In the interpretation of these statutes against intermarriage, it is necessary, at the outset, to determine just who are included. If the statutes had simply enacted that there should be no intermarriage between Caucasians, on the one side, and Negroes, Indians, or Mongolians, on the other, they would have left the great body of mixed-blooded people to miscegenate as they pleased. Most of the States avoided this difficulty by stating clearly to whom the laws apply. Virginia and Louisiana are the only States simply to enact in general terms that there shall be no intermarriage between white persons and persons of color; and even in Virginia judicial decisions clearly define the term “person of color,” so there is no difficulty in knowing who is meant by the statute. Arkansas, Colorado, Delaware, Idaho, and Kentucky prohibit intermarriage between white persons and Negroes or mulattoes. Georgia, Texas, and Oklahoma place within the prohibition of their statutes persons of African descent; West Virginia, Negroes; and Florida, Negroes, expressly including every person with one-eighth or more of Negro blood. Alabama makes its law apply to Negroes and their descendants to the fifth generation, though one ancestor of each generation was white. The Indiana and Missouri statutes extend to all persons having one-eighth or more Negro blood; Maryland to Negroes or persons of Negro descent to the third generation inclusive. Tennessee includes within the prohibition Negroes, mulattoes, or persons of mixed blood descended from a Negro to the third generation inclusive. The Nebraska law applies to persons of one-fourth or more Negro blood.
The States which have a large Indian or Mongolian population include these races within the prohibition. Thus, Arizona prohibits whites to intermarry with Negroes, Mongolians, or Indians and their descendants; California, with Negroes, Mongolians, or Indians and their descendants; California, with Negroes, Mongolians, or mulattoes. It is interesting to note that the word “Mongolian” was not added to the California statute[[190]] till 1905. This addition, coming, as it does, so nearly contemporaneous with the school trouble in San Francisco, is evidence that California is facing a race problem which it considers serious. The Mississippi law applies to Negroes, mulattoes, persons who have one-eighth or more Negro blood, Mongolians or persons who have one-eighth or more Mongolian blood. Nevada includes black persons, mulattoes, Indians, Chinese; Oregon, in addition to Negroes, prohibits intermarriage with Chinese and with persons having one-fourth or more Negro, Chinese, or Kanaka blood or having more than one-half Indian blood. Utah includes simply Negroes and Mongolians; North Carolina, Negroes and Indians. South Carolina prohibits intermarriage between whites and Indians, Negroes, mulattoes, mestizoes, or half-breeds.
EFFECT OF ATTEMPTED INTERMARRIAGE
Suppose a white person and a person within any of the prohibited classes do attempt to intermarry. What is the legal result? Indiana, Kentucky, Maryland, Nebraska, North Carolina, and Utah declare that such a marriage is void; Colorado, Missouri, and Virginia, that it is absolutely void; Arizona, Georgia, Oregon, and Tennessee, that it is null and void; Delaware and Mississippi, that it is unlawful and void; and Arkansas, California, and Idaho, that it is illegal and void. The law of Florida declares that such a marriage is unlawful, utterly null and void and the issue bastards and so incapable of inheriting. Louisiana provides that such a marriage is prohibited, the celebration of it forbidden, that the celebration carries with it no effect, and that the marriage is null and void. South Carolina enacts that it is “utterly null and void and of none effect.” The only legal effect of a marriage thus declared void is to impose criminal liability upon the parties to it. The result is precisely the same as if no license had been obtained or ceremony performed and the parties had been indulging in illicit relations. A Virginia decision says: “No matter by what ceremonies or solemnities, such marriage would have been the merest nullity, and the parties must have been regarded under our laws, as lewdly associating and cohabiting together....”[[191]]
The other States which prohibit intermarriage simply declare that marriage between white persons and Negroes is illegal and prescribe a punishment for the violation of the statute against miscegenation, but do not further define the legal effect of such a marriage contract. But whether the marriage is declared “void” or “null and void” or “absolutely void” or only “illegal,” the result is the same.
PUNISHMENT FOR INTERMARRIAGE
Persons of different races who attempt to intermarry in violation of the laws subject themselves everywhere to severe penalties. In Alabama, the law says they shall be imprisoned in the penitentiary for not less than two, nor more than seven years. In Colorado, they are guilty of a misdemeanor and punishable by a fine of from fifty dollars to five hundred dollars, or imprisonment for not less than three months nor more than two years, or both. In Delaware, they are guilty of a misdemeanor and may be fined one hundred dollars. Florida says they shall be imprisoned in the State penitentiary not exceeding ten years or fined not exceeding one thousand dollars. In Indiana, if they knowingly violate the law—that is, if the white person knows the other is a Negro or of mixed blood—they are fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned in the State prison not less than one nor more than ten years. Maryland declares that they are guilty of an infamous crime, punishable by imprisonment in the penitentiary not less than eighteen months nor more than ten years. Mississippi makes the punishment a fine of five hundred dollars, imprisonment not exceeding ten years, or both. The law of Missouri declares that one who knowingly intermarries in violation of the statute shall be punished by imprisonment in the penitentiary two years or by a fine not less than one hundred dollars, or by imprisonment in the county jail not less than three months, or by both such fine and imprisonment, and adds that the jury shall determine the amount of Negro blood by appearance. Nevada enacts that the parties are guilty of a misdemeanor and shall be imprisoned in the State prison not less than one nor more than two years. North Carolina brands an attempted intermarriage as an infamous crime to be punished by imprisonment in the county jail or State prison not less than four months nor more than ten years, and the parties may also be fined at the discretion of the court. Oklahoma makes it a felony and provides that the parties shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars or imprisonment not less than thirty days nor more than one year, or both. Oregon simply makes it an offence punishable by imprisonment in the penitentiary or county jail between three months and one year. South Carolina[[192]] declares attempted intermarriage is a misdemeanor punishable by a fine of not less than five hundred dollars or imprisonment in the penitentiary from one to five years. Texas, by a law of 1858, still in force in 1879, prescribed a punishment for the white person who attempted to marry a Negro but no punishment for the Negro. A Federal court[[193]] held that the difference of punishment was in violation of the Fourteenth Amendment, but that the law against intermarriage was constitutional. Virginia provides that the parties shall be confined in the penitentiary not less than two nor more than five years. West Virginia would confine them in jail not over one year and fine them not exceeding one hundred dollars. Thus, it appears that in most of the States intermarriage is considered a very serious offence, ranking in Colorado, Delaware, Nevada, and South Carolina, as a misdemeanor; in Louisiana and North Carolina as an infamous crime; and in Tennessee and Oklahoma as a felony.
PUNISHMENT FOR ISSUING LICENSES
With no less severity do the States punish those who issue licenses to persons of one race to marry those of another. Alabama declares that anyone knowingly issuing a license for the marriage of a white and colored person shall be fined not less than one hundred dollars nor more than one thousand dollars and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months. Colorado makes it a misdemeanor punishable by a fine of one hundred dollars. Florida punishes it by imprisonment not exceeding two years or a fine not exceeding one thousand dollars. North Carolina simply declares it to be a misdemeanor without prescribing any punishment different from that for other misdemeanors. Oklahoma makes it a misdemeanor punishable by a fine of not less than one hundred nor more than five hundred dollars, or imprisonment in the county jail not less than thirty days nor more than one year, or both.