Overseers of the Poor of Marbletown v. Overseers of the Poor of Kingston

| N.Y. Sup. Ct. | May 15, 1822

Platt, J.

delivered the opinion of the Court. This is a case made on an appeal by the overseers of the poor of Marbletown against the overseers of Kingston, in the General Sessions of Ulster county. The facts are, that Francisca, the mother of the pauper in question, was born of slave parents, in the town of Marbletown, in 1800; and in 1801, pursuant to the 10 th section of the act of the 8th of April, 1801, (1 K. & R. ed. 616.) she was regularly abandoned by her master to the overseers of that town, and thereby she became a free pauper of that town, with power in the overseers to draw her support from the state treasury, &ic. In 1817, she went to Kingston, and was there married to a, slave, residing with his master, Mr. Hasbrouclc, an inhabitant of that town, by which slave she had a child, Dinah, the pauper in question. The mother died at Kingston, leaving her husband living, and who still lives with his master. Dinah was removed by order of two J ustiees to Marbletown, as her place of settlement, from which order there is an appeal; and we are called on to advise and instruct the Sessions. It is clear, that by force of the statute of 1801, the mother was a pauper of Marbletown, and the child, Dinah, would follow the condition of the mother, unless her marriage with a slave in Kingston makes a difference in the case.

The “ act concerning slaves and servants,” (2 N. R. L. 201. s, 2.) declares, that all marriages, where one or both of the parties are slaves, are equally valid as though the parties were free, and their issue is declared to be legitimate. But there is a proviso, that it is not to operate as an emancipation* It is a rule, that children follow the condition of the mother, where both parents are slaves, and a fortiori, it ought to be so where the mother is free and the father a slave. I understand the object of this statute to be merely to legalize marriages- between such unequal parties, and to render their offspring legitimate; and I cannot admit that by such a marriage, a, free wife subjects herself to the custody and control of the slave husband. The general law of baron and feme cannot apply to such a case. The husband is not emancipated, nor is the wife enslaved, by such a marriage. I am inclined to listen to the suggestions of policy and humanity, which I think dictate the rule, that the children of such marriages shall follow the condition of the free mother, as to all their civil rights and duties, and that she shall have the exclusive custody and control of them, as though their father were dead; and in reference to the settlement of paupers, I think the most consistent rule will be, to consider the children of such marriages as belonging to the town in which the mother had her last legal settlement, without any regard to her slave husband. We are therefore of opinion, that the order of the Justices for removing the pauper to Marbletown ought to be affirmed.

Order of Sessions affirmed.