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person, shall be confined in the penitentiary not less than two nor more than five years.'-Criminal Revisal of 1878, chapter 8, sections 3 and 8.
“It is clear that I am bound by the authorities which have been cited to treat the privilege of marriage as belonging to the class which a person has as a member of society, and not to the class which he has by virtue of the State in which he resides being a member of the American Union. If Virginia were in the mid-ocean or on the antipodal continent, her control over the rights and privileges of her citizens as members of society, including marriage, would be, no more certainly than now, unrestrained by any provision of the National Constitution. The right to enact as law any one of the three prohibitions of marriage which have been quoted from the Code, as between her own citizens residing within her own territory, is as clear as the right to make the other two. With the propriety, policy, or justice of such laws, a court of the United States has nothing to do. As individual citizens, their judges might possibly question the policy of such a State law, but as judicial officers they can only inquire what is the law. The Fourteenth Amendment gives no power to Congress to interfere with the right of a State to regulate the domestic relations of its own citizens, and if a State enact such laws as those which have been quoted, the Federal courts must respect them as they stand, without inquiring into the reasons of them. However harsh a State law may be, they can only say, with Ulpian, `Hoc quidem perquam durum est, sed ita lex scripta est.'
“ The clause of the Fourteenth Amendment under review makes a further distinction. After declaring that no State shall make any law which shall abridge the privileges of citizens of the United States, it adds: 'Nor deny to any person within its jurisdiction the equal protection of the laws.' Here is a distinction between citizens of the United States and 'any persons,' whether citizen or alien, residing
or happening to be within the borders of a State. The declaratory clause forbids any abridgment of the rights of citizens of the United States. The remedial clause gives equal protection to all persons whatever while within a State's borders. The amendment does not provide that the privileges shall be equal, but it does provide that protection shall be equal. It establishes equality between all persons in their right to protection, but does not confer equality in the privileges they are to enjoy. It provides that whatever privileges the Constitution and laws of the United States confer upon a citizen as a citizen of the United States, shall be enjoyed without abridgment; and it provides that all persons within a State, whether a citizen of the United States, or of the States, or aliens, shall be equally protected by the laws in whatever privileges, whether equal or not equal, they may have from the United States or from the State. However unequal their privileges respectively, yet a foreigner, a citizen of another American State, and a citizen of the State, shall have the benefit equally in the State of all remedial laws for the recovery of rights, and of all legal safeguards ordained for the protection of life, liberty, and property.
“I think it plain from this review that an equality of privileges is not enforced by the Constitution upon a State in respect to its domestic laws, for the government of its own citizens as such, while they are within its jurisdiction. But even if it did require an equality of privileges, I do not see any discrimination against either race in a provision of law forbidding any white or coloured person from marrying another of the opposite colour of skin. If it forbids a coloured person from marrying a white, it equally forbids white person from marrying a coloured. In its terms, and for all I know, in its spirit, the law is a prohibition put upon both races alike and equally. In the present case, the white party to the marriage is in imprisonment as well as the coloured person.
“I think it clear, therefore, that no provision of the Fourteenth Amendment has been violated by the State of Virginia in its prosecution of this petitioner. It would seem to follow from this conclusion that no Act of Congress passed to enforce that amendment is violated ; and I know of none that can be claimed to have been, unless it be the first section of the Civil Rights Act of 1866, now section 1,977 of the Revised Statutes, which provides that all persons within the jurisdiction of the United States shall have the same right in every State to make and enforce contracts as is enjoyed by white citizens, and shall be subject to like punishments,' &c. As to punishments, I have just shown that the penalty of the State law is denounced equally and alike upon the white and coloured persons who contract the illegal marriage with each other. As to rights, this is a law for the enforcement of that clause of the Fourteenth Amendment, which requires a State to give the equal protection of the laws to all persons within its borders. All are permitted to make and enforce contracts; not, indeed, any sort of contracts which they may see fit to make-e.g., polygamous or incestuous contracts of marriage, or usurious contracts for money, but such contracts as are lawful. It is for a State and for Congress, each within its respective sphere of constitutional authority, to say what shall be lawful contracts, and it is only such as are legal that can be made and enforced within the State by 'all persons within the jurisdiction of the United States.' Provided the State law does not abridge a right which a person has in his character of a citizen of the United States, of which marriage, as we have seen, is not one, the State may declare at will what contracts are and what are not legal within its jurisdiction, and section 1,977 confers the right of enforcing only such contracts as are legal.
“ Congress has made no law relating to marriage. It has not, simply because it has no constitutional power to make
laws affecting the domestic relations and regulating the social intercourse of the citizens of a State. If it were to make such a law for the States, that law would be unconstitutional, and the Federal courts would not hesitate to declare it so. It is the State which is endowed with the sovereign power of making such laws, and therefore only those contracts of marriage that are legal under State laws can be enforced or enjoyed within the jurisdiction of the State.
“All this has been said on the hypothesis that the contract of marriage is subject, like pecuniary contracts, to the operation of section 1,977. But marriage is more than a contract. It may be entered into at the will of competent parties, but it cannot, as other contracts may, be released at their will. Nor can its terms be shaped at their will; it cannot be for so many years and then cease, for it must be until death us do part;' it cannot be entered into with one or more of the opposite sex at pleasure, but must be with one only, for the joint lives; it cannot be confined in effect to a single territorial jurisdiction, but has the same effect all over the world, so far as permitted by the law of each State or nation. It is plain, therefore, that marriage is not, in many of its qualities, of the class of contracts contemplated by section 1,977 of the Revised Statutes; and in the Dartmouth College Case (4 Wheaton, 629), it was held by the Supreme Court of the United States that the clause of article 1, section 10, of the National Constitution, forbidding a State from passing any law impairing the obligation of contracts' does not embrace marriage, it never having been intended to forbid a State Legislature to pass an act of divorce, or an act conferring power upon State Courts to grant decrees of divorce; the Supreme Court being of opinion that the contracts contemplated by the clause were only such as relate to property or pecuniary values (1 Minor's Inst., 275). Thus we see, from another point of
view, that marriage is not one of the privileges ’ in regard to which the National Constitution and Congress can restrict the power of the States.
“It is clear, on the whole, that section 1,977 is not violated by the marriage laws of Virginia, and I know of no other act of Congress that has been, considering the petitioner and his consort as citizens of Virginia, and treating their case as if the marriage had been entered into in this State.
“But this marriage was not entered into here. The parties to it went to the District of Columbia for the purpose of contracting it; did there contract it; and returned to reside and cohabit together in this State. Yet this is not the case of citizens of another State, lawfully married in that domicile, afterwards migrating thence in good faith into this State. If this petitioner had been a born citizen of the District of Columbia, and had there married a white woman in conformity to the laws of that jurisdiction, and had afterwards migrated with his lawful wife to Virginia, and had been, after becoming thus domiciled here, prosecuted under that provision of the law of Virginia which has been quoted, and convicted and imprisoned, and had filed his petition here, praying for an inquiry into the cause of his detention in prison, the cause presented would have been essentially different from that actually under consideration. Then the question would have been whether such citizens of another State could claim here the protection of the second section of the fourth article of the National Constitution. This section declares that. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. At first blush it would seem that this provision would give a citizen of the District of Columbia, lawfully married as a citizen there and afterward domiciliating here, the right to reside here under that marriage. But even in such a case the Supreme Court has decided otherwise.