Popular Science Monthly/Volume 23/June 1883/Our Marriage and Divorce Laws I
THE worst of our social evils, personal wrongs, and political sins arise from the ununiform operation of our marriage and divorce laws. The loose manner in which a contract of marriage may he entered into and the reckless facility with which a marriage contract may be dissolved are a disgrace to our high civilization and professed Christianity. However learned commentators and jurists may differ as to the correct definition of marriage, it is not only a partially executed agreement to marry, but is a contract continuous in its obligations governing the status of the parties, until it is dissolved by the death of one of the parties, or by one of them obtaining a divorce for some wrongful or invalidating act committed by the other.
In nearly all of the States marriage is recognized as a civil contract only, and has no ecclesiastical obligation so far as society and the State are concerned. The contracting parties are subjects of the law. The person performing the ceremony by which the contract is publicly acknowledged by the parties, whether he be magistrate, parson, or layman, becomes a civil officer by authority of the law for that occasion. Generally, however, the marriage contract is solemnized by a clergyman, agreeably to the rules and regulations of the religious denomination to which he belongs, and for which one or the other of the parties has a religious attachment or preference; or, because a religious solemnization in church gives a better opportunity to gratify the desire for social rivalry and display. But perhaps most persons, especially when young and looking forward to a long future of connubial happiness, consider the act of marriage more as a religious rite than a civil contract, and hence the forms and ceremonies of the Church accord more agreeably with the sentiment of love and affection than the business-like and informal words of the magistrate, who, in response to their acknowledgment of intention to marry, simply pronounces them man and wife. This sentiment, no doubt, is largely the result of a lingering belief in marriage as a divine institution and a sacrament of the Church, as taught when the ecclesiastical court had exclusive jurisdiction of marriage and divorce. It is perhaps not until later, not until they have become dissatisfied with the conditions of the solemn obligation they had agreed to faithfully perform through life, that they discover it is simply a civil contract that binds them, and from which the law has generously provided unlimited means of escape.
Lawful marriage is the basis of the family relation, and the family relation is the fundamental principle of association upon which the superstructure of society and the State is built. And yet there is no contract of the value of twenty dollars, subject to the verdict of a jury or the decision of a court, that is so easily avoided and so shamefully dissolved as the contract of marriage. The facts show that the law and the courts enforce the obligations of a delinquent debtor with more severity than the obligations of this contract upon which the happiness of the family, the morality of society, and the perpetuity of the State depend. The marriage contract is of a higher inspiration, and has a broader obligation, than a mere contract for the payment of money, or for the transfer of property, or for co-operation in business. It is one in which society is more deeply interested, one by which society is more seriously affected; and society has the right to demand that the mutual obligations shall be faithfully kept and lawfully enforced.
This-lack of uniformity in the laws, both in their formulation and execution, is the result of the diversity of sources from which they emanate. Each State is its own authority, and determines for itself the conditions upon which the marriage relation of its people may be entered into or dissolved; and, perhaps, the social and moral sentiment of the people of a State can not be more equitably determined than by observing the character and use of its laws governing marriage and divorce; for the various degrees of restriction and laxity in marriage and divorce have marked the progress and decline of all peoples and nations ever since the days when Adam and Eve went out of paradise and Moses wrote the law on Mount Sinai. Several States still retain upon their statute-books the common-law prohibition of marriage between persons related by consanguinity, or affinity, nearer than the third degree; while other States have progressed to that degree of liberality on the road to individual freedom and universal happiness which permits a person to marry, if not his grandmother, at least the daughter of his wife by a former husband. So we find that while two persons within certain degrees of relationship may lawfully marry in one State, they are prohibited from marrying by the laws of another State; and that while a marriage between certain persons is voidable only in one State, it is absolutely void under a similar law in another State.
It would be interesting to review at length the marriage and divorce laws of the several States, and note their want of uniform operation; but, for the purposes of this article, which must be brief, I shall confine myself to a comparative notice of the laws of two or three States only. In Ohio, "male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer kin than second-cousins, and not having a husband or wife living, may be joined in marriage," provided that if the male person is under the age of twenty-one, and the female person is under the age of eighteen, they shall first obtain the consent of their parents, respectively. The marriage may be solemnized by an ordained minister of any religious congregation who has first obtained a license authorizing him to solemnize marriages; or by a justice of the peace in his county; or by the several religious societies agreeably to the rules and regulations of their respective churches. If the parties are married by the rules of any church, notice of the marriage must first be published in the presence of the congregation on two separate days of worship, the first notice to be at least ten days previous to such marriage, and in the county in which the female resides. And, in order that record evidence of a marriage may always exist, a license to marry must first be obtained from the probate court before the marriage can be legally solemnized; and a certificate of such marriage, signed by the minister or justice of the peace solemnizing the same, must be filed by the person so officiating with the court where the license issued. This certificate must be filed with the court within three months from date of marriage, under a penalty of fifty dollars fine for neglect to do so, and the court must make a record of the certificate of marriage under a like penalty. These last provisions do not apply to parties who are married by the rules of any church.
In New York, marriage, so far as its validity in law is concerned, is expressly declared to be a civil contract, to which the consent of the parties, who must be capable in law of contracting, is essential. Marriage between parents and children, and grandparents and grandchildren, of every degree, and between brothers and sisters of the half or whole blood, are declared to be incestuous and absolutely void. So a second or other subsequent marriage contracted by any person during the lifetime of any former husband or wife of such person, is absolutely void, unless the marriage of such former husband or wife shall have been annulled for some cause other than the adultery of such person, or unless such former husband or wife shall have been finally sentenced to imprisonment for life. But for causes existing at the time of marriage, where either of the parties is incapable of contracting for want of age or understanding, or from physical causes, or where consent has been obtained through force or fraud, the marriage is void only from the time its nullity shall be declared by a court of competent authority. So, if any person, whose husband or wife shall have absented himself or herself for the space of five consecutive years without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time its nullity is pronounced by a court of competent authority. The law authorizing a legal separation, or a limited divorce, in New York, has been repealed, and the only causes arising after marriage for which a legal marriage can be annulled are adultery and imprisonment for life; and a pardon to the person sentenced to imprisonment for life will not restore to him or her the rights of a previous marriage. In a case of divorce for adultery the complainant may marry again during the life of the defendant; but no defendant convicted of adultery can marry again until the death of the complainant, unless the court in which the judgment of divorce was rendered shall modify such judgment on satisfactory proof that the complainant has remarried, that five years have elapsed since the divorce was granted, and that the conduct of the defendant since the dissolution of the marriage has been uniformly good.
No formality is necessary for the solemnization of marriages in New York. But, for the purpose of being registered and authenticated, the statute provides that marriages may be solemnized by ministers of the gospel and priests; and when solemnized by them the ceremony must be according to the forms and customs of the church or society to which they belong. Marriages may also be solemnized by mayors, recorders, and aldermen of cities, judges of the county court, justices of the peace, and by justices and judges of courts of record. When solemnized by a magistrate, no particular form is required, except that the parties shall declare in the presence of the magistrate and attending witnesses that they take each other for husband and wife. It is the duty of the officiating minister or magistrate to enter the names, ages, and residences of the parties, and the witnesses to the marriage, in a book to be kept for that purpose, and he shall upon application furnish to the parties a certificate of such marriage. This certificate, if presented to the clerk of the city or town where the marriage was solemnized, or where either of the parties resides, shall be filed by such clerk and entered in a book. The entry, or a certified copy thereof, or the marriage certificate, shall be received as evidence of such marriage. The provisions of the law regulating the solemnization of marriages, however, do not apply to the people called Quakers, nor to Jews, who are married according to the regulations of their respective churches.
In Connecticut the statute declares that no man shall marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, step-mother or step-daughter; that no woman shall marry her father, grandfather, son, grandson, brother, uncle, nephew, step-father, or stepson; and that, if any man or woman shall marry within the degrees aforesaid, such marriage shall be void. It provides further that no persons shall be married until one of them shall inform the register of the town, or the town-clerk, in which the marriage is to be celebrated, of the name, age, color, occupation, birthplace, residence, and condition—whether single, widowed, or divorced—of each. Such register, or town-clerk, shall thereupon issue his certificate that the parties therein named have complied with the law, which certificate shall be a license for any person authorized to solemnize marriages to give in marriage, in said town only, the parties therein named; but no such certificate shall be issued if either of the parties is a minor, under the control of a parent or a guardian, until such parent or guardian shall give to the register, or town-clerk, his written consent; and any register, or town-clerk, who shall knowingly issue such certificate without such consent, shall forfeit to the State one hundred dollars; and any person who shall join any persons in marriage without having received such certificate shall forfeit a like sum of one hundred dollars. Every person who shall join any persons in marriage shall certify upon the license certificate the fact, time, and place of such marriage, and return it to the register of the town where it was issued, before or during the first week of the month next succeeding such marriage, and upon failure thereof shall forfeit ten dollars. The certificate shall be prima facie evidence of such marriage. All judges, justices of the peace, and ordained or licensed clergymen while in the ministry, may join persons in marriage, and all marriages attempted to be celebrated by any other person shall be void; but all marriages which shall be solemnized according to the forms and usages of any religious denomination in the State shall be valid.
While the laws of these three States differ—and, perhaps, no two States in the Union agree as to who are competent to contract marriage—the provisions of the statutes of each regulating its solemnization would seem to be sufficient to protect society against hasty and indiscriminate alliances, to guard either party against fraud, and to furnish record evidence in any case where proof of marriage might be required. And yet, upon the provisions of the statutes defining who may solemnize marriages, the greatest confusion prevails throughout the Union between the courts and the law. In Connecticut, we have seen that "all marriages attempted to be celebrated by any other person" (than those named) "shall be void." In Ohio and New York, and in many other States, where no words of nullity are expressed in the statutes, such marriages are held valid.
But in Massachusetts, and in several other States, it has been held, where no words of nullity are expressed, that such marriages are not valid. And yet, it is generally accepted as the law, on principle, notwithstanding the marriage is celebrated without license, and the ceremony performed by an unauthorized person, that if the parties simply by mutual consent agree to marry, and live together as man and wife, such consent and cohabitation are valid and binding between the parties, and the issue thereof are entitled to all the rights of legitimate children. To reverse this common-law doctrine by general statutory provisions might work hardship in some individual cases; but its existence works more harm to society and bastardizes more children than would the enactment of stringent marriage laws, for parties would then be more careful and not enter into such relation without proof of marriage. Marriage is not a contract to be entered into in haste and repented of at leisure. It is of more importance to the parties, and far more to society, than the acquirement of a good title to a piece of real estate. Yet no one would think it a hardship to comply with the law for the proper execution and registration of a deed of conveyance, and no court would hold, as a general rule, that a valid title passed, although the statute governing the transfer had not been complied with.
In these three States, and in most of the States, the laws regulating the solemnization of marriages except from their general provisions certain religious denominations. This exception was an early spasm of religious toleration, entirely out of date in this tolerant age. Marriage being a civil contract between two persons, its conditions should be performed by them, of whatever religious faith they may be, the same as they would have to perform the conditions of any other civil contract or legal obligation. The exception is anti constitutional, in establishing a religious distinction even as against the Catholic Church, which still holds marriage as a divine institution, and its celebration a sacrament of the Church. No such exception is made in the execution of any other legal contract or in favor of other religious sects, and no hardship or violation of conscience or religious belief could follow the abolition of this incongruity. As members of society and citizens of the State, all persons should conform to the same civil law, leaving the individual parties free to supplement the civil ceremony with a religious one, according to the rules of the religious society to which they belong.
There is a peculiarity in the marriage contract, that does not enter into any other contract in the ordinary commercial transactions of life. While others may be, it must be between one man and one woman only. The contract does not end with the marriage ceremony; its conditions are for life, and continue until dissolved by death or divorce. Once it might have been considered to end with the solemnization, and to take on the form of a status, but that was in those days when on the "nuptial day" all the identity of the woman, her personality, individuality, right of property, and control of offspring, were merged in the man, and he became her lord and master, leaving her without the right of appeal to any civil authority for the redress of any wrong. But the barbarism of those days is fading away, and the light of a new civilization is dawning, though still confused here and there by old forms and prejudices. When woman shall stand before the law equal with man in all her personal, property, and political rights, then indeed will marriage be a contract sanctioned by nature and approved by God. All the instincts of nature favor marriage, all the passions, desires, and affections of the human heart enter into it, and the highest development of the human race depends upon it. Yet, as a part of the contract, the law of divorce enters in; and, while it is over-rigid in some States, in others its laxity almost neutralizes the fundamental idea of the continuance and perpetuity of the marriage obligation.
As a relic of that "peculiar institution," with its concubinal practice between whites and blacks, South Carolina preserves its old laws which allow no cause for divorce. In New York there is one cause only. In Ohio and other States there are many; but in Connecticut, Indiana, Illinois, North Carolina, and Maine, there is any cause that a discontented and dishonest party may allege, or that a judge in his discretion, influenced by sympathy or corrupt motives, may approve. In these extremes of the law, we have the tyranny of bigotry and the liberty of license, this opening the gates of temptation to the licentiousness of man, and the other driving in the victims. Surely there is a happy medium sufficiently circumscribed to restrain the vicious and dishonest, and yet liberal enough to afford relief to the innocent and injured! Thus, it will be seen that uniformity in the operation of the divorce laws, as a part of the marriage contract, is made necessary by the facility with which divorces are now "made easy, and without publicity." The cases where a husband or wife has abandoned home and family, and gone into a neighboring State to procure a divorce that could not be obtained at home, are so frequent and notorious, that the public conscience has ceased to be more shocked over such an occurrence than over a bank-president's embezzlement, or a willful murder. And yet society should be shocked to the very depths of humiliation, for the histories of the majority of such cases show that they are instigated by the basest motives of the human heart. For some fancied or real grievance that could easily be explained by love, or remedied by law; for the slightest incompatibility that could exist between any two independent individuals, and which might be softened by intelligent forbearance, but which must be endured by all under any form of contract; or, from a sensual desire to form another marriage relation, or for apparent causes that have no deeper root of evil than fashionable folly, petty jealousy, and irritability of temper—the laws of many of the States offer a way for the dissolution of the marriage contract. It is, however, to the credit of our humanity that the noble and enduring men and women of our race—those upon whom the world must ever rely for the true advancement of man toward social perfection and individual happiness seldom or never resort to the courts, even of their own State, for release from a contract which may have become onerous or even disgraceful to bear. Under the present liberal laws, regulating the relation of husband and wife, in some of the more progressive States, the parties stand so nearly equal before the law as individuals, in their personal and property rights, that there can not be the same excuses for resorting to divorce as a remedy for a real or supposed wrong, and certainly not the necessity for the assignment of so many statutory causes, as in former years. And while there should be other causes than adultery assigned for divorce, there is no other cause by which the family and society can be so deeply injured; no other cause that might not be adjusted between the parties, or removed by law, the same as if the marriage relation did not exist, or for which the innocent party might not suffer just as severely in his or her relation to society as in the relation of husband or wife.
Although New York has experimented with both a prohibitory and a liberal policy of divorce, long years of experience have demonstrated that the peace and happiness of the family and the purity of public morals are best subserved by a restrictive policy; yet no State in the Union can boast of a larger personal freedom of its citizens, or a higher standard of intelligence and morality. The percentage of illiteracy is comparatively small; woman is held in the highest esteem, and on all school questions has the equal right of suffrage; she is better protected in her personal and property rights than elsewhere; and, so far as the domestic relations are concerned, no State has a happier or a more contented people. The rural population is prosperous and happy in its Arcadian simplicity; and even in the great commercial metropolis of the State, where the opportunity for temptation and crime, corruption, and luxurious licentiousness, is so great, the intelligence and morals of the people are equal to those of any city in the world. Notwithstanding this, the laws of other States and the decisions of the courts make marriage in New York, as elsewhere, a contract subject to the caprice or dishonesty of either of the parties.
Parties who legally marry know the conditions of the contract into which they have entered. In New York they know that, as a part of the contract, so long as they reside in the State there is one cause only, except death, for its dissolution. And so long as one of the parties to a marriage continues to reside in the State in which the contract was made, and under the protection of its laws, no other State, into which the other party may have removed for the purpose of obtaining a divorce, should assume jurisdiction of the contract, or change its terms, so as to annul it for any other cause than that which existed in the State where the contract was made, and then only after obtaining personal service upon the non-resident defendant. It is questionable, as a matter of individual right, whether any State into which the parties may have mutually agreed to remove should assume jurisdiction to set aside the marriage contract for any other cause than could be assigned in the State in which the contract was made. Certainly one State should respect the laws of another, as it would have its own laws respected by the other. But the question of jurisdiction and domicile in interstate divorce has perplexed the courts almost endlessly. The general principle of law that the domicile of the wife remains with or follows the husband is limited by the reasons on which it rests, and must be varied according to the circumstances of the case, so that for the purpose of divorce each party is said to have a separate domicile. When one of the parties removes into another State for the purpose of divorce, and, after gaining a legal residence there, commences proceedings for divorce, how can the court, if marriage is a contract, get personal service upon the defendant so as to affect the rights of this non-resident party? Or, if marriage is a status, and the court takes cognizance only of the condition of the plaintiff, it, the condition of the plaintiff, being within the jurisdiction of the court, why is it necessary to bring the non-resident party into court even by constructive service? Divorce in either case will not change the relation of the non-resident party to the laws of the State in which he or she resides; it might, if it were the woman who obtained the divorce, leave the husband a married man without a wife, or, if it were he who obtained the divorce, leave her a married woman without a husband; and if the one thus left should marry again, though the marriage should be held legal, he or she might be punished under the laws of the State for bigamy or adultery. Such is the right of sovereignty each State has over its own subjects. But no State should take jurisdiction to dissolve a marriage contract between parties not situated in a way to render the sentence of dissolution binding, on general principles of law, upon every other State. Yet it is so often done that the cases in one State to set aside divorces obtained in another State are notoriously frequent. There is no subject so intermixed with so much legal rubbish and confusion, none in relation to which there is so much diversity of law and judicial conflict and uncertainty, as that relating to marriage, whether considered as a contract or a status, and none to which the statesman should more earnestly address himself to relieve it of these absurd legal perplexities. But how can uniformity be attained after so many long years of confusion?
Congress should pass a law establishing uniform rules of marriage and divorce throughout the United States. It should declare that the marriage contract is of that kind within the meaning of the Constitution which declares that "no State shall pass any law impairing the obligation of contracts." Where both the parties are domiciled in the same State, it should leave them subject to the laws of the State in which they reside; but, when they become "citizens of different States" for the purpose of divorce, it should require the suit to be brought in the United States courts; and perhaps when woman, as a citizen, becomes co-equal with man before the law, it will in such cases be obliged to do so. This would give the courts jurisdiction of both parties, or the status of both parties, without resorting to legal subterfuge or fiction; and would, where the suit was between "citizens of different States," preserve the individual sovereignty and dignity of the two States. It would also harmonize the foregoing provision of the Constitution which declares that "no State shall pass any law impairing the obligation of contracts," with the provision which also declares that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State"—a harmony that has never heretofore existed. The obligation to give "full faith and credit" to the "public acts" and "judicial proceedings" of a State is reciprocal between States; how then, when the "public acts" of two States are in conflict on the subject of divorce, can one State, in a judicial proceeding by a resident of its own, determine the relation of a citizen of another State to its laws? How can it impair the obligation of a contract or annul a status between parties, over one of whom it has no jurisdiction, and at the same time give "full faith and credit" to the "public acts" of the other State?
That Congress has the constitutional power to pass a law establishing uniform rules of marriage and divorce in the District of Columbia and all the Territories of the United States is beyond question. That it has not the power to pass a law establishing such rules throughout the United States can only be asserted. "Congress shall have power to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States"; and who can conceive of a person being more of a bankrupt in home and fortune than one who has a faithless wife or husband? Certainly in that view, with the marriage declared a contract within the meaning of the Constitution and its violation a species of bankruptcy, a general bankrupt law might give the courts jurisdiction to relieve a faithful husband or dutiful wife of the onerous conditions of a contract by the assignment of such assets as a worthless wife or husband to a generous and forgiving public.
There is another mode by which uniformity in the marriage and divorce laws of the States might be attained, whether the opinions of the judiciary could ever be harmonized or not, and that without impinging on the delicate question of State rights. Let Congress appoint commissioners to prepare a code of marriage and divorce laws for the District of Columbia and Territories of the United States, and invite each of the States to appoint a commissioner in its own behalf to unite with the commissioners appointed by Congress in forming a commission to codify and prepare a system of marriage and divorce, which, when passed by Congress and adopted by the several States, or any of them, shall have a uniform operation in the District of Columbia and Territories, and throughout the United States, or in those States adopting it. That there is an urgent necessity for Congress alone, or for Congress and the States united, to move earnestly in this matter, is not only seen in the ineffectual efforts of Congress every year to suppress polygamy, which is fast spreading from Utah into the other Territories, but also in an almost similar condition of society in the States, brought about by the ununiform laws and the conflicting decisions of the courts.
It is discreditable to civilization not to reverse a decision or principle of law, though of long standing, which is more evil in its continuance than inconvenient in its reversal or repeal. A thing which has outlived its influence for good, or a principle that has no longer an application to the progress of the age, in religion or law, should be abandoned. The spirit of the Constitution and the principles of interstate jurisdiction adjudicated under it have been insidiously directed, since the foundation of the government, to the national protection of and non-interference with a local institution which no longer exists. The reasons upon which those principles were based and the status in whose interest the decisions were formulated into law having passed away, it is time that the judicial mind should readjust itself to the demands of a newer condition of life and a higher civilization. But the conservative judicial mind is the last phase of energy in which the theory of evolution evolves, and "general principles of law" handed down by judicial prejudice from generation to generation are the last to give way in matters of progress and reform, not only when the reasons on which they were based no longer exist, but when other and better reasons demand a change.
There is another phase of this question which assumes a peculiar interest at the present time. It is that the marriageable portion of seven eighths of the citizens of the United States is interdicted from intermarrying with any one of the marriageable portion of the other one eighth of the citizens. Not that any one of the marriageable portion of the seven eighths, or of the one eighth, competent to contract marriage, is prohibited from marrying; but if love, admiration, pecuniary interest, or convenience, should move one of the marriageable portion of the seven eighths to desire in marriage one of the marriageable portion of the one eighth who reciprocates the love, admiration, pecuniary interest, or convenience of the other, the law interferes and makes such marriage a criminal offense! Why? Because of a prejudice held by the seven eighths against the one eighth—held for the reason that all of the one eighth are related in a near or remote degree to a race that was for centuries held as slaves to the other. It is a prejudice, not so much against "color" as against "previous condition"—color being a legal designation to identify the individual with the proscribed race.
Marriage is a natural right into which the question of color does not enter except as an individual preference expressed by the parties to the marriage. It is so recognized by the laws of all nations except our own, though in a few States this natural right is now acknowledged by statute law. In Ohio the statute declares that "a person of pure white blood, who intermarries with any negro, or person having a distinct and visible admixture of African blood, and any negro or person having a distinct and visible admixture of African blood, who intermarries with any person of pure white blood, shall be fined not more than one hundred dollars, or imprisoned not more than three months, or both." And the judge who knowingly issues the license and the person who knowingly solemnizes the marriage are subject to the same penalties. It is possible, however, on the common-law principle, that a marriage of this kind, followed by the parties living together as man and wife, would be held valid, though they would be subject to the penalties of the law. But in a number of other States—mostly Southern—such a marriage is declared absolutely void, and the parties living together under it are punishable by imprisonment in the penitentiary for "lascivious cohabitation." In these States the international and interstate rule, that a marriage legally contracted in one State is valid in every other State, is outraged and defied; and parties lawfully married in a State which does not prohibit the intermarriage of white and colored persons removing into these States are not recognized as husband and wife, but are made subjects of a law punishing fornication and adultery.
Before emancipation there was no legal marriage between slaves—a slave not being competent to enter into a contract—so that the relation of husband and wife depended wholly upon the will and caprice of the master. And the children of such marriages were neither legitimate nor illegitimate, coming into the world independent of all marriage laws. For this reason it would have been illogical in those States to have made it a penal offense for a white man and a slave woman, either through love, lustful passion, or desire of increase of property, to beget children of mixed white and colored blood, though the large numbers of persons of mixed color in the Southern States show that it was practiced to a profitable degree. But since the conditions of slavery have ceased to exist, and the freedmen have become citizens of the United States, endowed by the Constitution with all the political and civil rights enjoyed by their former masters, including the natural right of marriage, the reasons upon which the former black laws were based can have no application to the present social rights of these people. Still, the prejudice, deeply rooted in the interest of slavery, exists; and the cases recently before the Supreme Court under the civil-rights law, to test the constitutionality of the State laws punishing marriage between white and colored persons, have been decided on collateral issues in favor of that prejudice. Thus the laws of several States and the ruling of the highest tribunal in the land interrupt the natural law of selection and development. But the question is not at rest; it must be met—met as it now is, and as it will appear in the future. And if those States and the courts will not respond to the demands of the higher civilization of the age which recognizes this fundamental social law, Congress should clearly recognize and define the equal married rights of the citizens of the United States in the District of Columbia and the Territories, without regard to "race, color, or previous condition of servitude."
According to the last census, the population of the United States is reported at fifty millions, in round numbers. The report is very exact in giving the age, sex, and place of birth of each individual, native and foreign, and much other information valuable to the student of ethnology and the migration of peoples. But it is neglectful of one of the most important questions of races. It divides the population into two races, "white" and "colored," giving the number of the former at over forty-three millions, and the number of the latter at over six millions; and, in every reference to the distribution of population for causes, it fails to distinguish between the black negro and colored white, but includes them as one. It fails to tell how many of the six millions of "colored" are of pure negro blood, how many are mulattoes, quadroons, octoroons, or of a less degree than pure white. It fails to tell how many of the mixed blood are of pure white fathers, or pure white mothers—information necessary for the prediction of the future progress, endurance, and social position of the "colored race." This neglect, both in the last and preceding census reports, if not willful, is not creditable to the science side of our Government.
Before the war, citizenship was qualified by the word "white" in the Constitutions of the several States, but there was no uniformity in the definition of the word. Some States held that a person who had more white blood than black blood in his veins was white within the meaning of their Constitutions. Other States held that a person who had less than three fourths or seven eighths of white blood was black, and still other States held that anything less than pure white was black. But since the adoption of the fourteenth amendment, which declares that "all persons born or naturalized in the United States are citizens of the United States and the State in which they reside," and that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," this qualification of citizenship by the word "white" has no application, so far as the civil and political rights of the citizen are concerned. Nevertheless, wherever the law affects the social or semi-social relations of the citizen, his rights are qualified, and the word white excludes from the equal privileges and protection of the law all citizens having the least particle of colored blood in their veins. In one of the recent civil-rights cases decided by the Supreme Court—a case of the marriage of a white woman with a colored man—the court held that the State law punishing the parties was not in conflict with the fourteenth amendment, or with the civil-rights law founded on it, for the reason that the State law applies the same punishment to both offenders, the white and the black, without distinction! True, the punishment was equal without distinction of color, as it would have been in a case of larceny. But the law in prohibiting the marriage could not be constitutional, because it abridges the privileges of the citizen on account of color; it denies to the colored male citizen the equal privilege and protection of the law extended to the white male citizen—the right to marry a white woman. It also denies the white female citizen the equal privilege and protection of the law granted the colored female citizen—the right to marry a colored man.
However much the prejudice of the law and the courts may give an enforced unity to the negro race and the "colored whites," there is no ignoring the physical fact that a person who is seven eighths white, or who is but one thirty-second part colored, is not black. Of the six millions of blacks, "black" according to the United States census and the decisions of the courts, perhaps nearly two millions are of a mixed color, more white than black. Many of them are descendants of the most distinguished white blood in the history of the nation. To what race do they belong? By State laws and the decision of the Supreme Court they belong to the negro or the American-African race. By the law of nature they belong, either to the Anglo-American race, or are a race within themselves. It is no longer a doubtful question; their constant increase in numbers shows that they are engenesic, and capable of maintaining within themselves a race of their own. Can such a people as this mixed race, imbued with the instincts, capabilities, and ambitions common to their white blood, be forever thrust back upon the negro race? Is the race-conflict so irrepressible in this country that they can not ever be merged in the white race? Or is it wiser for science and the law to recognize, in the process of the formation of races, that they are strictly a distinct and intermediate race? Already, in proportion to numbers, as many of them stand as high in intellectual development as white persons of the same class. And as the great mass of mankind, white and black, must ever be laborers and followers, and as all the avenues of trade and commerce, learning, culture, and civil and political distinctions, are open to all, this "mixed race" must eventually become sharp competitors for the supremacy in this country. What the result may be to this republic is a problem for the publicist, the scientist, and the statesman to solve.