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theretofore been enjoyed by the former citizens of the United States. It is quite probable that this clause had reference to the political rights and privileges of the persons who had by the first clause been made citizens of the United States and of the state wherein they resided. The purpose of the third clause was to protect the persons referred to and embraced in the first clause, in life, liberty, and property. The plain and manifest intention was to make all the citizens of the United States equal before the law in all the states of the Union. The fourth clause seems to have been added in the abundance of caution, for it provides in express terms what was the fair, logical, and just implication from what had preceded it, and that was, that the persons made citizens by the amendment should be protected by the laws in the same manner, and to the same extent, that white citizens were protected.
The fourteenth amendment contains no new grant of power from the people, who are the inherent possessors of all power, to the federal government. It did not enlarge the powers of the federal government, nor diminish those of the states. The inhibitions against the states doing certain things have no force or effect. They do not prohibit the states from doing any act that they could have done without them. The constitution was made for the protection of all citizens. It is adapted to our condition in every state of our national advancement. When new territory is acquired or new citizens created, the constitution extends itself over and protects the territory and citizen in the same manner that it extended over and protected the original thirteen states and the men who achieved our independence, and made the constitution, and formed the union of the states. From the Atlantic to the Pacific, and from the lakes to the borders of Mexico, it has stretched forth its cherishing arm over our people, and diffused its blessings on all alike. The only effect of the amendment under consideration was to extend the protection and blessings of the constitution and laws to a new class. of persons. When they were made citizens they were as much entitled to the protection of the constitution and the
laws as were the white citizens, and the states could no more deprive them of privileges and immunities than they could citizens of the white race. Citizenship entitled them to the protection of life, liberty, and property, and the full and equal protection of the laws. Nor has the ratification of this amendment in any manner or to any extent impaired, weakened, or taken away any of the reserved rights of the states, as they had existed and been fully recognized by every department of the national government from its creation. This amendment conferred citizenship upon persons of the African race, but we will hereafter inquire and decide whether citizenship conferred on them the right to intermarry with persons of the white race.
But it is urged that the civil rights bill has abrogated the section of our statute which renders it a felony for a negro to marry a white woman of this State, or for a white man to marry a negro woman. It is claimed that the first section of the said act which confers upon persons of the African race the right to make and enforce contracts has made it lawful for negroes, in all of the states, to make and enter into contracts of marriage with persons of the white race. The argument is, that under our laws marriage is a civil contract, and as negroes are authorized to make contracts, that, therefore, they can make any kind of contracts,. notwithstanding the contract may be in violation of the laws of an independent and sovereign state. Waiving for the present the power of Congress to pass a law authorizing any class of persons to make and enforce contracts in a state, we proceed to examine the first section of the civil rights bill, and to determine whether the position assumed by the appellee is sustained thereby. In our opinion it is wholly untenable, and that this is demonstrated by the plain, express, and undoubted language of the said section.
The first section of the said act is in these words: "That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and that such
citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every state and terrritory in the United States to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to have the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white persons, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding."
This act took effect on the 9th day of April, 1866, which was prior to the ratification of the fourteenth amendment. This amendment seems to have been mainly copied from, or modelled after the section above quoted from the civil rights bill. This section confers upon persons of the African race the power to make and enforce contracts. The power as conferred in the first part of the section is without limitation, but in the subsequent part of the section it is restricted and qualified by the plain and express declaration, that the rights conferred shall be enjoyed and exercised, in the same manner and to the same extent, "as is enjoyed by white persons." The only force and effect of this section was to confer upon persons of the African race the same civil rights, privileges, and immunities as had been enjoyed by persons of the white race.
It, therefore, becomes necessary for us to inquire whether Congress possesses the power, under the federal constitution, to pass a law regulating and controlling the institution of marriage in the several states of this union; and this will involve a brief inquiry into the nature and character of our complex system of government. Anterior to the adoption of the federal constitution, the states existed as independent sovereignties, possessing supreme and absolute power over all questions of local and internal government. The states
were independent of each other, and each possessed the power to regulate and control its domestic institutions. The government of the United States was not created by the states acting in their sovereign capacity, but the people of the several states, acting in their individual capacity. The federal government was not created for the purpose of regulating and controlling the domestic and internal affairs of the states, but the purposes of its creation are declared in the preamble to the constitution, and these are "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty." The states being independent, they recognized no common head. They were competent to manage and conduct their local and internal affairs, but they needed a superior and central power to regulate commerce and intercourse between the states and with foreign nations. Indeed, the whole frame of the constitution supports this construction. All the powers which relate to our foreign intercourse are confided to the general government. Congress has the power to regulate commerce with foreign nations, and among the states, to define and punish piracies and felonies committed on the high seas, and offences against the laws of nations; to declare war, to grant letters of marque and reprisal; to raise and support armies; to provide and maintain a navy; to coin money, and regulate the value thereof; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies in the United States; to establish post offices and post roads; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. The powers conferred on the general government are of a general and national character, and none of them authorize or permit any interference with, or control over, the local and internal affairs of the state. The general government is one of limited and enumerated powers, and it can exercise no power that is not expressly, or by implication, granted. The people being the inherent possessors of all governmental
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authority, it necessarily and logically resulted that all powers not granted to the general government, or prohibited to the state governments, were retained by the states and the people, but the great, wise, and illustrious men who framed our matchless form of government were so jealous of the right of local self-government that they were unwilling to leave the question of the reserved powers to implication and construction. Hence, within two years after the adoption of the federal constitution, twelve amendments thereto were submitted by Congress to the states for ratification, which were ratified. The ninth and tenth amendments read as follows: "9th. The enumeration, in the constitution, of certain rights shall not be construed to deny or disparage others retained by the people."
"10. The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Chief Justice CHASE, in Lane County v. Oregon, 7 Wal. 76, draws with great clearness and force the true line of distinction between the powers of the federal and state governments. He says, "the people of the United States constitute one nation, under one government, and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each state compose a state, having its own government, and endowed with all the functions essential to separate and independent existence. The states disunited might continue to exist. Without the states in union there could be no such political body as the United States.
"Both the states and the United States existed before the constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confederate government, which acted with powers greatly restricted, only upon the states. But in many articles of the constitution the necessary existence of the states, and within their proper spheres the independent authority of the states, is distinctly recognized. To them near