Stikes v. Swanson

PETERS, J., (after stating the facts above). — The cohabitation of Cassius Swanson with each of his two wives, was undoubtedly a quasi marriage. He did all that he could do to make it legal. The impediment which prevented its legality was the slavery of the parties. This was an impediment not known at common law, and could not exist at common law, because it was not permitted by that code of jurisprudence. The cohabitation was not adulterous; it was permitted, if not encouraged by the laws of all the States where such connections existed. It was then certainly a legal quasi marriage. The parties had done all within their power to make these marriages complete and legal. Slavery out of the way, they would have been legal at common law. Certainly the parties intended to marry, and did all that they were able to do to carry this intention into effect; they were then legal slave marriages. — Cobb on Slavery, p. 231, § 253; The State v. Samuel, 2 Dev. & Batt. 177; The State v. Ben, 1 Hawks, 434; Chamberlain v. Harvey, Ld. Raym. 146, S. C., Carth. 397; Smith v. Gould, Ld. Raym. 1274; Forbes v. Cochrane, 2 Barn. & C. 448; 2 Kent 86, 87, and notes; 2 Ib. 246, 247, et seq.; 1 Bla. Com. 423; 1 Bish. M. & Div. p. 2, et seq.; 6 Bac. Abr. Bouv., p. 454; 2 Pars. on Contr., p. 60 et seq. [636] Marriage is undoubtedly a natural right, and slavery did not deprive the man in this condition of all his natural rights. So far as was consistent with his status, these were allowed. In the distribution of slaves by administrators, the marital rights of the slave, as far as possible, were respected. They were usually allotted by families. They were usually sold when this could be done, in the same manner. The slave might to a certain extent defend himself. These were not mere regulations of humanity; they were permitted in some instances to be enforced as law. Infidelity between the married parties wras regarded by the master as a moral offense, punishable with stripes, aDd by the church as an infraction of the creed. — Dave v. The State, 22 Ala. 23; The State v. Will, 1 Dev. & Batt. 171; The State v. Caesar, 9 Ired. 391; 2 Pars. Contr., p. 74, § 4; Ruthf. Inst., p. 162; Shelf Mar. & Div., p. 1, et seq; Wall v. Williamson, 8 Ala. 48; Wall v. Williams, use, &c., 11 Ala. 826; Linds v. Belisario, 1 Hag. Com. 214; 4 Eng. Ec. 367, 374. I' refer to these .authorities to show that the marriages of Cassius Swanson as above stated, were marriages good at common law; that they were legal natural marriages, jure divino. They were not then mere adulteries or fornications, nor were the cohabitations for any illegal or improper purpose. Then the offspring of such marriages could not be bastards at common law. They had, in their condition, a legal mother, and they had a legal father, united in such marriage as the law allowed them to contract, which were not unfrequently blessed with the sanction and prayers of the church. They were then undoubtedly legal quasi marriages. The unhappy condition of the parties only intervened to prevent these marriages from being perfect in the highest legal sense. The children, then, were not bastards, unless the law makes them bastards ; they were not born of an illicit connection; they were not begotten and born out of lawful wedlock. Then, they were not bastards. — 2 Kent, 208, 210; 2 Bac. Abr. Bouv., p. 77. They were undoubtedly born within marriages which were legitimate. All children born within such marriages are legitimate. This brings them within [637] the description of the statute, and the equity of the statute; and also within the policy of the law of the State. — Eev, Code, § 1888. The former decisions in this State upon the question of slave marriages were made in the interest of slavery. This interest is now overturned, and these cases deserve but little weight. — Smith v. The State, 9 Ala. 990; Malinda & Sarah v. Gardner, 24 Ala. 719. Emancipation has restored the former slave to his natural rights. The reason of the old cases is overturned, and the constructions upon which they rested fail to do justice to the citizen. This of itself is a sufficient reason to abandon them. Justice is the law of laws, and these decisions now militate against justice; they are abrogated. Jus est norma recti; et quicquid est contra nor mam recti est injuria.- — 3 Bulstr. 313 ; Const, of Ala. 18ó7, Art. 1, § 15. The unfortunate claimants of the proceeds of their father’s toil, should not be made to suffer for a wrong committed, against their mothers, their father and themselves. This would be adding wrong to wrong, without any necessity to vindicate it, except, perhaps, an old prejudice, the basis of which is now swept away forever. — Cons. U. S., Amendm. 13, 14; Acts of Cong., April 9, 1866; Civil Eights Bill; Stat. at Large, 1865, 1866, ch. 31, p. 271. Then, the appellees are not bastards, and emancipation has restored their heritable blood.— Gerod v. Lewis, 6 Mart. (La.) 559. They are the children of a freedman themselves restored to liberty, and as such entitled to inherit his estate. — Eev. Code, §§ 1888, 1897, 1894; Ordn. Conv. 1867, No. 23; Pamph. Acts 1868, p, 175, They are of the whole blood of the father, and the estate comes through him, and each is entitled to a full share of his estate. — Rev. Code, § 1892; Johnson v. Copeland’s Adm’r, 35 Ala. 521. The judgment of the court below is affirmed. The appellant will pay the Gost in this court and in the court below, to be repaid him out of the estate of said Cassius Swanson in his hands to be administered,