Lonas v. State

• Decision Date: 30 September 1871
• Citation: 50 Tenn. 287
• Parties: Doc. Lonas v. The State.
• Court: Tennessee Supreme Court

50 Tenn. 287

Doc. Lonas

v.The State.

Supreme Court of Tennessee.

September Term, 1871.

FROM KNOX.

Criminal Court, June Term, 1871, before M. L. HALL, J.

The proof showed “that the defendant was married to and lived and cohabited with the person charged in the indictment, previous to the finding of said indictment.” The indictment was found March 8, 1871. The prisoner being unable to employ counsel, the Criminal Court assigned J. Scott Payne, Esq., to defend him, who also appeared for him in the Supreme Court.

J. Scott Payne, for the prisoner, insisted that the act of 1870, c. 39, prohibiting the intermarriage or cohabitation of whites and negroes, was in violation of the 13th and 14th amendments to the Constitution of the United States, and the act passed pursuant thereto, of April 9, 1866, the Civil Rights Bill, and the reenactment and amendment thereto, following the 15th amendment, of which he gave a history. He insisted, 1st, that this Court had no power to decide upon the validity of a constitutional amendment, by reason of any irregularity in its adoption; 2d, that, by the 13th, 14th and 15th amendments, and the Civil Rights Bills, all distinctions on account of race, color and previous condition of servitude, are obliterated. That the 15th amendment, relating exclusively to political rights, had nothing to do with this question. Congress intended the negro should have power to enforce civil contracts, and to enjoy the privileges and immunities of white citizens. He defined rights and privileges, citing Crabbes Synonyms. He announced the general proposition that, if the doing of some thing, or the enjoyment of some advantage, be permitted to one class, and prohibited to another, then a distinction was made. That the negro, by the act of 1870, was deprived of the right to make contracts, which a white man could make; that is, to contract marriage with a white woman. That the act created classes, and that, itself, was a distinction. It would not do to say that the statute operates alike upon both, punishing white and colored persons alike, for an offense common to both. Here is the very distinction the law prohibits, i. e., the denial of the power to make a contract of a particular kind with individuals of the other class. The two classes are forbidden to intermarry, for the reason that there is a distinction between them in race and color, made by nature. The statute recognizes and asserts this distinction, and makes it a bar to intermarriage, the very thing which the Constitution and laws of the United States intends to prohibit. The State may as well prohibit the intermarriage of American and German or French. Any attempt to show by argument that this statute does not make a distinction, is the veriest sophistry. That marriage is not only a civil contract, but a civil status, citing Ch. Blackstone, p. 432, m.; Bishop on Mar. and Div., sec. 29; Shelford on Mar. and Div., 2; Dickson v. Dickson, 1 Yer., 110, 112; 1 Meigs' Dig., sec. 1059; Grisham v. Ligan, 2 Yer., 589;Clayton v. Wardell, 4 Comst., 230; Story's Confl. of Laws, sec. 108, n.; but he insisted that the law only regarded it in the aspect of a civil contract, and claimed that it was within the class of contracts contemplated in the first section of the Civil Rights Bill. This case involves only one of the requisites of the contract. Their willingness to contract, and their actual entry into the marriage relation, is not disputed; the point disputed is their ability to contract. The 14th amendment enables these parties to make and enforce any civil contract that was legal between other citizens of the Unites States. The citizenship of the plaintiff in error was placed on the same footing as that of the white man. In the case of The U. S. v. Lucerne, 2 Brightly's Dig., p. 16, it was held that persons of color were naturalized, and being so, were possessed of the same rights as white citizens, in every respect. See, also, ex parte Turner, 1 Am. S. T., 7.

No State can make a foreigner or other person a citizen: Scott v. Sandford, 19 H., 393. The converse of this must be true: no State can abridge or take away rights of citizenship once vested in a class of persons.

A marriage legal where made, is legal everywhere: Bishop on Mar. and Div., sec. 125; 2 Kent, 457; Bashaw v. The State, 1 Yer., 177;Sellars v. Davis, 4 Yer., 503; Shelford on Mar. and Div., 114; 2 East, 453; 1 Bland, 485. In certain States the intermarriage of whites and blacks is not prohibited, as in South Carolina and Mississippi. If negroes intermarry with whites in those States, they must be protected here in the marriage relation. See Morgan v. McGhee, 5 Hum., 13. The Federal Constitution, Art. 1, s. 10, prohibits any State from impairing the obligation of contracts. White and colored persons who have contracted marriage in other States, are protected by this clause. So, while persons generally, of their class, i. e., those married here, are prohibited from living together here, we have in these a privileged class, contrary to the spirit of our laws and institutions. The prohibited classes have only to step across the line into a State where the marriage is lawful, and they can contract a lawful marriage there, though they go there for the purpose of evading our law: Story's Confl. Law, secs. 79-81; Medway v. Needham, 16 Mass. R., 157. It would seem that our statute, by prohibiting the cohabitation of persons in such condition, has gone so far as to declare that our courts shall not recognize the validity of such marriages, thus making a sweeping statutory divorce. This is clearly in conflict with Art. 1, s. 10, Const. U. S. He argued that such unions were repugnant to our tastes and prejudices; but, in presence of a plain principle of law, all such feelings must yield. The responsibility was with Congress, who had passed the law, and with them the remedy. He commented at some length upon the opinion of Judge Erskine, of the United States Court, recently delivered in Georgia. Insisted that marriage was proved to be a contract by the fact that a breach of contract to marry was ground of a civil action, and cited Ponder v. Graham, 4 Fla. R., 23, to show that the contracts protected by the U. S. Const. were not to be restricted to those of a pecuniary nature. Cited State v. Fry, 4 Mo., 120, 184, as showing that it applied to the marriage contract; and Story on the Const., sec. 1374, on the obligation of contracts. Insisted that marriage is not valid without a contract; that the contract exists from the time the parties having the capacity agree upon a marriage; and the instant they become man and wife the status begins, and the contract essential to the status becomes a part thereof.

He contested Judge Erskine's opinion, that the amendment and act of Congress were intended to secure to negroes equality before the law, and that the privileges and immunities in Art. 4, s. 2, of the Const.--those granted by the States to their own citizens--were the same intended by the 14th amendment and the acts of Congress. But if this were so, and the meaning is the same, the new citizens brought within the pale of the Constitution, are entitled to all the privileges of the old, and become beneficiaries of Art. 4, s. 2, of the Const. In Henry v. Smith, 1 Lit., 334, it is held that no one can be a citizen within the terms of Art. 4, s. 2, who is not entitled to all the rights and privileges of the higher classes of society. Free negroes were not such at that time; but they became such by the amendment and act of Congress. To strip a citizen, then, of any of the privileges enjoyed by others is to strip him of citizenship, and a violation of the amendment and act of Congress.

He remarked, upon Judge Erskine's observation, that the U. S. Courts have generally refused to take cognizance of Divorce; that if this were to be regarded as the exercise of a power of divorce, the Legislature could not exercise that power where they had conferred it on the courts. He insisted that the act of 1870 was retrospective and ex post facto, contrary to the State Constitution, Art. 1, ss. 11 and 20, the parties having lived together before the passage of the act. That every offense was made up of three parts, the beginning, the continuance and the end. That any punitive statute, to be valid, must be in force at the beginning of the act, and none enacted between the extremes and during the continuance of the act can affect the parties committing it.

Attorney General Heiskell, for the State, said the act forbidden, was any law which should “abridge the privileges or immunities of citizens of the United States,” or “deny to any person the equal protection of the laws.”

The rights of citizens of the United States, are not the rights of citizens of States, but those political and civil rights, guaranteed by the Constitution of the United States. These are of the most restricted character. Even the right of suffrage was not one of them, under the original Constitution; the right to hold office is not one of them. A citizen of one State has no right to vote in another. If it was a right which belonged to him as a citizen of the United States, then this right to vote in a State could not be denied by the State, or delayed even for a time. The right was conferred and regulated by State law, and the Constitution gave no power to Congress over that subject, but expressly made even the right to vote for members of Congress dependant upon the qualification of electors of the most numerous branch of the State Legislature. A man as a citizen of the United States, can hold no office in a State. His qualifications are defined by State laws. A citizen of the United States, as such, can not even be President of the United States; the only persons who are peculiarly citizens of the United States, as distinguished from citizens of States, being naturalized foreigners. A President must be a citizen of a State, a native....