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PACE v. STATE OF ALABAMA, 106 U.S. 583 (1883)
January 29, 1883
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 $100, 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 $300, and may be
imprisoned in the county jail, or sentenced to hard labor for the county,
for not more than 12 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.'
In November, 1881, the plaintiff in error, Tony Pace, a negro man, and Mary
J. Cox, a white woman, were indicted under section 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.' [106 U.S. 583, 584] J. R. Tompkins, for
plaintiff in error.
H. C. Tompkins, for defendant in error.
FIELD, J.
The counsel of the plaintiff in error compares sections 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 re-enactment of the civil-rights act, after the adoption of
the amendment. That act, after providing that all persons within [106 U.S.
583, 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 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.' 16 St. c. 114, 16.
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.
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