STATE V. TUTTY.
753
contemptfl of their authority by disobedience or resistance to any lawful writ or process of theirs, among others. That this was a lawful writ of execution and process of this court is not disputed. That the ent, by printed circulars and by words, represented to bidders and ob· servers that it was irregular and invalid; and so in respect to matters which 'did not in fact and which they could not know of; and that anyone purchasing under it would be sued by him, and involved in pr<r tracted'litigation, fully appears. This is said to have been done vertently, to avoid seeming acquiescence in alleged irregularities of the proceedings and disposition of the property levied up<>n. The plain effect of the proofs is that more than this was intended. The clear intention. to defeat the operation of the execution by deterring bidders from purchasing is 'This was a resistance oLthe process, .and es· ,pecially.so, in view of the fact that the respondent is an experienced atacting as such in the proceedings. Upon these considerations the respondent must be adjudged guilty of contempt oithe authority of this oourt resistance to that process.. In the case, of In re Ohiles, 22 Wall. 157"the respondentwllS adjudged guilty ofcontempt of an injuncUnited States by giving notice in Eng, tionoftpe land ofaclaim ,to bonds which were the subjects oftbeinjunction. A due'respect for the administration of justice requires the process of courts to be obeyed. Such conduct as the respondent is shovvn to have been guilty of cannot, with propriety, be lightly passed over. The punishment by imprisonment will not, in view of the confessions and apologies of the respondent,be imposed. In the axu of Chiles a fine of $250 was impo{l9d by the supreme court, with costs. This case is quite as aggravated as that, but the costs here are probably greater than 'The respondent is adjudged guilty of contempt of the authority of this cotirtby resistance to the execution, and is thereupon ordered to pay a,firie of $200 to the United States, with thecoets of .this proceed. ing, 850 for January 2, 1890, and to stand committed to the'custody of the marshttI until the fine and costa are paid. r,
STATE V. TUTTY
et ale 1890.)
(Circuit Oourt, S. D. Georgia, E. D. 1. HAR1U-i.e. BETWEEN WU1TE PERSON
By policy ot the state of Georgia, relations between white persons and persons of African descent are forever prohIbited, and by the statutes of the state suoh marriages are declared null and void. .
NEGRo-STA'rUTBS Oll' GBORGI.l.
These statutes have been held to be in accordance with the constitution by the supreme appellate tribunal of the state. ' ,
LAW.
.
.'
v.41F.no.13-48
,75'4 .'. " .: '4. CONS,TJl1?U1l1QN4L
FEDEIUI.. REPORTER,. OF
vol. 41. j "'" """ ..;.,., "'j
'.l'hEl of marriai'eie. not a." contract, " within'the, nieaning o{the'provlsion in the conlttitution 6f the trnited States prohibitiIig states from·impairing· the, obli.gationQfa PQJi:tI'act" " ,,; :',';', ':, ,. , ' . . .. ' .:.' ,i"., "u {
Marriage Is more t1i.a:n II odntrllct; it is all institution' which is tne fOundation of the 1amll'y and':of sooiety.: "The rights and, qulllifioattQnll of the thereto . " d.epe.Jld ¥..P9Jl. t.,hl' legi.Sla.tioD, ',.0.f., tbe st.l!ote,..fIoB contrOlled, .for thebElnept of the entire by,:lltiIi6ip16Iiofpu'bUopo\ic;t. ., ". " " ", , ··:' ·iL..hvg;;...M.utBUGBj 'J . " .' ' " " ,: · · , :" .' Wbl'lre ,thi!r to the of between persons in a state, and wbo'leave it With'the purpose tOSQlemni:m the marriage . "fl, elseWhel'El,l1l6"evaue sUeh l l&iwil,' but intel1<ling to ret1n!ti.anCl 'lmltherein,the marI; :;, nage may to 9rcquaUfiQ3tions depeii.cllng on or.11ke condition. . . ., :,.:i; ,', 1
6. S,UUIl.
L1
h.:-::'(;'::-':.}.,T'
'
.,dllcting tjlElJ;ll.orals marriage' 'will be held'V01d.
"Ie', When,:howem,the marr1age, is inhibi1:l;1d 'by a pOJitivep\>!,illY ptthe state, as
qfl\ociety, and leading ,to"seJ.1,ous BocialElyils .· .: '.. : . . ' , ' I" ' . ,. . , , ,
i'
:,11.
. polioy:and REMOVAL
penal· laW's,'
:affords tberule:
.· ' &11'
triari,; and'Ward; mQ"e iUt& 'tlie'l.fuitlld staUlJ.' :,'tion forremoTlIoIJ.#M "j
wereTitidlcted'in the state
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penaing .1l.gaiD&f.tb. .
llOurt of
pe.,
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ii
..,": , ..l." t ' ,. .
:" W. 'I, James Atkins,· ,..... . ' ': , V) iSPEER,
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J;" It;apPee1.a "from it4er m9ti(m . tel
f ;'. .;::-:'·l;<'..
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...
a,s,from
(, tIle. petition for' relUli)N'all ibl(forn ·that: -iT-ntty bai3 [been forman-yf c,GlUnty, lJinthis· sta.te. '. The,. grand jury, CQQuty, against Tutty wit.b [Qf, .. 9n the 1st day of April; 1889, and at other times, with one Rose Ward) a woman of African descent, and formerly a slave, also a citizen of the state of Georgia, and domlcilediri the county of Liberty. It appears, further, that after the indictment waS found the said Tutty and the said Rose Ward, or Rose Tu'tty\, a's ,sh-e' calls -herSelf, repaired to the District of Colum .. are und?rstood to be the laws 01' the 'Umted States for 'that di!3trrat At the tnal ..wit, 18811, .11J¥l.,:p/l}WteJhe ,above mentioned, both of th.erplirties indicted,'p1'esented :tothe'state court peti-1' t.Wps, .for,. t116 f9r. inN t cputtof the United States for this district.T.he, petition8}arepract.ically . I
(R6se'Ward or
are in· the·petition','f.existed'a1Flt time when she .Ret;1\lop¢r.'s cir:::.ic . . _ .L."'" _, ..'. '/ ..
. ere
if
he,
STATE'll. TUTTY.
751)
ciimstances hi which he and were andaI'e secured from lawful prosecution in the manner attempted in said case." ,That petitiouer had been duly married to said Rose in the District of Columbia, and the acts which are charged to have been done, "if done at all, were and are under their lawful executed contract of marriage with each other, in full accordance with the r:equirements of the laws then in force in said District of C(}lumbia." Petitioners further state that the prosecution against them is based upon a law of Georgia forever prohibiting the relation ofmardage between white persons and persons of African descent. That suoh law denies to the petitioners the right secured to them by the constitution and laws oUhe United States providing for equal civil rights of themselves and all other citizens of the United States to protection against tlie laws in a state, impairing the obligation of contracts. The Honorable RoBERT FALLIGANT,of the superior court, declined to entertain these motions; whereupon the defendants filed in this court a certified transcript of the record of the proceedings of the superior court, and on the first day of the term, the court having been notified thllt the SolicitorGen,eral of the eastern judicial circuit, who is the counsel representing the state of Georgia in its criminal prosecutions, would move to remand the Causes to the court whence the transctiJ!t was taken, regularly assigned the hearing of thE! said motion for triaL The motion to remand, which the court reqUired. to be in Writing, presents several grounds: (1) It is insisted the case should be rem'8inded because the defendants made no appearance in, the state court; 'and that their bonds were estreated; that their counsel, James Atkins, Esq., admits that he advised his client to remain away from said state court, as it was not necessary that, they should be there in person when said motion. for removal (2) Because it appears that the indictments against tbe defendants,charged the offense to have been committed on the 1st day of April,'1889, whereas it is not pretended that the alleged: marriage !06kplace until the 15th day of the same month. (3) Because the defendants have been citizens and domiciled in'the county of erty for many years; that the defendant Rose Ward was born atllave; that they removed to Chatham county after the finding of the indictment, but .that while domiciled in the county of Liberty, and citizens of the state, they wentto the District of Columbia, and were married there in order to evade the laws of the state of Georgia, prohibiting marriages between' whites and. blacks, and that immediately after said marriage they returned to the county of Liberty. The defendants filed affida\'1ts to the ef1ect that their liveswould have in danger had they attended court in Liberty county, as they were bound to do by their bond; but. they dd·. not· indic!1te any satisfactory' or crerlible ground for the statement,' Withoutl::iestowing very great attention on the technical urged for remanding these cases, it. is, in the opinion of the Court, the,wisest and best course to consider and; decide the motion'upon important question which it. presents. Does theJaw 9f the stl1ote, which prohibits and makes voida l:>etweenindi... of the Caucasian and. of the, African races, deptivlt
756
FEDERAL REPORTER, vol. 41.
the parties in this case of theH rights guarantied to them by the constitution and laws of the United States; or, to state the question as it is more narrowly presented by the petition of the defendants, do these - statutes of the state have the effect :to violate the obligation of a marriage contract,inthe sense in which ,the constitution of the United States inhibits state action which violate$ the obligation of a contract? It would, perhaps, be impossible to overstate the importance of this question under the.grave imd unsettled relations which exist between the distinct races now inhabiting a large portion of these United States, and it will be neither wise nor patriotic for the court to evade the vital point of cision,as might perhaps be done in this case. B)r 8. settled policy of thisstate,-a policy adopted with the purpose to preserve,as far as the laws may accomplish that result, thll purity and distinctness' of the races inhabiting the state,..,-it is declared, (Code, , § 1708:) "Thefuarriltge relation between white persons and persons of African de8centis prohibited-, and such marriages shall be null and void. n, Section '4572, 'Code, affixes theplfnalty for adultery or forni<;:ation betweeq inp,ividualsof the, this section the indictments against thl:! cierendants were,found. as follows: , Section ..All marriages a;nother state by parties'intending at tbe time legal conseqllences and effect as if to reside in solemnized ip, .tliis .Parties residing in tbis state cannot evade any of the provision'gOf its laws as to marriag'e by going into another state for the solemnization of the marriage ceremony." - It will thus be seen how Clearlyrecognized and distinctly fixed is th"; purpose Of the state of Georgia to. prohibit within its borders, miscegenation, as the resqlt of marria,gesbetvve.en the white and black rllces. These st.atutes have received judicial construction by the of the its judges were widely known, not 8l0ne for their state at a conservatism, their- devotion to the copstitutiOli of the common country, their broad and tolerant of opinion, but also for their profound _, . learning and conspicuous In Scott v.State, 39 Ga.. may be fqund: Leopold Daniels, a FreMhuian, had Charlotte Scott, a negro woman. They were indicted for cohabHing, aQd thus the question arose. Chief Justice. E. BROWN pronounced the unanimous opinion of the court, ofwmch the other I)lembers were the Honorable H. K. MCCAY, more lately tlle. United States judge for ,the, .:Northern district of Georgia, and the, Honorable -HmA)! WARNER) afterwards himself the illustrious Chief Justice of the state. Of the law, Chief Justice BROWN makes these ' do to say that it was 4ictated by wise statesmanship, and uas abroad and solitffoundation in policy, sustained by sound reason and common sense. , The amalgamation of the races is not only unnatural, but it is always productive of deplorable results. Our daily observations show us that the offspring of these unnatural connections al'egerierally sickly
V. TUTTY.
757
and effeminate, and that they are inferior in physical development and strength to the full blood of either race. It is sometimes urged that such marriages should be encouraged for the purpose of elevating the inferior race. The reply is that such connections never elevate the inferior race tl? the position of the superior, but they bring down the superior to that of the inferior. They are productive of evil, and evil only, without any corresponding good." The court was unanimous that the law was constitutional, and the con.viction of the parties was affirmed. An identical conclusion was reached by this court, Judge ERSKINE pronouncing the decision, in the' Case of Hobbs, a white man, and MarthaJohnson, a colored woman, (1 Woods, 537.) The section of the Code abo\'e quoted was interpreted, and was held to be not an infraction of the fourteenth amendment of the constitution of the United States, or of the laws congress has tnade for its enforcement. In the course of his opinion, page 540, Judge ERSKll\E said: "Nor, I apprehend, is marriage, considered to be embraced within)hat clause of section 10 of article 1 of the national constitution which prohibits the state from passing any law impairing the obligation of contracts." He declaration pf Chief Justice MARSUALL in Dartmouth col,. lege v. Woodward, 4 518; that,"the provision of the constitution never has been understood to embrace other contracts than those which respect prQpertyor some object ofvalue, and confer rights which may be asserted ina court of justice. It never has been understood to ra.strict the general right of the legislature to legislate on the subjectofdi.· vorce." In another part of the opinion, the, Bame great magistrate sa.id:framers of the constitution did not intend to restrain the states in ihe regUlation of their civil institutions, adopted for internal governmenL" Judge ERSKINE: ,concludes that it is plain that the institution {}f marriage is not technically a contract, nor can it be said to be related io property. He quotes the declaration of Mr. Bishop: "All oQr marriage and divorce laws * * * are state laws and state· statutes; the national power with us not having or judicial cognizance of the matter within these localities." 1 Bish. Mar. & Div. § 87. Calling attention to the fact that the..state marriage regulations did not deny to a ,citizen the equal protection of the laws,-for the punishment or penalty . .adjudged to the colored citizen found guilty of fornication is like that, and none other, which is inflicted onthe white citizen,-he holds that the' .sectionl:? of the Code of Georgia which inhibit marriage between white persons and persons of African descent, and which provide for th'e punishment of the colored and white persons who are found guilty of the ..crime of fornication, are not in violatic;m of the constitution of the United state Murts·. The conStates, and ihe relators were remanded to clusion of Judge ERSKINE, that the marriage contract is not contemplated by the prohibition of the constitution. of the United States against the impairment of contracts by state legislation, has been, subsequently to the rendition of the decision aQovequoted, fully sustained bytwo .decisions of court, of the United States.. In the case of Maynard "v. RiU, 125 u.. S.190,8 Sup. Ct. Rep, 723, it was held that marriage·
758'
I'EDERM;1UlPORTER, '''\701.
41.
thari .Ii thoogh'founded" uppn an agreeWhell'{mce formed, hetween they a,ud of ea()hdepend ,not tl;1WF ,agreement, but upon or comm<m,. ' Jtis an institution' of society, regulated llnd'controlletl by therefore, affecting, thisJnstitution, or atihullitiga relation betweeh is not within th,e of the the United Bt,ates agaiusnhe impairme,ntof a contract by legisIatioJl. It may be observed that this decision was rendered effect annlllliug a A fortiori thisannouncemimtwill, conttolwith to the legis1Rtion of it state. :FIELD instructive wIth to the nnp()rtant controversy. before the90u,rt. On page 205,f25U. 's., and page 726,8 Sup.Ot:R(1p., of the he de'" creating the most im'portant relation inlife, as havdo with the morals ,and' civilization of a people than any has beensubjepttothe control ofthe legislature. " He cites many cases where the legislatures of states have annulled marriages.'He calls attention to the facfthattbis power was formerly exercised by-th& parliament ofEngland;!:aJ!ld'lt may, with reason, be asked, if this' power ,has been formerly exercised 'by state legislatures after a marriage' has been contracted,may itnot,with oNorce .llnd reason, beexl:lrtedtlY:prevent themaft'iage,ifit would be objeCtionable and contrary'to:public policy? Upon the mam'point·on which the defendants bere rely,' the learned justice 'says: I' '''l'hebnlY inClonsistencisl1ggested is that it impairs the . of the contract of marriage. ASSUming thilt. the'prohibition of the federal constitution Hgalnst the:impai ot contracts by :state legislation applies eq lIalIy, 3swould seellJ tq be the opinion,ofthe sllpreme court of ,the territory, to legwe are cJllaf that marriage Is not a contract, witl,lln tije meaning of the He quotes' the language of Chief Justice BUpra. With. relerence to marriage, ,he says : ' ,'''It flian'institution in flhemalntenahce of which infts pUrity thepubJic is deeply interested, for it is the: foundationtof the family and without' which tbere would view is well ex- . py the!,:upreme cour,t ,of Mai neln i14amsv. Palrne1'; 51,Me. 481,
ment 'bytbe'parties.
It will he interesting and important· to consider the 'language of this case','whichJusticeFIE:LD quotes witbll.ppro.val. Cbjef'Justice ApPLETON declares:' . : .,' ,'. .'" r... , , ' , , ' J .the contracting haveen'tered intotlie" 'Jjlarried state, they ha'V'e'notso mUdlientf>redinto aeontrltct Its ;ioto a neW relation, the rights, aM duties, 'and' bbligationSlOf which rest not upon ,theiragrt'ement, but upon. general law: ,oft!le sta,te,.,statlltory: QrCOmmOll, 'wbf<oh d"llines and preSl,:fl bes .tllOlle.rjghts, Ii IIties,. and. .· lire .ot law, not of tract. '.' . :':.1 '" ,The.i.. I'lgqts lindeI'. the .will of the by Jaw. '''' '" "', It not, 8 contra,ct, within the nleani use of the constitutibn \v hicl! .prol,ibits It is, rather,a social relation, ... "'the
I.'
f.
....
F'·
STATE tI. TUTTY.
759
-"'.
_creation of the lawitsillt. A the mO,st important, as affectingth.e happiness of individualtt; q!6 from barllarismto incipient civilization; the purest tie of social Iife-; lind the trile basis of human progress."And the learned chief cites, 'in supportof this opiniOll, tliibase of Maguire v.Magui?'e,'l Dan1,t, 181, 183, and 4'R,'L&7, 101. In·the first of these-, the supreme court of Kentucky held that mittriage was morethall a'contractjthat it \vas the most elementaryand-useltil sovereign' power of the state, and might be abrogated -by, the sovereign will whenever the .pul?licgoodwould.thereby.be lriibserved; that'-,being 'more, thana, contract, and' depending especialli upon ,the sovereign' ",i'll, "it was not constitutional inhi,b1.tion of legislative:acts -impairiniftheobligation ofcontra.cts,' ,Thesupreme court of Rhode,:fs.. -land, in the case above quoted; decl'ares it is not a: in the senSe -inwhich'lthe obligation ma.y not be impaired,bnt bile of relations.' In Wadev.Kalbjlef,seh,58 N. Y.282; it'iS bemoJ;e than a contract, its relations always regulated by the governmel1t.It ..partakes more of the of art: institutionj;regulatedand corttt'oll,ed authority, upon principles"ofpublicPd}\Cy; for ,the bElll,efltof ! In- ]YoeL · Ewjng" 9 lnd: , 'iti&,4e.clared to ,be" lC jn ,(Ivery, _ tb.\lsaq, o1;>jeQt,.of the deepest , The illustrious Story, in his great work on the Conflict of Law81(paragr.aph)08, noteJ ).fnllYElustains - ' , !:, . "It ,within t\16 tratioJi liouthority, that the is UQt, claus60f the constitution to:the state the pO\\ler-'to l'Ill'pair'corttracts." - , '-.- ,"
of
.."
."t·
·
,
·.,
"
j .l :
.. by QOtU't of 'States lU the case of Hunt ,v:.; Hunt, App. 131 U. S. cl,xv.: .:' \'AbIHlontfllct of matriageJs notal con,tract, meaning of tbe!proprohibiting ,statel!_ from impa.iring the obligation of c<mtracts,. . " -, - ' ., .. . . '
In the bfK.inney v. C'om., 30 Grat,858, tMprEicise question in1this ,case was'decided to the defendants hete,' ,Theta a negro'man and a white woman, in this-case;tQ:tHe . Districtot'Columblli, and were regularly married,and, afterretiiaihing <there lO.days,returnedto their'home re'side there 9.shusbandand ,Tl1elaw'ofYii-ginia, like thldilw of "Georgia,;t>rohibits marriages between white- P:etS9DS arid negroeS. ''It'was -held thtlittheparties were liable to indictment :inVirginia -iorlew-cland District Jasci\1ioos cohabitation;: that: the was a of the'laws of Virginia,ltlld 'oould not be pll3Aded i ih bar ofthepros6Cution.The'case is therefore precisely in point.-'there ,the arguinenrwasmad'e Hi.llt the laws of a slate; withreference'to-rilarriage;.cou1<l not operate ettriittrtitOT-iam. ·{Doriceding the' general- 1'\11e, the _learned'eOllrt ,pro'ceeded,to point-?utthe exceptions, citingMr: ,STotW iri'bi'S"wol'konthe-eonfiict ofUws,' § H 8 a i : " ' ! ,j':l;)
760
"Tlle,wost prominent, if not the only, known exceptions to the rule, are those'ml1rriages involving polygamy and inC<lest, -tb,ose positively prohibited by of a country. upon motives policy." CaEle at bar would, seem clearly within the latter classification. is made in the opinion fro.m which we quote to the case of Brook, 9 H. 'J,J. Cas. margo p. 193, bottom p. 145. In that case. William Lee Brook married in Denmark Mrs. Emily Armitage, his first wife's sister. The Ptlrdes were lawfully domiciled in England, and to 011 a temporar,rvjsi(. The marriage was lawful in . In a suit iu;nong the heirs of Brook, Vice-Chancellor STUART, with WhQIXl sat Mr. CREswELr."held that the marriage in Denthe w,of, upon thesubject, wholly ,'l'l;lr case, to the house of lords, and was there .con,sjqered With great <:lpinions were rendered by the Lord ST.· LEONARDS, and Lord The LOrd Chancel10rdeclared : '. .the forins of into t'he conLracts of marriage are to be regloci .. ",." the esseptialsof the contract depenq t,/1e ler» .domiciiU. ... .. ." .If the contract of marriage is such in contrltfyto the IMvof country of domicile, and it is declaredl'v(jid by'that law; be regarded as void in the country of domicile, though not contrary to the law of the country inwhicb it was cele..
All the law lordsconcurroowith opinion of Lord Chancellor. Thl;l is affirmed in this country, in N ortb (Wit535.; 'State V. Kennedy, 76 N. Ross, Id. 242';) and in Louisiana., (Dupre v. Boulard" 10 :La.. Ann. 411;) and the circuit court of the United States for the district of Virginia seems tOihiive 'concurred in the iopiniol1 the state conrt, in Kinney v. Com., above cited, (&parte KinneY, 3 Hughes, 1.) . '; The principle, as we have seen, is made the Jawofthestate of Georgia by the express statute quoted above. By statute, and by unbroken authority then, except by the case of Medway V. Needham, decided in Mas·sp,c;:husetts, such marriages, between parties domiciled at the time in the as \iec1ared void by the laws of the state; wiUbe held invalid, "no were contracted,· . .Tbecase o,fM¢way v.iNeedham, 16 Mass. 157-161, was the occasion olan interestiIlg and learned discussion of the conflict of laws relative to .1l1arriage, ljoJid especially, oUhevalidity of marriages between persons domiciled In II: who temporarily left it to evade its marriage laws, ,eStory, (J9n,fl. ::r.,aws, 230, note,) in which the distinguished auJpor,witb rnqflp..:pf Warrallt in the of its courts and the learning :1?f;itsjQQ.ge;s, fll:y'..ors,n9t u:nnaturally, the ruling in Massachusetts. An attentive of, the reasoning of the tex:t .and the note will 'Jl}akfil it, ,appea,r, qowever, that the authQrdhl not have in mind a case like that ,u,nder, con;sideration here. The true rule is stated with satisfactory clearnellS ip therecent case of Penn6{Jar v. State, 10 $. W. Rep. 305, (decided by the suprerl1-e court of TElnneallee on January ,29, 1889.)
STATE 'V. TUTTY.
7G1
Stating the general rule that a marriage valid where celebrated is valid' everywhere, the court calls attention to the exceptions. Of these the most important is a marriage, which the local law-making power has declared shall not be allowed any validity, either in express terms or by necessary implication. Marriages of this class are divided by the court into two subdivisions: (1) Where the statutory prohibition relates to form, ceremony, and qualifications; (2) marriages which are "prohibited by positive state policy, as affecting the morals or good order of society." J Dstice FOLKES for the court presented the distinction in the f()llowing language: "Where the statutory inhibition relates to matters of form or ceremony, and in soma respects to qualification of the parties," it is declared that'Cthecourts would hold such marriage valid here; but, if the statutory prohibition is expressive of a decided state policy as a matter of morals, the courts-must adjudge the marriage void as contra bono8 mores." To illustrate the proposition, the court cites the case of State v. BeU.7 Baxt. 9, where a marriage between a white person and a negro, valid in Mississippi, where celebrated, and where the parties were domiciled at the time of the marriage, was held void in Tennessee. There is in Tennessee, as in Georgia, a highly penal statute on this subject, and the court alludes in vigorous language to the "demotalization and debauchery involved in such alliance." Referring to the criticisms made in Medway v. Needham, by the Lord Chancellor in Brook v. Brook, 9 H. L. Cas. 193, aIidthe criticism of the latter case in Com. v. Lane, 113 Mass. 458, and to the case of Putnam v. Putnam, 8 Pick. 433, the court calls attention to the significant fact that in Putnamv. Putnam the supreme court of Massachusetts says: ". If it shall be fOllndinoonvenient or repugnant to sound principle. [the italics are ours.] it may. be expected that the legislature will explicitly enact Within another state. which if entered into here that marriages would be v4;)id, shall have no force within this commonwealth.' legislature dif;l shortly thereafter so enact; whether because the doctrine laid down in the case was inconvenient. or because repugant to sound principles. does not appear." . Justice FOLKES, in his interesting opinion,quotes also from the opinion of the Lord Chancellor in Brook v. Brook, supra, the following observation relative to Medway v. Needham: "Medway v. N,eedham is entitled to but little weight. and is based upon decisions which relate to form and ceremony of marriage. If a marriage is absolutely prohibited in any country as being contrary to pUblic policy. and leading to social evils, I think that the domiciled inhabitants of that country can· not be permitted. by passing the frontier and entering another state in which the marriage is not prohibited. to celebrate a marriage forbiddeu' by their own state, and. immediately returning to their own state. to insist on their marriage being recogniZed as lawful." We may add, with reference to the law and the policy of Georgia, that, whatever may be the difference between courts or countries in the opinion held and enforced upon this vital topic, this state, by its declaratory statute, has distinctly withdrawn its jurisprudence' from the domain of the debate. The statute is the rule as to persons domiciled: hi
FEDERA.J,.REPORTEB,
yol. 41.
Georgia. r sQlemnized in anotllar sta.te,c by· parties intendsame legal ing at the timejQ,l'eside ,in,this,stfl.te, shaUhave quencesa,nd as. if soletnllized; in this state. llartjeg residing in this state cannQt eVl\Q,e allY Qftl1e ,provisions ,of its laws a,s to marriage by going into anoth,eJJ s,tate for the of the marriage cer-emony." and preci$fl announcement of the policj of the state upon a,subject whil::h hivolvesthe character of its population und citizenship, ,and, aewa 8een, ,repeatedly declared ,by the supreme appelof our,country exclusively within. the precincts of conlate trol, the ,rule,for Qurguidance here. The general r,ule which the petitioners rely, viz.,. that a marriage valid where celebrated is valid every;wbere,; d.epends upon internl{tional con;lity,-:-a jl.Iri,sprudence exist. ingl in the sense,of mutual interest, ,mutual 'benefits; and mutual obligaandib.armony." Story,Confl. Laws, 183. BIl,to! tiO[l8to international comity, it was $flip pyChief J ustice TANEY in the decision i.nBank v.Etzrle,,'l», is the voluntary act of the nation by: whiobitis o.Uered',;and is i»!!-<lIl,lissiblewhen contrary to ita policy or prejudicial, to. itsinterest/'"Tbl,tt marriages between individuals of, 0aUC11Siah' of MricanfPl®ll are contrary to the policy of Georgia haveiaeen. it is prejudtcial to atate is for Georgia to mine. We have seen that the national constitution is not infringed. It ia inceriain senses,:the st.atea oHheAmerican UniOl,lare not dependent patiQ,ns, For all national' pl;lrpoSes embraced. by OO'natitution, aqdthe citizen.s thereof a,reOne, entitled under anl1'govern!ild by the same laws.. In other respects the states are foreign to and independent of each lJ'l¥ikperv. Pinley, 2"Pet..:589;t ppipionby,M:r. Justice W ASHJNGTOj'<. See, alsQ1 Dich'n3v. Beal,10Pet. 573; Rhode 18land v. Ma88a(;huaetta, i19 i; 'Pk9llAps \T.' Pa'!fM,92,U;:S. 132.: And the fourteenth anlendment to the ,constitution does thepowerof the 8tate toproteet 0(1. U; 9 Sup. Ct. Rep: ,207. '<The' court 'riot discoss the argument of defendants'. coqnsel .to effect that the intermarriages of whites, and blacks do not constitute injrtry against wlii'ch the state protect itself. This is a questiori which has been, its we have seeri;, the subject of repeated cial deliverances; but it is more properly,' in the opInion of this wltbiritherange of duty.' It is enough ,for thepmpose for .the court to l1scertain that by It legiti:mate and Mate 9£ Georgia uh)l1wful,ap,d mr, :while, in this, country, the home ,me of the People" tbeir deoeneyalld their morality, arethebas8s of thatvast',sacial structure of lib,:; e1"ty;, 'obedience to'law;'which i :the patfiootie, prideofhtir countrymen and the admiration of the wotldi and while tbese a!.ftributes oherished,and pr.otected by nll,jn ,autool'ity, pfP'll)';(litizenship $l1d ilthecreatures whodqfy them should 'be condemned by all, thlll .cotlr(;$, in their functions, are concerned with the polley . of,the;law8 are made topro:tect the community. The policy tbelstate this subject has been decl{!.red, as we have its
will
an
· SIDENBERG
v.
ROBERTSON.'
763
prema' Mutt 'as well as by its statutes,-and it is enough to say that this court is unable to discover· anything in that policy with which the federal courts have the right: 6'r the power .fcf'·interfere. A further discussion of the topic might give unmerited pain to many who are responsible for a condition which would make them keenly sensitive in its hearing or knowledge. . It may not be improper to state that the evils comprehended in this general subject are· decreasing. This tbe observation and testimony of superintendents of public instruction, who have theiopportunity to observe large numbers of colored children, prove to be true. Upon every possible consideration, thism ust be' deemed lin important, indeed an absolutely necessary, step towards the amelioration of their condition, and the permanent advancement of the race; and·to disregard the praiseworthy purposes and efforts of the colored people themselves, whether by DuHifyillg the laws made to prevent miscegenation, or by ignoring the vicious.pl'actices of the licentions, would ·be as-cruel to that race ·asit would be injurious to society, destructivE! to social order, and ruinous to the future of a large portion of the country,-a future with which the prosperity of the whole country is indissolubly connected. The questions presented are decided adversely to the defendants, and the indictments tt;lust be remanded to the state court, whence they were removed.
SIDENBERG
et at v.
RoBERTSON·.
«()(,retlittOO1llrt, S. D. NewYor1c. February 21,18110.)
1. ll.
OUSTOD DUTIES-CONSTRUCTION OF LAWS-TRAJ)E' USAGE.
Where words used in a tariff act have acquired among importers and large Cleal· ers a meaning different from that which they have in ordinary speech, sucll trade ,meanitlg is to be adopted in the interpretation of the law. To establish the fact that certain articles' are not to be included under a fPlneral term used tariff which in its common acceptation is broad enough to mclude them, it is not sufficient to show that they are always boul{ht and sold by certain specific names, and that the general term used in the tariff IS not used in lIuch commeroi,al t11lonssctions; this muat be supplemented by proof that the general term usedln the tariff has in trade a restricted meaning, which would exclude the articles in controversy. Cotton lace, made-up articles, such as collars, cuffs, tidies, borders, parasol covers, e,tc., though always bought and sold under their SpElcl,ftc names, are to be held dutiable as "cottonJace" at 40 per cen t. ad valorem, under the provision therefore in Schedule I of the tariff act of March 8, 1888, and not lIll. manufactures of cotton not specially enumerated or provided for, unless. it is established by & ance of evidence to the satisfaction of the jury that the term "cotton laces' basin trade &speclal restricted meaning, which would exclude such articles. It is thertght and duty of the· jury in weighing the testimony to consider the ex· tent to which witnesses are interested, pecuniarily Or etherwise, in the result of the litigation. . bll the C'ourto) OF WITNESSES· . LAOE-MADE-UP ARTICLES. :
-
..
BAME-CwsiirICATION-SPECIFIO NAMES-EviDENCE.
a.
;.At LaW.;; "Action to recover duties.
764
REPORTER,
vol. 41.
In 1885,plaintift' imported It variety of cotton lace, madei-Up articles; comprising collars, cuft's,.jidies, borders, parasol covers; etc. The collectorassesse.d upon these goods a duty of 40 per cent. ad valorem under the provision in Scheduk> I of the tariff act of March 3, 1883, for "cotton laces." The importer ..protested, claiming that these articles were dutiable at 35 per cent. only, under the provision in the same act and schedule for "manufactutes of cotton not otherwise provided for." This 5 per cent. clain'led to have been exacted suit was brought to in excess of the lawful rate. Upon the trial a number of witnesses called for, plaintiffs testified that the term "cotton laces" in trade was restricted to laces which were bought and sold blY the yard, and did not include made-up articles. Witnesses for defendant testified that the term" cotton laces" in trade had no Qther or more restricted meaning than it had in common speech. The testImony in behalf of plaintiffs came largely from importers of goods similar to those in suit, who admitteli on crossexamination that they were suing collectors to recover dutic::s exacted in excess of 35 per 'Cent. on such goods. Charlea Ourie and WiUiamStanley, for plaintiffs. Edward MitcheU, U. S.Atty., and W. Wickham Smith, Asst. U. S. Atty., for defendant. ,;
LACOMBE, J., (charging jury.) Prior to the passage of the tariff act of 1883, which lays the duty under which these goods were imported, the use to which they were put, and the perfection of manufacture which they had attained, adapting them to the use, was a very material question. ol<:},t'qriff act providing a certain particular rate There was a clause in of duty on "clothing, ready made, and wearing apparel of every descripor children, 'of whatever material tion, articles worn composed," with certain. exceptions. Of course, this catch-all clause compris:ed a gri;lutIIlanya.rliCli;ls which, except for that, would have been found elsewhere'in the,hldff act. In the act of 1883 that clause no .The incloslonger exists. It has been dropped Otlt'9f tariff Mre which it made around the 'particular group of articles'which it designated has been broken down, and the articles which were once contjained in it' have gone back ,to the particular places 'where, except for that section, laying a duty upon them accdrding to their use, they would ha-:e belonged. Therefore We gather no particular illumination in the determination of this case from decisions or discussions which were made /i'qd had while the act was in force, and by which, under such earlier act, these articles were classified as wearing apparel. Since the passnge of thepl'esent actth,ere have decisions rendered by the 'treasury department which you have beard read in evidence. They are not, of course,controlling on the cotlTtjand dealing, as they dOl with ar,ticles 1,l.S.: ch.enille .curtains, Swiss mull, Turkish. towels, and ladies' underweatembroideredin fancy patterns, they'donot aid materially in the solution of the question of classification raised as to th& articles now before us. This case, therefore, is in no material respect different from that of Olaflin v. Roberlson,B8Fed. Rep. 92, tried in this
ROBERTSON.
765
court in December, 1888, and I may charge you almost in the same language there used. The clause under which the collector has classified these articles is paragraph 325, as follows: "Cotton laces, embroideries, insertings, trimmings, .lace window-curtains, cotton damasks, hemmed handkerchiefs, and cotton velvet, forty per centum ad valorem." "Cotton laces" is the phrase in that clause by which, in the opinion of the collector and treasury departOilent, these articles are described. Turning, now, to the dictionary, that the word "lace" is thus defined "A fabric of fine threads oflinl;ln, silk, or cotton, interwoven in a net, and often ornamented with figures:" Had we only the dictionary to refer to, therefore, the articles before us would come within the classification of "cotton lacesi" that is, laces made of cotton. Your own experience of common speech would no doubt lead you to the same conclusion. Thera is in the Metropolitan Museum of Art in this city a very interesting collection of lace collars, lace flounces, lace fichus, lace handkerchiefs, and similar articles. These you would not yourselves be likely to refer to, except as a collection of laces, nor wouldyo.u expect anyone else to otherwise describe them. We are not, however, in these tariff acts, confined to the dictionary definition, nor to the usage of-common speech, in determining the mealling of words used by congress. ,The tariff laws impose duties upon importations of goods. Their framers use language that importers would understand; and where among importers which they have acquired by usage, things have dL,.erent from wpat would be the ordinary names, (that is, the names as understoodl?yordinary individuals,) weare to take the trade names; that is, the,nam!Jsby which importers and large dealers know them. III order to bring this case under the application of that rule, the plaintUl' has introduced testimony to the effect that these articles are bought and Bold, and are known in the trade and commerce of this .country, only by certain names,which I need not repeat to you, as you have heard the testimony·. He ha.s further examined his witnesses in order to bring out from them the fact that they are never bought, sold, or spoken of in the trade and commerce of this country as cotton laces. So far as the testimony is to the effect that these articles are always bought and sold as lace collars, tidies, borders, or what not, I do not know that there is much, if any, ,conflict, of evidence between the witnesses. But you will, of course, understand that the plaintiff has to cover with his trade evidence both descriptions of words,-the words under which the laces areactually bought and sold, and also the word or words under which he claims that they are not known. Of course, if the particular word or phrase by which they were bought and sold were one of the phrases or words in the tariff act, as soon as he had proved that the articles were bought and sold, and known in commerce, by that word, or phrase, he would have proved his whole case. But where the particular word, the trade meaning of which he proves is not in the tariff act, and that instrument contains only general words, he must go further, and prove not merely that the articles are bought by one particular trade name, but that the general words used in tariff act, which otherwise would cover them, do not
FBDERAJ, REPORTER,
voL 41.
'commerce. To illustrate:' "Linen,"'in' tbe dicas Uthfead or cloth made of flax or hemp." Now, 'froht4itten; 'cloth' rliremlJid-e' hem-stitched pocket' handkerchiefs. Testii -tnotly,merelytothe eff.edt that these hahdkerchiefswere never bought ,ahdsdldj in the trade by other na.me than" hem-stitched pocket handkllown'in the:tradeas "linen," would these goods Out of the clasBor linens, (if thegenerai word Ulin"tlns"was'usedin thEitltriffact,) unless it was also sh6wn that the word 'IHnens"hlJid been modifle<}ii'n trade trom' its actual meaning, and'was by-thei trade used solely!in! a restricted sense as coveringortly goods other than 'handkerchiefs.: WEi 'may take another iHustratidn:' Wheat; is a gra1l'i. no wheatwashever bought and sold in tradE! 'by any other na.me than uwinter wheat," that that WIlS the only with regard to it, and that it witSnevet known as "'graih!l in the trade, wo'Uld take it out of the classificatidn of Ugrains," umess·it-was alsoshowI1that the word "grain" had been distorted from its nilturalmeaning, and:was used by,the 'trade in a restricted meaning, covering (jnly cereals other than wheat. So, in the case before us, inorder tb take this class of a I'fabric- of fine threads of cotton, interwovenina net; and 'oftenbrnameritedwith figures'/' is within the dietibllary meaning of the Wol'ds out ofthat class, the plain,tiffmustsatisfyyou,by1a, fair preponderance of proof, that at the time ,this act was passed. (Match 3, 1883,) and prior thereto, the words "cotton laces" had in the trade and commerce oIthis c'6tintry (that is, in the 'trade and Commerce cartied: on' between importers and large dealers, in transactions at wholeeale l transactions where the parties on both sides 'of: transactl<>n were' in the business) a peouliar or teChnical meaning, and that such technical trade meaning excluded these articles. If he satisfies you of that; he is entitled to reoover; if he does not 80 satisfy you, then your verdict should'befor the defendant. If you reach different conclusions as to the diffurentarticles, (and there are several kinds of them here,) you will find s.eparatelya13 to· each.. ,I have several requests from plaintiff and defendant, which I shall decline to charge in the language in which they are couched. I think that! have covered most,if not all, of them. There is one branch that I have not referred to, and that is that, in weighing the testimony which is introduced in the case, you are entitled to consider, and it is your dut'y to consider, the extent to which the witnesses arelnterestE'd; pecuniarily or otherwise, (ifanyof them should be so interested,) in the result of the litigation. That is a circumstance which you may and should take ·intoacc0t:lnt in considering their testimony.'" ' 'oo,fetofltbem:in ;irade l
any
The jul'1 found a verdiotfor the defendant. ·
·:
JIt/lTED
·..
2'67
LAMAL '11. UNITED STATES.
(CiruwU
E. D. Lou18iana, March 18,1890.)
0tJ1l'fOHB DUTJlIB-Al'PRAIS!L-GLASS. , " Under 22'St. U. S. 496, which provides that p:lasslmportedin boxes containing 50 feet, single thick.1 Ilond weighing' not to exceed 55 pounqs, shall be entered 50 pounds of glass only, but in all other cases the duty shall be 'computed according to theactrial weight of the glass," a. box of glass containing 50 square feet, but weighing less than 50 should be computed as weighing 50 pounds.
On Writ of Error from District Court. G. A, ]1rea'I.tX and A. H. Leonard, for plaintiff in error· .fm., Grant, Dist. Atty. l " PARDEE, J. The ,United States brought suit in' the district court of this to duties claimed to be due upon cer.. tainimportations. ,of glass by, theplaiotiff in error.. The cause was sUbnlitted in the court upon the following, agreed statement of facts. ' ' " imported hltothe United States,through the port of New, Qrleans, in the petition of plaintiff, certai n of common win" dow-glass, in boxeacontaining. fifty square fel;lt, ... "'.'" now, known, and 'commonlydesigriated, as fifty feet of gl1J,sS single thick, dutiable under SChedule B, paragraph 138 of the Thats1\id glas8 was dUly entered and withdrawn for consumption by defendalit,who paid the duty as !iqUlq8,ted, and delivery of the glass. The dnty was then esti..: mated actual weight ot the several boxes of which. in every cw-as less than el'ch.Subsequently, the collector of cUflltdms decided that each of. thEl 8aid fifty feet SI;IOUld, be held and deemed to contain fifty pounds of dutiable glass, although their actual weight8 were less by several pounds; and, by advice of the secretary of the treasury, directed the duties to, be levied On each box as if it contained fifty poundiJ, and ordered the entries of said ,glass to be reliquidated in accord,bis decision, which was don!'l. ' :Upon tbis,reJiquidation, made in' accordance with said decision, the duties amounted to the. sum sued in. in excess of the amountpaid when the goods were 'W'ithdra'WIl. The due on the several entries, as reliquidated; was notified, to 15th day of April, 1889, and demand made for payment thereof by the collector. which was refused. The right to offer further proof at the trial of the case, subject to all legal exceptions, is reserved to both parties."
Upon the trial of. the case the court instructed the jury that, upon the agreed statement of facts, it considered there was no protest and appeal to the secretary, fl'om' the reliquidation, the defendant was concluded by it, apd he cc:mld offer no defense to the action. The defendant asked the court to instruct the jury. and in fact upon the directIon' treasury departI:ll,eI!t, throughJhe collectorof,custoolS,.tO levy and polstateo! facts,itw8st,he levy of duty'on the hiet; since, on weight of goods in excess of actual weight; that the only question was' whether the government could charge duty on window-glass weighing 1es8 than fifty pounds; and that to the decision of such a question by thecourtli it