
    Doc. Lonas v. The State.
    COKSMUMOSTAT. Law. Intermarriage, or cohabitation of negroes and whiles, The act of 1870, c. 39, making it a felony for white persons and negroes to marry or cohabit together as man and wife, is a valid act, liot affected by the Constitution of the United States, the Civil Rights bill, or Enforcement law.
    STtOM 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 Eights 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 Eights 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 Grabbers 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 Cb. Blackstohe, p. 432, m.; Bishop on Mar. and Div., § 29; Shelford on Mar. and Div., 2; Dickson v. Dickson, 1 Ter., 110, 112; 1 Meigs’ Dig., § 1059; Grisham v. Ligan, 2 Yer., 589; Clayton v. Wardell, 4 Comst., 230; Story’s Confl. of Laws, § 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 malee and enforce any civil contract that was legal between other citizens of the United 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 TJ. 8. 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 II., 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., § 125; 2 Kent, 457; Bashaw v. The State, 1 Ter., 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, §§ 79-81; Medway v. Needham, 16 Mass. E.., 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., § 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 introspective and ex post faeto, 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, cannot 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. The privileges of a citizen of the United States, affect him in his foreign relations, and in his constitutional guarantees under the Constitution of the United States; against bills of attainder; ex post facto laws; laws impairing the obligation of contracts; the guaranty of a republican- form of government; the right as a citizen of one State to the privileges of citizens in other States. Under the 13th Amendment, he may claim personal freedom, and under the 15th, the franchise. There may be others, but these are the principal rights, privileges and immunities of a citizen of the United States. In fact, up to the time of these amendments, there was no such thing, except to foreign states, as a citizen of the United States. How far this is creative of a new relation, need not be discussed. The negro is invested with new rights; but does not the old citizen hold his old right by the old muniment? Is he not still a citizen of his State? If so, the rights which the negro 'acquires are like to his; that which the Chinaman born here, acquires, are like to his.
    Marriage is in no sense a privilege which the citizen has, as a citizen of the United States. They have never attempted to regulate marriage in a State, and they have no right to. It is not claimed or held of the United States, but of the State. If the courts of the United States can ever have the right to take cognizance of the question of marriage, it is as they do many questions arising under State laws and in the administration of State laws, between parties whose status as citizens of different States, or the like, is the ground of their jurisdiction. The right of a man as citizen of the United States, might include the right of a citizen of one State in which he had contracted a valid marriage, to have the lawfulness of his marriage recognized in another, or the lawfulness of his issue acknowledged. But he can not come here and claim all the rights he held in his own State. There he could vote; here he can not, for a time at least. That right was as perfect there, as to live with his wife. There he might hold office; here he can not. By what warrant, then, will he claim a right here, which we deny to our own citizen? The right! to shock the public sense by a mixture of incongruous breeds. Take the case of the Mormon, and allow his marriages to be valid at home; can he come here and defy the public sense by keeping a seraglio here? The marriages of the Turk are valid at home, and his issue •would all be legitimate by our law; but would Ave be obliged to allow him to keep his numerous Avives here? Admit Utah as a State, and this question might be a practical one. But it has nothing to do with the case. The plaintiff in error is not shown to have been the citizen of any other State, or to have contracted a marriage there. The rights of citizens of other States are not involved in this case, and the discussion of that question throAVS no light on this. All that the record shows, is, that before this indictment these parties had gone through the forms of marriage, when it was prohibited by law, and for all that appears, when it was a felony. Has the State the power to regulate the marriage relation? .Does it abridge the privileges of a citizen of the United States, to prohibit him from marrying his cousin, or his deceased wife’s sister, or a blind person, or a deaf mute, or a lunatic? If he has that right as a citizen of the United States, to take it away would abridge his privilege. Could he, as a citizen of the United States, resist such abridgement? If he held it as such, he could. If not, it is because he holds his privileges in this regard, of the State.
    This party is not protected by the clause prohibiting laws impairing the obligation of contracts, on two grounds. It is one thing to impair the obligation of a contract; another to prohibit beforehand, the making of a contract. Here was no contract; such marriages being prohibited from time immemorial. It stands as a contract on the footing of gaming contracts, usurious, illegal, fraudulent or unwritten contracts, declared beforehand to be void. These violate no obligation — they prohibit it. After a valid contract is made, the State can not for any of these causes, declare it void by retrospective law. This marriage, then, being subsequent to the law making it void, is never a contract.
    But marriage is not a contract. It is a relation, or a status. The authorities say that it is a civil contract. They might as well say, that, because I bought my horse, my horse is a contract. Neither my horse, nor my relation to him of owner, is a contract. My property is the result of contract, but my property is something diffei’ent from the process by which I acquired it. Is the fee in land which we hold by deed, itself a deed, or a contract of which the deed is evidence? "Was it a contract when my vendee held it; when the government owned it? It was then disembodied of any suda quality; did it become a contract when it passed from the government, or when?
    Marriage is based on contract; the result of contract. It is like a title in this, that it is affected by contract; but unlike a title in this, that the marriage originates in and is created by contract. The title only passes by contract, is not created by it. But the thing created, the marriage relation, and the thing which creates the relation, the contract, are distinct things. It is not proved to be a contract by the fact that a contract to marry is valid. A contract to marry is not a contract of marriage. If it made the parties man and wife, no suit would lie on it, because it would perform itself. But marriage is the performance, and a refusal to marry is the breach. The contract being made and valid, and consummate by the natural bond of sexual connection, the relation has begun. But the relation is as distinct from the contract as the contract of marriage is from the contract to marry. That this relation is subject to the law of the State, without any restriction from the Constitution of the United States, is too clear for argument. A few cases can be found against it, but the numerous divorce cases in this and other States, leave it beyond question. It was not one of the contracts which the Constitution of the United States had in contemplation. A reference to the history of the period preceding the formation of the Federal Constitution is the best guide to the construction of that clause. The evil to be remedied was, that States had declared parties relieved from their contracts, and this affecting creditors beyond the States, was felt to be an evil which 'would justify a constitutional prohibition. On the ground, then, that there never was a valid contract of marriage here, and if there had been, it was not such contract as was within the meaning of the Constitution of the United States, this cause of objeciion must fail.
    What is it that prohibits distinction of race, &c.? The 14th amendment prohibits the denial of equal protection of the law. The Civil Rights Bill says that every citizen, without regard to race, color, or previous condition of servitude, shall have the same right in every State and Territory, “to malte and enforce contracts, to sue, be parties, give evidence,” &c. This made no change in the law of Tennessee. Every one of these things, except as to evidence, was the law of Tennessee from the time it was a government. As soon as the slave became free, he could make and enforce contracts, sue, and be a party. Nay, so jealous was our Constitution of real principles, that, from 1834, when the right of the free negro to vote was denied, the right to tax his person was taken away by the Constitution. The act of Congress of May 31, 1870, is somewhat more full. It declares that “all persons within the jurisdiction of the United States,” shall have the same right in every State and territory “to make and enforce contracts, to sue, be parties, give evidence, and to full and equal benefit of all laws and proceedings for the security of persons or property, as zs enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and none other”
    
    The same right to make and enforce contracts; what contracts? such as are made and enforced. The contract to marry can not be enforced, specifically executed, any where. The contract of marriage is never enforced. The words make and enforce, denote clearly that the contracts spoken of are the ordinary contracts of commerce and business: the contracts of which the Constitution, Art. 1, s. 10, treats. If not, the negro is to have the same right; not one superior to the white. This does not give him a right to make a contract with a white man which the white man is prohibited from making with him. This is impossible and absurd.
    It is said, this is discrimination against the negro. Ideally, those laws were intended to repress the white race, and not the negro. The negro was not considered as hurt by the intermixture of the white race, but it was the deterioration of the white race that was against policy. The parties were both punishable, it is true, but there was never an instance of the negro being subjected to the infliction. It was not then aimed especially against the blacks. Is it any more so now, as to the contract. They have the same right to make and enforce contracts with whites that whites have with them, but no rights as to the white race which the white race is denied as to the black. The same rights to contract with each other that the white have with each other; the same to contract with the whites that the whites have with the blacks, but not a superior right of a negro to many a white woman, when a white man can not marry a negro. If the males of one race had the right to appropriate the females of the other, while that right was denied to the males of the other race, there might be some foundation for the charge of discrimination.
    The contract of marriage was never interfered with by Congress before, and if these acts can have such a construction as to exclude marriage from their operation, without manifest violence to the language, the established rules of construction will require that it should be done. In statutes generally, marriage is not spoken of as a contract. In our State it is solemnized, not contracted!. The contract is subordinated to the family relation.; "We depart from the true principle of construction if we make contract include this relation, when it has its whole ordinary scope in protecting the ordinary contracts elsewhere regulated in the Constitution.
    There is no discrimination, as will be seen the moment we eliminate the prejudice of class. The Mosaic law forbade the Jews to gender animals of a diverse kind together. Was there discrimination there between the horse and the ass? Would a law now against breeding mules be a discrimination? If so, against which animal? Is a law against breeding mulattoes any more so? This is the substance of our law, to prevent the production of this hybrid race. To prevent violence and bloodshed which would arise from such cohabitation, distasteful to our people, and unfit to produce the human .race in any of the types in which it was created.
    The equality intended, is not equality in all things, but equal protection of laws and proceedings for the security of persons and property. Of habeas corpus, warrant on oath, freedom from unreasonable searches and seizures, trial by jury on indictment or presentment, and the like. No prohibition of discrimination is found in the law. That is a preconceived idea of the advocate.
    
      
       This disposes, too, of the question of &e post fado laws. The facts do not raise it in any form. It would amount to nothing, 0if it was raised in that form, for it is the “cohabitation” which is the offense, and that is subsequent to the law.
    
   SNEED, J.,

delivered the opinion of the Court.

This case involves the grave question, whether a -white person and a negro may lawfully intermarry, or cohabit, as man and wife, in this State. The prisoner is a negro, and was indicted, tried and convicted, of the offense of cohabiting, as man and wife, with one Kebecca Teaster, a white woman, on and before the 10th of January, 1871, in the county of Knox. He was adjudged to suffer confinement in the Penitentiary for two years and six months, and to reverse said judgment, he has appealed in error.

The Act of 1870, c. 39, forbids the intermarriage of white persons with negroes, mulattoes, or persons of mixed blood, descended from a negro to the third generation inclusive, and their living together as man and wife in this State. The statute is in the identical words of the Constitution of 1870, art. 11, s. 14, the last clause of which imposes upon the Legislature the duty of enforcing the provision by appropriate legislation. The second section in the statute is in the words following: “The persons knowingly violating the provisions of the first section of this act, shall be deemed guilty of a felony, and upon conviction thereof, shall undergo imprisonment in the penitentiary not less than one, nor more than five years; and the court may, in the event of a conviction, on the recommendation of the jury, substitute in lieu of punishment in the penitentiary, fine and imprisonment in the county jail:” Shank. Sup., 102.

It is contended by the counsel for the prisoner, in an argument of much force and ability, that the statute of the State for the regulation of its internal polity upon the subject of marriage, and the provision of our organic law upon which it is founded, are repugnant to the constitution and laws of the United States, and, therefore, null and void. It is certainly true that the supreme law of the land, in this country, is the Constitution of the United States, and the laws made in pursuance thereof, and the treaties made or which shall be made, under the authority of the United States, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding: Con. U. S., Art. VI, s. 2. And “whether the State law is organic, in its constitution or any ordinance, or whether, it be a statute, if it violate the constitution, laws, or a treaty of the United States, it is simply void, and the courts of every State are bound by the supreme law, and not by the State law:” Marbury v. Madison, 1 Cr., 137; Calder v. Bull, 3 Dall., 386; Satterlie v. Mattison, 2 Peters, 380; Ex parte Garland, 4 Wall., 399; Paseh. Anno. Cons., 250. But it is the glory and the boast of our written constitution, that the powers of the law-makers are restricted and defined; and while it is the legitimate and lawful province of the Supreme Judicial Tribunal of the Union to determine the validity of a statute assumed to have been enacted under the authority of the organic law, it is no less the prerogative of the State tribunal to interpret its own State laws, and to pronounce upon their compatibility with the supreme organic law. And to this end, they may look beyond a statute of the general government which seems to collide with the law and polity of the State, to ascertain whether such statute is made in pursuance of an authority vested by the supreme organic law. For it is not every Act of Congress that the “judges in every State” shall be bound by, but only such as are passed in pursuance of the authority granted by the Constitution. And this power of a State Court to pronounce upon the validity of an Act of Congress which is made to operate upon the people, subject to the jurisdiction of said court, has been exercised from the foundation of the government, of which we have a notable illustration in the action of half a dozen State courts within the last few years, in declaring the Stamp Acts of Congress, so far as they changed or interfered with the rules of evidence in the State courts, to be unconstitutional and void. Until the Supreme appellate tribunal of the Union shall declare otherwise, that question is at rest in the States whose courts have so decided. The government of the United States being one of limited powers, is, therefore, supreme only to the extent of the granted powers; and all laws upon the rights, duties and subjects specially enumerated and confided to its jurisdiction, are necessarily exclusive and supreme: Sims’ Case, 7 Cush., 729. If, therefore, a law be enacted not authorized by the enumerated or clearly implied powers, it is not in the sense of the constitution the supreme law of the land, and the courts of the States are not bound to carry it into execution. But the Supreme Court of the United States is the tribunal of last resort on all such questions, whose judgment is conclusive and final upon the question, whether an Act of Congress be or be not the supreme law of the land: Ableman v. Booth, 21 How., 519. When it it is so .declared, it is as much the duty of the State courts to accept and enforce it, as it is their province and duty, in the first instance, to question its validity, and decline to enforce it, when in their judgment it has been enacted without authority.

“Among .the powers,” said Judge Curtis before the late amendments, “unquestionably possessed by the States, was that of determining what persons should and what persons should not be citizens; and each State must deter- . mine,” said he, “what civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost:” Scott v. Sandford, 19 How., 583.

In the evil days to which we have brought ourselves by our late unhappy feuds, we are too apt to forget the moorings of the law, where our fathers left us. While it is our first duty to respect and obey every valid law that emanates from the law-making power of the Federal Government, yet we are too prone to magnify the civic powers of a government which has so lately crushed a dozen great States by an exhibition of military power that might have defied the world, and, lawyer and lawgiver, court and commonwealth, to bow without question to the civic will of the victor.

The Goths of ancient Germany, it is said, were accustomed to debate every important measure twice in their councils; once while drunk, that their debates might not lack.vigor, and again, while sober, that they might not lack discretion. Now, that we have returned to the blessed paths of soberness and peace, when human rights and human wrongs are to be vindicated and redressed by the laws of the land and not by the logic of the bullet and the bayonet, it is well to look .back upon our landmarks which our fathers have set, and ascertain what rights the States have not been bereft of as the result of the late unhappy civil war. And prominent and paramount among these, is the provision that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and to the people: Art. 10, Con. U. S.

The powers delegated to the United States, and those prohibited by it to the States, are ascertained and defined by the terms of the Constitution itself. “Those which are to remain in the State governments,” said Mr. Madison, “are numerous and indefinite. The power reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberty and properties of the people, and the internal order, improvement and prosperity of the State:” Federalist, No. 45. Perhaps, we will be unable to find embodied in a few words so correct an idea of the general powers reserved to the States, as in this brief observation of one who was, without disparagement to his renowned compeers, the best authority, living or dead, upon the sense and meaning of our fundamental law. The Congress of the United States has never, from the foundation of the government, interfered with the internal polity of the State, in regard to marriage or the other domestic relations, and we apprehend it never will. Those things have been left where the Constitution left them, and where Mr. Madison left them, to the States which control all matters “that concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.”

But it is said that old things have passed away, and all things have become new; and that the late amendments which give freedom to the slave, and confer upon him the right of suffrage, and guarantee to him the equal protection of the law, vouchsafe to him, also, the right of intermarriage with the white race. The fourteenth amendment to the Constitution of the United States, or so much of it as is important to be considered here, is in the following words: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

What is called the Enforcement Act, which was passed to give effect to the provisions of the fourteenth amendment, as applicable to the question before us, is as follows: “All persons within the jurisdiction of the United States, shall have the same right in every State and Territory of the United States, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions, of every kind, and none other; any law, statute, ordinance, regulation or custom, to the contrary notwithstanding.”

The Civil Nights Bill, passed to give effect to the thirteenth amendment, which gave freedom to the slaves, is substantially and almost literally the same as the foregoing. The Enforcement Bill became a law on the 31st day of May, 1870, and the Civil Nights Bill several years before.

If the African, in this country, has been elevated to a perfect equality in social, as well as political, rights with the Caucasian; if that race can claim at all the right to marry and be given in marriage with the sons and daughters of our people, it must be claimed alone by virtue of the foregoing amendments and the laws enacted for their enforcement. The State, then, is forbidden from making and enforcing ■ any law which shall abridge the privileges and immunities of citizens of the United States. It is said that “the words rights, privileges and immunities/' are abusively used, as if they were synonymous. The word rights, is generic, common, embracing -whatever may be lawfully claimed. Privileges are special rights, belonging to the individual or class, and not to the mass; properly, an exemption from some general burden, obligation or duty; a right ■ peculiar to some individual or body. Immunities are rights of exemption only — freedom from what otherwise would be a duty or burden:” Bates on Citizenship, 22. “These privileges and immunities,” said Washington, J., “may be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good, of the whole.

The right of the citizen of one State to pass through or reside in any other State, for purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold and dispose of property, both real and personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; to which may be added the elective franchise, as regulated and established by the laws and Constitution of the State in which it is to be exercised: Corfield v. Coryell, 4 Wash., C. C., 380. These are some of the privileges and immunities intended to be guaranteed to the citizen, “subject,” says the learned Judge, “to such restraints as the government may justly prescribe for the general good of the Avhole.” There are many others not herein enumerated, and upon which the courts will decide as the cases arise: Conner v. Elliott, 18 How., 591. The right of intermarriage among the races is, in the opinion of the Court, not one of them. Nor is marriage a contract, in the sense of the Constitution, which may be “made and enforced.” It is called, in many of the books, a civil contract, for the want of a better phrase.. A contract, in the sense of these enactments, is such an agreement as may be specifically enforced, like a contract to pay money or to deliver property. Marriage is a mere covenant of the will; it may be considered, while executory, a contract, the breach of which is expiated in damages; but it reposes upon the consent of the parties. If that consent is withdrawn, there is no such thing known to our law as its specific enforcement. It, therefore, differs essentially from that species of contract contemplated by the Constitution, which may be made and then enforced in the courts, and the obligation of which can not be impaired by the legislative department. In the ecclesiastical law, it is defined to be a covenant between a man and a woman, in which they mutually promise cohabitation and a continual care to promote the comfort and happiness of each other. It is an institution of God, and a very honorable state. The Saviour honored it by his presence, and at such a solemnity -wrought his first miracle; Buck Tlieo. l)ic., 261; Heb. xiii.; Gen. ii.; John iL “It is the civil status,” says Mr. Bishop, “of a man and a woman, united in law for life. In the sense in which it is dealt with by a decree of divorce, it is not a contract, but one of the domestic relations. It derives both its rights and its duties from a source higher than any contract of which the parties are capable; and as to these, it is uncontrollable by any contract they can make. Although it may be formed by a contract, yet when formed, it has none of the attributes of a contract, but becomes a domestic relation. And,” says he, “it is no more a contract than a fatherhood, or sonship, or serfdom, or slavery, or apprenticeship, are contracts:” 1 Bish. Mar. & Div., 10. “Thus,” says Robertson, C. J., “marriage, though in one sense a contract, because, being both stipulatory and consensual, it can not be valid without the spontaneous concurrence of two competent minds, is, nevertheless, sui generis, and, unlike ordinary or commercial contracts, is publiei juris, because it establishes fundamental and most important domestic relations. And therefore, as every well organized society is essentially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and useful of all, is regulated and controlled by the sovereign power of the State:” Maguire v. Maguire, 7 Dana, 181. It is said again, to be the particular glory of the social system; and the idea that any government could, consistently with the general weal, permit this institution to become merely matter of bargain between men and women, and not regulate it by its own power, is too absurd to require a word of refutation:” 1 Bish., 13; 2 Story’s Confl. Laws, § 108; 1 Id., § 200. The highest and holiest duty of every government is to provide for the happiness and general welfare of its people. How and in what manner this is to be best subserved, is a question for the political power; and the police power, which is inherent in all governments, is to be exercised without question. These powers, like privileges and immunities, heretofore considered in this opinion, can not well be enumerated. “The framers of the Constitution,” said Marshall, C. J., “did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government; and the instrument they have given us is not to be so construed:” Dartmouth College v. Woodward, 4 Wheat., 518-629. These police powers of the State extend to every conceivable subject, where the good order, the domestic peace, the private happiness or public welfare of the people demand legislation. Unless that legislation is inhibited in the fundamental law, no State has acquitted itself of the duties of government without it. We hold that such legislation is not, never has been, and never should be, prohibited to the States, in reference to the intermarriage of the races. It has been repeatedly held by the Supreme Court of the United States, that a State may determine the status of persons within its jurisdiction: Groves v. Slaughter, 15 Pet., 419; Moores. Illinois, 14 How., 13; 11 Pet., 131; Story Const., §§ 1098, 1804, 1809. The right to regulate the institution of marriage, to classify the parties and persons who may lawfully marry, to dissolve the relation by divorce, and to impose such restraints upon the relation as the laws of God and the laws of propriety demand, has been exercised by all governments, and in all ages of the world. The discrimination as to race and people, in this most important institution, has been observed, even from the days of the patriarchs, and even as to different people of the same race. “Thou shalt not,” said Abraham, “take a wife unto my son of the daughters of the Canaanites, among whom I dwell; but thou shalt go unto my country, and to my kindred, and take a wife unto my son Isaac:” Gen. xxiv. The laws of civilization demand that the races be kept apart in this country. The progress of either does not depend upon an admixture of blood. A sound philanthropy, looking to the public peace and the happiness of both races, would regard any effort to intermerge the individuality of the races as a calamity full of the sad dest and gloomiest portent to the generations that are to come after us. They are among us. They were ; faithful as slaves, and are becoming useful and valuable/ as laborers. There is scarce a family in the South that has not some memory, fresh and grateful, of affection and fidelity in these people during the late sad war. These should commend them to the protection and charity of our people. The courts will protect them in the enjoyment of every civil right guaranteed to the most favored citizen; for such we understand to be the sense of the amendments. Their rights, social, civil, political and religious, will be jealously guarded; but they must not marry or be given in marriage with the sons and daughters of our people. Such was the policy of our own legislation, as to bond and free, fifty years ago, and was at the time of the amendments in question. Such, also, were the laws of the British Colonies in this country, reenacted after the separation by the thirteen States. In Massachusetts, the Colonial act of 1707, entitled “An Act for the better preventing of a spurious and mixed issue/’ was reenacted under the State government in 1783, forbidding tlie intermarriage of the black and white races, and degrading the unhappy issue of such marriage with the stain of bastardy. > And long after the abolition of slavery in that State, in the carefully revised Code of 1836, this “mark of degradation/’ says Taney, C. J., “was again impressed upon the race.” 19 How., 413. And such, indeed, we believe, was the law of every State. The Congress has the same right to regulate this relation in the District of Columbia and in the Territories, that the States have within their own jurisdictions; and this power is at this moment being exercised in Utah, in the suppression of polygamy. Ve are of opinion that the late amendments to the Constitution of the United States, and the laws enacted for their enforcement, do not interfere with the rights of the States, as enjoyed since the foundation of the government, to interdict improper marriages; and that the, act of 1870, c. 39, which forbids the intermarriage of white persons with negroes, mulattoes or persons of mixed blood, descended from a negro to the third generation, inclusive, and their living together as man and wife, in this State, is a valid and constitutional enactment.

Affirm the judgment.  