Anti-Marriage Laws of the United States
In the United States twenty-seven and a half states have laws against so-called mixed marriages; seventeen make no mention of them, thus making them legal; while one, Michigan, expressly provides that the marriage of white and black is legal.
The anti-miscegenation laws of the twenty-seven and a half states, when viewed nationally, as say the marriage laws of France, England, or any of the other countries of the New World, present a pattern so confused that it is fantastic. It is no exaggeration to say that in their freakishness and the mix-ups they have caused, especially in the inheritance of property, they could very well have been composed by a congress of prize lunatics in the heart of a madhouse at the craziest season of the year.
Hardly any two of these states agree on what degree of Negro strain constitutes a bar to marriage. Certain of them as Arkansas, California, Delaware, Idaho, Kentucky, and Louisiana declare marriage between a white person and a “mulatto” illegal. Now in strict ethnology a mulatto is the offspring of an unmixed white and an unmixed black. But in America, one with only one-sixty-fourth Negro strain, is sometimes called a mulatto. The result is that the definition of “mulatto” can be twisted to suit every wind of prejudice. In Louisiana, for instance, the state with the greatest percentage of Negro strain in the white population, one in whom the Negro strain is no longer visible, can be adjudged a mulatto. In 1938, a Louisiana court annulled the marriage of a white man to a woman whose great-great-grandmother was a Negro. In fact, if a white person in some way has associated long enough with Negroes as to become known as one, he is likely to run afoul of the marriage law if he marries a white person. R. W. Woolley reported such a case from New Orleans when the present anti-miscegenation law of Louisiana came into force in 1908. He says, “Decidedly the most perplexing case with which the district attorney of New Orleans had to deal was that of Stanhope P. Turnbull and his wife, Charity Turnbull. The man is a grandson of a former United States District Judge and a nephew of a former administrator of the city of New Orleans. The woman claims to be the daughter of a German named Gottlieb Lindermayer and to be white, although she has two colored children … She says that years ago she began associating with Negroes, was promptly dropped by her white friends completely and soon became known as a colored person. Her first husband was a Negro, she rides in the Negro section of the street car and a Negro preacher married her to Turnbull. Moreover, at the time of her marriage to Turnbull, the Reconstruction law permitting white and colored persons to wed had not been repealed.”6 This elderly couple went to Mississippi, probably either to escape the publicity or because they were ordered out of the state, but they were sent to prison and the marriage annulled. Mrs. Turnbull, by all accounts, looked as white as her husband. One of her sons was at the time one of the most highly respected lawyers of the city.
In Oregon, a citizen with less than a fourth Negro strain in a direct white line was adjudged white and could marry a white person but could not marry a quadroon or a mulatto. In Alabama, Florida, Indiana, Maryland, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Tennessee, and Texas the bar is against those with an eighth or more Negro strain. In Georgia, Montana, Oklahoma, and Virginia the prohibition is absolute. Negro strain, however remote, is barred. The Virginia law provides that if there is any “ascertainable” Negro strain, the marriage is illegal. That is to say, if certain cousins of Queen Elizabeth II, were to migrate to Virginia, husbands and wives would have to separate or run afoul of the law. These cousins are members of the Mountbatten family. The present head of this family, David Francis, third Marquess of Milford Haven, is a grandson of the Countess Torby, who is a descendant of Pushkin, whose Negro strain is very much “ascertainable.”7
The matter becomes still more ridiculous when one remembers that next to Louisiana and South Carolina, Virginia has, perhaps, the greatest amount of Negro strain in its white population. Miscegenation started in Virginia in 1630. Virginia’s marriage law is as fantastic as the distorting mirror of a dime museum. Numbers of Virginians have had to change their “racial” status not less than three times since 1866. In 1866, those with less than a quarter Negro or Indian strain, were white; in 1910 the proportion was raised to a sixteenth; in 1924, the law provided that there must be “no trace whatsoever” of other blood than Caucasian. Feeling that even this was not strong enough the law in 1930 was finally made to read that if there were any “ascertainable” Negro strain, that is, if one could dig back a thousand years and find a Negro in any white American’s ancestry that white man became a Negro. Thus, as I said, Virginians who were white in 1866, ceased to be so in 1910; those who remained white in 1910, were no longer so in 1924; and so on to 1932, because the law was again tinkered with in that year. The penalty on mixed marriages is now one to five years’ imprisonment.8
As for the Indian, the process has been much the same. Intermarriage with one in any degree is barred. The law declares that if one has a fourth or more Indian strain and less than a sixteenth Negro, he is legally an Indian provided he remains on the reservation. If an “Indian” leaves the reservation, however, he becomes a Negro. The real Indian has ceased to exist, by law, in Virginia.
In Georgia, the law as to who constitutes a Negro has also been changed in similar manner, with the result that there are complications from time to time in the inheritance of property. In May 1943, one Mrs. Irish, a white woman, claimed the $10,000 estate of her cousin, Mrs. Jones, a Negro woman, almost white and married to a Negro, on the ground that when Mrs. Jones was married she was legally a white person. The law making one of her ancestry a Negro was not passed until 1927.9
In Oklahoma, marriage between white and Indian is legal while that between Negro and Indian is illegal. The Osage or Oklahoma Indians are wealthy. There are several oil millionaires among them. But the Osage is much more Negro than anything else.10 The rule is that if such live on the reservation they are Indian, no matter what they are. Thus while a Negro who is an “Indian” may marry a white person on the reservation he’d go to prison if he married a Negro from the city, should the law be strictly enforced.
In Louisiana too, a Negro and an Indian may not cohabit or marry, although the real Indian of that state disappeared centuries ago into the Caucasian and Negro groups, principally the later. In North Carolina, Negroes and Indians (there are really no Indians) may marry, provided the “Indians” do not come from Robison County. Georgia includes natives of the West Indies in its prohibition.
For freakishness, Colorado takes the cake. While mixed marriages are legal in the southern part of the state, they are punishable with two years’ imprisonment in the northern part.11 The southern part of the state was settled by Spain and was permitted by the state constitution to keep its marriage laws. The northern part was settled by the Anglo-Saxons.
As Vernier says in his analysis of these laws, “There are several points of variation and conflict in the statutes prohibiting miscegenetic marriages. Those prohibiting marriages between whites and Negroes differ widely in their definition of “Negro.” Fourteen, in general terms prohibit intermarriage between a white person and a “Negro” or “mulatto,” or persons African descent; five apply the prohibition to the descendants of Negroes “to the third generation inclusive”; while six apply it to those having one-eighth or more Negro blood; one to those having one-fourth or more of Negro blood; and one to persons having one-sixteenth or more Negro blood. Two states includes “mestizoes” (the offspring of an Indian, or a Negro and a European or person of European stock); four states extend the prohibition to Indians; and in two, marriage between Indians and Negroes is prohibited….
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