Читать книгу Race Distinctions in American Law - Gilbert Thomas Stephenson - Страница 29

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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.