X marrying Y <> Y marrying X?

Joel S. Berson Berson at ATT.NET
Mon Sep 10 22:21:15 UTC 2007

At 9/10/2007 03:21 PM, John Baker wrote:
>The point is, if it's mutual, you don't have to tell who is the
>marrier and who is the marriee.  I suppose that the Commonwealth of
>Virginia would have contrasted their statute to a hypothetical statute
>that imposed penalties upon a black person who entered into marriage
>with a white person, but not upon the white spouse.

I suspect this is the point in Virginia, at least.  But there the
penalties were on the white marrying the black.  (Penalties on the
slave were probably pointless:  he or she had no property to pay a
fine; the term of servitude could not be extended beyond life; and
corporal punishment might adversely affect the property rights of the
slave's owner.)  Happening to have in my hand at the moment A. Leon
Higginbotham Jr.'s _In the Matter of Color: Race and the American
Legal Process -- The Colonial Period_ (1978), I find him writing:

"The 1705 prohibition against interracial marriage was reenacted in
1792; both statutes imposed a penalty of six months' imprisonment on
whites, but curiously at that time no imprisonment penalty was
imposed on blacks in the statutes.  In 1848 the imprisonment for
whites marrying blacks was increased to twelve months.  It was not
until 1932, when the statute was amended, that imprisonment was
imposed on _both_ [emphasis in original] blacks and whites for
intermarrying, and in 1932 the penalty was increased to confinement
in the "penitentiary for from one to five years."  [page 46]

(Higginbotham also discusses Loving v. Virginia.)


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