Johnson v. Johnson

• Citation: 45 Mo. 595
• Parties: SINAI D. JOHNSON, Respondent, v. DEMAS JOHNSON, Appellant.
• Decision Date: 31 March 1870
• Court: Missouri Supreme Court

45 Mo. 595

SINAI D. JOHNSON, Respondent,

v.DEMAS JOHNSON, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

H. A. Haeussler and J. Wickham, for appellant.

Marriage being a civil contract, to which the consent of the parties capable in law of contracting is essential, the second pretended marriage of appellant was void. (Anderson v. Poindexter, 6 Ohio St. 622; Smith v. The State, 9 Ala. 990-6; Howard v. Howard, 6 Jones, 235; Malinda v. Gardner, 24 Ala. 719; State v. Samuel, 2 Dev. & Bat. 177.) Marriages of slaves are to be deemed null and void. (Bishop on Mar. and Div., ed. 1864, §§ 156-8; Stanley v. Nelson, 28 Ala. 514; R. C. 1845, ch. 167, p. 1014, § 7; Elliott v. Gurr, 2 Phillimore, 16; Browning v. Reane, id. 69; Crump v. Morgan, 3 Ired. Eq. 100; Bishop on Mar. and Div., § 139, and cases cited.) Incompetency to contract, on part of one of the parties, will render the marriage void. (Clement v. Mattison, 3 Pick. 93; True v. Ranney, 21 N. H. 52; Reeve on Dom. Rel. 315, note 1, and cases cited; 3 Richards' Eq. 263; State v. Van Leer, 5 Md. 91; Stanbery v. Wilson, 28 Ala. 514; Anderson v. Poindexter, 6 Ohio St. 622; Howard v. Howard, 6 Jones, N. C., 235; Malinda v. Gardner, 24 Ala. 719; Smith v. State, 9 Ala. 990; State v. Samuel, 2 Dev. & Bat. 177; Conn. v. Clements, 6 Burr. 206-11; Davis v. Evans, 18 Mo. 249; Bishop on Mar. and Div., §§ 46, 201.) As to void common-law marriages, see 2 Kent, 86; 1 Mass. 240; 7 Mass. 54; Mass. Dig. 247-8, etc.

S. N. Taylor, for respondent.

The slave marriage of appellant with Elizabeth, while they were slaves, was such a marriage as he could repudiate at any time while remaining a slave. (1 Bishop on Mar. and Div., §§ 157-9, 162; Malinda et al. v. Gardner, 24 Ala. 719; Smith v. The State, 9 Ala. 996.) In 1849 appellant, still being a slave, married respondent, which act was a complete repudiation of his slave marriage with Elizabeth. Appellant constantly lived and cohabited with respondent for the period of thirteen years. His thus living and cohabiting with respondent for so long a period after his manumission was a legal assent and ratification of his marriage with her, and made it a valid, binding marriage. (1 Bishop on Mar. and Div. 159-163; McReynolds v. State, Law Reg. Oct., 1868, p. 736; Girod v. Lewis, 6 Martin, La., 559; 1 Bishop on Mar. and Div., §§ 140-142; Cole v. Cole, 5 Sneed, 57; 2 Kent's Com. 39; Mrs. Ash's Case, Freeman's Ch. Eng. 269; Wightman v. Wightman, 4 Johns. Ch. 343.) So cohabitation, after reaching the age of consent, is a legal assent and ratification of the marriage of an infant, and subjects the parties to all the liabilities and rights of a valid marriage. (Reeve's Dom. Rel. 355; 1 Bishop on Mar. and Div. 150; Whart. Crim. Law, §§ 26, 28; Aymar v. Roff, 3 Johns. Ch. 49; Tyler on Inf. and Cov. 125, § 81; 1 Blackst. Com. 436; Reeve's Dom. Rel. 236; Allis v. Billings, 6 Metc. 415.)

WAGNER, Judge, delivered the opinion of the court.

The respondent instituted a suit for divorce against the appellant, in the St. Louis Circuit Court, on the ground of cruel and inhuman treatment, and, upon a hearing, a divorce and alimony were decreed. The parties are both negroes, and the appellant was formerly a slave; and the question presented by the record is new in this court, and may be of interest to persons similarly situated.

It seems that Demas, the appellant, was a slave in Virginia, belonging to a Mr. Mason; that whilst he lived there he married a negress, also a slave, by whom he had three children. His wife and children were sold to some person in Texas, and his master took him to Mexico, from whence he was brought to St. Louis. After his arrival in St. Louis, and in the year 1849, he married the respondent, then a free woman of color, and in about one year thereafter he was emancipated by his master. When he obtained his freedom he continued to live and cohabit with the respondent as his wife for about thirteen years, at the expiration of which time she left him, for reasons stated in the petition, and commenced this proceeding for a divorce.

For the appellant it is insisted upon, in argument, that as the marriage took place whilst he was a slave, it was void, and as no solemnization was had subsequent to his manumission, this suit is not maintainable. In this State marriage is considered a civil contract, to which the consent of the parties capable in law of contracting is essential. In none of the States where slavery lately existed did the municipal law recognize the marriage rites between slaves. They had no civil rights except where the right to freedom was involved, in which case they could prosecute a suit by their next friend to vindicate their claim. They were responsible for their crimes, but unconditional submission to the will of their master was enjoined upon them. By common consent, and universal usage existing among them, they were permitted to select their husbands and wives, and were generally married by preachers of their own race, though sometimes by white ministers. They were known and recognized as husband and wife by their masters and in the community in which they lived; but whatever moral force there may have been in such connections, it is evident there was nothing binding or obligatory in law.

“Marriage,” says the court in North Carolina, “is based upon contract; consequently the relation of man and wife can not 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.” (Howard v. Howard, 6 Jones, N. C., 235, 236.) So, in Alabama, the Supreme Court says: “Persons in that condition are incapable of contracting marriage, because that relation brings with it certain duties and rights with reference to which it is supposed to be entered into. But the duties and rights which are deemed essential to this contract are necessarily incompatible with the nature of slavery, as the one can not be discharged nor the other be recognized without doing violence to the rights of the owner. In other words, the subjects of the contract must cease to be slaves before the incidents inseparable to the relation of marriage, in its proper sense, can attach.” (Malinda v. Gardner, 24 Ala. 719, 727.)

Mr. Bishop sums up the substance of the authorities when he says: “It is the present established law, wherever slavery prevails in this country, that the marriages of slaves are to be deemed null and void.” (1 Bishop on Mar. and Div., § 156.) The slaves being denied all civil rights, could they, in a state of slavery, contract marriage so as to be binding upon them after their emancipation? Whilst marriage is a civil contract, and the assent of capable minds is necessary to its validity, still it differs in many particulars from ordinary, general, or commercial contracts.

In speaking on this subject, the Court of Appeals in Kentucky uses the following language: “Marriage, though in one sense a contract--because, being both stipulatory and consensual, it can not be valid without the spontaneous concurrence of two competent minds--is nevertheless sui generis, and, unlike ordinary commercial contracts, is publici juris, because it establishes fundamental and most important domestic relations. And therefore, as every well-organized society is essentially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the State, and can not, like mere contracts, be dissolved by the mutual consent only of contracting parties.” (Maguire v. Maguire, 7 Dana, 181; Dickson v. Dickson, 1 Yerg. 110; Duntze v. Levett, 3 Eng. Ec. 360; Sto. on Confl. Laws, §§ 109, 111; 1 Fras. Dom. Rel. 88.)

The common law was changed in this State with reference to marriages, and the whole subject matter was governed by municipal regulations. But the statutory law was exclusively applicable to free persons, and did not reach those presons who were in a state of slavery when the marriage was contracted. Such being the case, we must look to the common law for our guidance, and decide this question...