Jim Crow Guide: The Way it Was
by Stetson Kennedy 1959
Chapter V - Who May Marry Whom
"As to mixed marriages, the most delicate question of all, it is to be noted that 29 states - all those of the South and many in the Southwest-forbid it. In the North, such marriages are frowned upon, and represent an almost insignificant percentage."-The American Negroes, special bulletin published by the U.S. Information Agency, an adjunct of the State Department, 1957.
ON the basis of this peculiarly phrased statement, one might conclude that the U.S. Government itself frowns upon "mixed marriages", or at least is noncommittal.
In any case, the fact remains that in 29 states of the U.S.A. it is against the law for persons of different race to make love, marry, or have children.
Should you enter into a forbidden interracial marriage in any of these states, your marriage would automatically be void; your children by any previous legal marriage might be taken from you by the state; your children by the interracial marriage would be branded illegitimate and might also be denied their rights of inheritance; and you and your spouse would be charged with lewd and lascivious conduct, a misdemeanor, a felony, or an infamous crime (depending upon the state), and fined and/or imprisoned for as long as ten years in some states. A number of states say that parties to such marriages must be sent to jail.
The Constitution of the U.S.A. says that, "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state". However, a Federal court has ruled that this "full faith and credit" clause does not require any state to recognize marriages, which are contrary to the local idea of morality such as an interracial marriage in one of the states which forbid such marriages.
If you are a bona fide resident of one of the 19 states which do permit interracial marriage, and you are a party to such a marriage, only two of the 29 prohibiting states-North Carolina and Louisiana-have indicated that they might recognize it as legal.
If you become party to an interracial marriage in some foreign country, it will not be recognized as legal in these 27 American states, even if you are a diplomatic representative not subject to certain other U.S. laws.
If you are a resident of North Carolina, Delaware, Maryland, Mississippi, Montana, Tennessee, Texas, or Virginia and go to some other state and enter into an interracial marriage where it is legal to do so, and then return to your home state, your marriage will be void therein and you may be prosecuted.
If your home is in Mississippi, Oklahoma, Tennessee, Texas, or Virginia, you will also be banished from ever again living within the boundaries of your home state, either with or without your illegal spouse. For example, in 1945 Ted Sesney, a white farmer, and his Negro wife, Josie Douglas, were banished from Oklahoma. Sesney served a year in prison for the offence.
Most of the 29 states, which prohibit interracial marriage, also prohibit sexual intercourse, cohabitation, and concubinage between the races.
Even in other states where there are ordinary laws against unmarried sexual intercourse, cohabitation, or concubinage, these laws are more strictly enforced when the partners are not of the same race.
If you are contemplating interracial matrimony, but are a resident of a state which does not permit it, steer clear of Massachusetts and Vermont in choosing a state in which to get married. Although permitting such marriages, these two states may void your marriage if it is shown that your intention was to evade the law of your home state and then return to it.
Some People Are 'Verboten'
Twenty-nine states declare marriages between whites and Negroes (variously defined) to be automatically void and non-existent.
Fourteen of these same states also prohibit marriages between whites and Mongolians.
Nine of them forbid marriages between whites and Malays.
Six bar matrimony between whites and American Indians, with two of these also ruling out marriages between whites and mestizos, and another banning marriage between whites and "halfbreeds".
Three also forbid Negroes and American Indians to intermarry.
Two prohibit marriage between whites and "Asiatic Indians" and another outlaws marriages between whites and "Hindus" (a religious group encompassing various ethnic groups).
One state outlaws marriage between whites and "West Indians" (a geographic designation actually including both whites and nonwhites).
And one state will not permit the marriage of a Negro to a Malay.
If you are party to any one of these illegal combinations, the laws provide that both you and your spouse must either be convicted or acquitted (except in West Virginia, where the law punishes the white partner only). The only way to win an exception to this rule of mutual guilt is to plead ignorance of your partner's race.
In the matter of prohibited sexual intercourse, you may be prosecuted even though there are no third-party eyewitnesses, the courts having ruled that sexual intercourse may be inferred from circumstantial evidence. In some states, if you are white and male you may not be convicted on the unsupported testimony of your alleged partner. However, the courts have ruled that, "If two persons are seen nude, in bed together and in each other's arms, that is sufficient proof of the corpus delicit to admit in evidence a confession made by one of the defendants".
In Indiana or Mississippi it is against the law to so much as advocate social equality or intermarriage. The Mississippi law reads:
"Any person, firm, or corporation who shall be guilty of printing, publishing, or circulating printed, typewritten or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes shall be guilty of a misdemeanor and subject to a fine not exceeding $500 or six months' imprisonment or both."
Efforts to censor educational materials which espouse democracy in human relations are constantly being made. Something new in this field arose with the advent of television, which caused great concern among white supremacists because it introduced animated, vocal, and oft-times amorous scenes involving white women into the parlours of those Negroes who could afford to buy television sets. Herman Talmadge, while Governor of Georgia (he is now a U.S. Senator), threatened to ban the television show headed by Arthur Godfrey, on the grounds that it included "The Mariners", a vocal quartet consisting of two white and two Negro veterans of World War II on the same stage with "scantily clad white women".
Two Georgia legislators also announced that they were going to draft a law forbidding movies, plays, and musicals having "an underlying philosophy inspired by Moscow". This action was prompted by a showing in Atlanta of the musical stage show South Pacific, which the legislators felt condones interracial marriage.
"To us that is very offensive," Representative David C. Jones declared. "Intermarriage produces halfbreeds, and halfbreeds are not conducive to the higher type of society. We in the South are a proud and progressive people. Half-breeds cannot be proud. in the South we have pure blood lines and we intend to keep it that way."
it was in 1953 that Georgia's newly created Obscene Literature Commission held its first session, under the chairmanship of the Rev. James Wesberry, who announced that even the nude art work of the great masters is offensive to him. "We are trying to be sane and do a good job," he added. It was proposed that the book Southern Exposure, by Stetson Kennedy, an expose of the Ku Klux Klan and other democratic elements, be banned on the grounds that it is "filled with filth". The only citation from the book offered in justification of this action was the statement by a Southern official that, "The only way we're willing to give the niggers equality is by f-ing them white"
Paradoxically, a Negro minister who had from his pulpit deplored sexual relations between white men and Negro women was soon visited by a deputation of white businessmen who warned him to stop voicing such sentiments.
If you believe that any two people have an inherent and inalienable right to fall in love'. marry, and have children, regardless of race, it is only fair to warn you that the Constitutionality of laws forbidding interracial marriage has been upheld by the U.S. Supreme Court.
For the most part these laws were adopted after the Civil War, and have been successively strengthened. They are very much alive today, as witness in the following cases:
Davis Knight, 23, who had served in the U.S. Navy as a white man, was sentenced (1940) to five years in the Mississippi penitentiary for marrying Junie Scradney, a white girl, after it was testified that his great-grandmother had been a Negro. Knight argued in vain that his great-grandmother was not a full-blooded Negro, and therefore that he himself was not a Negro according to the 1/8th-Negro blood definition established by law in Mississippi.
Clark Hamilton, 20-year-old Negro Navy veteran, was sentenced (1949) to serve three years in the Virginia penitentiary for marrying Florence Hammond, white. The couple had moved to Maryland, and his sentence was suspended after he pleaded guilty. But while awaiting trial he served 82 days in a Virginia jail, and his marriage was declared void.
An interesting case arose in Buffalo, New York, when (1949) New York State Supreme Court justice Alger A. Williams ruled that Mr. and Mrs. Emerson Marshall of that city would have to surrender their 5 year old daughter Mary to her maternal grandmother. Mrs. Marshall is white, while Mr. Marshall is of mixed Irish, American Indian, and Negro ancestry.
"This case poses a certain complicated and intricate social problem because of the peculiar facts involved," judge Williams said. "It is a question of whether this girl is to be raised as white or colored."
In justification of his ruling taking the child away from its parents, he observed that Mr. Marshall was obviously "Negroid" and lived in a is colored neighborhood," that "the child has a dark skin, but her appearance does not necessarily denote colored blood' , and that the grandparents (who were given custody of the child) "arc white and live in a white neighborhood".
Judge Williams also took judicial note of the fact that the child's father earned only 200 dollars per month as a butcher, while the grandfather made 500 dollars per month as a railroad engineer. The judge ignored the report of the probation officer who had investigated the Marshall home at his order, and found it fit in every respect.
In a similar decision (1953), judge Wakefield Taylor of Oakland, California, took away the two children-aged 10 and 3 - of Mrs. Barbara Smith Taylor, after she divorced her husband and married a Negro. The father, Walter G. Smith, was awarded custody of the children when he contended that his former wife's marriage to a Negro was "detrimental to the children". He had the same to say of his ex-wife's progressive "political leanings". Judge Taylor took the children away from their mother despite pleas by the older daughter, Amanda, that she be allowed to stay with her mother. The testimony of social workers that the children had a happy home was also brushed aside.
There are cases on record where children have been taken from their mothers because they taught their children not to make racial discriminations. For example, an Oklahoma court decreed (1953) that Jean Field was to be deprived of her two daughters, Jay, age 15, and Mary, age 13 In letters to her daughters while they were visiting their paternal grandparents, the mother had counseled them against racial prejudice and expressed opposition to the war in Korea. The children were ordered and placed in the custody of their father, despite the fact that he had deserted the family for ten years, admitted in court that he had been an alcoholic, and was guilty of such crimes as perjury, forgery, and incest.
So that's how things are. Before choosing a lover or spouse you may want to consult the following tabulation in order to acquaint you, with the laws governing such matters in various states of the U.S.A.:
Love Limited by 29 States
"The legislature shall never pass any law to legalize any marriage between any white person and a negro or a descendant of a negro." - Constitution. Penalty: "If any white person and any negro, or the descendant of any negro intermarry, or five in adultery and fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary for not less than two nor more than seven years.
Anyone issuing a license for an interracial marriage may also be punished.
Ministers or officials performing an interracial marriage may be fined from 100 to 1,000 dollars, and/or sentenced to six months in jail.
Court rulings: A single act of sexual intercourse, or cohabitation for a single clay, is sufficient to convict, if it can be shown that the parties intend to continue the relationship.
The fact that the penalty for interracial sexual intercourse is greater than for cohabitation or adultery between two people of the same race does not make the former law unconstitutional under the Fourteenth Amendment guarantee of equal protection of the laws, because both parties to the offence must be punished equally.
In one Alabama case, a mulatto who applied for a license to marry a "Creole" was arrested, and the judge left it to the jury to decide whether a Creole is white or colored.
Prohibits marriage between whites and anyone having any Negro blood whatever, or between whites and Hindus.
Under the contradictory laws of Arkansas, a person having -any Negro blood may not engage in concubinage with a white, but may marry a white provided the Negro blood is not "visible and distinct'.
"Concubinage between a person of the Caucasian or white race and between a person of the negro or black race is hereby made a felony."
Penalty: One month to one year "at hard labor" for each offence.
Court rulings: "Living together or cohabitation, whether open or secret", is contrary to law. However, 44 occasional intercourse" does not constitute concubinage or cohabitation. "No person shall be convicted of the crime of concubinage upon the testimony of the female, unless the same is corroborated by other evidence."
Childbearing: "Any woman who shall have been delivered of a mulatto child, the same shall be prima Jade evidence of guilt without further proof and shall justify a conviction of the man." it is the duty of magistrates to issue warrants in such cases in the name of the state, and to prosecute. No Negro mother of a mulatto child has ever been prosecuted under this law.
Registration: Clerks issuing marriage licenses are required to register the race of both applicants, under penalty of a 25-dollar fine.
Divorce: Attorneys and chancery clerks are required to register the race of divorcing parties, "if other than Caucasian", under penalty of a 25-dollar fine.
Forbids marriage between whites and Negroes, mulattoes. No definitions.
Penalties are provided for parties to and persons performing such marriages.
Same. Penalties are provided for parties to such a marriage and for any person licensing it or performing or assisting at the ceremony.
Forbids marriage between whites and anyone having 1/16th or more Negro blood.
Forbids cohabitation between whites and anyone having 1/8th or more Negro blood. (Hence a white person and a person having 1/16th Negro blood, although they may not marry, may cohabit without violating the race law.)
"All persons of different race and opposite sex who habitually occupy the same room at night' shall be deemed guilty of concubinage, and punished. Offenders may be prosecuted at any time within two years following commission of the offence.
Whites and persons having 1/8th or more Negro blood who cohabit for even a single day are guilty of a criminal offence and are subject to punishment.
Any white woman who has sexual relations with a Negro man shall be fined 1,000 dollars. (No penalty provided for white men who have sexual relations with Negro women.)
Forbids marriage between whites and: anyone having any "ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their vein's". -State Constitution.
"It shall be unlawful for a white person to marry anyone except a white person,"-Acts Of 1927.
Applications for marriage licenses must state the race of both applicants and their parents. False statements may be punished by imprisonment from two to five years. Anyone issuing a forbidden interracial marriage license shall be fined 500 dollars or sentenced to 10 years. Parties to an interracial marriage are subject to imprisonment from one to two years. Ministers or officials knowingly performing such ceremonies are likewise subject to punishment.
Special prohibition: "Ordained colored ministers of the Gospel may celebrate marriages between persons of African descent only."
Registration. A state statute adopted in 1927 requires all persons in Georgia to register their race.
Childbearing: "When any birth certificate, showing the birth of a' legitimate child to parents one of whom is white and one of whom is colored, shall be forwarded to the Bureau of Vital Statistics, it shall be the duty of the State Board of Health to report the same to the Attorney General of the State. Thereupon it shall be the duty of the Attorney General to institute criminal proceedings against the parents of such child."
Sexual intercourse: "Any charge or intimation against a white female of having sexual intercourse with a person of color is slanderous without proof of special damage."
Forbids marriage between whites and: Negroes, mulattoes, Mongolians. No definitions.
A marriage is void in any of the following circumstances:
- When either party has a wife or husband living at the time of such marriage.
- When either party is insane or idiotic at the time of such marriage.
- When one of the parties is a white person and the other is possessed of 1/8th or more Negro blood.
Penalties: In the event of a forbidden interracial marriage, punishment is provided for:
- Parties to the marriage.
- Persons issuing the marriage license.
- Persons performing the marriage ceremony.
- Anyone assisting at the ceremony.
- Anyone who advised the marriage.
Prohibits marriage between whites -and: Negroes, and mulattoes.
Prohibits sexual intercourse, cohabitation, concubinage, and marriage between whites and all "persons of color". Persons of color are defined by courts to include anyone having 1/16th or more Negro blood. The state also prohibits such relationships between American Indians and Negroes.
The right of the City of New Orleans to segregate white and nonwhite prostitutes has been upheld by the courts.
Prohibits marriage between whites and: anyone having 1/8th or more Negro blood; Malays. Also prohibits marriage between Negroes and Malays.
"All marriages between a white person and a negro, or between a white person and a person of negro descent, to the third generation inclusive, are forever prohibited, and shall be void; and any person violating this section shall be deemed guilty of an infamous crime, and punished by imprisonment in the penitentiary not less than 10 months nor more than 10 years."
Childbearing: "Any white woman who shall suffer or permit herself to be got with child by a negro or mulatto" shall be sentenced to not less than 18 months nor more than 5 years.
A special law requires a white woman (but not a nonwhite woman) to divulge the name of the father of any illegitimate child she may bear, regardless of the race of the child. State courts have upheld this law as constitutional and not violating the equal protection guarantee of the Fourteenth Amendment.
Prohibits marriage between whites and anyone having 1/8th or more Negro or Mongolian blood. Cohabitation also prohibited between whites and anyone having 1/8th or more Negro blood. (Cohabitation between whites and Mongolians is not specifically banned.) This law does not apply to "occasional" sexual intercourse.
Inheritance laws give white descendants, regardless of whether legitimate or not, and no matter how remote, precedence over all descendants of mixed blood.
Divorce bills must include an affidavit as to both parties' race. Fee, 3 5 cents.
Prohibits marriage between whites and: anyone having 1/8th or more Negro blood; Mongolians.
Prohibits marriage between whites and: anyone having any Negro blood whatever; Mongolians.
Penalties are provided for parties to the marriage, also for person performing the ceremony.
Prohibits marriage between whites and anyone having 1/8th or more Negro or Mongolian blood.
Prohibits fornication, adultery, or marriage between whites and: Negroes, Mongolians, Malays, and American Indians. No definitions.
Penalties are provided for parties to the marriage and persons performing and assisting at the ceremony.
Prohibits marriage between whites and anyone having 1/8th or more Negro or American Indian blood.
Penalties: Minimum Of 4 months, maximum of 10 years imprisonment for parties to marriage, who may also be fined. Issuer of license may be fined 500 dollars and imprisoned 10 years. Performer of ceremony may also be punished.
Special prohibition: Indians of Robeson County expressly forbidden to marry anyone having 1/8th or more Negro blood.
Prohibits fornication, cohabitation, adultery, and marriage between whites and anyone having 1/8th or more Negro or Mongolian blood.
Penalties are provided for parties to the marriage, and persons issuing the license, performing the ceremony, or concealing the record.
Prohibits marriage between anyone of "African descent' and: whites, American Indians.
Penalties are provided for parties to the marriage, for persons issuing the license and officiating at the ceremony, and for anyone concealing the record.
Prohibits marriage between whites and anyone having
1/4th or more Negro blood. 1/4th or more Chinese blood. 1/4th or more Kanaka (Malay) blood. 112 or more American Indian blood.
Penalties are provided for parties to the marriage and for persons issuing the license and performing the ceremony.
"It shall be unlawful for any white man to intermarry with any woman of either Indian or negro races, or any mulatto, mestizo, or half-breed, or for any white woman to intermarry with any person, other than a white man, or for any mulatto, half-breed, Indian, negro or mestizo to intermarry with a white woman."-State Constitution.
Note: This law prohibits white women from marrying Mongolians or Malays, but leaves white men free to do so.
Court rulings: The South Carolina courts have defined a colored person as anyone having 1/8th or more Negro blood.
Penalties: Parties to marriage and person performing ceremony are subject to a minimum fine of 500 dollars and/or a minimum jail sentence of 12 months.
Adoption: The adoption of a white child by a negro is expressly prohibited.
Prohibits sexual intercourse and marriage between whites arid: Negroes, Mongolians, Malays. No definitions.
44 The intermarriage of white persons with negroes, mulattoes, or persons of mixed blood descended from a negro, to the third generation inclusive, or their living together as man and wife in this state, is prohibited." Sexual intercourse and adultery between whites and Negroes are also expressly forbidden.
66 If any white person and negro shall knowingly intermarry with each other in this state, or having so intermarried in or out of the state shall continue to live together as man and wife within this state, they shall be confined in the penitentiary not less than two nor more than five years."
Note. Due to a discrepancy in definitions as to what constitutes a Negro in Texas, all interracial marriages involving any Negro blood whatever are void in Texas, but the parties may not be punished unless the admixture of Negro blood is 1/8th or more.
Adoption: "No white child can be adopted by a negro person, nor can a negro child be adopted by a white person."
Special prohibitions: Sexual intercourse between whites and Negroes within the city limits of Fort Worth is prohibited by municipal ordinance.
Prohibits marriage between whites and: Negroes, Mongolians. No definitions.
Prohibits marriage between whites and:
- Anyone having any ascertainable Negro blood.
- Anyone having more than 1/16th American Indian blood.
- Asiatic Indians.
"It shall hereafter be unlawful for any white persons in this state to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this Act, the term 'white person' shall apply only to the person who has no trace whatsoever of any blood other than Caucasian; but persons who have 1/16th or less of the blood of the American Indian and have no other non Caucasian blood shall be deemed to be white persons.
"No marriage license shall be granted until the clerk or the deputy clerk has reasonable assurance that the statements as to color of both man and woman are correct. If there is reasonable cause to disbelieve that applicants are of pure white race, when that fact is stated, the clerk or deputy clerk shall withhold the granting of the license until satisfactory proof is produced that both applicants arc 'white persons' as provided for in this Act.
"The clerk or deputy clerk shall use the same care to assure himself that both applicants are colored, when that fact is stated."
Penalties: Due to discrepancies in definitions, all forbidden interracial marriages are void whenever any ascertainable Negro blood is, involved, but the parties may not be punished unless the admixture of Negro blood is 1/4th or more. The penalty is a minimum of 1 year and a maximum of 5 years in jail. The parties to the marriage may also be prosecuted for "lewd and lascivious cohabitation". The penalty for performing an interracial marriage is a 200?dollar fine, 100 dollars of which is set aside as a reward for the informer. Penalty for issuing the license: 500 dollars and 10 years.
Registration: Act Of 1930 entitled Preservation of Racial Integrity: "The state registrar of vital statistics may, as soon as practicable after the taking effect of this Act, prepare a form whereon the racial composition of any individual is shown as a Caucasian, Negro, Mongolian, American Indian, Malay, or any mixture thereof, or any other non Caucasic strains, and if there be any mixture, then the racial composition of the parents and other ancestors, in so far as ascertainable, so as to show in what generation such mixture occurred."
Registration fee, -25 cents. Penalty for false registration: 1 year in jail.
Prohibits sexual intercourse and marriage between whites and Negroes. No definitions.
Penalties are provided for persons issuing the marriage license and performing the ceremony and for white parties to such a marriage. (Texas once had a similar law punishing the white party only, which was upheld by the U.S. Supreme Court as a reasonable discrimination on the ground that Negroes had no proper sense of moral responsibility.)
Prohibits marriage between whites and: Negroes, mulattoes, Mongolians, Malays. No definitions.