Howard v. Howard
| Decision Date | 31 December 1858 |
| Citation | 51 N.C. 235,6 Jones 235 |
| Parties | Doe on demise of FRANCES HOWARD v. SARAH HOWARD, et. al. |
| Court | North Carolina Supreme Court |
A male and female slave intermarried, with the consent of the owners, in the form usual among slaves; afterwards, the male slave was emancipated, and purchassed his wife; they then had born to them one child; the female slave was then emancipated, and, still living as man and wife, but without any further ceremony passsing between them, they had several other childen; it was Held that neither the first nor the others of these children were legitimate; so as to take as tenants in common with legitimate children of the father by a second marriage.
ACTION of EJECTMENT, tried before CALDWELL, J., at the last Fall Term of Halifax Superior Court, upon the following case agreed.
Miles Howard, a free man of color, died intestate in 1857, seized in fee of the premises in dispute.
About the year 1818, he being then the slave of the late Thomas Burgess, Esquire, without other ceremony, took for his wife, by consent of his master, and a Mr. Burt, Matilda, a slave of the latter, and was immediately thereafter duly emancipated. Miles then bought his wife, Matilda, and by her had issue, the lessor Frances, when the said Matilda was duly emancipated. After this event, they had other issue, towit: the lessors, Robert, Eliza, Miles, Charles, Lucy, Ann, Thomas, when the said Matilda died.
In a few years afterwards, the said Miles took another wife, a free woman of color, and had issue, the defendants, Sarah, John, Nancy, and Andrew. The latter marriage was performed with due ceremony, the former was celebrated in the manner usual among slaves, and the parties lived together ever afterwards as man and wife, and kept house together as such.
In 1836, the lessor, Frances, with other children, who died before the intestate, Miles, was emancipated as the children and slaves of the said Miles Howard, by an act of the Legislature.
The plaintiff's lessors claimed to be tenants in common with the defendants-- which the defendants denied, and claim to be the only legitimate children, and sole heirs of their father. The Court, upon consideration of the case submitted, gave judgment in favor of the defendants; from which the lessors of the plaintiffs appealed.
B. F. Moore, for the plaintiffs .
Conigland, for the defendants .
A slave, being property, has not the legal capacity to make a contract, and is not entitled to the rights or subjected to the liabilities incident thereto. He is amenable to the criminal law, and his person (to a certain extent) and his life, are protected. This, however, is not a concession to him of civil rights, but is in vindication of public justice, and for the prevention of public wrongs. Marriage is based upon contract; consequently the relation of “man and wife” cannot exist among slaves. It is excluded, both on account of their incapacity to contract, and of the paramount right of ownership in them, as property. This subject is discussed in State v. Samuel, 2 Dev. and Bat. 177, where it is held, that a slave is a competent witness for or against another slave, towards whom she sustained the relation of wife, in a certain sense of the term, on the ground that the relation was not that of “man and wife” in its legal sense, and did not embrace any of the civil rights incident to marriage.
In Alvaney v. Powell, 1 Jones' Eq. 35. It is held where a mother and children are emancipated, a child begotten and born while the mother had no husband, was entitled to the same share of her estate, as the children who were begotten and born while she had a husband; on the ground “that in regard to slaves, even after they become free negroes, there is no necessity growing out of grave consideration of public policy, for the adoption of the stern rule of the common law. “A bastard shall be deemed nullius filius; to have no parents, and not even be considered the child of the mother who gave it birth; and in contemplation of law there is no difference between the case of slaves who enter into the qualified relations of “man and wife” by the express permission of their owners, and that of those who “take up” with each other, from a mere impulse of nature, in obedience to the command, “multiply and replenish the earth,” for the law does not recognise either relation so as to give to it any effect in respect to civil consequences. On the other hand, there is in moral contemplation, and in the nature of man, a wide distinction between the cohabitation of slaves, as “man and wife,” and an indiscriminate sexual intercourse; it is recognized among slaves, for as a general rule, they respect the exclusive rights...
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