The weekly clarion., 1874-03-19


may, by law. cause to be prosecuted and
punished. Aud this distinction, 1t Is be
lieved, has been shown 10 be the doctrine
uF t6Kt resftslrs- q - { heIa
evil to be 9ass# I'D ! y tisis constitutional
provisibns { { ssOt aseessary 70 90 out
side tie recessl in pursuit OF the objects
of its eperatlnD 4 ~. this leads to the
observation. xnat the law T cognizes no
distinction on account Of color. Neither
can the amountof property Involved en-
ter at all into consideration. The moral
status of the people i of paramount i'm
portanee IN all intelligent governments.
Hence, the object Of the constitutional
provision under review, may pc assumed
10 havambeen in the interest of all classes;
to arrest and correct vide spread demoE-
alizatiehs 10 compel Il line of deHaarca-
ton between those in good faith having
created or desired to create the marital
relation, though eohabiting without the
usual nuptual ceremony, and those CO.
habiting without any such purpose; to
distinguish these classes by declaring one
to be known and recognized as husband
and wife, and their children legitimate;
and by separating the other for prosecu-
ton as criminals against society and the
State
The grand and most desira bic object of
this constitutional provision, undoubtedly,
was to put a stop to meretriciouscoha bita-
ton, and to induce all, or as many as
possible, of this class, as well as those
"cohabiting as man and wife, withoutfor-
NAL marriage, % epler formally and pub
| Iicly into the marital status, a con-
Summation of incalculable importance TO
the welfare Of the State
With the adoption of The present Con
stitution, former impediments in marriage
| between whites and blacks. ceased, SO
| that that question does not enter into the
controversy. As question of policy OF
propriety, people may differ, but this is
view of the case which the Courts cannot
entertain. They can only declare legal
rules. Matters of taste and propriety,
like this, the people must determine
for themselves, within the established
law.
The labored and able arguments of
counsel, that the provision of the Consti-
tuition referred to, should be held to apply
to the colored population alone, have not
been overlooked. They state to US, in
support Of this constitution, as a fact,
that as slaves, Informal marriage were
universal, resulting in numerous offspring.
On the other hand we were told that
cases like the one at the bar were not al
together infrequent. 1t is sufficient that
there is one case of the kind, within the
plain letter and spirit Of che Constitution.
The provision is plainly for all cases,
black, white, or mixed, within IFS PLAIN
letter. In effect, this Court Is asked to
declare one rule, or 10 hold that We have
one Constitution, for the whites and an
other for the bIacks-a distinction
precluded by recent events.
But it is questionable if the statements
of counsel are judicially before Us, further
than that we have large colored population
lately slaves, now free, and in all respects
equal before the law. 1t is believed and
so held, that the Constitution, in its letter
and spirit, applies, and was intended to
apply, to all classes, without regard to
race, color, or previous condition of servl-
tude."
The right of parties in this State to
contract marriage, without formal or cere-
monial solemnization, is understood to be
settled beyond question (12 S. and NJ, !,
81, 81 Miss, 783; 81 Ib., 211 1b. 367;
ID. SIT; SO Ib. H.; 40 Ib Sc; Ib.
$40 D. though it is otherwise in some of
the State Dennison VS.. Dennison,
Maryland Court Of Appeals, 1871. Our
statute does not in terms forbid it, and
hence such marriage is lawful. Cases
supra, and Bishop, Nj. and D., 225,
283, 284.
1t is, however, unnecessary to pursue
this discussion further. In the view en-
tertained Of this subject, the constitutional
provision under review, can conclude
marriage beteen those only who. by agree
ment, expressed or implied, had created
and were occupying the relation Of hus-
band and wife, and such cases are not
only sanctioned and consummated, butleg-
itimated the offspring of previous inter
course. IF, in view Of the doctrines of
the authorities, such constitutional action
was unnecessary, nevertheless, it was ex-
pedient and wise. 1t legitimated offspring
and settled a rule which could scarcely
be confded to legislation with the GER
tainty of satisfactory solution. 1t cannot
fail to diminish what is understood to be
great evil by inviting attention thereto,
and by its persuasive influence. 1t
armed the Legislature with power to fight
the evil by necessary enactments. And
it will be found to be an aid and guide to
the judiciary in the disposition of cases
arising of these cohRbitions whether as
husband or wife, or otherwise.
In the view entertained of the questions
involved, and in the present attitude of
this cause, it is not material to review st
any great length, the adjudications on
marriage. per ruba de PRESENT.. These
cases are numerous, and many of them
are both interesting and novel. Their
present consideration might be essential
but for the constitutional provision of our
State. Upon the evidence, their exami-
nation will very likely become necessary,
as it will then be more pertinent. As
already suggested, the Constitution has
relieved the Legislature and the courts
to great lextent, by its primary rule, so
that, this discussion has In view, mainly,
the scope and interest of the organic law,
and the indication of rules for its practi-
cal enforcement
The conclusion is, that if these parties
were ''cohabiting as husband and wife,
at the time Of the adoption of the present
ConspIuIlon, ana III, with knowledge
of its-pFovisions they mutually assented
to the relation, then their marriage was
consummafsd and their children legiti-
mated. The question involved thus be-
comes one of fact to be determined ac-
cordingly. The decree is reversed de-
murrer overruled, and cause remanded,
with leave to answer in forty days from
this date. TARBEL4-, j..
A verdict of SO, 700 was rendered, a
few days ago in Cincinnati, against the
New York Life Insurance Company.