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
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.
If, on the other hand, the parties leave a State which prohibits
intermarriage and go to another State which allows it, solely for the
purpose of evading the laws of the former State, the authority is
practically unanimous that the marriage is not valid in the State the
laws of which they attempted to evade. This point is covered both by
statute and by judicial decision. A Delaware statute, for instance,
declares that the Negro and white person are equally guilty if they are
married in another State and move into Delaware as if they had been
married in Delaware. Mississippi, also, punishes parties attempting to
evade its laws by marrying out of the State and returning to
Mississippi, to the same extent as if they had attempted to intermarry
in Mississippi. The Georgia statute, which is typical, is as follows:
“All marriages solemnized in another State by parties intending at the
time to reside in this State shall have the same legal consequences and
effect as if solemnized in this State. Parties residing in this State
cannot evade any of the provisions of its laws as to marriage by going
into another State for the solemnization of the ceremony.” Statutes to
the same effect are in force in Arizona, Virginia, West Virginia, and
possibly other States. In the absence of statute, the point is covered
with the same result by judicial decision. In the Tennessee case, to
which reference has already been made, the court said: “Each State is
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