Race Distinctions in American LawStephenson, Gilbert Thomas
History
Race Distinctions in American Law
Stephenson, Gilbert Thomas
African Americans -- Politics and government; Law -- United States -- History; United States -- Race relations
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.
Public-domain text, read in full here on John Shaqi.
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