
    MILLIE THOMAS vs. WILLIAM F. HOLTZMAN.
    1. Where slaves with the consent of their masters lived together in the State of Maryland as husband and wife, such a union, according to the custom of that State, was sufficient to establish a marriage between the parties. Consequently, under the act of Congress of February 6, 1879, the issue of such a marriage must be regarded as legitimate in the District of Columbia for all the purposes of descent and inheritance.
    2. Where the defendant in a partition suit has no interest in the moiety claimed by the complainants, the court will not scrutinize very closely the weight of the t estimony introduced upon the issue raised as to the title of the complainants as heirs of the admitted former owner.
    In Equity.
    No. 10,300.
    Decided November 26, 1888.
    The Chief Justice and Justices James and Merrick sitting.
    Bill in equity for partition. Heard in General Term in the first instance.
    The Facts are sufficiently stated in the opinion.
    Messrs. Cole & Cole for complainants.
    Messrs. A. A. Birney and E. A. Newman for defendants:
    The plain case here presented has never been before the court. In Thomas vs. Ragan and Green vs. Norment the court held that “ the fact that parties who had been slaves came to this District and lived as free people, in the relation of husband wife, for some time, was evidence of actual, legal marriage between them.” 5 Mackey, 86.
    There is no such proof here, and nothing which supplies its place.
    In Maryland it has been directly held that a ceremony of marriage is necessary to a valid union.
    In Denison vs. Denison, 35 Md., 361, it appeared that the parties agreed to thenceforth regard each other as husband and wife. “ That- in pursuance of such agreement, they cohabited and lived together as man and wife; that the appellee was maintained and supported by the deceased up to the time of his death, as his wife, and that they both acknowledged, recognized, and acted towards each other in all things as husband and wife, and were known, treated, and reputed to be such among their friends and acquaintances.”
    The court held (page 379) that the acts of 1715 and 1717 “ clearly shows that no such marriage as that here alleged to have been contracted was ever contemplated by the legislature or was ever supposed for a moment to be good. The Act of 1777, Ch. 12, concerning marriages * * * plainly indicated the understanding of the legislature to be that no marriage was to be thereafter good and valid unless celebrated by some religious rites and ceremonies. The union was held to be no marriage.
    Applying then to the union of slaves in Maryland the same rule as that applied by the Maryland courts to unions of free persons in that State, it is clear that Milly Thomas’ connection with either of her so-called husbands gave no rights of inheritance to her offspring.
    Aside from the question above considered, the connection, without cohabitation after freedom, was no marriage.
    Bishop on Marriage and Divorce, Yol. 1,162, ed. of 1864, states the principle upon which the author deems “ that the decision in all such cases ought to turn,” which is, “ If after the emancipation the parties live together as husband and wife; and if before emancipation they were married in the form which either usage or law had established for the marriage of slaves; this subsequent mutual acknowledgment of each other as husband and wife should be held to complete the act of matrimony, so as to make them lawfully and fully married from the time at which this subsequent living together commenced.”
    
    And (Sec. 163), “ But where there is no confirmation of the marriage after emancipation, either by cohabitation or otherwise, it would come within the reason of the law * * * to hold the parties free from matrimonial bonds.”
    
      We have not been able to find decisions’ opposed to the text just quoted. In a case recently decided in Chicago, involving this question, and reported in the daily press, “Judge Finley decides that the issue of a slave union was an illegitimate child, and could have no heirs except those of her body.” The ground of the decision is that “slaves, being chattels, no legal marriage was possible, any more than real estate can marry real estate.”
    The act of Congress of February 6, 1879 (Richardson’s Supp., 409), is unconstitutional, in that it affects persons according to their color. It provides “That the issue of any marriage of colored persons,” &c. Previous condition of slavery is not mentioned in any way, the statute affecting free colored persons as well as others.
    We have already pointed out that the issue of a union of white persons contracted as in this case would be held illegitimate. Dennison vs. Dennison, 35 Md., 361.
    We submit that a statute which leaves such (white) children without heritable blood, and gives right of inheritance to children of darker skin born under similar conditions, is unequal, arbitrary, partial, and rests upon no reason upon which it can be defended. It operates as denial to the white citizen of that “equal protection of the laws” provided for by the Fourteenth Amendment. Judge Cooley doubts whether a regulation made for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges or legal capacities in a manner before unknown to the law could be sustained, notwithstanding its generality. Const. Lim., 393.
    In a case in Tennessee the court held void a statute applying only to suits brought by persons of a particular class, to wit, Indian reservees. Wally’s Heirs vs. Kennedy, 2 Yerger, 554. See,also, Lewis vs. Webb, 3 Greenl. R., 326; Soon Hing vs. Crowley, 113 U. S., 703; Civil Rights Cases, 109 U. S., 3.
    But, if constitutional, the statute will not help complainants, for the method of marriage or “custom prevailing at the time,” was regulated by statute, which required a ceremonial marriage. The proof negatives such ceremony. Jones vs. Jones, 36 Md., 447.
   Mr. Justice Merrick

delivered the opinion of the Court:

In the case of Millie Thomas against Holtzman, or, as it is otherwise entitled, Eliza Queen and others against Holtzman, since Eliza Queen and others came in by bill of revivor on thet decease of Millie Thomas, for the purpose of determining the question of partition as between the estate of Millie Thomas and Holtzman, touching a certain lot of ground in the city of Washington, it was objected by the respondent in equity that Eliza Queen and the others, now seeking to be made parties to the bill of revivor, were not the legitimate children of Millie Thomas.

It appears in the proof that Millie Thomas had for her husband one Henry Queen, a free colored man, and that she, being a slave, lived with him as her husband, recognizing the relation of husband and wife between them, with the consent of her master; and during that marriage two of these plaintiffs were the fruit of the union. The first husband died, and then, in a similar manner, she associated herself with another man by the name of Thomas, and lived with him, recognizing him as her husband, and that as the fruit of that union two other children were born. Her second husband subsequently deserted her at about the outbreak of the war and never returned, and, so far as it is known, is dead. These four children, the fruit of these two marriages, claim to be the heirs at law of Millie Thomas.

It is objected on the part of the respondent in this case that the‘children of these marriages are not legitimate, first, because under the interpretation of the laws of Maryland, including the Actof 1777, which recognize the capacity of a clergyman to perform the rites of marriage with the consent of the master, there was in point of fact no marriage; in other words, that by the law of Maryland recognizing the possibility of a legal marriage under such circumstances in facie ecclesise, with the consent of the master, any other marriage between slaves was not regarded as a marriage so as to legitimate the issue; secondly, that the act of Congress of February 6, 1879, which does legitimate or professes to legitimate all the issue of such marriages, is unconstitutional and void, because it makes a discrimination between persons of different races and different colors.

In the first place it is not at all apparent that it ever was the law that a marriage in facie ecclesise, was necessary for the purpose of legitimating the issue. It is true that the Court of Appeals of Maryland in the last four or five years has decided that such was the law; but that decision is not binding upon us. It is laid down by Blackstone that a marriage per verba de presentí without the intervention of a clergyman is a legitimate marriage. And both Story and Kent say, that according to the universal understanding in this country a marriage per verba de presentí, without the intervention of a clergyman, followed by cohabitation, makes a legitimate marriage.

In the year 1844, that question was greatly contested in the case of The Queen vs. Mills, in the House of Lords in England, and bj? a'divided court the judgment of the Irish tribunal was sustained, which had affirmed that a marriage in facie ecclesise was necessary- to give legitimacy to the issue. That was, as we have said, by a divided court; and the opinion of Lord Campbell in the case, one of the ablest opinions that has ever been written, is a most powerful vindication of the ancient doctrine that a marriage, to be a valid marriage, so as to legitimate the issue, does not require the presence of a clergyman. He cites with marked emphasis and approbation the authority of Kent and Story as to the common law on this subject, certainly as it was uniformly understood in America.

It is not necessary for us to decide that question at this time. What has be‘en said is merely by way of suggestion in order to repel the conclusion that it has been definitively settled that the presence of a clergyman is necessary to validate a marriage so far as the legitimacy of the issue is concerned. It is sufficient for this court to rely, for the decision of the present cause-, upon the act of Congress of 1879, which was made for the express purpose of relieving the unfortunate members of the late servile race from the consequences entailed upon them by their condition of servitude. The act of Congress is so emphatic and so comprehensive that it leaves no room for argument upon the question of the validity of the marriage now before the court. It provides:

“ That the issue of any marriage of colored persons, contracted and entered into, according to any custom prevailing at the time in any of the States wherein the same occurred, shall, for all purposes of descent and inheritance, and the transmission of both real and personal property in the District of Columbia, be deemed and held to be legitimate and capable of inheriting and transmitting inheritance, and taking as next of kin and distributees according to law from and to their parents, or either of them, and from and to those from whom such parents, or either of them, may inherit or transmit inheritance, anything in the laws of such State to the contrary notwithstanding. 20 Stat. at Large, 282.

That is as broad and comprehensive as language can make it, stating in terms that wherever, according to a custom prevailing at the time the parties entered into and recognized themselves as occupying the relation of man and wife, it is sufficient for the purpose of legitimatizing the issue of colored persons. It was eminently proper and humane and just that the law should be made, and this court is unwilling to intimate the possibility of a doubt of the validity of the law in any respect. Certainly the suggestion that it violates any of the terms of the recent amendments of the Constitution of the United States can have no warrant or force in reason or law. The proof having been adequate to show in this case — without reciting it in delivering this opinion — that these people did live in the relation of husband and wife, according to a custom then prevalent, and were recognized according to that custom as husband and wife, is sufficient to establish the legitimacy of the issue for the purposes of this cause.

We will only add, inasmuch as the defendant in the case doe's not seem to have any interest at all in the title which they were vindicating, that his objection to their title seems rather a litigious contention than one justly set up for the purpose of vindicating any rights of his own, that the court would not be disposed to scrutinize very closely the weight of the testimony introduced in this particular 5 but it is sufficent, and the court thinks that heirship has been established so as to entitle the plaintiffs to maintain their bill for partition in the premises.  