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Chapter Two

MIXED MARRIAGES AS SEEN BY THE LAW - OUR TIMES

“When the state is most corrupt then the laws are most multiplied” Tacitus.

“What has been decreed among prehistoric protozoa cannot be annulled by Act of Parliament.” Thomas Huxley.

AS was said although Negroes were fairly abundant in Europe, there was no law on record against their marriage with white people except in France during the period when the white colonists of Haiti exercised much influence there. The white Americans, though they were able to revive Negro slavery in England after its abolition by Lord Chief Justice Holt¹ about 1702, either did not try, or did not succeed in getting an anti-miscegenation law passed. Thus the reasons for opposing mixed marriages which, as we have seen so far were social and economic, did not also become “racial” until the colonization of the New World began. As Hoernle says, “The evidence strongly suggests that colour prejudice entered into the colonial expansion of Europe in proportion as economic, industrial and nationalistic motives replaced the older religious motives as the chief determinant in the relations of white and non-white.”

It may fairly be said that any prohibition of marriage between white and black at all began in the New World. Venezuela, Mexico, Haiti and one or two other Latin American lands, had such laws, but they were abolished either under the Spanish regime or upon the winning of independence. The United States is the only country in the New World which has carried its law against the marriage of white and black from its colonial period into its national one.

It still has them in twenty-eight states, being one of the only three countries in which such marriages are outlawed. The others are South Africa, and Australia.

In South Africa, such unions were one legal in Cape Colony and Natal but it is a crime now. In Transvaal and Natal the penalty is imprisonment and the lash.

A commission appointed in 1938 by the South African government to inquire whether interracial marriages “are sufficiently numerous to be seriously detrimental” to the future of the white race recommended that “legislation on the model of the Transvaal laws should be passed prohibiting marriages between Europeans and non-Europeans.”^a As for illicit intercourse between white and black in any part of South Africa that is as serious an offense as beastiality. The penalty, according to a law of March 26, 1927 is five years’ imprisonment.^b This law has had no more success than similar ones in the United States, and “the colored population increases year after year.”^c

Nazi Germany

In Nazi Germany the Nuremberg law of 1935 provided: “Whoever ministers or tries to administer to the debasement or disturbance of German blood purity by uniting or aiding a union with members of the Jewish race or other colored races shall be found guilty of race treachery and sent to prison.

“Racial treason is committed even when sexual relations are effected with the use of prevenceptives.”

In determining who are of mixed blood this law was retroactive to the year 1800. If one had a Jewish or a Negro ancestor in that year he was not an “Aryan.” In 1938 a farmer, son of a German professor, was designated by his uncle to inherit his farm under the hereditary farmer’s act as the nearest male relative. On investigating the prospective heir’s ancestry it was discovered, however, that his great-grandmother had been a mulatto, born in 1805 of a white father and a black mother, and he was disinherited. The court ruled that the requirements of blood purity are so imperative that although only “Aryan” strain was visible in him it did not count. The rich estate went to the Reich, that is, the Nazis.⁴

WHO IS A NEGRO- AFRICAN, OCEANIC, MALAYAN AND AMERICAN TYPES

V. Upper left to right: Woman of Central Africa, a Negro; and a Batusti, of East Africa, who though black-skinner and wooly-haired is not classed a Negro. Below: Native of Mauritania, Africa, coal-black and frizzly-haired, but also, “not a Negro.” Centre: Black-skinned, frizzly-haired Malayan, also “not a Negro.” Right: Peyton M. DeWitt, noted horticulturist, born in the United States and with a distant African ancestor. He “is a Negro.”

According to strict “Aryan” requirements, most white Americans, even some of the most racially proud, would be considered undesirable partners for Nazis. The German ideal of a woman is “a blonde Aryan with blue, wide-open eyes, a pink and white complexion, a narrow nose, a small mouth, and by all means, a virgin.” This type, says Das Wissen der Nation, should by no means marry one of the darker European peoples, as blondness is the highest sign of racial superiority. Also that no “blond, blue-eyed” Aryan man should marry a brunette, or a woman with “short legs, or black hair, or hooked nose, or full lips and large mouth, or an inclination to plumpness.” White persons with full lips and other facial features that appear Negroid are also barred. “The Aryan hero must marry only his equal Aryan woman.”⁵

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….

“The general rule adopted by statute in twenty-six states seems to be that prohibited interracial marriages are null and void from the beginning. The language used in some of the statutes might, however conceivably be construed to render such marriage merely voidable. But such terms “null and void,” “illegal and void,” “utterly null and void,” seem clear declarations of complete nullity especially in the light of the fact that in almost all of these states miscegenation is a crime, often a felony. Only one states, West Virginia, directly provides that such marriages should be “void from the time they are so declared by a decree of divorce or nullity.” Three states have no statutory statement upon the problem.”¹²

Couples who have been living happily for years and with grown children in good positions are liable to find their entire lives upset. Believing themselves white they have sometimes discovered, or some enemy has discovered it for them, that unknown to them, a law had been passed changing the racial status of one of them. Once legally white, they are now legally colored. Others not dreaming they had a Negro strain have contracted marriages in good faith only to discover that they were really outside the pale, with sometimes great tragedy resulting. Research into ancestry is frequently resorted to in order to win divorce, or for personal vengeance and blackmail.

In short, the situation as to the marriage of citizens in twenty-six and a half states of the union is so tangled as to make the famous Gordian knot a veritable poem of simplicity by comparison. The constitution of no less than six of these states rules that a Negro is one thing while the state laws declare him to be something else. Thus if such laws are strictly interpreted there are citizens who can marry neither colored nor white. If they remain in those states their only hope of getting a partner is to import an Eskimo, or some other racial group not named in the law.

Woolley tells of the chaos that the Louisiana miscegenation law of 1908 created as soon as it was passed. The district attorney, he says, was “stumped” when he found in the town of Lee “that among the truck gardeners, fishermen and other classes of people that the color line had been ignored for years. The accused white men swore they were Negroes and their neighbors backed them up. There were no birth records to disprove the stories—only the absence of the slightest kink in the hair and the absence of blonds.”¹³ He relates further how “the very first arrest” for miscegenation “took the state by the ears and gave Dame Gossip the center of the stage. At select gatherings family skeletons were trotted out wholesale.” Among the number was the brother of a United States senator who had married an octoroon in the days when such marriages were permissible, and who, as a consequence was now thrown into the social discard. One man, seeking revenge on a neighbor, went to dig in the parish records, hoping to prove him of Negro ancestry, when he discovered that he, himself, had a Negro grandfather, on which he sold his property and left the state. One leading New Orleans banker was similarly discovered to be colored, and his name and that of his family were struck off “the calling lists” of the best people. He left for New York and became “a big figure in Wall Street.” Still another case, that of two brothers and sister, “bearer of one of the foremost names” were discovered from the parish records to be colored. One brother became “a raving maniac” and was sent to an asylum; the other brother remained on his estate but was cut off from “the very people who have known him longest and esteem him most”; while the sister went to Europe.¹⁴

WHO IS A NEGRO? EUROPEAN TYPES—RUSSIAN

VI. Marie Alexandrovna Bykova (nee Pushkin), daughter of Pushkin’s oldest son, and direct descendant of the great poet (Chatwood Hall photo). In Virginia, Mme. Bykova would be a Negro. Her Negro ancestry “is ascertainable.”

In other states with similar laws, a mixed couple legally married in one state, say in Pennsylvania, if they cross the line into Virginia or Maryland even for a day and remain together are criminals, liablbe to imprisonment and fine. Be it noted, too, that to these fantastic laws the like of which an Adolf Hitler in his craziest moments had never been able to concoct, the United States Supreme Court has repeatedly given its approval. In 1883 it held in the case of State versus Jackson that the privileges and immunities of the Fourteenth Amendment do not include the right to marry outside of one’s own “race”!¹⁵

Worst of all, these anti-marriage laws leave the door wide open to concubinage and interracial fornication. There are, of course, laws against these but they are observed nowhere, except in the case of white women and Negro men. Louisiana, whose law against illicit intercourse of white and black is one of the most stringent, is one of the worst offenders. In short, the laws of the twenty-nine and a half states above-mentioned are a direct inducement to sexual promiscuity—an inducement that mankind has never needed.

With the fall of Hitler, his Nuremberg law met the fate of similar freak laws of the Middle Ages, like that of Avignon, against the Jews.

Anti-marriage laws are a reflection of the greed of their makers and the crooked social vision of their approvers. But one ought to expect nothing better, at least he will not, if he remembers that it is usually the slickster and the opportunist—men whose mission it is to prove that “fair is foul and foul is fair” who dominate in law-making of this kind.

In 444 B.C., Rome, a pagan nation, passed a law abolishing the statute prohibiting marriage between certain of her citizens because of caste. Christian America, more than two thousand years later, has not yet caught up with her in this respect, has not yet seen fit to legalize the union of citizens who have been mixing illegally for more than three centuries.

ADDITIONAL BIBLIOGRAPHY

Hoernlé, R. F. A., South African Native Policy, pp. 39, 42, 55. 1939.

Negro Year Book, 1921-22, pp. 178-181.

Legal Status of Negro-White Amalgamation, Amer. Jour. of Sociol., Vol. 9, pp. 666-78. 1915-16.

Stephenson, G. T., Race Distinctions in American Law. 1910.

Styles, F. L., Negroes and the Law. 1937.

Woodson, C. G., Fifty Years of Negro Citizenship as Viewed by the U. S. Supreme Court. 1921.

Gilligan, F. J., Morality of the Color Line. 1928.

Turner, H. M., The Black Man’s Doom (Decision of the U. S. Supreme Court on the Civil Rights’ Act for Negroes. 1896).

1 Campbell, J. L., Lives of the Chief Justices of England, Vol. 2, p. 406. 1874. The American slaveholders, however, succeeded in setting the decision aside by Yorke, the attorney-general and Talbot, the solicitor-general in 1729. Twenty years later Yorke, as Chief Justice, again declared slavery in England legal. In 1772, Chief Justice Lord Mansfield again declared it illegal in the Somerset case, but contrary to general belief that did not end it as Negro slaves continued to be advertised for sale. (Stuart, C., Memoirs of Granvills Sharp, p. 20, 1836.) Negroes were probably not freed in England until 1834, when slavery was abolished throughout the empire. But incredible as it sounds white people in the British Isles were still held in actual slavery after the blacks were freed. These were the Scotch colliers. See Eden, F. M., History of Laboring Classes in England, pp. 7-11. 1797. Miller, H., My School and Schoolmasters, pp. 303-305. 1857.) These colliers had been freed in 1775, but the masters ignored the law. They were not freed until 1842. And, of course, we recall that the Russians were freed from slavery only in 1861.

2 Haldane, J. B. S., Heredity and Politics, p. 140. 1938.

3a Race Relations News. No. 15, Sept. 1939. Most of the mixed marriages in South Africa between Negroes and whites from 1927-36 were between whites and mulattoes—698 white men to mulatto women; and 137 white women to mulatto men. (Ibid. Jan. 1939). See also: Sex and Race, Vol. 1, pp. 131-141,

3b Statutes of S. Africa, Vol. 1, p. 14. 1927.

3c Ziervogel, C., Brown South Africa, p. 19. 1938.

4 New York Post, Aug. 10, 1938, as reported by the Reich Food Laws.

5 Quoted in Schuman, F., The Nazi Dictatorship, p. 383. 1939.

6 The South’s Fight for Race Purity. Pearson’s Maga. January, 1910.

7 Ruvigny, Titled Nobility of Europe, pp. 307, 1450. 1914. Burke’s Peerage, Vol. 2, p. 1773. 1939. Lord Milford Haven is a nephew of Lord Louis Mountbattan, famous Commando, and Commander-in-Chief of Allied Forces in the Far East.

8 Guild, J. P., Black Laws of Virginia, pp. 34-6. 1936. For examples of legal and domestic complications see Mangum, C. S., The Legal Status of the Negro, pp. 236-73. Also chapter, “Who Is a Negro?” pp. 1-17.

9 Carey McWilliams says, “That many persons of non-Negroid blood are frequently caught in these absurd regulations is clearly indicated by the increasing number of libel and slander actions that have been successfully prosecuted in southern courts. As the percentage of persons of pure Negro extraction decreases (as it is doing) the classification upon which Jim-Crow statutes are based are becoming increasingly unreasonable. I am convinced that many statutes are for this reason alone clearly unconstitutional. A Louisiana appellate court recently held invalid a marriage between a white man and a woman whose great-great-grandmother was a Negress. How can such classification be upheld as reasonable? A few years ago a woman in Arizona, who was part Negro and part white, challenged the constitutionality of a miscegenation statute on the ground that the way the law was worded she could not contract a legal marriage with either a Negro or a white man.” (Antioch Review, 1942, p. 638).

10 See Sex and Race, Vol. 2, p. 358, for more detail.

11 General Laws of Colorado, Chap. 63, 1736, sec. 2, and 1737, sec. 3. 1877. For extract from this law see, Rogers, J. A., 100 Amazing Facts About the Negro, 19th ed., pp. 18-19.

12 Vernier, C. G., American Family Laws, Vol. 1, sec. 44, pp. 204-09. Also 1938 Suppl. pp. 24-5. The states are: Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming. Oregon and California have since annulled this law.

13 See also Sex and Race, Vol. 2, p. 325. 1942.

14 For another very tragic case related in greater detail see Sex and Race, Vol. 2, p. 376. 1942.

15 Mangum, C. S., has cited many cases ruled on by the U. S. Supreme Court, pp. 239-40.

16 See Communique issued by the Tripartite Conference of Berlin (the Potsdam Conference), Aug. 2, 1945. Sec. 3, A, 4, which provides for the abolition of all discrimination “on grounds of race,” etc. in Germany. Equally fantastic laws in the United States, South Africa, and Australia remain untouched, however.