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
sovereign, a government within, of, and for itself, with the inherent
and reserved right to declare and maintain its own political economy for
the good of its citizens, and cannot be subjected to the recognition of
a fact or act contravening its public policy and against good morals, as
lawful, because it was made or existed in a State having no prohibition
against it or even promoting it.”
In 1878, a Negro man and a white woman went over from Virginia[205] into
the District of Columbia, were married, and returned to Virginia, where
they were prosecuted. The Virginia court held that, although the forms
and ceremonies of marriage are governed by the laws of the place where
marriage is celebrated, the essentials of the contract depend upon and
are governed by the laws of the country where the parties are domiciled
at the time of the marriage, and in which the matrimonial residence is
contemplated. This case was affirmed by the Federal court[206] the next
year. A Georgia[207] couple who also went to the District of Columbia to
be married, returned to their native State, where they were indicted and
convicted for violating the Georgia statute against intermarriage.
It appears that Washington has been and is the City of Refuge for such
miscegenating couples. It has been held, however, in every case, that,
when these people return to Southern States, no matter where married,
they are amenable to the laws of those States. In fact, there appears to
be only one American case with regard to Negroes which holds a contrary
doctrine, the case of Medway v. Needham.[208] There a white person and
Negro, living in Massachusetts, which at the time, 1819, prohibited
intermarriage, went to Rhode Island, where they were married and whence
they immediately returned. The Supreme Court of Massachusetts held that
a marriage, if valid where celebrated, is valid everywhere; the court
taking no account of the purpose of the parties to evade the law. In
rendering this decision, the Court admitted that it was going counter to
the opinion of eminent jurists. The decision has not been followed, it
appears, by any other court. It may be taken as settled that, if the
parties leave the State for the purpose of evading its law, intending at
the time to return to that State, the marriage will not be recognized as
valid when they do return. But, if they leave the State to evade the
law, not intending at the time to return and do gain a _bona fide_
residence in another State and, after that, do return, the marriage will
be recognized. In other words, to furnish a State grounds to declare
void a marriage celebrated in another State where it is valid, the
parties must intend not only to evade the law but also not to gain a
_bona fide_ residence in the State to which they go.
Public-domain text, read in full here on John Shaqi.
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