The District Court: The Miscegenationists on Trial—Able Argument of Mr. Irwin—The Ku-Klux Bill Threatened.
The Atlanta Weekly Sun
1871-08-16
page 7, columns 2-5
Source: Georgia Historic Newspapers
The District Court yesterday was the centre of much excitement, and as usual on such occasions, the negroes were out in full force. It was generally understood that the miscegenationists were to be placed on trial.
At the usual time the Court opened, Judge Lawrence in the chair.
- The State vs. H. Ruddell, gaming, was argued.
- The State vs. Wm. Beatte, was then taken up.
- The State vs. Green Martin, larceny from the house, was tried.
The jury returned a verdict of guilty in each of the above cases.
The excitement rose to fever heat when WM. HOBBES, a miserably debased and brutal looking white man, who claimed to be married to a negro wench. Hobbes is an old man, over 60, with gray hair; while the wench who sat by him was black as the ace of spades. He looked the embodiment of all the utter and helpless depravity which it is possible to instil into a human being, while the wench looked really ashamed of her companion. It was stated by us some time since a collection was taken up in one of the negro churches to procure counsel for these persons.
The State was represented ably by Capt W. G.Irwin, District Attorney.—The prisoner was defended by B. H. and A. M. Thrasher, and T. K Oglesby, who, it is stated, have undertaken the defence of all the miscegenationists.
The defence moved for a transfer of the case to the United States District Court. They claimed that under tho 15th Amendment to the Constitution of the United States all persons are equal in the eye of the law; that they have an equal right to marry whom they please, and do what they please. They claimed that Wm. Hobbes, white, and Martha Johnson, colored, were legally married, and were guilty of no offence. They relied on the Civil Rights Bill, the Ku-Klux Bill, and other Congressional machinery, as maintaining their position, and asked this Court to forego action, and refer the matter to the United States District Court.
Capt W. G. Irwin, District Attorney, in a very forcible manner, resisted the motion. He claimed that all such questions as marriage and contracts were exclusively within tho purview of State law; that the Court was well able to attend to its own business, and should do its duty without regard to other bodies.
The Judge decided to go on with the case.
After being gone into and concluded, the jury brought in a verdict of guilty.
WILLIS HARRIS, NEGRO, AND MARY SILVEY, WHITE, were then called up, on a charge of fornication. The Thrashers and Oglesby defended them also. Mary Silvey is a poor, degraded looking woman, whose ignorance is her only excuse,. The parties claim to have been married in Tennessee. The point was admitted by the State.
Capt. W. G. Irwin produced a great array of authorities conclusive of the criminality of the parties, even if married in another State. In controverting the application of the law of comity to this case he claimed that where an act, performed and looked upon as valid in another State, and which was opposed to the interests, policy or Constitution of the State, it was not to be recognized by this State at all. Section 2696 of the Code of Georgia says:
“Sometimes persons are capable to contract by the law of the place of the con- tract, but incapable, under the law of this State. In such case, generally, the law of the place of contract is enforced, unless the circumstances show an attempt to evade the law of this State, or the contract is of such a character as contravenes the POLICY of our law.”
It is impossible for law to be more plainly adapted to a case than this. No intelligent lawyer will deny that if the law of Tennessee regards as valid mixed marriages, to recognize that law would not only be to “contravene” the policy, but the very Constitution of this State, which, in paragraph 9, section 1, article 5 (section 4988 Irwin’s Code) says:
The marriage relation between white persons and persons of African descent, is forever prohibited, and such marriage shall be null and void.“
Among the preliminary provisions of the Code of Georgia is a paragraph which plainly declares the extent to which Georgia adheres to the comity of States, and reads as follows:
“Section 9—The laws of other States and foreign nations shall have no force and effect of themselves within this State further than is provided by the Constitution of the United States and is recognized by the comity of States. The courts shall enforce this comity, until restrained by the General Assembly, so long as its enforcement is not contrary to the policy or prejudicial to the interests of this State.“
And, again, in Section 1707 of Irwin’s Code we read:
“The marriage relation between white persons and persons of African descent is forever prohibited, and such marriages shall be null and void.”
Capt. Irwin read many other authorities, and made an earnest, manly and patriotic appeal for the preservation of public morality by tho enforcement of the law and, the prevention of such marriages as tend to bring disgrace upon society and humanity.
Barton Thrasher replied, and repeated his ideas about United States Courts, quoting Dick Busteed’s decisions, etc.
The Judge reserved his decision until to-day.
These cases are creating a great deal of excitement among the legal fraternity. We have heard, whether the report be true or false, we do not say, that the defence of these cases had been refused by four legal firms at least. Society and sound morality demands that this disgusting crime shall be punished with the utmost severity of the law. The crime is such as to make the heart turn sick, and we hope that District Attorney Irwin will continue to discharge his duty until the evil is torn up, root, branches and all.
The Miscegenationists Convicted—Judge Lawrence Reads His Decision in the Tennessee Case—Sentences, Etc.
The interest in this Court yesterday was unabated, and the new fledged “suffragists” were out in full force, to see whether the law would allow them to marry ad libitum, and gravely speculated upon the result. It was over an hour before the wheels of justice got into motion, when REV. ORION GEORGE, the negro who married William Hobbes, white, to Martha Johnson, black as charcoal, was called up. His counsel, Albert Thrasher and T. K. Oglesby, seemed to dwell considerably on George’s ignorance of the law, alledging that he was legally compelled to be ignorant of everything until within the last six years, seeming to forget that if he had equal rights under existing laws, that he is also under equal responsibility for his acts, and that if there is injustice in it, it attached to the United States, and not to the State of Georgia. Mr. Thrasher’s argument was based almost entirely upon the Civil Rights Bill. The defence also made a point that Hobbes gave George a regular license to perform the marriage, but forgot (we suppose) to state that the license only authorized George to perform the marriage if there was no legal impediments, and that Hobbes imd Martha Johnson were too dissimilar in color to escape the detection of even the bamboozled George, Mr. Oglesby’s speech sounded like the opening of the campaign of 1872. It made us feel like depositing our ballot instanter—on paper. District Attorney, Irwin, ably sustained the State, and the jury returned a verdict of guilty.
As soon as the verdict was rendered, WILLIS HARRIS AND MARY SILVEY, the Tennessee miscegenationists were called up to hear their verdict, previous to the reading of which the counsel asked leave to say something in mitigation, which was granted.
The Counsel—These parties were married in good faith, in Tennessee. Coming here they were not aware of the consequences. They are now willing to leave the State if the clemency of the Court is extended to them. One of the jurymen, Mr. King, has just informed me that he wishes to say something in mitigation.
The Court—Mr. King has leave to proceed.
Mr. King—Before saying anything, I would like to ask that girl a question.
“The Court—You may ask it.
Mr. King (addressing himself to the woman)—Are you the daughter of Washington Silvey, of Campbell county?
Mary Silvey—I am.
Mr. King—Your Honor, I knew that woman’s father well. He was an honorable man, as was also her grand-father.—Her mother died while this woman was a child, and her father died shortly after. She has never had any good influences around her, has been thrown into disreputable company, and I wish to God to take that poor unfortunate from the side of that nigger.
Mary Silvey—I was poor, with nothing to eat and no clothes. This man took me and gave me clothes and kept me from starvation.
Mr. King—I am sorry for the poor creature, but sincerely hope your Honor will divide them. She has no sense, and is a miserable specimen. I ask this for the sake of those who would be her friends.
The Court—The request will be taken into consideration.
Mr. King appeared to be deeply affected to see the daughter of an old friend and honorable man thus chained to degradation. His Honor then proceeded to read his DECISION IN THE TENNESSEE MARRIAGE CASE.
He spoke substantially as follows:—
This is an accusation of fornication against “Willis Harris, (colored), charging him with living in fornication with one Mary Harris, a white woman, and against said Mary Harris for same offence. The defence set up was Marriage. No evidence was introduced; but it was admitted between counsel that the parties were legally married in the State of Tennessee, as allowed by the laws of that State. At the enquiry of the Court it was stated that the Certificate of Marriage was in Court—but the District Attorney not pressing proof of its authenticity, it was taken to be a true Certificate of the fact of Marriage; and the case was argued at length and with ability by the Counsel on both sides before the Court, August 8th. The Court reserved its judgment until this morning, August 9th. At first glance, and before argument of Counsel, I was inclined to the opinion that the lex loci contractus would govern the case, and so intimated to Counsel, for the purpose of having the argument directed to that point I cannot award too much praise to the ability and zeal of the District Attorney exhibited in the array of law and precedent brought to bear on the question, and which served to dissipate from the mind of the Court all doubt prima facie entertained.
Upon examination of the law and authority cited by him, (viz: Code of Georgia—Sect 9, 1709—2696; a. a. 1868; Georgia Reports—34, p. 40; Georgia Reports—38, 75, 86; Georgia Reports—29, 321; Georgia Reports 36, 388, 389; Story, conflict of laws, Sect 29;) I am fully satisfied that the intermarriage of the parties in the State of Tennessee, however legal in that State, must be held to be null and void in this State.
The setting aside the general principle of the lex loci contractus in this case proceeds on the ground that such marriage is in contravention of the public policy of our State—vide authorities above cited. Public policy, adopted and upheld for the support and improvement of the morals, the peace, the good order and security of society in a State, is of itself ex-necessitate in view of the importance of these objects, of paramount authority, and must override special principles of law, however just in themselves, and long respected and observed, when these conflict with such public policy. Under the laws, for instance, of Utah, or customs having the force of laws with them, a man may have any number of wives. Now, though this may bo perfectly legal and right there, in the state of society these existing, can it be supposed that any State where the Monogamic relation between the sexes is preserved and upheld by law, would for an instant suffer a polygamic citizen of Utah to move into its midst, and corrnpt society by his example? Surely not. But is it less offence against the public policy of the State or the good taste and feeling of its citizens to suffer parties to cross the border of a neighboring State, and bring with them relations forbidden byoour laws or grounds of public policy? No—assuredly no.
In ruling then that the marriage of the parties in Tennessee is null and void, and that the lex fori must be given the case, it follows that the parties are guilty of the accusation.
The case of Ada Thompson, for vagrancy, was taken up, and a verdict of guilty was rendered.
His Honor then announced himself prepared for THE READING OF THE SENTENCES.
The miscegenationists, et. al., were ranged in a row, and received their various assignments with due composure.
- The State vs. Wm. Hobbes, white, living in fornication with Martha Johnson, colored; fine of $1,000, or six months in limbo.
- The State vs. Martha Johnson, colored, living in fornication with Wm. Hobbes, white; $200, or three months in limbo.
- The State vs. Willis Harris, colored, living in fornication with Mary Silvey, white; $250, or six months in limbo.
- The State vs. Mary Silvey, white, living in fornication with Willis Harris, negro; $1,000, or six months in limbo.
- The State vs. Orion George, negro preacher, marrying parties forbidden by law; $50 and costs, or ten days in his prison cell.
- The State vs. Green Martin, larceny from house; $100, or six months on the public works.
- The State vs. Wm. Beatte, larceny from the house; $100, or six months on public works.
The miscegenationists, through their counsel, have given notice that they will certiorari the cases.
SENTENCE OF THE MISCEGENATIONIST. THE BALL SET IN MOTION.
The Boa Constrictor of Law Tightening its Folds around Vice and Immorality.
The Moral Feelings of the People Vindicated.
A NOBLE JUDGE AND A NOBLE DECISION.
At last we breathe easier. The fiat has gone forth that in Georgia crime shall not go unwhipt of justice, nor shall moral rottenness reek in our midst. Our State will not be a doggery for the depraved, the corrupt, and the vicious of other States. In our midst miscegenation, even when sanctioned by the unholy statutes of other States, shall be crushed out, trampled under foot, and the guilty parties shall meet with sure, certain, condign punishment.
The cases which have been before the District Court for two days past have excited, not interest alone, but deep concern in the minds of our citizens. “Was this hydra-headed monster of corruption to be declared legal? “Was our sense of morality to be insulted? Was the marriage relation to be disgraced and rendered infamous? Were we to be compelled to see festering corruption walking about on the streets, jostling against us in the crowd, staring at us in the public places? These were the questions which arose and perplexed our citizens, and the threatened appeal to United States authority to override our laws, our customs, our sense of moral decency, added a strong feeling to them.
But Judge Lawrence and an impartial jury have spoken. Such things shall not exist. Let those who would disgrace humanity go to Tennessee, go to Massachusetts, go wherever corrupt and infamous lawmakers will protect them; but there is no place for them in Georgia. The ball is in motion, the law will be enforced strictly and to the very letter, and its boa-constrictor folds are now tightening around the neck of crime and corruption. Let it be proclaimed abroad that miscegenation cannot exist in Georgia.
DISTRICT COURT.
The City Council and Soda Water—Mr.Tignor Explains Sabbath Violations.
The Court room yesterday morning was not infested with as many niggers as usual; and, no doubt, the sad fate of the miscegenationists contributed to this absence. It was again over an hour after the regular time before tho Court proceeded to business…
…The case of Meister, white, miscegenationist, was continued until September.
- Wm. Mathershed, an old white man, apparently on the brink of the grave, was found guilty of miscegenation. His sentence will be read to-day.
- Squire Manuel, negro, miscegenation. Plead guilty. Sentenced to $500 fine, or six months at hard labor.
- Hampton Scott, negro, miscegenation. Pleaded marriage. Fined $500 or six months hard labor.
Read the entire article here.