author: Bradwell, J.:—

text:
      (Circuit Court of Cook County.)

    Elizabeth Smith, Guardian of Matt. C. Jones vs. Julius Rosenthal, Administrator of the Estate of Henry Jones.

    (September 17, 1866.)
    1. Marriage — Validity of Depends on Daw of Place Where Same Takes Place. The validity of a marriage is to be determined by the law of the place where the ceremony is performed and if valid there it will be valid everywhere.

      2. International Daw — War Power — Emancipation of Slaves. The condition of slaves follows the fortune of war. If the conquering state holds slaves, the slaves merely change masters, if it does not, the slaves are emancipated.
    5. Marriage — Validity of Religious Marriage — Duty of Courts. The courts are very cautious in pronouncing against marriages which were celebrated according to the peculiar rules of any religious sect, or according to the manner and customs of any nation or race of people.
    4. Slaves — Validity of Marriage Between, Upon Emancipation. A marriage between two slaves is to be treated as valid after emancipation even though during slavery they were deprived of all civil rights. The children horn of such a marriage are entitled to all the rights of legitimate children.
    Petititin of guardian of' a minor child to have child bom of a slave marriage declared the only heir of the decedent and that the administrator be compelled to pay to the petitioner certain funds in his hands. Heard before Judge Thomas B. Bradwell. The facts are stated in the opinion.

       This case is reprinted from Voi. II, Sol. Jour. & Rep. p. 81.- — Ed.

   Bradwell, J.:—

Henry Jones was a colored man and died intestate at Chicago on the 27th day of April, A. D. 1863. Administration was granted by this court on the following day to- Julius Rosenthal.

All the assets- of said estate have been collected, all debts paid, and the balance of $608.66 is now in the hands of the administrator, subject to the- order of court, to be paid to the heirs of the deceased.

Elizabeth Smith, guardian of Matt. C. Jones, appointed by the county court of Brownsville, Tenn., filed her petition in this court alleging that her ward is the only heir.of the deceased, and asking that a decree be entered to that effect, and that the administrator be compelled to pay her the balance now in his hands. The administrator answered the petition, and stated that he knew nothing of the matters alleged therein and called for strict proof. On the hearing several depositions were read, all similar to that of William Saughter, which is, in substance, as follows:

“Henry Jones lived for fourteen or fifteen years in Brownsville, Tenn., was of African descent, in color ashy black. He was sometimes called Henry Servier, because he was the slave of John, Servier of Brownsville, Tenn., which place he left in the latter part of the year A. D. 1862, and went to Chicago. He was married to a girl named Emeline, the black slave of a Mr. William H. Boring of Brownsville, about thirteen years ago, by myself, then a justice of the peace in said town. After the marriage they lived together as husband and wife until the death of Emeline in 1862. They were recognized and regarded 6s husband and wife by their acquaintances and neighbors during that time. There were two children, the only fruits of that marriage, the one died in infancy, the other, Matt. C, Jones is still alive, resides in Brownsville, and was born on the 4th of September, 1860. Jones never had any other wife or child, or children, than as I have stated. He and his wife were both slaves at the time of this marriage, and were married with the consent of their masters.”

It was also proved that when our army advanced into Tennessee, Jones was taken by the military power and sent North under the written order or command to pass “Henry Severe, colored;” that at the time of his death he had obtained a residence in Chicago; and that after his liberation by the military power he often spoke of Matt. C. as Ms son, and that he intended his money for him. It was claimed on the argument that the parties, both being_ slaves at the time of the marriage, could not control or give their consent to such an undertaking, and that the child was consequently a bastard and not capable of inheriting.

Jones’ domicile at the time of his death being in this state, his personal property must be distributed according to- the law of Illinois, and tMs law must determine who are his heirs. The validity of the marriage is to be determined by the law of Tennessee, and if valid there, will be valid here, unless there is some statute in Tennessee' imposing conditions contrary to the general law of nations which might work as a prohibition of marriage. At the-time-Jones left Tennessee the constitution of the United States provided that the fugitive should be delivered up on the claim of the party to whom labor or service should be due; but Jones was no fugitive; he had not escaped from labor or service due in Tennessee, and could not then have been taken back legally under, this provision of the constitution and the then existing fugitive slave law. He was taken by the strong arm of the Government of the United States, and, at the moment of his capture, his shackles fell — he was transferred from a chattel to a freeman.

Mr. Dana, in a note to his edition of “ "Wheaton’s International Law,” see. 348, in treating of the right to emancipate slaves under the war power, says: “But as persons capable of being used by the will of the master or his state, irrespective of their own will, in war, as soldiers, or1 as laborers, the occupying sovereign has the right to transfer this faculty of service from the enemy to himself. They are so directly liable to state control in war, that their condition follows the fortunes of the war. And, as the slaves are grouped, at least temporarily, in families, with rights at least moral, in the service and affection and duly of one another, the transfer included the whole slave population — of women,, children, and persons not capable of labor — as appurtenant to the laborers. If the occupying state holds slave's, the slaves merely change masters; if it does not, the slaves are emancipated. ’7

Jones having been freed by the war power, I shall treat Ms ease, from the time of Ms capture, as I would the ease of an emancipated slave.

(The learned judge then entered into an elaborate discussion of the natural rights arising out of marriage, and referred to statutes and authorities to show that marriages between slaves were not forbidden in Tennessee or any other southern State. He then proceeded):

Under the civil law, Matt. C. Jones would be declared the legal heir of the deceased, and entitled to his estate, notwithstanding the claim that Jones and his wife were slaves at the time of their marriage. Legitimacy and lawful marriage were some of the pleasing sounds following individual emancipation at Rome hundreds of years ago. Shall it be deprived of these pleasing- sounds in the nineteenth century ? and shall liberty fail to recognize the marriage relation between slaves when slavery, with all its cruelty, and in the days of its greatest power, when it numbered its victims by millions, was compelled to give a quasi-recognition to this relation ? What I when slavery said the cohabitation between the black slave and his wife was innocent and free from sin and under law of God, pure, shall liberty, after emancipation, say that such cohabitation was adulterous, immoral, and sinful, and that the fruits of such marriage are bastards? If so, the emancipated slave may well say, “God deliver me from emancipation.”

The courts have always been very cautious in pronouncing against “marriages which were celebrated according to the peculiar rules of any religious sect, or according to the manner and customs of any nation or race of people, as will appear from the following cases:

The supreme court of Missouri, in Johnson v. Johnson’s Adm’r, 30 Mo. 73, in passing upon the validity of a marriage between a white man and an Indian squaw, says:

“Among the savage tribes of North American Indians, marriage is merely a natural contract, and neither law, custom, nor religion has affixed any conditions, limitations or forms other than those which nature herself has prescribed. Permanency is not to be regarded as an essential element of marriage by the law of nature; otherwise all such connections as have taken place among the various tribes of the North American Indians — either between persons of pure Indian blood, or between half-breeds, or between the white and Indian races — must be regarded as illicit.”

“The law of states where slavery is prohibited, or not sanctioned, recognizes neither slavery nor property in slaves, within their own territorial limits.” Anderson v. Poindexter, 6 Ohio State, 622, 674.

Judge Skinner in delivering the judgment of the court in Rodney v. Illinois Central Railroad Company, 19 Ill. 42, 44, says: “Slavery in the states where it exists, has its foundation in the municipal regulations of such states, which have no extra-territorial operation,. and no binding force in another sovereignty. * * * The owner, therefore, by force of the laws of another state, under the law of Illinois, has no property in the fugitive, and can here, under State authority, assert no property in, or power over him.” With the law of slavery the reason for the law has passed away, and courts will not recognize the effect of the institution for the purpose of bastardising the issue of the dead or slandering the living. The slave of the Southern states owed service to his master, not by the law of nature, but under the local law, which law fixed the termination of that servitude at the end of the natural life of such slave. The strict legal right to the service is the same in the parent as in the master; the only material difference is in the duration of the term. In the case of the emancipation of the child from the power of the father, the marriage contracted during his servitude is good unless he repudiates it upon arriving at his majority. Apply this principle to the emancipated slave, and a marriage contracted during slavery would be good upon emancipation, if the parties were all living, and if it is claimed that the right to inherit must be fixed at the time of the death, and that at that time the master of Jones would have taken the estate, it is a sufficient answer to this, proposition to say that, in case of the death or incapacity of the person to take, the law looks for the next party entitled to the inheritance. The master has been removed; his claim (if he had any) forever barred; and he has left no successor or representative — he is the last of his race. We look for some one else to take the estate, and find that the constitutional amendment has emancipated his child •and removed the only,pretended barrier between him and his father’s estate; — slavery. The common law ignores slavery and all its consequences, and therefore the common law courts are barren of decisions upon the questions now before the court, and I have to determine this case more upon principle than upon the weight of former judicial decisions. Now that slavery has been abolished by the bullets of our soldiers and the ballots of our citizens; that universal liberty is the great corner-stone of this really free republic; that all men stand equal and free before the law; that hundreds of thousands of our bravest sons have shed their blood and,lain down' lives to establish and maintain in this government the great truths “that all men are created free and equal and are endowed by their Creator with certain inalienable rights; and •among these are life, liberty and the pursuit of happiness,” and now that the policy of the government, and of the courts, state and national, is in favor of liberty, and that the legislation of congress and of the states is in the spirit of humanity to make, as far as possible, these unfortunate people forget that they were slaves, and to protect them in the full enjoyment of all their civil rights, free from any of ' the disabilities of slavery or its consequences, it cannot be claimed that the decisions made by the courts of slave states when the policy of the government and the courts was to sustain and perpetuate the power of the master ov.er the slave •are to be regarded now in deciding this case; made when all presumptions were in favor of the master and against the slave, and when in a Southern state to have a black skin was prima facie evidence that a man was a slave, and would compel him in a court to prove his freedom. Were there a thousand of these decisions, made under this influence, in favor of slavery and against the conclusions I have come to in this case, I would brush them aside as I would a spider’s web, and decide this case upon what I consider to be the first principles of law, justice and humanity.

I am, therefore, of the opinion that the marriage between Jones and his wife was valid; that during slavery they were deprived of civil rights; that upon the emancipation of Jones and the petitioner they were possessed of their civil rights, and for the purpose of this suit are to be treated as if they had never been slaves; that Matt. C. Jones is the only surviving child of the deceased, and as such entitled to inherit his estate. To come to any other conclusion would be to say that the representatives of a race were bastards; and that millions, for generations, have been living in adultery, when they had done all in their power to make their connection lawful. The view I have taken of this case makes it unnecessary for me to examine the civil rights bill passed by congress, or the enabling act of the Tennessee legislature.”

Note. — See the eases of Lewis v. King, 180 Ill. 259; Butler v. Butler, 161 Ill. 451, on the validity of slave marriages. See also, the case of Lewis v. Mayo, Adm., reported immediately following this case. — Ed.

       See Crawford v. Crawford, 1 Ill. C. C. 453. — Ed.


source: Caselaw Access Project

license: Public Domain

text:
      (County Court of Cook County.)
    John Lewis, David Lewis and Ophelia Lewis vs. Simeon Mayo, Administrator of the Estate of John Reelay, alias Lewis.
    (January, 1869)
    1. Slaves — Valihitt of Maebiage Between. Marriages -of slaves, consummated during slavery in a slave state in which there is no statute declaring such marriages void, are valid for all purposes after the emancipation of such slaves.

      Petition to have slave marriage declared valid and to recognize petitioners as lawful heirs of decedent. Heard before Judge Thomas B. Bradwell. The facts are stated in the opinion.

      F. W. Becker, for petitioners.

      A. N. Waterman, for administrator.
   Bradwell, J.:—

The deceased was a colored man. His real name was John Lewis. He was held as a slave, in Virginia, until the late war, when he ran away, came to Chicago and changed his name to Reelay. He died intestate, in Chicago, about two years ago, leaving some property.

The evidence shows, that the intestate, about twenty years ago, then being a slave in Virginia, agreed to marry the slave woman of another master. That, with the consent of their masters, a large party of slaves were called together one evening to witness the marriage — that a Methodist class-leader did pronounce them husband and wife; after which they lived together for many years as such, and had three children who are the petitioners in this cause.

The mother of these children was sold about the time of the capture of Harper’s Perry, and sent off further South, since which time she has not been heard from. I am now asked to find that these three children, are the legal heirs of said intestate, and entitled to the property of which he died possessed.

It is claimed that the father and mother at the time of the marriage were property; and, therefore, unable to contract or enter into the marriage relation.

This court, at the September Term, in 1866, in the cáse of Matt. C. Jones against Julius Rosenthal, Administrator, etc.,* examined, with some care, the authorities in regard to the validity of a slave marriage, and, as I have had no reason to change my opinion since that decision was rendered, it will be- sufficient, to dispose of this case without going again into the reasons given, or the authorities cited, in that ease, simply to read the head-note to that opinion, which is as follows:

“Henry Jones, a negro slave, was married in Tennessee, by a justice of the peace ,to a colored woman, the slave of ■ another master, with the consent of their masters. They had one child while in slavery, the fruit of such marriage, called Matt. C. Jones — the mother died in slavery. Jones and Matt. C. were afterward emancipated. Held, after the death of Henry Jones, that such marriage was not void; and that Matt. C. was the legitimate son of Henry Jones, and, as such, entitled to inherit his estate; notwithstanding the fact that his parents were slaves at the time of their marriage and his birth.

“Marriages of slaves, consummated during slavery in a slave state, where there is no statute declaring them void, are good for all purposes upon emancipation.”

Mr. Clerk, let an order be entered, finding the marriage between the intestate and the said female slave valid, and the three petitioners Ms children, and heirs-at-law. ■

       Reported herein. See also the note to same. — Ed.


author: Williams J.:—

text:
      (Circuit Court of Cook County.)
    Catharine Durgon vs. Susannah McGuire, Administratrix of the Estate of Bernard McGuire.
    (October 1, 1868.)
    1. Marriage — At Common Law — Essentials of. It is not necessary •to constitute a valid marriage that there should be a legal ceremony. If the parties made a present agreement to live together as man and wife and such agreement was • actually consummated and the parties continued to cohabit together as man . and wife, this will constitute a valid marriage.
    2. Common Law Marriage — How Proven. A common law marriage may be proved by the declarations and conduct of the parties and by reputation. It is not necessary that record evidence should be adduced.

      Action by plaintiff to recover for services rendered the decedent. Heard before Judge Erastus S. Williams and a jury.
    The deceased, Bernard McGuire, was a cooper who lived in Chicago. The plaintiff lived with him for about seven years, supposing she was his wife, and performed all the duties of a wife, they having agreed to live together as such. There was no ceremony performed by any minister or officer, and no marriage license issued. By their joint labor they acquired quite an estate, and when, by reason of his fallen fortunes and bad habits before his death, he became unable to support himself and family, she, by washing, and the aid obtained from a son of hers by a former husband, succeeded in keeping his real ^estate clear, the taxes paid thereon, and the family together till his death.
    He died, and then her claims as a wife were denied. It appeared that doubts once arose in the mind of plaintiff as to the standing of her boy bom of this father. These she stated to the father, and then it is alleged he quieted her mind by some ceremony which he performed, and which he said was customary in the “old country.” It is also stated that McGuire always acknowledged and introduced plaintiff as his wife, from some time in 1861 until April of this year, and that taking the child to be baptized according to the rites of the Roman Catholic Church, he acknowledged the paternity and perhaps the matrimonial alliance. The plaintiff was about to take out letters of administration when the technical question was raised, and the letters were issued to the daughter, who is defendant.
    The plaintiff sought to recover for her services while she was living with the deceased, believing herself to be his wife. The whole case turned upon the question of marriage.
    The defendant’s counsel cited the following authorities: Fenton v. Reed, 4 Johns. 52, 4 Am. Dec. 244; In re Taylor, 9 Paige, 611; Rose v. Clark, 8 Paige, 574, 582; Cheney v. Arnold, 15 N. Y. 345, 350; Jewell v. Jewell, 1 How. 219; Starr et al. v. Peck, 1 Hill, 270; vide 2 Kent’s Com. 87; and note, citing the decisions in different states; Reeve’s Domestic Relations, 306; Bishop on Marriage and Divorce, 168; Case of Wall v. Williamson, 8 Ala. 48; Wall v. Williams, 11 Ala. 826; Morgan v. McGee, 5 Humph. 13; Johnson v. Johnson, 30 Mo. 72.
    The counsel for plaintiff conceded that if the court should charge the jury that the facts constituted marriage, then the plaintiff’s ease failed.
   Williams J.:—

The jury are instructed by the court that to constitute a marriage valid and binding upon the parties thereto, it is not necessary that all the statutory requirements in reference thereto should have been complied with by the parties, and if the jury shall believe, from the evidence, that the deceased and the plaintiff made a present agreement, by which the deceased, then and there, took the plaintiff to be his wife, and the plaintiff, then and there, took the deceased as her husband, and they mutually agreed to live together then and thereafter as husband and wife, and if they shall further believe, from the evidence, that plaintiff and deceased, from the time of such agreement up to the death of McGuire, continued to cohabit as man and wife, then there was a valid and binding marriage between the said plaintiff and the said McGuire. That, in order to prove a marriage between the plaintiff and the deceased, it is not necessary that record evidence should be adduced, nor that the marriage should be proved by witnesses present when the marriage contract was made, nor that any religious ceremony should have been performed, but the marriage may be proved by the declarations and conduct of the parties, and by other circumstances which usually accompany the marriage relation, and by reputation; and if the jury shall believe, from the evidence in this case, that the deceased and the plaintiff cohabited together as husband and wife, and that the deceased spoke of the plaintiff in the presence of his family and others as his wife, and she in his presence and in the presence of others, spoke of him as her husband, and deceased made no objection to being so addressed, and that the plaintiff, with the knowledge and assent of de-ceased, united with him in signing deeds and other instruments as his wife, that plaintiff and deceased appeared in respectable society as man and wife, and were so addressed by others without objection on their part, and if their child was addressed and treated by them, in the presence of each other, as the child of both of them, bom in lawful wedlock, and if the plaintiff, with the knowledge of deceased, generally assumed his name, all such facts are competent evidence upon the question of marriage, and should be considered by the jury in arriving at their verdict.