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violation of the Constitution and Laws of the United States.
The Attorney-General of Virginia appeared for the Commonwealth of Virginia. Judgment, refusing the writ, was given by Judge Hughes in the following terms*
“The question presented by this petition involves so seriously the relations of the Federal courts to the laws of the States and their administration by State tribunals, that I shall be excused for giving a carefully-considered and painstaking explanation of the ground of my action in this matter. Leaving out of the text such words and clauses as have no application to the case, the following are the provisions of law relating to the jurisdiction of this court on the question of awarding a writ of habeas corpus on this petition :
Section 753 of the Revised Statutes of the United States provides that the writ of habeas corpus shall, in no case, extend to a prisoner in jail, unless (among other instances of which this is not one) where he is in custody in violation of the Constitution or a law of the United States.' Section 754 requires that the application for the writ shall be in writing, setting out the facts concerning the petitioner's detention, verified by affidavit ; and section 755 authorizes the writ to issue, 'unless it appears from the petition itself that the applicant is not entitled thereto.'
“The writ, therefore, is not issued as a matter of course. Whether it shall go out or not depends upon the facts presented by the petition, showing whether or not the petitioner's detention in jail is in violation of the Constitution or a law of the United States. If it appears from the petition itself that the Constitution or a law of the United States has not been violated in the petitioner's arrest and imprisonment, then, of course, the writ must not
* U.S. Circuit Court, Eastern District of Va., Richmond, Va., 14 May, 1879. Ex parte Edmund Kinney. Reported in the Virginia Law Fournal, Vol. III., No. 6, June, 1879.
federal Cases no. 7825.
go out. It is essential, therefore, to inquire whether, in the facts stated by the petition, the Constitution or any law of the United States has been violated; and first, I will consider whether there has been a violation of the Constitution.
“It must not be forgotten that the Federal courts are forbidden to issue the writ of habeas corpus in favour of a prisoner in jail under conviction of a State court, unless the petition itself makes a case for jurisdiction under section 753. I am to inquire whether the averments in this petition release me from that inhibition. I can imagine no subject on which the Federal courts ought to be more considerate in assuming jurisdiction.
“The petitioner here is a negro man; but the question of issuing the writ does not turn upon any provisions of the Constitution relating particularly to race or colour. It is only the Fifteenth Amendment which makes special mention of that subject, in providing that the right of a citizen of the United States to vote shall not be denied or abridged on account of race or colour. No other provision relates particularly to the distinction of race or colour. And as no question of voting is raised in this case, we have no concern with the Fifteenth Amendment. The question here is one of marrying, and there is nothing in the National Constitution expressly forbidding a State from abridging the right of marrying, or indeed any right but that of voting, on account of race or colour. The Fifteenth Amendment embodies the implication that a State may abridge any privileges of its citizens other than that of voting. No provision of the Constitution relating particularly to the coloured man as such has been violated by the State of Virginia in the prosecution, conviction and imprisonment of this petitioner.
“If any constitutional provision has been violated at all, it is only some general provision relating to the rights and privileges of citizens at large. Is it contended that the
first section of the Fourteenth Amendment has been violated ? That section declares that all persons born in the United States are citizens of the United States and of the State wherein they reside,' and provides that ‘no State shall make or enforce any law which shall abridge the privileges of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws.' This section, after declaring that all persons born in the United States shall be citizens (1) of the United States and (2) of the State wherein they reside, goes on in the same sentence to provide that no State shall abridge the privileges of citizens of the United States; but does not go on to forbid a State from abridging the privileges of its own citizens. Leaving the matter of abridging the privileges of its own citizens to the discretion of each State, the section proceeds, in regard to the latter, only to provide that no State shall deny to any person within its jurisdiction the equal protection of the laws.'
“Thus it is seen that the Fourteenth Amendment itself classifies the privileges of citizens into those which they have as citizens of the United States,' and those which they have as citizens of the State wherein they reside;' and this classification has been abundantly recognized, illustrated and enforced by the Supreme Court of the United States in numerous decisions.*
“The rights which a person has as a citizen of a State are those which pertain to him as a member of society, and which would belong to him if his State were not a member of the American Union. Over these the States have the
“See Trustees of Dartmouth College v. Woodward, 4 Wheaton, 629; Gibbons v. Oden, 9 Wheaton, 203 ; New York City v. Miln, 11 Peters, 133 ; Scott v. Sandford, 19 Howard, 404-'6 and 580 ; License Tax Cases, 5 Wall., 471 ; Paul v. Virginia, 8 Wall., 180; United States v. Witt, 9 Wall., 41; The Slaughter House Cases, 16 Wall., 36; United States v. Reese et al., 2 Otto, 214, and United States v. Cruikshank et al., 2 Otto, 542. See also Corfield v. Coryell, 4 Wash., C. C., 371; United States v. Petersburg Fudges of Election, I Hughes, 505, and The Federalist, No. 45."
usual powers belonging to government; and these powers 'extend to all objects which, in the ordinary course of affairs, concern the lives, liberties (privileges), and properties of the people; and of the internal order, improvement and prosperity of the State.'-Federalist, No. 45. 'The framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and the instrument they have given us is not to be so construed.' (Chief Justice Marshall, speaking specially of marriage, in the Dartmouth College Case, 4 Wheaton, 629.) Their powers extend, of course, to the control of the domestic relations of all classes of citizens of a State.
“On the other hand, the rights which a person has as a citizen of the United States are such as he has by virtue of his State being a member of the American Union under the provisions of our National Constitution. For instance, a man is a citizen of a State by virtue of his being native and resident there; but if he emigrates into another State, he becomes at once a citizen there by operation of the provision of the Constitution of the United States making him a citizen there; and he needs no special naturalization, which, but for the Constitution, he would need, to become such a citizen. Again, if a citizen of Virginia is allowed by her laws to carry on a business by paying a certain tax, a citizen of Maryland who comes into Virginia and pays the tax is entitled under the National Constitution to carry on the same business in Virginia. The Virginian carries on the business here by right of his State citizenship : the Marylander carries it on here by right of his national citizenship. In the Slaughter House Cases, the Supreme Court of the United States had under review an act of the Legislature of Louisiana incorporating a company and conferring upon it the exclusive privilege of slaughtering animals within a defined area adjoining the city of New Orleans. Certain butchers of the vicinity, who were thus
deprived of the privilege of exercising their trade in that area, assailed the charter as contrary to the provision of the Fourteenth Amendment of the National Constitution quoted above.
But the Supreme Court held that the privilege of butchering animals was of the class belonging to persons as citizens of their State, and not belonging to them as citizens of the United States. It therefore held that the legislative act abridging this right of the New Orleans butchers, and confining it exclusively to a favoured corporation, did not violate the Fourteenth Amendment or any law passed under it, and could not be the subject of relief by a Federal court, however unjust the State law.
“In the light of this commentary, can it be intelligently contended that the laws of Virginia relating to marriage are obnoxious to the Fourteenth Amendment ?
“ These laws are as follows:
“ The ninth section of chapter 104 of the Code of Virginia provides that 'no man shall marry his mother, grandmother, stepmother, sister, daughter, granddaughter, half sister, aunt, son's widow, wife's daughter or her grandmother or stepmother, brother's daughter or sister's daughter. The tenth section of the same chapter provides that no woman shall marry within degrees correlative with those defined in the ninth section. Among still other inhibitions of marriage, the same Code, in the first section of chapter 105, provides that “all marriages between a white person and a negro, and all marriages which are prohibited by law on account of either of the parties having a former wife or husband then living, shall be absolutely void, without any decree of divorce or other legal process.'
“ The penal provisions are as follows: ‘If any person marry in violation of the ninth or tenth section of chapter 104 of the Code, he shall be confined in jail not more than six months, or fined not exceeding 500 dols., at the discretion of the jury. Any white person who shall intermarry with a negro, or any negro who shall intermarry with a white