dissenting. Being unable to assent to all of the conclusions reached by a majority of the Court, I desire to indicate, briefly, some of the grounds upon which I rest my dissent, without elaborating the argument in support of such grounds.
The question which lies at the foundation of the whole case is whether the connection which existed between Joe and Nancy was that of a lawful marriage, so that their issue, Katie and Willis, can be regarded as legitimate. It is to be observed that the question is not whether such connection was unlawful in the sense that it violated any law, by which the parties would be subjected to punishment, but whether such connection can be regarded as lawful in the sense that it gave rise to the relation of husband and wife, with the consequences flowing therefrom — the legitimation of their issue. These persons having been born slaves, and continued as such until their death, it is conceded, were incapable of forming *350a lawful marriage connection in the sense above stated, and hence their issue must necessarily have been, at one time, illegitimate, for Blackstone tells us that a bastard is one born “ out of lawful matrimony.” This being the case, such issue must be regarded as still illegitimate unless they have been by proper authority declared legitimate. The burden of proof is upon the respondents to show this; and they have attempted to show it by the Act of 1865, (13 Stat., 31,) entitled “An Act to establish and regulate the domestic relations of persons of color,” &e. The first question to be considered is: To what class of persons does this Act apply? Does it apply to the class to which Joe and Nancy belonged during their lifetime, they having died many years before the slaves in this State were emancipated, and, consequently, many years before the passage of the Act in question ? The title informs us that, so far as the/portion of it with which we are concerned, it applies alone to “persons of color,” and the preceding Act, entitled “An Act preliminary to the legislation induced by the emancipation of slaves,” (13 Stat., 10,) declares who shall be embraced within the words “persons of color,” viz.: “All free negroes, mulattoes and mestizoes, all freedmen and freedwomen, and all descendants, through either sex, of any of these persons.”
Now, Joe and Nancy, having died while still slaves, cannot by any possibility be brought within either of these classes, and cannot, therefore, be regarded as “ persons of color ” referred to in the Act of 1865, and hence the first Section of that Act cannot be applied to them, and the connection which existed between them cannot be regarded as constituting the relation of husband and wife. If they had lived until the slaves in this State were emancipated, then immediately they would, by virtue of that fact, have been placed in the class of “freedmen and freedwomen,” and the Act would have applied to them, thereby legalizing their connection and giving rise to the relation of husband and wife between them. The Act cannot be construed as applying to slaves as such, but may be to persons who were once slaves, but who had subsequently, and prior to the passage of the Act, been placed in a different and higher class — that of freedmen; and as the persons in question never reached that class, the Act cannot apply to them. I must conclude, therefore, that Joe and Nancy could not be regarded as sustaining towards each other the relation of husband and wife, and that, therefore, their issue, Katie and Willis, were illegitimate and incapable of inheriting the one from the other. *351It may be contended, however, that, even if this be so, the rights of legitimacy are, nevertheless, conferred upon Katie and "Willis by the express terms of the fourth Section of the Act. That Section reads as follows: “ Every colored child heretofore born is declared to be the legitimate child of his mother, and also of his colored father, 'if he is acknowledged by such father.” If this language is to be construed as conferring the rights of legitimacy upon Katie and Willis, who were bofn of slave parents who never became freedmen, long before the emancipation of the slaves, then it necessarily follows that the same rights were conferred upon all the offspring of slaves in every preceding generation of persons of that class. This construction would not only be wholly unnecessary, but would lead to inextricable confusion. When we remember, as we have seen above, that the Act was not intended to apply to slaves, but only to “persons of color,” — by whom the Legislature has taken the pains to" declare that they meant persons other than slaves — it is obvious that such a construction of the Act is inadmissible. It is true that the word “heretofore” in the Section does seem to demand that the Act should have, in violation of the general rules, a retrospective operation, but the inquiry still remains whether it may not be given such retrospective operation without extending it so far as to embrace the children of slaves born in any preceding generation, especially when by so extending it persons of a class not intended to be embraced within the terms of the Act are included. This Act was passed on the 21st day of December, 1865, and as the slaves in this State had been emancipated in the previous Spring, (Pickett vs. Wilkins, 13 Rich. Eq., 366,) there were doubtless quite a number of colored children born in this State between those two dates. Such children would be embraced within the terms “ every colored child ” used in the Act of 1865, as they would be descendants of freedmen and freedwomen, that is, descendants of some of those persons named in the “Act preliminary to the legislation induced by the emancipation of slaves,” as coming with the terms “ persons of color,” to which class of persons the Act in question is confined. It may be, too, that by a liberal construction, which I am disposed to give the Act, that the terms “ every colored child” would also embrace all the children of persons who, though once slaves, had become freedmen, whether born before or after the actual emancipation of the slaves, as they too would be the descendants of freedmen and freedwomen; but how those terms can be *352held to embrace the children of those who never became freedmen, I am unable to understand. It is also to be observed that the language of the fourth Section of the Act under consideration is, “ if he is acknowledged by such father,” not if he has been or is acknowledged, and this is another indication to my mind that the Act only intended to deal with and provide for the then existing condition of things, and not to extend back through all preceding generations. It seems to me that so to extend the Act would lead to inextricable confusion.
Suppose, as not unfrequently happened during the existence of slavery, that Joe had at some time of his life, either prior or subsequent to his connection with Nancy, lived in the same way with some other woman by whom he had begotten two other children,— which set of children are to be regarded as legitimate? Why one set any more than the other? We know as matter of history that many of the slaves in this State were brought here from Virginia, and also that many slaves were carried from this State to the West. Now, suppose a case shall hereafter arise in which it is made to appear that the ancestor through whom the claimants before the Court trace their relationship had lived with some woman in Virginia, in the same way that Joe lived with Nancy, by whom he had a child whom he always acknowledged as such, and that when brought to this State his connection with such woman was broken up, and he formed another similar connection with some other woman in this State by whom he had another child who was also acknowledged by him as such, and then suppose he had been sold in the West by which his second connection was broken up, whereupon he found a third similar connection with still another woman in the West by whom he had still another child who was also acknowledged by him as such, — which of these children could we hold to be legitimate? Certainly not all of them without sanctioning polygamy, which, by our law, is a crime.
It seems to me also that there is great force in the argument that the Act of 1865, as well as that of 1872, referred to in the argument, are in conflict with Section 39 of Article I of the Constitution of 1868, and are, therefore, null and void. So much of that Section as relates to this matter reads as follows: “Distinction on account of race or color, in any ease whatever, shall be prohibited, and all classes of citizens shall enjoy equally all common, public, legal and political privileges.” Every one will admit that one of *353the main objects of the present Constitution was to place the two races upon precisely the same footing, so far as the law could do so, both in l’espect to civil and political rights. One was to enjoy no privileges denied to the other, and to be subjected to no burdens to which the other was not liable. Hence, it would seem to follow that any legislation which should confer upon the members of the one race any privileges whatsoever which were not at the same time conferred upon the other would be in violation of this clause of the Constitution, just as much as any.legislation which should impose upon the one race burdens from which the other was exempt. Such legislation as that under consideration must be regarded as an attempt to make a “distinction on account of race or color; one race by reason of its race or color is to enjoy certain privileges, while the other, only because it is not of the same race and color, is not to be entitled to such privileges. For it is very manifest that both the Act of 1865 and that of 1872 do undertake to confer certain rights and privileges upon the members of the colored race, while the same rights and privileges are not conferred upon the members of the white race. The rights of legitimacy are sought to be conferred upon a certain class of colored children, while the white children who have been born from the same kind of connection, under the same circumstances, have no such rights conferred upon them. If this is not a distinction on account of, that is by reason of, race and color, I confess that I am unable to understand the meaning of the terms.
The colored race, under the Constitution of this State, are entitled to the same, not greater, civil and political rights as the white race, and in these rights, no less and no more, should the Courts protect them. It will not do to say that the right of legitimacy is a vested right, and, having been once conferred, could not afterwards be taken away. For while this argument may be sufficient to show that the Act of 1866, (13 Stat., 393,) which was doubtless designed to repeal the Act' of 1865, could not have that effect so as to defeat or divest such vested right, it would not be sufficient to show that such a vested right would be beyond the reach of a constitutional provision unless it could be shown that such vested right vested upon or grew out of a contract, and could thereby be brought under the protection of that provision of the Constitution of the United States which forbids a State from making any law, either by legislative enactment or constitutional provision, which shall impair the *354obligation of a contract. Nor will it do to say, as was said in argument, that the Act of 1872 (15 Stat., 183,) applies to “all persons,” and therefore there is no distinction on account of race or color. There might be great force in this argument if the words quoted described fully the persons to whom the Act refers, but such is not the fact. The persons to whom the Act refers are “ all persons in the State of South Carolina who, previous to their actual emancipation, &e.” clearly confining the Act to persons who had once been slaves, and, as the colored race alone occupied that position, confining the Act to that race.
I concur entirely in the conclusion which the majority of the Court reached upon the question of jurisdiction, and deem it altogether unnecessary to say anything upon that question.