The Hickman courier. [volume] (Hickman, Ky.) 1859-current, 1868-04-25
Judge nunockAopln,on.
BALLARD CIRCUIT COURT.

Minor Henderson gof color, Writ Of
Priscilla jenkins (of cOler Corpus.
Bugg & Bishop, for plaintiff White
4 Reeves for defendant
This writis sued out by plaintiff claim
ing that the defendant illegally detains
in restmint, negro boy, named Henry.
of whose person he is entitled by law to
the custody.
The facts agreed, show this state of
case. The plaintiff and defendant lived
together for many years as man and
wife, while both were slaves, and during
the time they thus lived together aud
cohabited as man and wife, the child
Henry was born TO them. That before
the passage of the law hereinafter men
toned and while they were yet slaves,
Minor left the defendant ceased to live
with her as his wife, and "took up with
another woman and lived with her as his
wife. He now claims that under the
existing laws he is the legal father of the
child, and is entitled to his custody
This claim it is contended is supported
bz the Pr2gsE-iatsEprstatien and con-
= - .iiss gsssss
Section Of the act of 1865 SAn
act in relation to the marriage of negroes
and mulattoes," found in Myers Sup
plcment, page 734-5.
The 1st Section of that act provides
that negroes and mulatoes may intermar-
ry under the same regulations, &c, AS
now provided for the intermarriage of
whites. Section 2 provides mode by
which the pre-existiug relation of hus-
band and wife, according to the mode
then common among that class of peo-
pie while in a state of slavery, might at
their option be legalized and their off
spring rendered legitimate. 1t is not
pretended that the plaintiff has brought
himself within the provisions Of that
portion of the Section, but the latter
clause of the section is in these words.
provided, The issue of customary
marriages of negroes shall be held le
gitimate"
This court is now called upon to con-
strue this proviso without the aid of any
lightsh upon the subject by adjudica-
ton, so far as known, either by the CIR
cult or appellate courts. What, then,
was the legislative intention by the
words of the proviso Int quoted?
Was it intended tb all future cohab
itation between the eexes, according TO
the customary mode of marriage among
negroes, should be legalized and held to
be valid?
This court cannot suppose that the
legislature intended thus to countenance
or encourage this class Of our popnla-
ton in course so immoral and degra-
ding. The first Section points out to
them the mode in which this relation is
to be created and which thus created is
in all its tendencies humanizing, purify
ing and elevating; aud the presumption
that they in the same act Intended still
to permit that system to prevail which
was common among the blacks while in
a state of slavery, cannot be for mo-
ment INDUCED.
Did the Legislature intend to confer
upon tl.s 40 che Of shs i=ss.s thu-~ l~1sis-l
imated parental rights
1t strikes this court, in view of the
preceding portion of the same Section.
that the legal rights of parents growing
out of the marital relation are to be Sc
cured to themselves only by complying
with the requirements of that Section,
which in the case now under considera
ton has not been done.
Does it follow as logical legal Sc
quence, that because the Legislature
have thought proper to confer upon the
issue, the condition of legitimacy and
take from them the character of bas-
tards, that they thereby intend, without,
saying SO, to confer upon the putatiye
father all the rights and impose on him
the duties of parent.
It may be within be power of the !
Legislature, and migs be deemed by
them very proper to infuse into the blood
of the child the Unbeatable quality OF
and still withhold from the
father, especially as against the mother, !
the parental rights which might author |
ize him to deprive her of the comfort Of
her child, and the benefit to be derived
from his labor to which, unless taken !,
from her and bestowed upon him by
law, she would be entitled. Before this
court would decide that such was the in |
tention of the Legislature, it would de-
sire to see it expressed in terms more /
plain and unmistakable than are found |
in the proviso under consideration.
1t is therefore the judgment Of the |
court, from the facts agreed, applied to
the law of the case, the plaintiff has no
right to the custody of the boy Henry,
but the right TO such custody belongs |
to his mother, the defendant. Where |
fore the writ is dismissed at the plaintiff 5 |
cost.