CHAPTER V

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.