Honey v. Clark

Walker, J. The verdict of the jury in this case reads as follows : “We, the jury, find the plaintiffs are the true heirs of “ John C. Clark.” This verdict was found upon evidence going to prove that John C. Clark and the mulatto woman Sobrina, who is the mother of the appellees, were in Texas long before her independence of Mexico. Sobrina was here as early as 1828 or 1830. The institution of slavery, after the 11th of October, 1827, could not exist by law, until after Texas established her independence and declared herself a slave state. The right of the appellees to inherit the estate of John 0. Clark is disputed on the ground of their illegitimacy. It is claimed that their mother was a slave, and never could by law become the wife of John C. Clark, and that the maxim partnis sequit/ior venirem applies to the children of Sobrina. The counsel for appellant have learnedly discussed the law of matrimony, as it existed in Texas prior to independence, and now exists in Mexico. There is no doubt but in all countries where the Roman Catholic Church is established by law, and to a greater or less extent controls civil government, marriage is regarded as a sacrament, rather than as a civil contract; and the manner of solemnizing marriage in that church is peculiar and formal, although, by the Roman law, marriage was a civil contract. But the argument of the learned counsel falls far short of [707] being conclusive, for there was no law of Mexico controlling the people of Texas from 1828 to 1837, which prevented the intermarriage of different races! On the contrary, it is a well-known fact that such marriages are common to the people of that country, of every degree of social standing. But we are unable to see why the same facts which would authorize a jury to presume a marriage at common law, would not authorize the presumption of a marriage at the altar or i/n ecclesium,. The maxim maritagium debet esse liberum, prevailing in Mexico and throughout her States and provinces at the time when Clark and Sobrina came to the dountry, and it being customary for the people to mingle the blood of-different races in marriage, we see no reason whatever to preclude the presumption of a marriage in ecclesium, such as counsel insists must have taken place, if at all. The, evidence from which marriage may be presumed is stated by elementary authors with great unanimity, and cases are cited to show that courts have acted upon the principles as laid down. Kent says, Vol. II., page 53, “ Consent of the par- “ ties may be declared before a magistrate, or simply before “ witnesses, or subsequently confessed or acknowledged; or “ the marriage may be inferred from continual cohabitation “and reputation as husband and wife.” Greenleaf, Vol. II., Section 462, lays down the rule that marriage may be proved in civil cases, “ by reputation, declarations, and conduct of the “ parties,” and other peculiar accompanying circumstances; that marriage may be proved by cohabitation as man and wife. Phillips, Vol. I., p. 444, and Starkie, Vol. II., p. 939, lay down substantially the same rule. The courts have followed out this doctrine. (Hammick v. Bronson, 5 Day, 290; Fenton v. Read, 4 Johnson, 52; Jackson, ex demise of Von Buskirk v. Claws, 18 Johnson, 346; Dee v. Fleming, 4 Bingham, 256; Wright v. Wright, 6 Texas, 19; Tarpley v. Poage’s Administrators, 2 Texas, 149; Bonds v. Foster, decided at last term; 12 N. H., 184; 19 N. H., 265; 6 La., 470; 26 Barb., N. Y., 178; 2 La. Ann., 944; 14 ib., 770; 14 Gray, Mass., 411.) These are [708] only a few of the many authorities which might he referred to in support of the rule thus laid down. But this case requires the construction by this court of the twenty-seventh Section of the twelfth Article of the Constitution of 1869, which reads as follows: “ All persons who, at “ any time heretoforfe, lived together as husband and wife, and “ both of whom, by the law of bondage, were precluded “ from the rights of matrimony, and continued to live together “ until the death of one of the parties, shall be considered as “ having been legally married, and the issue of such eohabita- “ tion shall be deemed legitimate. And all such persons as “ may now be living together in such relation, shall be con- “ sidered as having been legally married, and the children here- “ tofore or hereafter born of such cohabitations shall be deemed “ legitimate.” Prior to the emancipation of the slaves, marriage with that class was not, in a legal sense, authorized; yet there was that sort of contubernism among them which resulted in procreation of families. There was a certain degree of continence, and, to some extent at least, a moral observance of the matrimonial condition. This, but for the law of bondage^ would have been regarded, in every sense, as legal marriage. The laws of slavery did not forbid the coupling together of man and woman in this manner, but none of the marital rights belonging to free and civilized society accompanied this cohabitation and sexual commerce. Furthermore, the law forbid persons of the Caucasian race from marrying those of African descent. Free persons of color were not allowed to inhabit the State as citizens, except under special legal authorization. Whether, then, Sobrina, th e mother of the appellees, was a slave or free woman, it mattered not; she could not legally have married Clark nor any other man, and Clark, being a white man, could not have married Sobrina after the year 1837.. It may be well here to notice that if the parties were married prior to 1837, no law subsequently passed could have divorced them or dissolved the marriage without the consent of [709] at least one of the parties. But to return to the constitutional question. The section under consideration was intended to legalize the marriage of certain persons, and legitimate their offspring; and the inquiry arises, who are such persons and such offspring? We answer, the persons are those who live together as husband and wife, and who, by law, were precluded the rights of matrimony. The law and the evidence show that John C. Clark and Sobrina were precisely such persons. Their marriage, then, is pronounced by the organic law of the State; and who are the children to be legitimated, if not the children of such persons as are born under precisely the same circumstances in which Clark and Sobrina were placed ? The evidence shows that the appellees are the children of Clark and Sobrina, and the law says, being such, they shall be deemed legitimate; and the sequence of their legitimacy is the right to inherit the property of their father. But, in the learned argument of the Attorney-General for the State, it is assumed, from the fact that John C. Clark died in 1863, and that the present Constitution was not adopted by the people of Texas until 1869, the property of John C. Clark could not lie in abeyance, but there must have been a descent cast upon other heirs, or the property escheated to the State. The proper measures have never been taken to escheat this property, unless it be in this proceeding, in which the State has not yet achieved success. These children of Clark had a right to come in and contest with the State for the property. (See Article 3658 et seq., Paschal’s Digest.) But suppose the property had been escheated, or had vested in the State, we believe the people of the State, in the formation of their Constitution, had a right to provide for such cases in the manner they have done in Section 27, Article 12, of the Constitution. We believe the proper parties are before,the court in this case; that the verdict of the jury has established all the necessary facts to support the judgment, and it is therefore affirmed. Affirmed.