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
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]
Public-domain text, read in full here on John Shaqi.
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