General Rufus Saxton, Assistant Commissioner, Bureau Refugees, Freedmen, and Abandoned Lands South Carolina, Georgia, and Florida Marriage Rules General Orders No. 8 August 11, 1865 Freedmen Bureau Records
In General Circular No. 2 General O. O. Howard gives directions to the Assistant Commissioners on marriage. "The unity of families and all the rights of the family relation will be carefully guarded. In places where the local statutes make no provisions for the marriage of persons of color, the assistant commissioners are authorized to designate officers, who shall keep a record of marriages which may be solemnized by any ordained minister of the Gospel, who shall make a return of the same, with such items as may be required for registration, at places designated by the assistant commissioner. Registrations already made by United States officers will be carefully preserved.".
In March 1866 Howard would return to this issue with a circular letter framing all the issues that need to be resolved: The Commissioner directs that each assistant commissioner consult the State laws with regard to marriage and divorce of white persons, and embody them for the benefit of freedmen, so far as this can be done, in a circular.
It is desirable to frame such a system of marriage rules as would be approved by the State authorities. It is, therefore, advisable to procure the formal approval of the governor to your circular on this subject.
The Commissioner would simply suggest several points that require immediate settlement:
1. Parties eligible to marriage.
2. Who shall grant certificates of marriage.
3. Parties authorized to solemnize marriages.
4. Dissolving marriages.
5. Registry of marriages.
6. Regulations with reference to persons who had lived together without marriage.
The greatest care must be taken to instruct all the free people what the law demands of them in regard to marriage, and all clergymen and magistrates who are authorized to give certificates, or solemnize marriage, must be earnestly solicited to aid the bureau officers in rectifying existing evils on this subject.
* * *
This document contains the marriage rules of General Saxton's area. It is an attempt to resolve one of the most difficult social problem of the reconstruction era. Millions of families that were put together in various ways in the prewar south had to sort out relationships and make decisions over the future. While this may or may not seem important the resulting bureaucratic turmoil would continue into the 20th century as U.S. Army pension claims were filed and resolved. (See 33rd USCT)
2. Was the marriage maintained after a. The Emancipation Proclamation - see following pension ruling in the case of Joseph Cryer b. Close of the War of the Rebellion in Florida by statute - the marriage would have been ratified by state statute if they lived together after December 14, 1866. (This is exactly the same type of case as a above but the Florida statute date was used.
Note the first problem that needed to be solved in section III 7. Everyone needed a last name. It is hard to remember that after the war freedmen may have never had a last name. Some families may be confused with several last names as there may have been no one family name adopted.
This is the conclusion: "The sacred institution of marriage lies at the very foundation of all civil society. It should be carefully guarded by all the agents of this bureau."
Section I The marriage age in this circular is 21 years old for males and 18 for females. This contrasts today with 18 in Georgia, South Carolina and Florida and with parental consent may go as low as 14 in some states. No. 2 understanding of "usages of slavery" is unknown.
Section II 4. Cost of marriage for service set at 50 cents. (Later in document cost $1 for certificate.)
Section III. 3.and 4. Dissolving marriages - a. for crimes in either party b. for moral reasons: adultery, fornication, proven against either party. c. for prudential reasons growing out of the injustice of slavery - (resolved in section IV 10 and 11): I. A husband living with a wife, having no children by her may be permitted to take a previous wife; provided --- first. He have children by such wife who are still minors. Second. That such wife have no other husband known to be living. Third. That his present wife assent to such change of their marriage relations. II. If a former wife utterly refuse, upon application made by the husband, to renew her former marriage relations with him, he may notify some society or church of the fact of such refusal, and ask for a release from said wife...
Section IV. 1. Saxton uses as floating date - marriage of all parties living together as husband and wife at the time of obtaining their freedom. This could mean before the emancipation proclamation (and broadly including pre-war marriages), at the time of the emancipation proclamation or after the emancipation proclamation when troops arrived.
4. Freedmen must obtain a certificate of marriage to validate their slave marriage.
5. The former wife takes precedence over the new wife. (Exception moral causes in III. 4)
6. A former wife with children has precedence over a former wife without children.
7. If a husband refuses to renew a marriage he will be responsible for support for the wife and all children who are minors.
8. No man may remarry unless they can prove a problem the first marriage
10. A man can life with the former wife if he has not children by the present wife who are minors, the former wife can have no husband living and the present wife agreed to release him.
11. If a former wife refuses to renew the marriage a church or society can release the husband from support for herself and children.
1. A woman living alone claimed by two former husbands can choose who she wants unless she has children where she must accept the father of the children.
2. A wife divorced for a moral charge of her husband is entitled to 1/2 the man's possessions and full control of the children.
3. Minor children of a former deceased wife have the right to support from their natural father.
Notes: Kentucky - On February 14, 1866, the Kentucky State Legislature passed an act legalizing marriages freedmen had entered into during slavery and authorizing black ministers to solemnize such marriages. Nearly 2 weeks later, on February 26, 1866, Assistant Commissioner Fisk issued Circular Number 5, in accordance with the Kentucky law, directing those freedmen who sought to solemnize a marriage to the county clerk for a marriage license. If the county clerk refused to issue a license, Bureau officials in the subdistricts were authorized to solemnize marriages and issue marriage certificates.
Florida: Reconstruction Marriages: (from The Compiled Laws of the State of Florida 1914) Marriages Of Negro Persons 2583. (2067.) Marriage law to apply to negro persons. From and after the expiration of nine months from the passage of the act entitled "An Act to establish and enforce the marriage relation between persons of color," approved the eleventh day of January, 1866, all laws applicable to or regulating the marriage relation between white persons shall be deemed to apply to the same relation between the colored population of the State. (Ch. 1469, Jan. 11, 1866, -§ 5.)
Former slave marriages: 2 2586 Certain cohabitations declared marriage In all cases where persons of African blood have prior to January first AD 1866 cohabited and lived together as husband and wife and have prior to said date recognized each other before the world and were recognized as husband and wife they shall in law be deemed taken and held to have been lawfully husband and wife so long as such relationship existed between them as fully and effectually for all purposes as if the marriage between them had been solemnized by a proper officer thereto lawfully authorized and all children the issue of any such marriage are hereby legitimized and made heirs of their parents and of their blood relatives generally in the ascending descending and collateral lines of inheritance according to the general laws of descent in force in this State as fully as they had been born in legally recognized wedlock Ch 4749 Acts 1899
Section discussed and construed.Daniel v. Bams. 17 Fla. 487.
Issues - Recognition of relation by parties.A customary slave marriage of a free man of color and a slave woman, no other marriage or other legal Impediment intervening, confirmed after emancipation of the woman by cohabitation as husband and wife, or by any other plainly established assent by both parties to the continued existence of the antecedent relation of husband and wife, renders the Issue born in slavery legitimate. Daniel V. Sams, 17 Fla. 487. (See Pension of Abram Lancaster who was a free man before the War of Rebellion and marriage to Jane Nattiel who was a slave.)
Where slave marriages have terminated before, or have never been recognized by the parties thereto after, they became free, the offspring cannot Inherit property acquired by such parties after emancipation. Williams v. Kimball, 35 Fla. 49, 16 So. 783, 26 L. R A. 746, 48 Am. St. Rep. 238.
General emancipation did not render valid customary slave marriages, contracted before emancipation, but not ratified or confirmed thereafter. Adams v. Sneed, 25 So. 893, 41 Fla. 151.
Evidence, In a suit for partition, held to sustain a finding that a plaintiff was the child of a slave marriage and cohabitation, and that she had Inheritable blood under this section, notwithstanding evidence that her father had not been a faithful husband. Christopher v. Mungen, 63 So. 923, 66 Fla. 467.
Termination of cohabitation.- Cohabitation under customary slave marriage before emancipation not contemplated by section. Daniel v. Sams, 17 Fla. 487. Offspring of a slave marriage which has not been recognized after emancipation cannot inherit. Williams v. Kimball, 35 Fla. 49, 16 So. 783, 26 L. R. A. 746, 48 Am. St. Rep. 238.
The offspring of slave marriages which terminated before the emancipation of the parties thereto cannot inherit land. Williams v. Kimball, 35 Fla. 49, 48 Am. St. Rep. 238, 26 L. R A. 746, 16 So. 783.
Children of customary slave marriages, which terminated before, or were never ratified by the parties thereto after, emancipation, are neither legitimate nor bastards, within the statutes of descent. Adams v. Sneed, 25 So. 893, 41 Fla. 151.
In the absence of enabling statutes, the Issue of customary slave marriages, which terminated before, or were never ratified by the parties thereto after, emancipation, possess no inheritable blood. Id.
Louisiana In 1873 Picone v Fontenette the Louisiana Supreme Court ruled that slaves who married before the war, but who died before they would have been emancipated were not legally married because marriage was not cohabited after emancipation Picone v. Fontennette (1873) with emancipation and cohabitation being the standard.