Читать книгу Race Distinctions in American Law - Gilbert Thomas Stephenson - Страница 31

Table of Contents

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.