Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-07
LEGAL.
Decision of the supreme Court OF Ten
nessee, az Nashville, December Term
Reported for the Union and Dispatch. by $. j.

Decision of the supreme COurt Of Ten
nessee, as Nashville, December Term
1857.
Reported for the Union and Dispatch, by 5. j..
Henderson, Attorney at Law.
lst. Bigamy-"Fo constitute the crime Of biga-
my there must he valid marriage subsisting
nj the time of the second marriage
"a Marriage Of -Giaves-A marriage between
slaves was, IN legal contemplation absolutely
void buf the parties. after their manumis-
sion. continued to cOhablt together as husband
and wife, it was q legal assent and ratifca-
ton OF the marriage, and II while such mar
riage exists. one Of the parties marnes another
IL is bigamy.
Soloman McReynolds The State.
The plaintiff in error, free man ofcolor,
was indicted az the January term, 1867, of
the Circuit Court of Montgomery county,
for bigamy. He was arraigned and tried
at the same term Of the court before jury
Of The county, and was convicted and SEN
fenced to two years Imprisonment IN the
penitentiary Of the State. Motions for
new trial, and in arrest Of judgment were
entered and severally oyerruled, from
which he has appealed in error to this
court. The facts Of the case are substan-
tally "a follows: Ia 1856, the plaintiff in
error was a slave, the property of Wilson
o. McReynolds, a citizen Of Montgomery
county, Tennessee during that year the
plaintiff in error and Eliza Elder, a slave,
were married. The marriage rites
were solemnized by Fred Martin,
colored preacher. 1t was by and with the
consent of the owners of the slaves, they
continued TO live together as man and wife
until about the first Of January, 1867.
They had one child on the 18th Of Janu-
airy, 1861; then the plaintiff in error pro-
cured license Of marriage from the County
Courl Clerk of Montgomery county, and
the rites Of marriage were solemnized be-
tween the plaintiff in error and one Betsey
Ellington. a free woman of color. On the
trial Of the cause, the court, after lengthy
and elaborate chargeto the jury, summed up
his conclusion upon the law Of the case, as
follows: If the proof shows the plaintiff IN
error had prior to bis freedom, contracted
a marriage with a woman Of his color, and
lived with her az her husband, in other
words. that the two lived together
as man and wife, they are now legally such,
and If the plaintiff in error has married
another woman while his wife he may have
first married was living, he is guilty as
charged in the Indictment, etc, etc.
This is novel case and presents an In
teresiing question, and is one Of great i'm
p0rtance, involving the domestic relations
of that class Of persons who have been re-
Gently released from the condition of slaves
and given the rights and privileges of free
persons. For the determination OF the
question involved it is necessary to look
10 the status aud conditions of these per
sons, while in a etate of slavery, and see
what rights and privileges were accorded
them. The municipal law did not recog-
nize the rites of marriage between slaves;
they had no civil rights except where the
right of freedom was involved, in which case
they could prosecute suit by their next
friend, or in cases affecting his life, be was
tried az a freeman. Unconditional cub
mission TO the will Of the master was the
duty Of the slave. He was protected in
life and limb from his violence. They
were permitted TO select their wives, and
were often married by a preacher of their
own race; sometimes took up and cohab-
tied together, and were recognized as hus-
band and wife by their owners They were
generally happy and contented in the
humble condition. The cares Of the lu
ture did not press upon them; their wants
were supplied by their owners, and their
children provided for. But the institution
has ceased, with all its complications, and
they are now given the rights and privi-
leges of citizens. Ii has deyolved
upon the courts the duty of declaring the
rules Of law applicable 10 them in their
domestic relations growing ont Of their
changed condition. The slaves having no
civil rights, could they contract in marriage
A. L. -, folav A., IL, fsI
ing upon them after their emancipation?
Marriage is defined to be social contract.
Lord Robinson, a Scottish Judge, in pas
sage approvingly quoted 10y Judge Story,
aud by Bishop, in his work on NJ. and d.,
sec g. says il is a contract sui gcneris,
differing, in some respects, from all other
contracts, 80 that the rules Of law, which
are applicable in expounding and enforcing
other contracts, may not apply 10 this.
The contract Of marriage il the most inn
portant Of all human transactions. 1t Is
the very basis of the whole fabric Of civil
lied society. The status of marriage is
juris centrum, and the foundation Of it,
lik that Of all other contracts rests on the
contract Of parties, but il differs in other
contracts from this, that the rights, obliga
tions and duties arising from it are not
left entirely TO be regulated by the agree
ment of the parties, but are, 20 a certain
extent, matters of municipal regulation,
over which the parties have no control by
any declaration Of their will. 1t confers
the status Of legitimacy on children born in
wediock W "a all the consequential duties
and privileges thence arising. IL gives
rise 20 the relations of consanguinity and
affinity. In short, il pervades the whole
system of civil society. Unlike other con-
tracts, il cannot in general among civil
ilzed nations, be dissolved by mutual con-
sent and il subsists in full force even
although one Of the parties shonld be for
ever rendered incapable, as in the case Of I
incurable insanity or the like, from per
forming his part Of the mutual contract.
la this State the common law was
changed, and marriages are contracted and |
governed by municipal law. The statute
laws of the State were applicable 10 free
persons, and did not apply 10 this class of |
persons at the time of their marriage when
in a state OF slavery. Therefore, there be- /
ing no statutory law recognizing marriage /
between slaves, We must look 10 the COM
mon law 10 see its effect upon persons who
are not within the rule of municipal law.
aud be governed in our conclusions by
analogous principles. At common law il
il the declared assent Of the mind to the
act ofmarriage which makes il legal. Such
a. declare their assent shall he bound
Though the slave could make no civil CON-
tract, and the municipal law did not recog-
nize the state OF marriage between slaves.
and marriage was in legal contemplation
absolutely void, and no civil righ's could
orr ont nf mob -.
stale OF slavery, Il must be admitted there
was the moral assent Of the mind on the
part OF slaves 10 marriage. They we're
usually married by one Of their own race,
and lived together as man and wife. What
is the legal eject Of such marriage after |
manumlssion, the parties continuing 10 co.
n a. = 80 IA -. Il