oklahoma,[[182]] Oregon,[[183]] South Carolina,[[184]] Tennessee,[[185]] Texas,[[186]] Utah,[[187]] Virginia,[[188]] and West Virginia.[[189]]