RECONSTRUCTION OF MARITAL RELATIONS OF NEGROES
One of the perplexing problems that arose out of Emancipation was the
fixing of the marital relations among Negroes. It is generally known
that the marriage ties between slaves were loose and their domestic
relations irregular. In some instances, slave marriages were solemnized
according to legal requirements, by either a white clergyman or other
proper officer of the law; in others, there was the common law
marriage—that is, the parties lived together as husband and wife under a
simple, unrecorded agreement between themselves; in still other
instances, there was deplorable promiscuity.
When the Negro was made a citizen, it became necessary at once to settle
his marital relations. If the usual slave marriages were not recognized
as legal, then the offspring of such unions were bastards with the usual
disqualifications of that class, among which is their partial incapacity
to inherit property. In order to secure to Negroes the rights of heirs,
it was necessary to legalize slave marriages, at least to the extent of
giving to the children of such marriages the right of inheritance. This
was accomplished in one of three ways. Some States required the
emancipated slaves to be remarried in order to legitimate their
offspring; others required them to appear before an officer, declare
their desire to continue to live together, and get a certificate; others
still, and these were in the majority, passed statutes legalizing all
slave marriages. A few States did not adopt any one of these three
methods but left it to the courts to recognize the legality of such
marriages as cases arose.
REMARRIAGES
Among the States which adopted the method of remarrying was
Florida,[117] which, by a law of 1866, required all colored persons
living together as husband and wife, who had not been legally married,
and who wished to continue so to live together, to be married within
nine months from the passage of the statute on January 11th. If they
failed to be married but continued to live together, they were punished
as guilty of fornication and adultery. By the second marriage, their
children were legitimated. The law made it incumbent upon the clerk of
the court, upon application by the parties and a tender of the required
fee, to enter a certificate of marriage upon his register. Anyone
practicing fraud upon Negroes by pretending to perform the marriage
ceremony without authority to do so was guilty of a misdemeanor and
punishable by a fine not exceeding one thousand dollars, imprisonment
not over six months, or might be sentenced to stand in a pillory not
over one hour. After the expiration of the nine months named in the
statute, the marriage requirements for white and colored persons were
the same. This statute of 1866[118] was amended, on December 14, of the
same year, to the effect that, if persons of color had lived together as
husband and wife and had recognized each other as such, they were to be
considered married and their children to be legitimate. Thus, the
necessity of a remarriage was obviated. The amendment was added
apparently because of the great number of indictments for adultery
against those who had not complied with the law of January 11th.
The Georgia[119] Constitution of 1865 directed the General Assembly at
its next session to pass a law to legalize the existing slave marriages
and to provide for the contracting and solemnizing of future marriages
and, in connection with this, to define and regulate the Negro’s right
to devise and inherit property. The General Assembly[120] responded in
1866 by enacting a statute by which persons of color then living
together as husband and wife were declared to be so. If the man had two
reputed wives or the wife two reputed husbands, he or she must select
one of the two as wife or husband, with her or his consent, and have the
ceremony of marriage performed. If they continued to cohabit without
making this choice, they were guilty of fornication and adultery. It was
not enough to make the selection and live faithful to the one chosen;
the marriage ceremony was a requisite.[121] Unless there were two
reputed husbands or wives, the ceremony was not necessary.[122] By the
same act[123] the children of slave marriages were legitimated, and
Negro ministers were given a similar right to perform marriage
ceremonies for Negroes as white ministers had for both races.
Missouri,[124] in 1865, required all persons of color claiming to be
married and wishing to continue in that relation to appear before some
one authorized to perform the ceremony and be joined in marriage.
The same year, South Carolina[125] passed a statute of ninety-nine
sections relative to persons of color, eleven of which concerned their
marital relations. This statute established the relation of husband and
wife between persons of color, and declared that those then living as
such were husband and wife. If a man had two or more reputed wives or a
woman two or more reputed husbands, he or she must choose one of them by
April 1, 1866, and be remarried. Children born before the enactment of
this law were declared to be the legitimate offspring of their mother,
and of their putative father also if they were acknowledged by him.
Thereafter, Negroes must be married as white people were—by a clergyman,
judge, magistrate, or other judicial officer. The husband who abandoned
his wife or the wife who abandoned her husband, might be bound out from
year to year until he or she was willing to resume conjugal relations.
An abandoned wife was free to make a contract for service. South
Carolina has been apparently the only State to provide for the children
of white fathers and Negro mothers. A law[126] of 1872 declared that
such children might inherit from their father if he did not marry
another woman but continued to live with their mother.
CERTIFICATES OF MARRIAGE
Kentucky, Louisiana, and Maryland provided for the marriage of former
slaves by the second method enumerated above, the granting of
certificates. The Kentucky law[127] declared that all colored persons
who had been living together as husband and wife and who continued to do
so should be regarded as legally married and their children legitimate.
But the man and woman must appear before the clerk of the county court
and declare that they had been living and wished to continue to live as
husband and wife. Upon payment of fifty cents, the clerk recorded the
declaration, and for twenty-five cents more issued a certificate thereof
to the parties. It was not a sufficient compliance with the statute for
the parties to continue to live together without appearing before the
clerk of the court.[128]
An interesting case[129] which arose under this Kentucky statute was as
follows: A Negro woman, an ex-slave and living as the wife of another
ex-slave, made her promissory note between the time of her emancipation
and the date of this law. Under the provision of the statute, the man
and woman appeared before the clerk of the court and obtained a marriage
certificate. Later, she was sued on the note and pleaded coverture. At
that time a married woman could not make a valid contract in her own
name. The court held the plea bad, being of opinion that, as between the
parties to the marriage, the statute validated their union from the
beginning, but as to third parties, the woman was still single and so
capable of making a valid contract.
In 1895, the same court[130] held that, if a Negro man and woman lived
together while slaves as husband and wife, a customary marriage was
established, the court saying in its opinion: “Since the passage of the
Act of February, 1866, ... the general tendency of the decisions of this
court has been to give that Act of 1866 a liberal construction with a
view to effectuate its clearly defined purpose.” And a late statute[131]
of 1898 further modified the law of 1866 by declaring that the children
of above marriages might inherit property. If there was a subsequent
marriage and children born of it, the slave children shared with them
_pro rata_.
A statute of Louisiana,[132] in 1868, legalized all private or religious
marriages, provided that the parties, within two years, made a
declaration of their marriage before a notary public or other competent
officer, giving the date of the marriage and the number and ages of the
children. Though the statute did not mention Negroes, it must have been
passed for their benefit.
In 1873, the following case[133] came before the Louisiana court: A
Negro’s parents, who had lived together as husband and wife, died before
Emancipation. The majority of the court held that, if they had lived
till after Emancipation, their children would have been capable of
inheriting their property, but, since they died before Emancipation,
their marriage was never legalized, and their offspring could not so
inherit. The dissenting opinion was that, since the slaves had done all
they could to be legally married, they should be recognized as married
and their children should be legitimated.
Maryland,[134] in 1867, confirmed and made valid all previous marriages
between colored persons, but required them to prove before a justice of
the peace that they had been so married; and a certificate to that
effect had to be filed with the clerk of the court. Thereafter, colored
persons must secure licenses and be married in the same manner as white
people.
SLAVE MARRIAGES DECLARED LEGAL BY STATUTE
The last of the three methods of reconstructing the domestic relations
of former slaves was by declaring slave marriages legal by statute. On
September 29, 1866, the Constitutional Convention of Alabama, which
adopted an ordinance prohibiting slavery, also enacted[135] that all
marriages between freedmen and freedwomen, whether during slavery or
after, solemnized by one having or claiming to have the authority,
should be valid, if the parties were still living together. It was
subsequently held that, under this act, the woman had a right of dower,
although the man had abandoned her and married another woman within a
month after such act was passed.[136] In 1870, the Supreme Court of the
State held that the children of slave marriages were not bastards, that
by the elevation of their parents to citizenship, their heritable blood
was restored.[137]
Arkansas,[138] in 1866, legalized marriages of all persons of color who
then lived together as husband and wife and made their children
legitimate, but provided that thereafter all marriages of persons of
color must be recorded. The same year Tennessee[139] passed a similar
statute.
The Constitution[140] of Texas of 1869 declared that all persons should
be considered legally married who in slavery lived as husband and wife
and after Emancipation either continued to live together till one died
or were living together at the time of the adoption of the Constitution.
Such a marriage completed by cohabitation after Emancipation was valid,
though the parties separated within five months and were not living
together at the time of the adoption of the Constitution.[141]
The law of Virginia[142] provided that persons of color living as
husband and wife on February 27, 1866, whether or not any ceremony had
been performed, should be considered as lawfully married and their
children legitimate. If they had separated prior to that date the
children of the woman, if recognized by the man to be his, were
nevertheless legitimate. West Virginia[143] had practically the same
law, except the latter clause about recognition by the father.
Illinois,[144] as late as 1891, passed a statute to legalize slave
marriages and legitimate the children thereof. But this law did not
apply to a voidable slave marriage in another State, disaffirmed by a
subsequent legal marriage before the enactment of the statute.[145] A
similar decision under a similar statute was rendered in Ohio[146] in
1883. These decisions would indicate that a slave marriage was valid
only if there was no subsequent marriage of either party to a third
person. In 1876, New York[147] recognized as valid slave marriages
contracted in slave States with the consent of the master.
MARRIAGES BETWEEN SLAVES AND FREE NEGROES
Statutes relative to marriages between free Negroes and slaves are not
numerous. Presumably, the term “persons of color” included both Negroes
born free and those who had been slaves. A Tennessee court,[148] in
1882, held that the formal marriage of a free Negro and a slave, with
the consent of the master, followed by a cohabitation for years, was a
valid marriage and entitled the woman to dower.
FEDERAL LEGISLATION
The Congress of the United States has had occasion to pass upon the
validity of slave marriages only in connection with pensions to the
descendants of colored soldiers. An act[149] of 1873 provided that, in
determining whether the widow of a Negro or Indian soldier and sailor is
entitled to a pension, it is necessary only for the claimants to show
that she was married according to some ceremony, which she and the
deceased deemed obligatory, that they habitually recognized each other
as husband and wife, and were so recognized by their neighbors, and that
they lived together up to the date of his enlistment. It was also
provided that the children of such marriages might claim their father’s
pension.
Though they proceeded in different ways, practically all of the States
arrived at the same result. If slaves were married according to the
custom, if they lived as husband and wife both before and after
Emancipation, their union was considered a valid marriage to all intents
and purposes and the children thereof might inherit. Where the
procurement of a certificate or remarriage was required, if one of the
parties took advantage of the opportunity to be freed from the early
alliance, as happened in several amusing instances, and took another
spouse, the second marriage was the valid one, and the children of the
slave union could not inherit their parents’ property.
It scarcely needs to add that, at present, the marriage requirements as
to license, age, etc., are in all States precisely the same both for
white and colored people.
NOTES
Footnote 117:
Laws of Fla., 1865, p. 31.
Footnote 118:
_Ibid._, 1866, p. 22.
Footnote 119:
Art. II, sec. 5, par. 5.
Footnote 120:
Laws of Ga., 1865–66, p. 240.
Footnote 121:
Comer v. Comer, 1892, 91 Ga. 314.
Footnote 122:
Williams v. State, 1881, 67 Ga. 260.
Footnote 123:
Laws of Ga., 1866, p. 156.
Footnote 124:
Laws of Mo., 1864, p. 68.
Footnote 125:
Laws of S. C., 1865, pp. 291–92.
Footnote 126:
_Ibid._, 1871–72, pp. 162–63.
Footnote 127:
Laws of Ky., 1865–66, p. 37.
Footnote 128:
Estill v. Rogers, 1866, 1 Bush (Ky.) 62.
Footnote 129:
Stewart, of color, v. Munchandler, 1867, 2 Bush (Ky.) 278.
Footnote 130:
Scott v. Lairamore, 1895, 32 S. W. 172.
Footnote 131:
Laws of Ky., 1898, pp. 102–03.
Footnote 132:
Revised Stat. of La., 1870, p. 436, sec. 2212.
Footnote 133:
Pierre v. Fontennette, 1873, 25 La. Ann. 617.
Footnote 134:
Laws of Md., 1867, p. 858.
Footnote 135:
Code, 1867, p. 64.
Footnote 136:
Washington v. Washington, 1881, 69 Ala. 281.
Footnote 137:
Stikes v. Swanson, 1870, 44 Ala. 633. See Haden v. Ivey, 1874, 51 Ala.
381.
Footnote 138:
Acts of Ark., 1866–67, p. 52.
Footnote 139:
Laws of Tenn., 1865–66, pp. 65 and 81; Laws, 1869–70, p. 92.
Footnote 140:
Art. XII, sec. 27.
Footnote 141:
Cumby v. Garland, 1894, 25 S. W. 673; Coleman v. Vollmer, 1895, 31 S.
W. 413.
Footnote 142:
Laws of Va., 1865–66, pp. 85–86.
Footnote 143:
Laws of W. Va., 1866, p. 102; Laws, 1872–73, p. 502.
Footnote 144:
Laws of Ill., 1891, pp. 163–64.
Footnote 145:
Butler v. Butler, 1896, 44 N. E. 203.
Footnote 146:
McDowell v. Sapp, 1883, 39 O. S. 558.
Footnote 147:
Minor v. Jones, 1876, 2 Redf. Sur. (N. Y.) 289.
Footnote 148:
Down v. Allen, 1882, 78 Tenn. (10 Lea) 652.
Footnote 149:
17 Stat. L., 570, chap. 234, par. 11.