Page:Popular Science Monthly Volume 23.djvu/246

234 since the foundation of the government, to the national protection of and non-interference with a local institution which no longer exists. The reasons upon which those principles were based and the status in whose interest the decisions were formulated into law having passed away, it is time that the judicial mind should readjust itself to the demands of a newer condition of life and a higher civilization. But the conservative judicial mind is the last phase of energy in which the theory of evolution evolves, and "general principles of law" handed down by judicial prejudice from generation to generation are the last to give way in matters of progress and reform, not only when the reasons on which they were based no longer exist, but when other and better reasons demand a change.

There is another phase of this question which assumes a peculiar interest at the present time. It is that the marriageable portion of seven eighths of the citizens of the United States is interdicted from intermarrying with any one of the marriageable portion of the other one eighth of the citizens. Not that any one of the marriageable portion of the seven eighths, or of the one eighth, competent to contract marriage, is prohibited from marrying; but if love, admiration, pecuniary interest, or convenience, should move one of the marriageable portion of the seven eighths to desire in marriage one of the marriageable portion of the one eighth who reciprocates the love, admiration, pecuniary interest, or convenience of the other, the law interferes and makes such marriage a criminal offense! Why? Because of a prejudice held by the seven eighths against the one eighth—held for the reason that all of the one eighth are related in a near or remote degree to a race that was for centuries held as slaves to the other. It is a prejudice, not so much against "color" as against "previous condition"—color being a legal designation to identify the individual with the proscribed race.

Marriage is a natural right into which the question of color does not enter except as an individual preference expressed by the parties to the marriage. It is so recognized by the laws of all nations except our own, though in a few States this natural right is now acknowledged by statute law. In Ohio the statute declares that "a person of pure white blood, who intermarries with any negro, or person having a distinct and visible admixture of African blood, and any negro or person having a distinct and visible admixture of African blood, who intermarries with any person of pure white blood, shall be fined not more than one hundred dollars, or imprisoned not more than three months, or both." And the judge who knowingly issues the license and the person who knowingly solemnizes the marriage are subject to the same penalties. It is possible, however, on the common-law principle, that a marriage of this kind, followed by the parties living together as man and wife, would be held valid, though they would be subject to the penalties of the law. But in a number of other States—mostly