Scott v. Raub

• Decision Date: 10 December 1891
• Citation: 14 S.E. 178,88 Va. 721
• Parties: Scott. v. Raub.
• Court: Virginia Supreme Court

14 S.E. 178

88 Va. 721

Scott.

v.Raub.

Supreme Court of Appeals of Virginia.

Dec. 10, 1891.

Slavery—Marriages—Legitimacy—Degree of Color.

1. Const, art. 11, § 7, provides that the child of parents, one or both of whom were slaves at and during the period of their cohabitation, and which was recognized by the fathsr as his child, and whose mother was recognized by such father as his wife, shall inherit his estate as though born in lawful wedlock. Act Feb. 27, 1868, § 2, provides that when colored persons, before the passage of the act, shall have undertaken and agreed to occupy the relation of husband and wife, and as such cohabit together at the time of its passage, they shall be deemed husband and wife, though the marriage rites have not been celebrated, and their children be deemed legitimate; and, where such cohabitation ceased by the death of the mother before the passage of the act, such children shall be deemed legitimate. Held, that where plaintiff was born in 1862, her mother being a slave and her father a free colored man, which parents lived together as husband and wife from 1861 to 1864, when the mother died, and plaintiff was recognized by the father as his child, and by him reared to womanhood, she was entitled by inheritance to a share of her intestate father's real estate. Francis v. Francis, 31 Grat. 283, followed.

2. By virtue of Code 1860. c. 108. which pro-vided that the offspring of female slaves should be slaves also, plaintiff was a slave, regardless of the degree of color blood.

8. Code 1860, c. 103, § 9, which provides that every person who has one-fourth or more of negro blood shall be deemed a mulatto, did not apply to slaves, but to free negroes.

Suit by Sarah E. Raub against Robert Scott to recover an interest in certain real estate. Decree for plaintiff. Defendant appeals. Affirmed.

Duke & Duke, for appellant.

Geo. Perkins and Thos. 6'. Martin, for appellee.

Lacy, J. This is an appeal from a decree of the circuit court of Albemarle county, rendered on the 19th day of October, 1889. The case is as follows: Sarah E. Raub, the appellee, a woman of color, filed her bill in the said court against the appellant, Robert Scott, for partition of the real estate which had been held jointly by the defendant and his deceased brother, James Scott, who were the sons of Jesse Scott, deceased. The complainant claimed to be, as the only child of James Scott, deceased, entitled to the undivided one-half of the said land, which had belonged to him. But the defendant denied that she was the legitimate child of said James Scott, and entitled to the said land as such, and claimed it all for himself as the sole surviving brother of the said James Scott, deceased. The facts appeared by depositions to be that Jesse Scott was the owner of the said real estate, and that his two sons, Robert and James, inherited the same from him. That they had jointly occupied the said land up to the time of the death of James, which occurred in 1888. That in 1861 one Ann Settles, a slave woman, was hired as a domestic in the house of James Scott, himselt a free person of color, and soon after cohabitation was had between the said freeman and slave woman of color. In 1862 the appellee was born of this intercourse, and in 1864 Ann died, but the child was retained in his house by James, and recognized as his child, and reared to womanhood by him, and subsequently married a man named Raub. In 1888 James died intestate. There is some conflict on the subject, but the evidence tends to show that these people, both James and Ann, had less than one-fourth of negro blood. The circuit court at the hearing held that a common-law marriage had been had and solemnized between James and Ann, and that the plaintiff, the issue of the marriage, was capable of inheriting, and so took the father's real estate of which he died intestate; and also that as Ann was a slave, and was recognized by James as his wife, and that as after the death of Ann, and after the passage of the act of February 27, 1866, he recognized the said issue of the marriage, Sarah, the plaintiff, as his child, she was thus made legitimate; and decreed according to the prayer of the plaintiff's bill; whereupon the appellant, Scott, applied for and obtained an appeal to this court.

1. As to the supposed common-law marriage between James and Ann, as one of the parties to the alleged contract of marriage was a slave, there could be no such contract entered into. A slave cannot marry, because he cannot make a valid contract, because the duties of a slave are inconsistent with the duties of a bus-band or a wife, and because a slave is property. So the marriage of a slave is a mere nullity, though it is allowed a certain moral effect. 14 Amer. & Eng. Enc. Law, 497, and authorities cited. In Hall v. U. S., 92 U. S. 27, 30, it is said: " It was an inflexible rule of the law of African slavery, wherever it existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage." And in Malinda v.Gardner, 24 Ala. 719, it is said: "The father and mother were slaves, and such persons 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." "A slave, being property, has not the legal capacity to make a contract, and is not entitled to the rights nor subjected to the liabilities incident thereto." Howard v. Howard, 6 Jones, (N. C.) 235.

2. But, as has been said, such a marriage is allowed a certain moral force, and maybe confirmed after emancipation. In most states there are statutes relating to this subject, which it is said was an important one once, but is now no longer important, except as history. Stikes v. Swanson, 44 Ala. 633; McReynolds v. State, 5 Cold. 18; Francis v. Francis, 31 Grat. 283. In the constitution of this state, art. 11, § 7, it is provided that "the children of parents, one or both of whom were slaves at and during the period of cohabitation, and who were recognized by the father as his children, and whose mother was recognized by such father as his wife, and was cohabited with as such, shall be as capable of inheriting any estate whereof such father may have died seised or possessed as though they were born in lawful wedlock." And by the second section of the act of February 27, 1866, it is provided: "Sec. 2. That when colored persons, before the passage of this act, shall have undertaken and agreed to occupy the relation of husband and wife, and shall be cohabiting together as such at the time of its passage, whether the rites of marriage shall have been celebrated between them or not, they shall be deemed husband and wife, and be entitled to the rights and privileges and subject to the duties and obligations, of that relation, in like manner as if they had been duly married by law, and all their children shall be deemed legitimate, whether born before or after the passage of this act; and, when the parties have ceased to cohabit before the passage of this act in consequence of the death of the woman, or from any other cause, all the children of the woman recognized by the man to be bis shall be deemed legitimate." Acts 1865-66, p. 85. This act was construed by this court in the case of Francis v. Francis, supra. Judge Staples, in that case, in an able opinion, said: "It is insisted that the parties to this suit, although theywere colored persons, and living together as man and wife at the time of the passage of the act, are not within the influence of its provisions, inasmuch as they were free before the war, and might have been lawfully married under the laws then in force; that the sole object of this legislation was to provide a remedy for persons emancipated by the war, who, being slaves, could not legally contract the marriage relation, and who, from want of proper information, even after freedom acquired, might not understand the necessity and propriety of so doing. The words include all colored persons, no matter how or when their freedom was acquired. The next question is as to the character of proof requisite to show that the parties are within the statute. It has been very properly said it was not the intention of the legislature to force upon persons the relation of husband and wife against the consent of either. It must...