LexisNexis(TM) = Academic

The State v. Gibson.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF INDIANA
36 Ind. 389; 1871 Ind. LEXIS = 174

November Term, 1871, = DecidedPRIOR HISTORY: [**1] APPEAL from the = Vanderburg Criminal Court.

DISPOSITION: The=20 judgment is reversed, and the cause is remanded, with directions to the = court=20 below to overrule the motion to quash the indictment, and to place the = appellee=20 upon his trial for the crime charged in said indictment.
HEADNOTES: Criminal Law. -- Marriage Between Whites = and=20 Negroes. -- Fourteenth Amendment. -- Civil Rights Bill. -- Neither = the=20 Fourteenth Amendment to the Constitution of the United States nor the = Civil=20 Rights Bill passed by Congress has impaired or abrogated the laws of = this State=20 on the subject of the marriage of whites and negroes. Such a union = between=20 members of the different races is a criminal offense by the statutes of = this=20 State.

COUNSEL: B. W. Hanna, = Attorney General,=20 and W. P. Hargrave, for the State.

A. = L.=20 Robinson, for appellee.

JUDGES: = Buskirk, J.
OPINIONBY: Buskirk
OPINION: [*389] Buskirk, J. -- It appears = of record=20 in this cause, that appellee was charged by indictment in the court = below with=20 having unlawfully and knowingly married, in the county and State = aforesaid, one=20 Jennie Williams, a white woman of this State, he then and there having=20 one-eighth part or more of negro blood.

The = indictment=20 was, upon the motion of the appellee, quashed, and the State, by her = prosecuting=20 attorney, excepted and prosecutes this appeal to obtain a reversal of = the=20 judgment.

The indictment was based upon the = forty-seventh section of the act defining felonies, which reads as = follows:
[*390] "Section 47. No person = having=20 one-eighth part or more of negro blood shall be permitted to marry any = white=20 woman of this State, nor shall any white man be permitted to=20 marry [**2] any negro woman, or any woman having one-eighth = part or=20 more of negro blood, and every person who shall knowingly marry in = violation of=20 the provisions of this section, shall, upon conviction thereof, be = imprisoned in=20 the State's prison not less than one, nor more than ten years, and be = fined not=20 less than one thousand nor more than five thousand dollars." 2 G. & = H.=20 452.

The sole question which is presented = for our=20 consideration and decision is as to the correctness of the ruling of the = court=20 in quashing the indictment. It seems to be conceded by the appellee, = that the=20 indictment, under our code of criminal procedure, is good, in substance = and=20 matter of form, if the section of our statute above quoted is still in = force;=20 but it is earnestly maintained that all the laws of our State = prohibiting the=20 intermarriage of negroes and white persons were abrogated by the = ratification of=20 the fourteenth amendment of the constitution of the United States, and = the=20 passage of the civil rights bill. The position assumed by the attorney = of the=20 appellee is stated in these words:

"The = appellee=20 contends that all the laws of this State prohibiting the marrying of = blacks and=20 whites are abrogated by the [**3] fourteenth amendment to the = constitution of the United States, and the law of Congress passed in = pursuance=20 to that amendment, which, in express terms, confers upon colored people = the=20 power of making contracts.

"Marriage, by = the laws of=20 Indiana, being only a civil contract, 1 G. & H. 428, sec. 1, it = follows that=20 the marriage specified in this indictment was lawful; and hence the = judgment of=20 the court is correct."

The only question = presented for=20 the decision of this court is, whether the position assumed by the = appellee is=20 correct. The magnitude and importance of the question involved cannot be = overestimated, and we have given it our best and most thoughtful = consideration.=20 We approach its investigation, [*391] profoundly impressed = with the=20 weight of responsibility that our oath to support the Constitution of = the United=20 States and of the State of Indiana has imposed upon us.
The first section of the fourteenth amendment is in these = words:
"Sec. 1. All persons born or naturalized in = the United=20 States, and subject to the jurisdiction thereof are citizens of the = United=20 States, and of the state wherein they reside. No state shall make or = enforce any=20 law which shall abridge the privileges [**4] or immunities of = citizens of the United States; nor shall any state deprive any person of = life,=20 liberty, or property without due process of law, nor deny to any person = within=20 its jurisdiction the equal protection of the law."

This=20 amendment was proposed by Congress, June 16th, 1866, and declared by the = Secretary of State to have been ratified July 28th, 1868.
This amendment contains four separate and distinct = propositions: first,=20 it confers the right of citizenship upon all persons born or naturalized = in the=20 United States, and who are subject to the jurisdiction thereof; second, = it=20 declares that no state shall make or enforce any law which shall abridge = the=20 privileges or immunities of citizens of the United States; third, it = prohibits=20 any state from depriving any citizen of life, liberty, or property, = without due=20 process of law; fourth, it provides that no state shall deny to any = person=20 within its jurisdiction the equal protection of the law.
It is settled by very high authority, that, in placing a = construction=20 upon a constitution or any clause or part thereof, a court should look = to the=20 history of the times, and examine the state of things existing when the=20 constitution or any [**5] part thereof was framed and = adopted, to=20 ascertain the old law, the mischief, and the remedy. The court should = also look=20 to the nature and objects of the particular powers, duties, and rights = in=20 question, with all the light and aids of cotemporary history, and give = to the=20 words of each provision just such operation and force, consistent with = their=20 legitimate meaning, as will fairly secure the end proposed. = [*392] =20 Kendall v. The U. S., 12 Pet. 524; Prigg v. The=20 Commonwealth, 16 Pet. 539.

Guided by = these wise and=20 well settled rules of interpretation, we proceed to place a construction = upon=20 the section under consideration. The persons referred to in the section = under=20 examination are described as "all persons born or naturalized in the = United=20 States." The race or class of persons intended to be benefited are not=20 described. It is quite manifest that it did not refer to persons of the = white=20 race, for when persons of that race are born in the United States, they = are by=20 birthright citizens, and when they are born elsewhere and have been = naturalized=20 under the law of Congress, they become citizens of the United States and = of the=20 state where they reside. We know from the [**6] history of = the times=20 that the main purpose of this amendment was to confer the right of = citizenship=20 upon persons of the African race, who had previously not been citizens. = When=20 these persons became citizens, they were entitled to the privileges and=20 immunities secured to all citizens by section two, of article four, = which=20 declares that "the citizens of each state shall be entitled to all = privileges=20 and immunities of citizens in the several states," but the framers and = advocates=20 of this amendment seemed to be unwilling to rely upon the above section, = and=20 therefore added the other clauses which were intended to secure to the = newly=20 made citizens the full and equal protection of the law.
The learned attorney for the appellee has not informed us, in = his=20 brief, which one of the clauses of the said section has had the effect = to=20 abrogate our laws prohibiting the intermarriage of persons of the white = and=20 black races. It certainly cannot be the first, for the only object and = effect of=20 that clause was to confer the right of citizenship upon certain classes = of=20 persons who had not been theretofore citizens, and among these classes = were=20 persons of the African race.

Nor can the = second clause=20 be [**7] construed to have that effect. The purpose of this = clause=20 was to secure to the newly created citizens the same privileges and = immunities=20 which had [*393] theretofore been enjoyed by the former = citizens of=20 the United States. It is quite probable that this clause had reference = to the=20 political rights and privileges of the persons who had by the first = clause been=20 made citizens of the United States and of the state wherein they = resided. The=20 purpose of the third clause was to protect the persons referred to and = embraced=20 in the first clause, in life, liberty, and property. The plain and = manifest=20 intention was to make all the citizens of the United States equal before = the law=20 in all the states of the Union. The fourth clause seems to have been = added in=20 the abundance of caution, for it provides in express terms what was the = fair,=20 logical, and just implication from what had preceded it, and that was, = that the=20 persons made citizens by the amendment should be protected by the laws = in the=20 same manner, and to the same extent, that white citizens were = protected.
The fourteenth amendment contains no new grant = of power=20 from the people, who are the inherent possessors of all power, to the=20 federal [**8] government. It did not enlarge the powers of = the=20 federal government, nor diminish those of the states. The inhibitions = against=20 the states doing certain things have no force or effect. They do not = prohibit=20 the states from doing any act that they could have done without them. = The=20 constitution was made for the protection of all citizens. It is adapted = to our=20 condition in every state of our national advancement. When new territory = is=20 acquired or new citizens created, the constitution extends itself over = and=20 protects the territory and citizen in the same manner that it extended = over and=20 protected the original thirteen states and the men who achieved our=20 independence, and made the constitution, and formed the union of the = states.=20 From the Atlantic to the Pacific, and from the lakes to the borders of = Mexico,=20 it has stretched forth its cherishing arm over our people, and diffused = its=20 blessings on all alike. The only effect of the amendment under = consideration was=20 to extend the protection and blessings of the constitution and laws to a = new=20 class of persons. When they were made citizens they were as much = entitled to the=20 protection of the constitution and the [*394] laws as were = the=20 white [**9] citizens, and the states could no more deprive = them of=20 privileges and immunities than they could citizens of the white race.=20 Citizenship entitled them to the protection of life, liberty, and = property, and=20 the full and equal protection of the laws. Nor has the ratification of = this=20 amendment in any manner or to any extent impaired, weakened, or taken = away any=20 of the reserved rights of the states, as they had existed and been fully = recognized by every department of the national government from its = creation.=20 This amendment conferred citizenship upon persons of the African race, = but we=20 will hereafter inquire and decide whether citizenship conferred on them = the=20 right to intermarry with persons of the white race.

But=20 it is urged that the civil rights bill has abrogated the section of our = statute=20 which renders it a felony for a negro to marry a white woman of this = State, or=20 for a white man to marry a negro woman. It is claimed that the first = section of=20 the said act which confers upon persons of the African race the right to = make=20 and enforce contracts has made it lawful for negroes, in all of the = states, to=20 make and enter into contracts of marriage with persons of the white = race. The=20 argument [**10] is, that under our laws marriage is a civil = contract,=20 and as negroes are authorized to make contracts, that, therefore, they = can make=20 any kind of contracts, notwithstanding the contract may be in violation = of the=20 laws of an independent and sovereign state. Waiving for the present the = power of=20 Congress to pass a law authorizing any class of persons to make and = enforce=20 contracts in a state, we proceed to examine the first section of the = civil=20 rights bill, and to determine whether the position assumed by the = appellee is=20 sustained thereby. In our opinion it is wholly untenable, and that this = is=20 demonstrated by the plain, express, and undoubted language of the said=20 section.

The first section of the said act = is in these=20 words: "That all persons born in the United States, and not subject to = any=20 foreign power, excluding Indians not taxed, are hereby declared to be = citizens=20 of the United States; and that such [*395] citizens of every = race=20 and color, without regard to any previous condition of slavery or = involuntary=20 servitude, except as a punishment for crime, whereof the party shall = have been=20 duly convicted, shall have the same right in every state and territory = in the=20 United States to [**11] make and enforce contracts, to sue, = be=20 parties and give evidence, to inherit, purchase, lease, sell, hold and = convey=20 real and personal property, and to have the full and equal benefit of = all laws=20 and proceedings for the security of person and property as is enjoyed by = white=20 persons, and shall be subject to like punishment, pains and penalties, = and to=20 none other, any law, statute, ordinance, regulation or custom to the = contrary=20 notwithstanding."

This act took effect on = the 9th day=20 of April, 1866, which was prior to the ratification of the fourteenth = amendment.=20 This amendment seems to have been mainly copied from, or modelled after = the=20 section above quoted from the civil rights bill. This section confers = upon=20 persons of the African race the power to make and enforce contracts. The = power=20 as conferred in the first part of the section is without limitation, but = in the=20 subsequent part of the section it is restricted and qualified by the = plain and=20 express declaration, that the rights conferred shall be enjoyed and = exercised,=20 in the same manner and to the same extent, "as is enjoyed by white = persons." The=20 only force and effect of this section was to confer upon persons of the = African=20 race [**12] the same civil rights, privileges, and immunities = as had=20 been enjoyed by persons of the white race.

It,=20 therefore, becomes necessary for us to inquire whether Congress = possesses the=20 power, under the federal constitution, to pass a law regulating and = controlling=20 the institution of marriage in the several states of this union; and = this will=20 involve a brief inquiry into the nature and character of our complex = system of=20 government. Anterior to the adoption of the federal constitution, the = states=20 existed as independent sovereignties, possessing supreme and absolute = power over=20 all questions of local and internal government. The states = [*396] =20 were independent of each other, and each possessed the power to regulate = and=20 control its domestic institutions. The government of the United States = was not=20 created by the states acting in their sovereign capacity, but the people = of the=20 several states, acting in their individual capacity. The federal = government was=20 not created for the purpose of regulating and controlling the domestic = and=20 internal affairs of the states, but the purposes of its creation are = declared in=20 the preamble to the constitution, and these are "to form a more perfect = union,=20 [**13] establish justice, insure domestic tranquillity, = provide for=20 the common defense, promote the general welfare, and secure the = blessings of=20 liberty." The states being independent, they recognized no common head. = They=20 were competent to manage and conduct their local and internal affairs, = but they=20 needed a superior and central power to regulate commerce and intercourse = between=20 the states and with foreign nations. Indeed, the whole frame of the = constitution=20 supports this construction. All the powers which relate to our foreign=20 intercourse are confided to the general government. Congress has the = power to=20 regulate commerce with foreign nations, and among the states, to define = and=20 punish piracies and felonies committed on the high seas, and offences = against=20 the laws of nations; to declare war, to grant letters of marque and = reprisal; to=20 raise and support armies; to provide and maintain a navy; to coin money, = and=20 regulate the value thereof; to establish an uniform rule of = naturalization, and=20 uniform laws on the subject of bankruptcies in the United States; to = establish=20 post offices and post roads; to provide for calling forth the militia to = execute=20 the laws of the union, suppress insurrections [**14] and = repel=20 invasions. The powers conferred on the general government are of a = general and=20 national character, and none of them authorize or permit any = interference with,=20 or control over, the local and internal affairs of the state. The = general=20 government is one of limited and enumerated powers, and it can exercise = no power=20 that is not expressly, or by implication, granted. The people being the = inherent=20 possessors of all governmental [*397] authority, it = necessarily and=20 logically resulted that all powers not granted to the general = government, or=20 prohibited to the state governments, were retained by the states and the = people,=20 but the great, wise, and illustrious men who framed our matchless form = of=20 government were so jealous of the right of local self-government that = they were=20 unwilling to leave the question of the reserved powers to implication = and=20 construction. Hence, within two years after the adoption of the federal=20 constitution, twelve amendments thereto were submitted by Congress to = the states=20 for ratification, which were ratified. The ninth and tenth amendments = read as=20 follows:

"9th. The enumeration, in the = constitution, of=20 certain rights shall not be construed to deny or [**15] = disparage=20 others retained by the people."

"10. The = powers not=20 delegated to the United States by the constitution, nor prohibited by it = to the=20 states, are reserved to the states respectively, or to the people."
Chief Justice Chase, in Lane County v.=20 Oregon, 7 Wal. 71, draws with great clearness and force the true = line of=20 distinction between the powers of the federal and state governments. He = says,=20 "the people of the United States constitute one nation, under one = government,=20 and this government, within the scope of the powers with which it is = invested,=20 is supreme. On the other hand, the people of each state compose a state, = having=20 its own government, and endowed with all the functions essential to = separate and=20 independent existence. The states disunited might continue to exist. = Without the=20 states in union there could be no such political body as the United = States.
"Both the states and the United States existed = before the=20 constitution. The people, through that instrument, established a more = perfect=20 union by substituting a national government, acting, with ample power, = directly=20 upon the citizens, instead of the confederate government, which acted = with=20 powers greatly restricted, [**16] only upon the states. But = in many=20 articles of the constitution the necessary existence of the states, and = within=20 their proper spheres the independent authority of the states, is = distinctly=20 recognized. To them nearly [*398] the whole charge of = interior=20 regulation is committed or left; to them, and to the people, all powers = not=20 expressly delegated to the national government are reserved. The general = condition was well stated by Mr. Madison, in the Federalist, thus: 'The = federal=20 and state governments are, in fact, but different agents and trustees of = the=20 people, constituted with different powers and designated for different=20 purposes.'"

Mr. Justice Nelson, in = delivering the=20 opinion of the Supreme Court of the United States, in the recent case of = The=20 Collector v. Day, 11 Wal. 113, says: "It is a familiar rule = of=20 construction of the constitution of the Union, that the sovereign powers = vested=20 in the state governments by their respective constitutions remain = unaltered and=20 unimpaired, except so far as they were granted to the government of the = United=20 States. That the intention of the framers of the constitution in this = respect=20 might not be misunderstood, this rule of = interpretation [**17] is=20 expressly declared in the tenth article of the amendments, namely: 'The = powers=20 not delegated to the United States are reserved to the states, = respectively, or=20 to the people.' The government of the United States, therefore, can = claim no=20 powers which are not granted to it by the constitution, and the powers = actually=20 granted must be such as are expressly given, or given by necessary = implication.=20 The general government and the states, although both exist within the = same=20 territorial limits, are separate and distinct sovereignties, acting = separately=20 and independently of each other, within their respective spheres. The = former, in=20 its appropriate sphere, is supreme; but the states within the limits of = their=20 powers not granted, or, in the language of the tenth amendment, = 'reserved,' are=20 as independent of the general government as that government within its = sphere is=20 independent of the states.

"Upon looking in = the=20 constitution it will be found that but a few of the articles in that = instrument=20 could be carried into practical effect without the existence of the = states. Two=20 of the great departments of the government, the executive and the = legislative,=20 depend upon the exercise of the powers, [**18] or = [*399] =20 upon the people of the states. The constitution guarantees to the states = a=20 republican form of government, and protects each against invasion or = domestic=20 violence. Such being the separate and independent condition of the = states in our=20 complex system, as recognized by the constitution, and the existence of = which is=20 so indispensable that without them the general government itself would = disappear=20 from the family of nations, it would seem to follow as a reasonable, if = not a=20 necessary, consequence, that the means and instruments employed for = carrying on=20 the operations of their governments, for preserving their existence and=20 fulfilling the high and responsible duties assigned to them in the = constitution=20 should be left free and unimpaired; should not be liable to be crippled, = much=20 less defeated, by the taxing of another government, which power = acknowledges no=20 limits but the will of the legislative body imposing the tax, and, more=20 especially, those means and instrumentalities which are the creation of = their=20 sovereign and reserved rights, one of which is the establishment of the = judicial=20 department and the appointment of officers to administer their laws. = Without=20 this power and [**19] the exercise of it we risk nothing in = saying=20 that no one of the states under the form of government guaranteed by the = constitution could long preserve its existence. A despotic government = might. We=20 have said that one of the reserved powers was that to establish a = judicial=20 department. It would have been more accurate and in accordance with the = existing=20 state of things at the time to have said the power to maintain a = judicial=20 department. All of the thirteen states were in the possession of this = power, and=20 had exercised it before the adoption of the constitution, and it is not=20 pretended that any grant of it to the general government is found in = that=20 instrument. It is, therefore, one of the sovereign powers vested in the = states=20 by their constitutions, which remained unaltered and unimpaired, and in = respect=20 to which the state is as independent of the general government as that=20 government is independent of the states."

In the case=20 of Fifield v. Close, 15 Mich. 505, this language=20 [*400] occurs: "The same supreme power which established the = departments of the general government, determined that the local = governments=20 should also exist for their own purposes, and made it=20 impossible [**20] to protect the people in their common = interests=20 without them. Each of these several agencies is confined to its own = sphere, and=20 all are strictly subordinate to the constitution, which limits them, and = independent of other agencies, except as thereby made dependent. There = is=20 nothing in the constitution which can be made to admit of any = interference by=20 Congress with the secure existence of any state authority within its = lawful=20 bounds."

Nor are we without authority in = this State,=20 sustaining and upholding the rights and powers of the State. This court, = in=20 The State v. Garton, 32 Ind. 1, says: "And has this = principle,=20 vital indeed to protect the national life, no other application? The = benefit of=20 its application has been boldly claimed by the men who have honored the = highest=20 judicial positions the nation could bestow on intellect, learning and = virtue. It=20 has protected the one from the hostile action of the many. May not its=20 protection also be invoked to secure the many from an unauthorized = exercise of=20 power by the one? Is not the existence of the state governments as fully = recognized in the Constitution of the United States as that of the = national=20 government? If the states may [**21] not exercise a power = which might=20 menace the general government, should not that hand also be held back = from the=20 throat of the former, though the pressure be at present ever so = slight?
"True, the national government is our = government, and we=20 will not anticipate an attempt by it at our destruction as a state, but, = as the=20 Chief Justice remarked in discussing this very question in = M'Culloch v.=20 Maryland, 'this is not a case of confidence.'"
As to the powers of the federal and state governments, we = refer to the=20 following authorities:

The states as = independent=20 sovereignties possessed prior to the creation of the general government = what is=20 known as internal [*401] police power, and that power was = not=20 surrendered to the general government, but is still retained by the = states. Mr.=20 Justice Story, in Prigg v. The Commonwealth of = Pennsylvania, 16=20 Pet. 625, says: "To guard, however, against any possible misconstruction = of our=20 views, it is proper to state, that we are by no means to be understood = in any=20 manner whatever to doubt or interfere with the police power belonging to = the=20 states in virtue of their general sovereignty. That police power extends = over=20 all subjects within [**22] the territorial limits of the = states, and=20 has never been conceded to the United States."

The=20 police power of the states was very fully discussed by the Supreme Court = of the=20 United States, in The City of New York v. Miln, 11 Pet. = 139,=20 wherein it is said: "But we do not place our opinion on this ground. We = choose=20 rather to plant ourselves on what we consider impregnable positions; = they are=20 these: That a state has the same undeniable and unlimited jurisdiction = over all=20 persons and things within its territorial limits, as any foreign nation, = where=20 that jurisdiction is not surrendered or restrained by the constitution = of the=20 United States. That by virtue of this, it is not only the right, but the = bounden=20 and solemn duty of a state to advance the safety, happiness and = prosperity of=20 its people, and to provide for its general welfare, by any and every act = of=20 legislation, which it may deem to be conducive to these ends; where the = power=20 over the particular subject, or the manner of its exercise is not = surrendered or=20 restrained, in the manner just stated. That all those powers which = relate to=20 merely municipal legislation, or what may, perhaps, more properly be = called=20 internal police, [**23] are not thus surrendered or = restrained; and=20 that, consequently, in relation to these, the authority of a state is = complete,=20 unqualified, and exclusive.

"If we were to = attempt a=20 definition, we should say, that every law came within this description = which=20 concerned the welfare of the whole people of a state, or any individual = within=20 it; whether it relate to their rights, or their duties; whether it=20 [*402] respected them as men, or as citizens of the state; = whether=20 in their public or private relations; whether it related to the rights = of=20 persons, or property, of the whole people of a state or of any = individual within=20 it, and whose operation was within the territorial limits of the state, = and upon=20 the persons and things within its jurisdiction. But we will endeavor to=20 illustrate our meaning rather by exemplification than by definition. No = one will=20 deny that a state has a right to punish any individual found within its=20 jurisdiction, who shall have committed an offence within its = jurisdiction=20 against its criminal laws. We speak not here of foreign ambassadors, as = to whom=20 the doctrines of public law apply. We suppose it to be equally clear, = that a=20 state has as much right to guard, by [**24] anticipation, = against the=20 commission of an offence against its laws, as to inflict punishment upon = an=20 offender after it shall have been committed. The right to punish or = prevent=20 crime does in no degree depend upon the citizenship of the party who is=20 obnoxious to the law. The alien who shall just have set his foot upon = the soil=20 of the state, is just as subject to the operation of the law as one who = is a=20 native citizen."

There can be no doubt that = Congress=20 possesses the power to determine who may, or may not, make contracts, = and=20 prescribe the manner of their enforcement, in the District of Columbia, = and in=20 all other places where the federal government has exclusive = jurisdiction; but we=20 deny the power and authority of Congress to determine who shall make = contracts=20 or the manner of enforcing them in the several states. Nor is there any = doubt=20 that Congress may provide for the punishment of those who violate the = laws of=20 Congress; but we utterly deny the power of Congress to regulate, = control, or in=20 any manner to interfere with the states in determining what shall = constitute=20 crimes against the laws of the state, or the manner or extent of the = punishment=20 of persons charged and convicted with [**25] the violation of = the=20 criminal laws of a sovereign state. In this State marriage is treated as = a civil=20 contract, but it is more than a mere civil contract. It is a = [*403] =20 public institution established by God himself, is recognized in all = Christian=20 and civilized nations, and is essential to the peace, happiness, and = well-being=20 of society. In fact, society could not exist without the institution of=20 marriage, for upon it all the social and domestic relations are based. = The=20 right, in the states, to regulate and control, to guard, protect, and = preserve=20 this God-given, civilizing, and Christianizing institution is of = inestimable=20 importance, and cannot be surrendered, nor can the states suffer or = permit any=20 interference therewith. If the federal government can determine who may = marry in=20 a state, there is no limit to its power. It can legislate upon all = subjects=20 connected with, or growing out of this relation. It can determine the = rights,=20 duties, and obligations of husband and wife, parent and child, guardian = and=20 ward. It may pass laws regulating the granting of divorces. It may = assume,=20 exercise, and absorb all the powers of a local and domestic character. = This=20 would result in the destruction [**26] of the states. The = federal=20 government cannot exist without the states, but the states could exist = without=20 the federal government, as they did before its creation. There is no = necessity=20 for the destruction of either. The authority of the federal government = begins=20 where the authority of the state ceases. The state government controls = all=20 matters of a local and domestic character. The federal government = regulates=20 matters between the states and with foreign governments. There is, and = can be no=20 conflict between the state and federal governments, if each will act = within the=20 sphere assigned to each. The necessity for states and local = self-government is=20 shown by the character of our people. The customs, habits. and thoughts = of the=20 people in one state differ widely from those of the people in another = state, and=20 this results in different laws.

The laws of = this state=20 provide that males of the age of seventeen, and females of the age of = fourteen=20 years, not within the prohibited degrees of consanguinity, are capable = of=20 entering into the contract of marriage. The statute provides that the = following=20 marriages are void: when one of [*404] the parties is a = white=20 person, and the other possessed [**27] of one-eighth or more = of negro=20 blood; and when either party is insane or idiotic, at the time of the = marriage.=20 Under the police power possessed by the states, they undoubtedly have = the power=20 to pass such laws. The people of this State have declared that they are = opposed=20 to the intermixture of races and all amalgamation. If the people of = other states=20 desire to permit a corruption of blood, and a mixture of races, they = have the=20 power to adopt such a policy. When the legislature of the State shall = declare=20 such policy by positive enactment, we will enforce it, but until thus = required=20 we shall not give such policy our sanction.

This=20 subject is discussed with great ability, clearness, and force, by the = Supreme=20 Court of Pennsylvania, in the recent case of The Philadelphia and = West=20 Chester R. R. Co. v. Miles, 2 Am. Law Rev. 358, wherein it = said: "The=20 right to separate, being clear in proper cases, and it being the subject = of=20 sound regulation, the question remaining to be considered is whether = there is=20 such a difference between the white and black races within this State, = resulting=20 from nature, law, and custom, as makes it a reasonable ground of = separation. The=20 question is one of difference, [**28] not of superiority or=20 inferiority. Why the Creator made one black and the other white, we do = not know,=20 but the fact is apparent, and the races are distinct, each producing its = own=20 kind, and following the peculiar law of its constitution. Conceding = equality,=20 with natures as perfect, and rights as sacred, yet God has made them = dissimilar,=20 with those natural instincts and feelings which He always imparts to His = creatures, when He intends that they shall not overstep the natural = boundaries=20 He has assigned to them. The natural law which forbids their = intermarriage and=20 that social amalgamation which leads to a corruption of races, is as = clearly=20 divine as that which imparted to them different natures. The tendency of = intimate social intermixture is to amalgamation, contrary to the law of = races.=20 The separation of the white and black races upon the surface of the = globe is a=20 fact equally apparent. Why this is so, it is not necessary = [*405] to=20 speculate; but the fact of a distribution of men by race and color is as = visible=20 in the providential arrangement of the earth as that of heat and cold. = The=20 natural separation of the races is therefore an undeniable fact, and all = social=20 organizations [**29] which lead to their amalgamation are = repugnant=20 to the law of nature. From social amalgamation it is but a step to = illicit=20 intercourse, and but another to intermarriage. But to assert = separateness is not=20 to declare inferiority in either; it is not to declare one a slave and = the other=20 a freeman; that would be to draw the illogical sequence of inferiority = from=20 difference only. It is simply to say, that, following the order of = Divine=20 Providence, human authority ought not to compel these widely separate = races to=20 intermix. The right of such to be free from social contact is as clear = as to be=20 free from intermarriage. The former may be less repulsive as a = condition, but no=20 less entitled to protection as a right. When, therefore, we declare a = right to=20 maintain separate relations, as far as reasonably practicable, but in a = spirit=20 of kindness and charity, and with due regard to equality of rights, it = is not=20 prejudice, nor caste, nor injustice of any kind, but simply to suffer = men to=20 follow the law of races established by the Creator himself, and not to = compel=20 them to intermix contrary to their instincts."

We fully=20 concur in, and indorse the doctrine above enunciated. It is quite clear = to us,=20 [**30] that neither the fourteenth amendment nor the civil = rights=20 bill has impaired or abrogated the laws of this State on the subject of = marriage=20 of whites and negroes. The court erred in quashing the indictment.
The judgment is reversed, and the cause is = remanded, with=20 directions to the court below to overrule the motion to quash the = indictment,=20 and to place the appellee upon his trial for the crime charged in said=20 indictment.

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