42 Pa. 159 | Pa. | 1862
The opinion of the court was delivered, March 10th 1862, by
The plaintiff and defendants in this case are all coloured persons, and, on the trial below, the defendants offered to prove, “ That in the region from whence these people came, the Eastern Shore of Maryland, it is not the custom for coloured people to form legal marriages; that marriage among them is the exception and not the rule; that the majority of them cohabit promiscuously, and that this mode of promiscuous cohabitation is the custom there among free coloured persons as well as slaves;” which offer the court rejected.
A custom, however ancient, if contrary to morality, religion, and the law of the land, cannot be a legal one, and it is clearly unreasonable, and cannot be compulsory. Tried by this standard, the rejection of this offer to prove such a custom so contrary to the moral sense of a Christian community was eminently proper. There are, however, other objections to the proposed custom as stated in the offer, which it may be proper to consider:—
These persons came, according to the evidence, from near Snow Hill, on the Pocomoke river, in Worcester county, which adjoins Aecomae county, on the Eastern Shore of Virginia. By the census of 1850, the slave population in the five lower counties, including Worcester, numbered 21,718, while the free co-loured amounted to 14,544. In 1790, the whole number of slaves in Maryland was 103,036, whilst the free coloured were only 8043; whilst in 1850, the slaves were 90,368, and the free coloured 74,723; and in 1860, the slaves had decreased to 85,382, and the free coloured, no doubt, had increased at least to an equality, for the aggregate free population had increased 153,517 in that decade.
Now, as there is no legal marriage amongst slaves (opinion of Daniel Dulany, 1 Maryland Rep. 561; Jackson v. Lervey, 5 Cowen 402, 403), it would have been easy for any gentleman
It is certain that the institution of marriage is not only recognised by the laws of Maryland as existing with the free coloured race, but we know that, amongst slaves in the slave states, the ceremony is often performed, although not followed by the usual legal consequences. And in the census of Maryland, in 1850, under the head of marriages, married whites and free coloured are classed together, as well as the number of dwellings and families of the white and free coloured population.
We have never heard of such a custom being attempted to be proved in England, although, in a work of established reputation, in speaking of the immoral condition of certain portions of London, the following strong language is used: “We could name entire quarters, in which it seems to be a custom that men and women should live in promiscuous concubinage; where the most frightful debauchery goes on, night and day, in the lowest public houses; where the very shopkeepers make a profession of atheism, and encourage their poor customers to do the same :” London Quarterly Review, April 1861, art. 4, p. 24.
Lavinia Johnson proved that her husband Isaac went to sea in 1823, and had not been heard from since, except that in 1832 it was,, rumoured that he was living in Portland, Maine, and she wrote two letters to him, but never got any answer. Here was an interval of twenty-seven years, from even the last rumour to the commencement of this suit, and this lapse of time surely justified the court in charging the jury, “The presumption, under the evidence, is, that Isaac Johnson is dead. There is sufficient to justify the jury in so finding.” The authorities upon this point are conclusive both in England and Pennsylvania: Nepean v. Knight, 2 Mees. & Welsby 894; Doe dem. Knight v. Nepean, 5 Bing. 86 (27 Eng. Com. Law) Exch. Chamber; Burr v. Sim, 4 Whart. 150; Bradley v. Bradley, Id. 173; Whiteside’s Appeal, 11 Harris 116.
Judgment affirmed.
