
    Armstrong vs Hodges et al.
    
    Chancery.
    Error to the Franklin Circuit.
    
      Case 33.
    
      Marriage. Slaves. Cohabitation. Policy of the law.
    
    
      September 29.
    The case staled.
   Chief Justice Robertson

delivered the Opinion of the Court.

Armstrong filed his bill against Hodges’ heirs and others, for a specific execution of a bond for a conveyance of a small tract of land given by the ancestor, Hodges, to a free white woman named Thomason Grady, who cohabited with a black man named James Hog and sometimes called James Grady, and assigned by the obligee and -said James to the complainant. The alleged equity was resisted on the ground of a previous sale by Thomason Grady to William Jackson, whose equity had been transferred to William Hodges, to whom the heirs of the deceased obligor had made a conveyance. But the complainant attempted to avoid this defence by insisting that Thomason Grady was the wife. of the said James, and, that, therefore, her sale to Jackson was void,

A marriage between a free white woman &. her negroe slave, will not be presumed from.cohabitation.

Marriage between white persons andnegroes is inconsistent With decorum, social order, public policy and national sentiment, and void as against the policy and implied prohibition of the local law.

The Circuit Court dismissed the bill, and we think rightly. •

Even on the presumption that Thomason Grady was, de jure, a married woman, there would certainly be great difficulty in maintaining that the assignment by herself and husband to Armstrong, without any privy examination, passed to him an available equity, and especially as he had notice of her prior sale, and the transferred of her first vendee is entrenched behind the legal title fairly obtained.

But, although there is abundant proof of cohabitation and occasional recognition, yet the fact that the said James was a slave whom the said Thomason had bought and never expressly emancipated, but sometimes threatened to sell, would alone be sufficient to repelí the presumption of marriage, which would result, in ordinary cases, from mere cohabitaney ostensibly in the conjugal relation; and this repellant circumstance is fortified by the additional fact that a heavy penalty, by imprisonment and fine, is denounced against marriage between white and black persons, by an act of the colonial Legislature of Virginia, of 1753, (Stat. Law, 1153,) which was adopted by the constitution of this State, and is still in force here.

Under these circumstances, in the absence of more-direct and specific proof, the presumption should be, that the relation between the black man slave and free white woman, was that of concubinage rather than marriage ; and even if this be doubted,- we are clearly of the opinion that there is not sufficient proof of the said Thomason’s coverture to require us to decide that her sale to Jackson was void for want of legal capacity to bind herself or make a valid contract.

Moreover, we are inclined strongly to the opinion that the marriage, if ever in fact consummated or intended, was void as against the policy and implied prohibition of the local lawn It rather seems to us that our local law should be understood as prohibiting such marriages, as inconsistent here with decorum, social order, public policy, and the national' sentiment; and if so, they must, therefore, be deemed unlaioful, and of course void.

Todd for plaintiff; Mor ¿head and Reed for defendants.

The decree of the Circuit Court is, therefore, affirmed.  