Irving v. Ford
| Decision Date | 24 May 1901 |
| Citation | 179 Mass. 216,60 N.E. 491 |
| Parties | IRVING v. FORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Butler R Wilson and W. H. Lewis, for petitioner.
David F. Kimball, for respondent.
This case arises on a petition to the Probate Court to amend the record of a petition for administration by substituting other names as the next of kin, and also to remove the administrator appointed on the earlier petition. The ground of the present proceeding is that the petitioner is the lawful son of the deceased, and that the respondent, the administrator is not a lawful son as he alleged. The Probate Court dismissed the petition, and on appeal the case was reported to the full court by a single justice. The facts were these. The petitioner's father and mother were slaves. In 1846 by consent of their owners, they went through a form of marriage in the presence of the master of one of them, and afterwards lived together for eight years, during which time the petitioner was born. In 1854 the father escaped to Massachusetts, and there, in 1856, married another woman by whom he had a son, the respondent, and a daughter. He lived with this woman until his death in 1898. After the war the petitioner was recognized by the deceased in Virginia as his son.
The petitioner's first contention is that the marriage of his parents in Virginia was valid. This may be disposed of in a few words. It is not argued that the ceremony helped the marriage, but the validity is put on the supposed rule of the common law as to marriage per verba de praesenti followed by cohabitation. The single justice found that this so called marriage was void, and we certainly cannot say that he was wrong. In view of this finding upon a question of fact, whatever may be the presumption as to the common law in this country concerning marriages between free persons, we cannot presume that the common law of Virginia gave to such a marriage as we have described between slaves any legal effect. It does not appear what evidence was laid before the single justice, but it may be that his attention was called to Scott v. Raub, 88 Va. 721, 723, 14 S.E. 178. See, further, Hall v. United States, 92 U.S. 27, 30, 23 L.Ed. 597. The statute next to be cited seems to imply that apart from it the parties would not be married. See, also, Const. art. 11, § 9.
The second ground upon which the petitioner seeks to maintain his legitimacy is the Virginia statute passed February 27, 1866, c. 18, § 2 (). Assuming that the last words of the section would be sufficient to legitimate the petitioner if both he and his father had been domiciled in Virginia after the act was passed, the question is whether they have that effect when the father is domiciled out of the state. They might do so without bastarding the Massachusetts children, because legitimation can be brought about without the fact or fiction of a marriage, by a simple flat. See Fitchett v. Smith's Adm'r, 78 Va. 524; McKamie v. Baskerville, 86 Tenn. 459, 7 S.W. 194. But the doubt is whether, inasmuch as legitimation deals with a relation, both parties to the relation must not be subject to the power of the Legislature that seeks to affect it before a statute can do so in a way that will be recognized beyond the territorial limit of its power. It might be argued further that both parties did not become subject to the law-making power by the domicil of one and the transitory bodily presence of the other within the State, but that both parties must be domiciled there in order that the power should exist. See Minor v. Jones, 2 Redf. Sur. 289, 298; Minor, Confl. Laws, § 100; Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L. R. A. 40; Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386.
We shall express no opinion upon the difficulty which we have stated because, although the case was very well argued, this precise point was but slightly touched, and because at this stage a decision of the question is not necessary.
As a decision that the petitioner is a legitimate son of the deceased would not carry with it the consequence that the Massachusetts marriage was void and the children of it illegitimate, it would not follow from such a decision that the petitioner is entitled to administration, supposing him to be competent and suitable within Pub. St. c. 130, § 1, cl. 3 (St. 1890, c. 265). That consequence would follow only in case it should be held on general grounds that the marriage in this state of a runaway slave before the abolition of slavery was void, if, as we must take it in this case, a marriage in the domicil of his master would have been void.
Notwithstanding the weight of argument and authority to the contrary which will be found summed up in Cobb, Slav. §§ 227-239, it was the settled doctrine of this State that a slave brought here by his master for even a temporary residence could not be removed from the State against his will. Com. v. Aves, 18 Pick. 193; Com. v. Taylor, 3 Metc. 72; Jackson v. Phillips, 14 Allen, 539, 563, 564.
In some respects, notwithstanding article 4, § 2, of the Constitution of the United States, it is easier to recognize a de facto freedom in the case...
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