Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-07


Aforesaid. they may disagree and declare
the marriage void without any divorce or
sentence in the spiritual court, but it is 80
Gar marriage that if at the age of con-
sent they agree 10 continue together, thew
need not be married again. I Black Com,
49,. II is a we'll settled rule, where mar
riages have been entered into, when one Of
the parties laboring under temporary in
sanity, If the parties continue TO cohabit
after a lucid interval, the cohabitation will
render their marriage good, Bishop on NJ.
and d., sec. 40. This principle was set
tied by this court in the case of Cole as.
Cole, Sneed, 81, the court say F: If the proof
established the wife was Of unsound mind at
the time Of the marriage, there is abundant
evidence she was afterwards restored, al
least temporarily, and did not repudiate, but
her acts and conduct recognized the va
lidity Of a marriage. A lunatic, on regain
ing his reason, may affirm marriage eel
ebrated while he was insane, and this with
out any new solemnizstion. In support Of
this principle the court refer to Bishop, sec
lS9, 6 MetealG, IA. Apply these princi-
Piles 10 the case under consideration. The
plaintiff in error, while in state Of slavery,
was married according 10 the usage and
customs of the race They continued to
live together as man aud wife until their
emancipation. The relation of husband
and wife continued until January, 1867,
when lac abandoned his wife and married
another. At common law we have shown
il is the declared assent Of the will to the
act Of marriage which makes il legal. Such
az declare their assent shall be bound.
Though the plaintiff in error was
incapable Of making any valid con-
tract while in a state Of slavery, and the
marriage was void and he could have dis
solved the relation as soon as he was capa-
BILE Of contracting, yet he having continued
| to live with the woman he had married in
a state Of slavery, il was a ratification OF
the marriage. Bishop, in his work on
marriage and divorce, sec. l62, in reference
to marriage of slaves, says: IF, after the
emancipation, the parties live together rs
husband wife, and if before emancipation
they were married in the form which either
usage or law had established for the mar
rage Of slaves, this subsequent mutual ac-
acknowledgement Of each other as husband
and wife should be held to complete the act
of matrimony, so as TO make them
lawfully and fully married from
the time at which this subsequent living
together commenced and in support Of this
| principle he cites Iredell Eq. 81. %,
| Miss. 4l0, Pointer on Marriage and
| Divorce l57, and the case of Cole as Cole,
5 Sneed. Doubts exiting in the public
mind as TO the validity of such marriages
while in a state of slavery, the Legislature
with a view 20 elevate this class of the
population in morals and to keep them to-
gether as families who had contracted
marriage in state of slavery on the 26th
Of May, 1866, passed "an act to define the
term free persons of color and to declare
the rights of such persons. The 9th sec
ton Of said act is as follows: That all free
persons Of color who were living together
as husband and wife in this State, while
in a state Of slavery, are hereby declared
TO be man and wife, and their children
legitimately entitled to an inheritance in
any property heretofore acquired, or that
may be hereafter acquired by said parents,
10 as full extent as white children are en-
titled under existing laws of this State"
The passage of this act did not change
or alter the law in reference to those who
were married while in slavery, and con-
tinued TO cohabit together as man and wife
after their emancipation. The marriage
of such persons was made valid by their
conserving to live together after their eman-
cipatiOn, and having given, while in a state
Of slavery, a moral assent as soon as they
were capable Of contracting or legally as
senting TO the marriage, it would become
valid.
The act Of the Legislature was proper
under the circumstances in which il was
passed. 1t was supposed this class of per-
SONS were not embraced within the rules Of
the law regulating marriage. The object of
the Legislature was TO give the sanction of
law, and bring within its rules this class of
persons in their domestic relations. Such
being the principles of law governing this
case, was the court right? He instructed
the jury if the plaintiff in error had prior
TO his freedom contracted marriage with a
woman of his color, and lived with her as
husband, and had married another woman
while his wife was living, he would be
guilty as charged. Under this charge, if
the plaintiff in error had married another
woman while the wife he had married
in state of slavery was living, the jury
were instructed he was guilty. This ia
erroneous. To constitute the crime of
bigamy there must be a valid marriage
subsisting at the time Of the second mar
riage, his Honor should have instructed
the jury, if the plaintiff in error had mar
ried before his emancipation, and had con-
tinued 10 live and cohabit with his wife
he had married while in state of slavery
after their freedom, it was legal assent
and ratification of the marriage and the
plaintiff in error having married another
while the first marriage existed, was guilty.
The judgment of the court must be re
versed and a new trial awarded, when the
law will be charged as settled in this
opinion. SHACKLFFoRD. Judge.