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Chapter Three: “According to the Custom of Slaves”: Widows’ Pension Claims and the Bounds of Marriage
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“According to the Custom of Slaves” Widows’ Pension Claims and the Bounds of Marriage I Freedmen’s Bureau agent J. M. Tracy appealed to bureau headquarters for guidance in collecting evidence for the pension claims of former slave widows. “Where slaves were given in marriage and married by colored ministers, no licens were used, and no records kept, and seldom witnessed by white persons what rule will I be governed by in such cases? Will the testimony of colored persons be taken in such cases? And where no evidence of any kind can be produced, aside from the widows own affidavit, will that be sufficient?”1 What is significant about Tracy’s appeal is less the formal problem of the lack of documentation than the reason for its absence. The obstacles Tracy encountered in compiling former slave widows’ pension claims proved not to be insurmountable. That claimants lacked documentation establishing their marriages was not unusual. America was only beginning to develop its bureaucratic apparatus , and at this point there existed no regular system to keep track of marriages. The practice of issuing or requiring marriage licenses did not occur in any uniform, widespread manner until the latter part of the nineteenth century. The combination of poor record keeping and the acceptance of informal marriage meant that the problem of lack of documentation was not unfamiliar to the state. As Megan McClintock has noted, many white widows applying for pensions had similar problems furnishing proof of their marriages.2 In most cases the Pension Office handled the problem much the way that judges dealt with informal marriages, by presuming marriage “from the ac- knowledgments, cohabitation, and reputation of a couple.”3 In time, pension laws sorted out what evidence would be sufficient to make a successful claim. Yet in striking contrast to the reasons white widows lacked marriage licenses, the absence of a formal bureaucratic apparatus was not the reason that most former slaves could not document the existence of their marriages. Even if the practice of issuing licenses had been formalized, they still would not have possessed the requisite papers because the state did not accord legal recognition to their familial relationships. Former slaves would not have had any papers because according to the laws that governed the family in free society, slave marriages did not exist. Slaves’ marriages possessed none of the protection, benefits , or obligations of marriage under the laws of freedom. Instead , their masters ultimately controlled their familial relations , as Tracy implied when he stated that slaves were “given” in marriage. Legitimate Marriages: Legality and Morality W proper marital relations for American society ? How did Americans distinguish valid marriages from illicit sexual relations? For the most part colonial legislatures had assured that couples took formal steps—either civil or religious —to create valid unions. In the post-Revolutionary period , however, the question of formal procedure stood at the center of the debate about the extent to which marriage was a private act. Influenced by republican concepts of the private nature of contracts, individualism, and self-regulation, nineteenth -century America saw a growing acceptance of marriages that occurred without formal sanction, what were known as common-law marriages. Though there were dissenting opinions on the subject, most judges tended to presume a marriage rather than a case of “immoral cohabitation” when a couple had lived together as husband and wife.4 Yet there was room for debate about what constituted a valid marriage. Whether a couFreedom ’s Promise [52.54.103.76] Project MUSE (2024-03-29 01:37 GMT) ple cohabited with “matrimonial intent” was left for individual judges to ascertain on a case-by-case basis.5 Regardless of what criteria were used to determine matrimonial intent, civil sanction itself distinguished a valid marriage from illicit and immoral cohabitation. Only recognition by the state, either at the inauguration of the marriage or at some point afterward, removed the question of moral wrongdoing on the part of the cohabiting couple. To marry, or to live in licit cohabitation, was a right, contingent upon a person’s civil identity. Slaves did not possess this right because they were not citizens. In this context slaves found themselves in an impossible bind. Though many slave couples might have been able to meet the requirements for common-law marriage (mutual and public recognition of their relationship as husband and wife), common-law status did not apply to them precisely because southern law did not consider slaves to...