UNITED STATES CIRCUIT AND DISTRICT

COURTS,

FOR THE FOURTH CIRCUIT.

United States Circuit Court, Eastern District of Virginia, at Richmond, May 14th, 1879.

EX PARTE EDMUND KINNEY.

There are two classes of privileges attaching to an American citizen, to wit: (1) those which he has as a citizen of the United States; and (2) those which he has as a citizen of the State where he resides as a member of society.

The Fourteenth Amendment of the United States Constitution forbids the States from abridging the privileges belonging to a person as a citizen of the United States; but does not forbid the States from abridging the privileges belonging to their citizens as citizens of States.

Marriage is a privilege belonging to persons as members of society, and as citizens of the States in which they reside, and may be abridged at the will of the States in which they reside.

Marriage, though a contract, is more than a civil contract, and is not affected by the clause of the 10th section of 1st article of the Constitution forbidding a State from passing any laws impairing the obligation of contracts.

A prisoner who has been prosecuted and imprisoned by his State for violating a law of his State relating to marriage, cannot be released by a United States court on habeas corpus, on the ground that such law violates the Constitution or a law of the United States.

Section 1977 of the United States Revised Statutes, giving to all persons the

same right of making and enforcing contracts as is enjoyed by white persons, only extends to lawful contracts, and does not extend to a marriage declared void by the law of the State of the parties to the marriage; and this, whether the ceremony of marriage was performed in that State or in another State, where such marriage was legal, if the parties to it go out of the State of their residence in order to evade her laws, and return to live and cohabit in the State in positive violation of her express law.

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Statement of the case.

ON petition praying that the writ of habeas corpus be addressed to Samuel A. Swann, superintendent of the penitentiary of Virginia, in whose custody the petitioner is detained.

This petition was addressed to the judges of the United States Circuit Court for the Eastern District of Virginia, and was heard at Richmond on the 13th May before Judge Hughes, who rendered his decision on the following day, denying the prayer of the petition and dismissing it.

L. L. Lewis, United States Attorney, appeared for the peti

tioner.

James G. Field, Attorney-General of Virginia, appeared for the Commonwealth of Virginia.

Kinney's petition alleges that for five years he has been a resident of the county of Hanover in this State; that he is of the negro race; that he is confined in the Virginia penitentiary in violation of the Constitution and laws of the United States; and prays for discharge from such confinement. The petition states that in October last petitioner and Mary S. Hall, a white woman, visited Washington in the District of Columbia, and were there legally married; that they soon thereafter returned to Hanover County, and there lived together as man and wife; that they were subsequently arrested, tried and convicted by a State court for feloniously leaving the State of Virginia for the purpose of marrying, and for having married in the District of Columbia, and for having returned to this State and cohabited; that upon such conviction they were each sentenced to serve a term of five years at hard labor in the penitentiary, where they are now confined. Petitioner claims that a marriage lawful in the District of Columbia, is lawful everywhere in the United States, enabling those so married to live together as man and wife in any part of the United States, and that any State law forbidding them to do so is contrary to the Constitution and

Opinion of the court.

The following is the decision of the court:

HUGHES, J.-The question presented by this petition involves so seriously the relations of the Federal courts to the laws of the States and their administration by State tribunals, that I shall be excused for giving a carefully considered and painstaking explanation of the ground of my action in this matter. Leaving out of the text such words and clauses as have no application to the case, the following are the provisions of law relating to the jurisdiction of this court on the question of awarding a writ of habeas corpus on this petition :

Section 753 of the Revised Statutes of the United States provides that the writ of habeas corpus shall, in no case, extend to a prisoner in jail, unless (among other instances, of which this is not one) "where he is in custody in violation of the Constitution or a law of the United States." Section 754 requires that the application for the writ shall be in writing, setting out the facts concerning the petitioner's detention, verified by affidavit ; and section 755 authorizes the writ to issue, "unless it appears from the petition itself that the applicant is not entitled thereto."

The writ, therefore, is not issued as a matter of course. Whether it shall go out or not depends upon the facts presented by the petition, showing whether or not the petitioner's detention in jail is in violation of the Constitution or a law of the United States. If it appears from the petition itself that the Constitution or a law of the United States has not been violated in the petitioner's arrest and imprisonment, then, of course, the writ must not go out. It is essential, therefore, to inquire whether, in the facts stated by the petition, the Constitution or any law of the United States has been violated; and first, I will consider whether there has been a violation of the Constitution.

It must not be forgotten that the Federal courts are forbidden to issue the writ of habeas corpus in favor of a prisoner in jail under conviction of a State court, unless the petition itself makes a case for jurisdiction under section 753. I am to inquire whether the averments in this petition release me from that inhibition. I can imagine no subject on which the Federal courts ought to be more considerate in assuming jurisdiction.

The petitioner here is a negro man; but the question of issu

Opinion of the court.

ing the writ does not turn upon any provision of the Constitution relating particularly to race or color. It is only the Fifteenth Amendment which makes special mention of that subject, in providing that the right of a citizen of the United States to vote shall not be denied or abridged on account of race or color. No other provision relates particularly to the distinction of race or color. And as no question of voting is raised in this case, we have no concern with the Fifteenth Amendment. The question here is one of marrying, and there is nothing in the National Constitution expressly forbidding a State from abridging the right of marrying, or indeed any right but that of voting, on account of race or color. The Fifteenth Amendment embodies the implication that a State may abridge any privileges of its citizens other than that of voting. No provision of the Constitution relating particularly to the colored man as such has been violated by the State of Virginia in the prosecution, conviction, and imprisonment of this petitioner.

If any constitutional provision has been violated at all, it is only some general provision relating to the rights and privileges of citizens at large. Is it contended that the 1st section of the Fourteenth Amendment has been violated? That section declares that "all persons born in the United States are citizens of the United States and of the State wherein they reside," and provides that "no State shall make or enforce any law which shall abridge the privileges of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws." This section, after declaring that all persons born in the United States shall be citizens (1) of the United States and (2) of the State wherein they reside, goes on in the same sentence to provide that no State shall abridge the privileges of citizens of the United States; but does not go on to forbid a State from abridging the privileges of its own citizens. Leaving the matter of abridging the privileges of its own citizens to the discretion of each State, the section proceeds, in regard to the latter, only to provide that no State "shall deny to any person within its jurisdiction the equal protection of the laws."

Thus it is seen that the Fourteenth Amendment itself classifies the privileges of citizens into those which they have as "citizens

Opinion of the court.

of the United States," and those which they have as "citizens of the State wherein they reside;" and this classification has been abundantly recognized, illustrated, and enforced by the Supreme Court of the United States in numerous decisions. See Trustees of Dartmouth College v. Woodward, 4 Wheaton, 629; Gibbons v. Oden, 9 Wheaton, 203; New York City v. Miln, 11 Peters, 133; Scott v. Sandford, 19 Howard, 404-6 and 580; License Tax Cases, 5 Wall. 471; Paul v. Virginia, 8 Wall. 180; United States v. Witt, 9 Wall. 41; The Slaughter House Cases, 16 Wall. 36; United States v. Reese et al., 2 Otto, 214; and United States v. Cruikshank et al., 2 Otto, 542. See also Corfield v. Coryell, 4 Wash. C. C. 371; United States v. Petersburg Judges of Election, 1 Hughes, 505; and The Federalist, No. 45.

The rights which a person has as a citizen of a State are those which pertain to him as a member of society, and which would belong to him if his State were not a member of the American Union. Over these the States have the usual powers belonging to government; and these powers "extend to all objects, which, in the ordinary course of affairs, concern the lives, liberties (privileges), and properties of the people; and of the internal order, improvement, and prosperity of the State." Federalist, No. 45. "The framers of the Constitution 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;" Chief Justice Marshall, speaking specially of marriage, in the Dartmouth College Case, 4 Wheaton, 629. Their powers extend, of course, to the control of the domestic relations of all classes of citizens of a State.

On the other hand, the rights which a person has as a citizen of the United States are such as he has by virtue of his State being a member of the American Union under the provisions of our National Constitution. For instance, a man is a citizen of a State by virtue of his being native and resident there; but if he emigrates into another State he becomes at once a citizen there by operation of the provision of the Constitution of the United States making him a citizen there; and he needs no special naturalization, which but for the Constitution he would