A heavy penalty is laid also upon one who performs the ceremony for those who marry in violation of the laws against miscegenation. Alabama provides that any justice of the peace, minister, or other person, who knowingly performs the marriage ceremony between a white and colored person, shall be fined not less than one hundred dollars nor more than one thousand and, at the discretion of the court, imprisoned in the country jail or sentenced to hard labor for the county for not more than six months. Arkansas makes anyone performing such a ceremony guilty of a high misdemeanor punishable by a fine of not less than one hundred dollars. Colorado declares that to perform the ceremony is a misdemeanor punishable by a fine of between fifty dollars and five hundred dollars or imprisonment between three months and two years, or both. In Delaware, it is a misdemeanor, and the punishment is a one hundred dollar fine. Florida either imprisons the person performing the ceremony not over one year or imposes a fine on him not exceeding one thousand dollars. North Carolina simply defines it as a misdemeanor. Indiana declares that one who knowingly counsels or assists in such a marriage shall be fined not less than one hundred dollars nor more than one thousand dollars. Nevada makes one who performs the ceremony guilty of a misdemeanor and subjects him to imprisonment in the State prison not less than one year nor more than three years. Oklahoma makes it a misdemeanor and imposes a fine of between one hundred dollars and five hundred dollars, or imprisonment between three months and a year, or both. The law of Oregon declares that one who wilfully and knowingly performs such marriage ceremony shall be imprisoned in the penitentiary or county jail from three months to one year and fined from one hundred dollars to one thousand dollars. South Carolina provides that one who knowingly and willingly unites persons of different races in the bonds of matrimony shall be guilty of a misdemeanor and punished by a fine of not less than five hundred dollars nor more than twelve months’ imprisonment, or both. Virginia declares that he shall forfeit two hundred dollars, of which the informant shall get one-half; and West Virginia provides that the one who knowingly performs the ceremony shall be guilty of a misdemeanor and fined not over two hundred dollars.
COHABITATION WITHOUT INTERMARRIAGE
A few States have statutes relative to illicit relations between white and colored persons, where no marriage is pretended to exist. Alabama imposes for this offence upon both man and woman the same punishment as for intermarriage; a living together in adultery one day with intent to continue that relation has been held to constitute a violation of the statute.[[194]] Florida declares that, if any white person and Negro or mulatto shall live together in adultery or fornication with each other, each shall be punished by imprisonment not exceeding a year, or by a fine not exceeding a thousand dollars. The law adds that any Negro man and white woman or any white man and Negro woman, not married to each other, who habitually live in and occupy in the night-time the same room, no other person over fifteen years of age being present, shall be punished by imprisonment not exceeding twelve months, or by a fine not exceeding five hundred dollars. Nevada provides that, if any white person shall live and cohabit with any black person, mulatto, Indian, or Chinese, in a state of fornication, such person so offending shall be fined not over five hundred and not less than one hundred dollars, or imprisonment in the county jail between one and six months, or both. Louisiana[[195]] has the most recent and the most thorough-going statute against miscegenation; it was adopted July 1, 1908. It provides that concubinage between a white person and a Negro is a felony, punishable by imprisonment for not less than one month nor more than one year. Concubinage is defined as unlawful cohabitation of white persons and Negroes whether open or secret. It was made the duty of the judges to specially charge the grand juries upon this statute.
The most interesting feature about these statutes is that they impose a heavier penalty for cohabitation between a white and a colored person than between two members of the same race. Yet they have been held to comply with the Constitution of the United States. The reasons why such statutes are held to be constitutional will be considered later.
STATES REPEALING LAWS AGAINST INTERMARRIAGE
Only five States that once had laws against miscegenation have repealed them since 1865. New Mexico,[[196]] in 1866, Rhode Island,[[197]] in 1881, and Maine,[[198]] in 1883, repealed their laws against intermarriage outright. A statute of Michigan[[199]] in 1883 provided that all marriages theretofore contracted between white persons and those wholly or in part of African descent should be valid and effectual and the offspring legitimate, but it said nothing about marriages contracted in the future. Professor Frederick J. Stimson[[200]] has apparently interpreted the statute to apply to marriages in the future as well as to those already contracted. Finally, Ohio[[201]] in 1887 repealed its law of 1877, providing for the punishment of persons of “pure white blood” who intermarry or have carnal intercourse with any Negro or person having a distinct and visible admixture of African blood.
MARRIAGES BETWEEN THE NEGRO AND NON-CAUCASIAN RACES
It is significant that the States have not prohibited intermarriage between two different races except where one is the Caucasian. In no State is it unlawful for Mongolians and Indians, Negroes and Mongolians, or Negroes and Indians to intermarry. The only exception to the last is that in North Carolina[[202]] it is unlawful for Negroes to intermarry with Croatan Indians or to go to the same school with them. To this statute hangs a beautiful historical tradition. In 1585, the date of the first attempt by Englishmen to colonize the New World, there was an island off the coast of North Carolina called Croatoan. By the shifting of the sands, it is now probably a part of Hatteras or Ocracoke Island. In 1587, a colony of one hundred and seventy-seven persons under John White was landed by Sir Walter Raleigh on this island. Here, the same year, was born Virginia Dare, granddaughter of John White and the first child of English parents born in America. Later, part of the colonists under White had to go back to England to seek further aid. By agreement, those left behind were to go over to the friendly Croatoan Indians if they needed succor. When Governor White returned many months later, he found the settlement deserted and carved upon a tree nearby the single word “Croatoan.” This supposedly meant that the colonists had gone over to the Croatoans. For some unexplained reason, the party under White never went in search of their lost brethren. Not a word more has ever been heard of Virginia Dare and the others. A tradition says that they went over to the Croatoans and eventually became absorbed into that tribe.[[203]] Credence is given to this by the fact that there are many Croatoan Indians—now called Croatans—with light complexion and blue eyes. Recently a considerable body of mixed-blooded Indians in Robeson County, North Carolina, have laid claim to descent from this lost colony, and the State has officially recognized them under a separate name as the “Croatan Indians.” Thus, all that is left of Virginia Dare and the Lost Colony is this tradition supported by the presence of Indians with fair skin and blue eyes, and the statute of North Carolina that the blood of these early settlers shall not be further adulterated, by miscegenation, with the blood of the Negro.
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.