Race Distinctions in American LawStephenson, Gilbert Thomas
History
Race Distinctions in American Law
Stephenson, Gilbert Thomas
African Americans -- Politics and government; Law -- United States -- History; United States -- Race relations
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have been repealed.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were repealed.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rather than repealed.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 These laws were repealed nine months later,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repealed most of its statutes relating to free Negroes, but added that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.
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