Section 4189 of the Code of Alabama, prohibiting a white person
and a negro from living with each other in adultery or fornication,
is not in conflict with the Constitution of the United States,
although it prescribes penalties more severe than those to which
the parties would be subject, were they of the same race and
color.
Section 4184 of the Code of Alabama provides that
"If any man and woman live together in adultery or fornication,
each of them must, on the first conviction of the offense, be fined
not less than one hundred dollars, and may also be imprisoned in
the county jail or sentenced to hard labor for the county for not
more than six months. On the second conviction for the offense with
the same person, the offender must be fined not less than three
hundred dollars, and may be imprisoned in the county jail, or
sentenced to hard labor for the county for not more than twelve
months, and for a third or any subsequent conviction with the same
person, must be imprisoned in the penitentiary, or sentenced to
hard labor for the county for two years."
Section 4189 of the same code declares that
"If any white person and any negro, or the descendant of any
negro to the third generation, inclusive, though one ancestor of
each generation was a white person, intermarry or live in adultery
or fornication with each other, each of them must, on conviction,
be imprisoned in the penitentiary or sentenced to hard labor for
the county for not less than two nor more than seven years. "
Page 106 U. S. 584
In November, 1881, the plaintiff in error, Tony Pace, a negro
man, and Mary J. Cox, a white woman, were indicted under sec. 4189
in a circuit court of Alabama for living together in a state of
adultery or fornication, and were tried, convicted, and sentenced,
each to two years' imprisonment in the state penitentiary. On
appeal to the supreme court of the state, the judgment was affirmed
and he brought the case here on writ of error, insisting that the
act under which he was indicted and convicted is in conflict with
the concluding clause of the first section of the Fourteenth
Amendment of the Constitution, which declares that no state shall
"deny to any person the equal protection of the laws."
MR. JUSTICE FIELD delivered the opinion of the Court, and after
stating the case as above, proceeded as follows:
The counsel of the plaintiff in error compares secs. 4184 and
4189 of the Code of Alabama, and assuming that the latter relates
to the same offense as the former and prescribes a greater
punishment for it because one of the parties is a negro or of negro
descent, claims that a discrimination is made against the colored
person in the punishment designated which conflicts with the clause
of the Fourteenth Amendment prohibiting a state from denying to any
person within its jurisdiction the equal protection of the
laws.
The counsel is undoubtedly correct in his view of the purpose of
the clause of the amendment in question -- that it was to prevent
hostile and discriminating state legislation against any person or
class of persons. Equality of protection under the laws implies not
only accessibility by each one, whatever his race, on the same
terms with others to the courts of the country for the security of
his person and property, but that in the administration of criminal
justice, he shall not be subjected for the same offense to any
greater or different punishment. Such was the view of Congress in
the reenactment of the Civil Rights Act of May 31, 1870, c. 114,
after the adoption of the amendment. That act, after providing that
all persons within
Page 106 U. S. 585
the jurisdiction of the United States shall have the same right,
in every state and territory, to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of person and property
as is enjoyed by white citizens, declares, in sec. 16, that they
shall be subject
"to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and none other, any law, statute,
ordinance, regulation, or custom to the contrary
notwithstanding."
The defect in the argument of counsel consists in his assumption
that any discrimination is made by the laws of Alabama in the
punishment provided for the offense for which the plaintiff in
error was indicted when committed by a person of the African race
and when committed by a white person. The two sections of the Code
cited are entirely consistent. The one prescribes generally a
punishment for an offense committed between persons of different
sexes; the other prescribes a punishment for an offense which can
only be committed where the two sexes are of different races. There
is in neither section any discrimination against either race.
Section 4184 equally includes the offense when the persons of the
two sexes are both white and when they are both black. Section 4189
applies the same punishment to both offenders, the white and the
black. Indeed, the offense against which this latter section is
aimed cannot be committed without involving the persons of both
races in the same punishment. Whatever discrimination is made in
the punishment prescribed in the two sections is directed against
the offense designated, and not against the person of any
particular color or race. The punishment of each offending person,
whether white or black, is the same.
Judgment affirmed.
