August 20, 1901. The opinion of the Court was delivered by This was an action for partition of a certain lot of land in the city of Anderson, of which one Abram McCauley died seized and possessed, some time in January, 1899. He having died intestate, the only question is as to who is entitled to inherit his estate. The plaintiff, in her complaint, alleges that "the said decedent left surviving him as heirs at law, a daughter, the plaintiff, *Page 417 by a former marriage, and his widow, Mary McCauley, one of the defendants" — the other two defendants, William Edwards and John C. Osborne, being persons who claim an interest in the said lot of land under the said Mary McCauley.
The defendants in their answer deny that the plaintiff is entitled to any interest, either as heir at law or otherwise, in the estate of the decedent, Abram McCauley, and, on the contrary, aver that he died leaving as his sole heir at law his widow, the said Mary McCauley, and that she alone is entitled to inherit his estate.
By consent, an order was passed referring the case to a referee to take the testimony and report his findings of fact and conclusions of law. The testimony so taken is set out in the "Case." The referee made his report, a copy of which is also set out in the "Case," and will be incorporated in the report of this case by the Reporter, and the case was heard by the Circuit Judge upon exceptions to the said report, who rendered a decree (which will likewise be embraced in the report of this case) dismissing the complaint. From this judgment the plaintiff appeals upon the several grounds set out in the record, which need not be set out here, as they practically raise but two questions. 1st. Did the Circuit Judge err in concluding as matter of fact that no marital relation, either legal or moral, ever existed between Abram McCauley and Mary Yarborough, the mother of plaintiff, but that such relation was one of mere concubinage? 2. Did he err in concluding as matter of law that the plaintiff having sprung from such an illegal relation, was not entitled to inherit from Abram McCauley, notwithstanding the fact that Abram acknowledged her as his child?
For a proper consideration of these questions it will be necessary to make a brief general statement of the facts out of which this controversy has arisen. Abram McCauley was a slave, and belonged to Col. George McCauley. Mary Yarborough was also a slave, belonging to Dr. Yarborough. During the war between the States, there is testimony tending *Page 418 to show that Abram visited Mary at the plantation of Dr. Yarborough, her master, not, however, with but against his consent, and apparently against the consent of his owner, Col. McCauley. We do not find any evidence that there ever was any pretense or even a moral marriage (as it is termed in the books), nor is there any satisfactory evidence that they ever recognized each other as man and wife, or lived together as such. On the contrary, the testimony of Col. Isaac McCauley, who was the son of Abram's owner, satisfactorily shows that, at some time during the war, when does not very clearly appear, though it must have been early in the war, Abram was formally married to another one of Col. Geo. McCauley's slaves, Emily Scott by name, with the consent of his owner — "they had a big wedding," at which this witness was present, and they lived together as man and wife on the plantation until about the close of the war, or perhaps shortly after the war ended. But without going into any detailed consideration of the testimony, which is all set out in the "Case" and has been carefully examined, it is sufficient for us to say that we agree with the Circuit Judge, "that no kind of marriage relation, either legal or moral, ever existed between Abram McCauley and Mary Yarborough," and that they never, either before or since emancipation, recognized or lived with each other as husband and wife, but that their relations towards each other was merely that of concubinage. The finding of the referee, which is claimed to be adverse to the conclusion which we have reached, is expressed in the following dubious language: "That Abram McCauley visited Mary Yarborough prior to 1865, and while there occupied the relation of man and wife." The words which we have italicized leave it at least doubtful, whether he meant to find that these persons lived as man and wife, or merely to say that while on these visits Abram "occupied" the same bed with Mary Yarborough; and if he meant the latter, that would be entirely consistent with the conclusion which we have reached. At all events, whatever may have been the meaning which the referee intended *Page 419 to express by the dubious language which he used, we are entirely satisfied that the preponderance of the evidence is decidedly in favor of the view which we have adopted, and does not support the conclusion that these persons ever sustained to each other the relations of husband and wife. Inasmuch as both the referee and the Circuit Judge have found as facts, though manifestly with some hesitation, that the plaintiff was the issue of sexual intercourse between Abram McCauley and Mary Yarborough, and that Abram acknowledged the plaintiff as his daughter; and as there is no exception to these findings by the Circuit Judge, and no notice has been given of an attempt to support the judgment appealed from by controverting either of these findings of fact, we will assume them to be facts in the case, though we must add that there is much in the testimony which, if the question were open, would be well calculated to induce a different conclusion; or, at least, calculated to show that the plaintiff, upon whom was the burden of proof, had failed to establish by the preponderance of the evidence either of those facts, both of which were necessary to her right to recover.
But waiving this, for the reason above indicated, we will proceed to consider the question of law, as to whether the plaintiff, under the facts found by the Circuit Judge, was entitled to inherit any portion of the estate of the intestate, Abram McCauley. That question may be stated as follows: Whether the offspring, born during the existence of slavery, of an illicit connection between a man and a woman both of whom were slaves, who has been acknowledged by the man as his child, can, upon his death intestate, inherit any portion of his estate. During the existence of slavery, it was well settled in this State, at least, that marriage was a civil contract, and that slaves being incapable of contracting, they were incompetent even to enter into a contract of marriage, which the law would recognize as valid and binding upon the parties, giving rise to the rights and obligations which would attend a marriage between persons not laboring *Page 420 under the disability to contract. But while this was the well settled legal doctrine, yet it was a well known and universally acknowledged historical fact, that slaves of different sexes were in the habit, during the existence of slavery, of entering into such relations with each other, usually with the consent of their owners, as followed from a legal marriage between persons capable of contracting. Frequently these relations between slaves were entered into by a formal ceremony of marriage, while in other instances the parties simply came together by agreement to live with each other as husband and wife, and recognized by each as such. These relations, when thus assumed between slaves, are termed moral marriages, lacking only the power to contract to make them legal marriages. When, therefore, the institution of slavery was abolished, the General Assembly of this State, in view of the condition of things, on the 21st of December, 1865, passed an act, entitled "An act to establish and recognize the domestic relations of persons of color, and to amend the law in relation to paupers and vagrancy," to be found in 13 Stat., at page 31 of the edition of the acts of that year, which the writer of this opinion now has before him — though we see that it is cited in the argument of appellant's counsel as 13 Stat., at p. 291 (2d ed., vol. 13, p. 269), which we presume is the page of the other edition of the acts of that year. The manifest object of that act, as we think, was, amongst other things, to recognize as legal the moral marriages above spoken of, and to declare legitimate the offspring of such marriages, under the conditions mentioned in the act. The act of 1866, entitled "An act to declare the rights of persons lately known as slaves and as free persons of color," passed the 21st of September of that year, 13 Stat., 393 (2d ed., 366[29]), which is sometimes referred to as repealing the act of 1865 above cited, only repeals such acts and parts of act as are contrary to or inconsistent with the provisions of the act of 1866, and the last mentioned act deals only with the rights of persons lately known as slaves or as free persons of color, prospectively, *Page 421 whereas such portions of the act of 1865 as we think are applicable to this case, are retrospective, and have been so declared to be in the cases of Davenport v. Caldwell, 10 S.C. 317;Clement v. Riley, 33 S.C. 66; Callahan v. Callahan,36 S.C. 454, and Knox v. Moore, 41 S.C. 355. Hence those portions of the act of 1865 which are applicable to this case, not being contrary to or inconsistent with the provisions of the act of 1866, cannot be regarded as repealed by that act. Indeed, we do not see that the act of 1866 has any application to this case.
We will next refer to the act of 12th of March, 1872, 15 Stat., 183, entitled "An act legalizing certain marriages, and for other purposes therein mentioned." That act was probably passed because of the express repeal of the act of 1865, above referred to, by the Rev. Stat. 1872, at page 842, which went into effect on the 10th of February, 1872. The first section of the act of 1872 provides: "That all persons in the State of South Carolina, who, previous to their actual emancipation, had undertaken and agreed to occupy the relation to each other of husband and wife, and are cohabiting as such, or in any way recognizing the relation as still existing at the time of the passage of this act, whether the rites of marriage have been celebrated or not, shall be deemed husband and wife, and be entitled to all the rights and privileges, and be subject to all the duties and obligations of that relation, in like manner as if they had been duly married according to law. Sec. 2. And all of their children shall be deemed legitimate, whether born before or after the passage of this act; and when the parties have ceased to cohabit before the passage of this act; in consequence of the death of the woman, or from other cause, all the children of the woman recognized by the man to be his, shall be deemed legitimate:Provided, however, That no provision of this act shall be deemed to extend to persons who have agreed to live in concubinage after their emancipation." The third section simply repeals all acts and parts of acts inconsistent with this act. This act was probably passed in view of the fact that *Page 422 the act of 1865, hereinabove referred to, had just been repealed by the Rev. Stat. of 1872, thus leaving no statutory provision for the anomalous condition of those who had once been slaves, and had prior to their emancipation undertaken to enter into marital relations, which resulted in the birth of offspring, which though of no legal force and effect, simply because of the want of power in the parties to contract at the time such relations were assumed, ought, nevertheless, to be regarded as morally binding, and that the issue of such relations, if acknowledged as such, ought to be regarded as legitimate. The act of 1872 may, therefore, be regarded as a substitute for the provisions of the act of 1865 in respect to this peculiar condition of things, which act had been repealed. Under this view of the object of the act of 1872, it is quite clear that the conclusion reached by the Circuit Judge in this case is correct, that it was the intention of the legislature to declare only the issue of moral marriages to be legitimate, and capable of inheriting from their father as well as from their mother, and not to declare the issue of mere concubinage legitimate. The language of the first section of the act of 1872: "That all persons * * * who, previous to their actual emancipation," shows clearly that the act applies only to persons who had once been slaves; and the subsequent language of that section shows with equal clearness, that it was intended only to apply to those who, while they were slaves, had undertaken to enter into marital relations, which, while not constituting legal marriages, did constitute what is termed in the decisions moral marriages; and the language of the second section of the act: "And all of their children" — that is, all of the children of such moral marriages — shall be deemed legitimate, manifestly shows that the provisions of the second section apply only to the children of such moral marriages. If, therefore, this case is to be determined by the provisions of the act of 1872, as we think it should be, we do not think there can be a doubt that the conclusion of law reached by the Circuit Judge is correct. It was the only law in force at the time *Page 423 this controversy arose, and also at the time of the death of the intestate — the period to which we must look in determining who are his heirs at law, entitled to inherit from his estate (Young v. Dinkins, Rich. Eq. Cases, 23; Glover v.Adams, II Rich. Eq., 264; Shaffer v. McDuffie, 14 Rich. Eq., 146). It was in terms retroactive, and did not divest any vested rights, for nemo est haeres viventis. We see no reason why the act of 1872 should not be applied to this case.
But even if we are in error in this, and the case should be governed by the act of 1865, as it seems to be assumed in the argument, it must be, we are still of opinion that there was no error in the conclusion of law reached by the Circuit Judge under the facts as he found them, which finding we approve, so far, at least, as relates to the nature of the connection between Abram McCauley and Mary Yarborough. While it is quite true that the terms of the fourth section of the act of 1865, if looked at alone, might justify the conclusion contended for by the appellant; yet such conclusion involves the necessity of imputing to the legislature an intention to recognize and sanction a moral wrong by placing the offspring of mere concubinage upon the same footing as the offspring of a moral marriage — so far, at least, as the colored race is concerned — and thus discriminating between the colored and the white race in favor of the former. A conclusion involving such an imputation upon a co-ordinate branch of the government will not readily be adopted by the Courts. But when we examine the provisions of the fourth section of that act, in connection with the other provisions of the act, we find that such a conclusion is not forced upon us. As has been said above, the object of that act was to provide for the anomalous condition of things with which the people of this State were confronted, when, at the close of the war between the States, a very large proportion of the inhabitants of the State were suddenly converted from a condition of slaves into the condition of freemen. The legislature, therefore, very wisely undertook to provide for *Page 424 the recognition of the family relation amongst that class of the inhabitants of the State, which though morally could not have been legally recognized, simply because of their want of power to contract a marriage, which constitutes the basis of the family relation. Hence we find that in the first section of the act, "the relation of husband and wife amongst persons of color is established," in express terms. In the second section it is declared that "those who now live as such, are declared to be husband and wife." In the third section of the act provision is made for the case of one man having two or more reputed wives, or one woman having two or more reputed husbands. Then follows the fourth section in these words: "Every colored child, heretofore born, is declared to be the legitimate child of his mother, and also of his colored father, if he is acknowledged by such a father." From the connection in which this language was used, we must conclude that it was intended to apply only to the children born of what have been termed moral marriages between persons who were slaves at the time they entered into such so-called marital relations, which it was well known existed among slaves prior to their emancipation, and from which large numbers of children had been born; and was not intended to declare every colored child legitimate, for in section 16 of the act, illegitimate colored children are expressly recognized. As was well said by the late Mr. Justice McGowan, in delivering the opinion of this Court in the case of Clement v. Riley, 33 S.C. at page 81: "We cannot think that it was the intention of any or all of the acts aforesaid [referring to the acts of 1865, 1866 and 1872] to attempt the impracticable thing of legitimizing the whole colored race, without the least regard to the circumstances under which they were born, including the offsprings of mere concubinage. As it strikes us, it could not have been the intention to create marriage relations which, in fact, never existed, so as to affect the rights of inheritance. The law does not undertake to make the marriage contract; that must be the act of the parties themselves, the law only *Page 425 declares its consequences. As we understand it, the purpose was to remedy a case where the parties had agreed to occupy towards each other the relations of husband and wife — that is, a moral marriage, lacking only the power of contract to make it legal." This states the legal proposition for which we contend, and justifies the conclusion which we have reached.
Counsel for appellant in his argument relies upon certain language used by the Justice delivering the opinion of this Court, in Davenport v. Caldwell, 10 S.C. at p. 338, and again at p. 341, in support of his contention; but that language was a mere dictum, and not authority; for in that case there was a moral marriage between the persons under whom the parties claimed the right to inherit, and that case can only be regarded as authority for the proposition which we concede — that the issue of a moral marriage between persons who, at the time, were slaves, may inherit not only from their mother but also from their father, if acknowledged by him. So, also, he cites the case of Knox v.Moore, 41 S.C. 355, relying specially upon certain language used by the Justice who delivered the opinion of the Court, at p. 361-2. But in that case also there was a moral marriage, during the existence of slavery, between Thornton Moore and Rhindy, and it was of the right of the children of such marriage, who had been acknowledged by the father, to inherit his estate, or rather their portion thereof, that the learned Justice was speaking when he used the language relied upon. Of course, the language used by a Judge in delivering the opinion of the Court must always be construed with reference to the facts of the case which he is considering. While, therefore, the learned Justice, in that case, did hold (and rightly so) that the issue of the moral marriage between Thornton and Rhindy Moore, who were acknowledged by him, were entitled to inherit a portion of his estate, there is nothing in the language which he used that would even imply that he thought that the issue of a relation of mere concubinage between two persons while *Page 426 slaves, where there was no pretense of a moral marriage, would likewise be entitled to inherit from their reputed father. We are, therefore, of opinion that there was no error in the conclusions, either of fact or law, reached by the Circuit Judge.
The Judgment of this Court is, that the judgment of the Circuit Court be affirmed.