26. In Virginia.

A marriage contracted in Virginia under a license issued in the District of Columbia is illegal and void. Elizabeth Munroe, alias Ward, alias Green (Sec. Chandler), 3 P. D. (o. s.), 122.

NOTE. The above was subsequently overruled by the same Secretary, who stated the true rule to be that marriages valid at common law but not solemnized in accordance with the requirements of the statute will be sustained as valid unless they are positively declared void by the statute. Citing Blackburn v. Crawfords, 3 Wallace, 175, and Gatewood r. Tunk, 3 Bibb., 246. (See s. c., ibid., 282.)

27. Of slaves in Virginia.

The claimant's mother cohabited with the soldier (who was a slave) as his wife until 1857 (bearing him several children), when he was sold and they were separated until 1864, when he again found her and she returned to and lived with him for a short time, but soon returned to another man with whom she had begun cohabiting in 1863, and with whom she has continued to live since, and to whom she was formally married under a license in 1872. The soldier died July 1, 1864: Held, That claimant's mother can not be regarded, under section 4570, Revised Statutes, as the soldier's widow; but the act of February 22 (27), 1866, of the legislature of Virginia, in which State claimant's mother and the man to whom she was after. wards formally married, as stated, lived, operated to make valid her marriage with the latter, and to legitimize her children by the soldier, who are pensionable accordingly. Minor Children of John Parker (Sec. Kirkwood), 9 P. D. (o. s.), 4.

The act of the assembly of Virginia, passed February 27, 1866, recognized the relation of marriage between such colored persons as were, at the time of its passage, cohabiting with each other, under an agreement or understanding to live together as husband and wife. Such an agreement need not be in express terms. It may be implied from the acts and declarations of the parties. Edith Faulk, alleged widow (Asst. Sec. Reynolds), 8 P. D., 213.

Under the law as above stated, and on the facts elicited by special examination to which this claimant was a party, the claimant is shown to have been the wife of Stephen Watkins; and since the act of February 27, 1866, was retrospective in its nature, and merely sanctioned marriage agreements previously entered into and subsisting at the time of the act, an implied agreement between this claimant and Stephen Watkins being in effective operation at the time of the claimant's death, there can be no period of time during which she had a pensionable status as the widow of Lambert Faulk, the soldier through whom she claims. Ibid.

28. In Indian nations.

The Wyandotte tribe of Indians in 1882 were a distinct political community and as such possessed the power of selfgovernment and the consequent right to determine the social condition and domestic status of one of its members, he being within the jurisdiction of and a domiciled subject of said Wyandotte Nation. (Worcester v. State of Georgia, 6 Peters, 515; Strader v. Graham, 10 How., 82.) A decree of divorce granted by the Wyandotte council, being an act of the nation as a sovereignty, exercised through its proper channels, and not prohibited by the Constitution and treaties of the United States, its validity is not affected by the fact that said decree was granted without notice to defendant. (Maynard v. Hill, 125 U. S., 190; Pennoyer v. Neff, 95 U. S., 714.) Such decree destroyed the marriage relation existing between libelant and libelee, and is effectual to necessitate a holding that claimant is not the legal widow of soldier. Cassandra F..Clark (Asst.

Sec. Reynolds), 8 P. D., 235.

29. Of colored and Indian soldiers.

The widow of a colored soldier is entitled to pension whether their marriage was prior to, during, or subsequent to service, other conditions to title being shown. Sarah Butler (Sec. Delano), 2 P. D. (0. s.), 165.

The widow of a colored soldier must show cohabitation with him up to date of his enlistment. Minors of Samuel Statesman (Sec. Delano), 2 P. D. (o. s.), 345.

Section 724, Revised Statutes, can not be considered to apply in a case where the parties did not live together as man and wife on or prior to the 25th day of July, 1866, but marriages of colored persons in the District of Columbia contracted after that date must, in order to be legal, have been celebrated in accordance with the laws of the District. Elizabeth Munroe, alias Ward, alias Green (Sec. Chandler), 3 P. D. (o. s.), 122.

Section 4705, Revised Statutes, was obviously intended for the class of persons whose condition during and prior to the late rebellion was such that legal marriages among them were not allowed, and can not properly be held to apply to a case like the present, where the parties are not shown to have lived together as man and wife prior to the year 1871, or six years after the suppression of said rebellion. Ibid.

Where it appeared that the claimant and the soldier, while slaves in the State of Mississippi, had lived and cohabited together as husband and wife, but had separated long before his enlistment, and his conduct was such after said separation

29. Of colered and Indian soldiers-Continued.

as to negative any presumption that he deemed the said ceremony of marriage obligatory, it is held that the claimant could not be recognized under section 4705, Revised Statutes, as his widow. Philis Porterfield (Sec. Kirkwood), 9 P. D. (0. s.), 10.

All enactments of Congress relating to the marriage of colored soldiers contemplate only negroes who were slaves, or who resided in States wherein their marriage may not have been legally solemnized. They neither refer to nor include negro soldiers or their families who were free, or who resided in States where they could have solemnized legal marriage. Fanny Curtis (Asst. Sec. Hawkins), 1 P. D., 324.

Section 4705, Revised Statutes, applies only to relations existing while colored persons were in the anomalous condition growing out of slavery, and not to their relations subsequently as citizens of the United States. But such persons might contract a valid and legal marriage in accordance with the law of their place of residence at any time after enlistment. Ibid. (Asst. Sec. Hawkins), 2 P. D., 159.

Section 4705, Revised Statutes, must be construed strictly, and a minor claimant must show his parents lived together as man and wife, recognizing each other as such, up to the date of the father's enlistment; and it is immaterial whether a separation prior to his enlistment was voluntary or involuntary. Children of Peter Williams (Asst. Sec. Hawkins), 2 P. D., 383.

Under section 4705, Revised Statutes, the woman who at the date of the enlistment or of the death of soldier (a slave) was living with him as his wife, the two habitually recognizing each other as husband and wife, and as such recognized by others, is entitled to pension as his widow, even though, previous to such cohabitation, the soldier (being a slave) had contracted a so-called marriage with another woman then living. (See case of Fanny Curtis (colored), 2 P. D., 159.) Henrietta Breckinridge, colored (Asst. Sec. Bussey), 3 P. D., 5.

It is held that the evidence shows that claimant and soldier (slaves) were married by a ceremony deemed by them obligatory and habitually recognized each other as husband and wife up to date of his death, and that she is entitled, therefore, to a widow's pension under section 4705, Revised Statutes. Channa Route, colored (Asst. Sec. Bussey), 3 P. D., 254.

Under section 4705, Revised Statutes, a claimant, as widow, must show not only that she was joined in marriage with the soldier by some ceremony deemed by them obligatory, but also that they habitually recognized each other as man and wife, and were so recognized by their neighbors, and lived together as

29. Of colored and Indian soldiers-Continued.

such up to the date of soldier's enlistment. But a claimant for minor's pension need show only that its parents were joined in marriage by some ceremony deemed by them obligatory, and need not show that its parents lived together up to the date of enlistment. Minors of Joseph Crain, colored (Asst. Sec. Bussey), 4 P. D., 358.

Overruled: 7 P. D., 545.

As claimant's first husband had separated from his first wife, to whom he was married while they were slaves, and had not lived with his first wife again prior to his marriage to claimant, such separation was equivalent to dissolution of the first marriage and rendered him competent to contract marriage with claimant; and as his and claimant's marriage was also contracted while they were slaves, and they continued after their emancipation to cohabit as husband and wife, and were so recognized for a number of years, such marriage to claimant was legal and valid. His subsequent desertion of claimant and return to his first slave wife did not invalidate his marriage to claimant. Claimant's subsequent marriage to the soldier in this case was, therefore, invalid under the statutes of Nebraska, cited. Maria Myers, colored (Asst. Sec. Bussey), 4 P. D., 398.

Claimant and soldier, both being slaves, were married according to slave customs in December, 1854, and lived together as husband and wife until the fall of 1862, when they were separated by claimant being removed by her master, and claimant and soldier never met again. Soldier enlisted in 1864 and died in the service in 1866: Held, That claimant is the widow of soldier under section 4705, Revised Statutes, and that the children born of said union are legitimate and have a pensionable status. Emily Latham (Asst. Sec. Bussey), 5 P. D., 170. Overruled: 7 P. D., 545.

A child born as the issue of a slave marriage, solemnized by a ceremony deemed by the parents obligatory and under which they lived and cohabited and recognized each other as husband and wife, is legitimate within the meaning of section 4705, Revised Statutes, although its parents were subsequently separated, prior to the father's enlistment in the Army, by reason of being sold to different masters under slave customs and did not live together thereafter, and although he, while in service, was married to another woman with whom he lived until his death and who was pensioned as his widow. Citing Emily Latham, 5 P. D., 170; John Pendleton, ibid., 217. Minor of Sanford Boswell (Asst. Sec. Bussey), 6 P. D., 235.

29. Of colored and Indian soldiers-Continued.

Section 4705, Revised Statutes, exempts from requirements of State law the proof therein required to establish legal marriage so far as colored and Indian claims are concerned. The requirements of section 4705, Revised Statutes, must therefore be specifically set forth in each case in order to establish title. Slaves could divorce themselves with or, perhaps, without the consent of their master and without judicial intervention. Juda Hughes, colored, (Asst. Sec. Reynolds), 7 P. D., 107.

Proof that soldier and appellant (Indians) were married in North Carolina in 1850, according to the customs of the Cherokee Indians, is insufficient to establish a marriage for pensionable purposes. Under Article XII of the treaty of New Echola, concluded December 29, 1835, such individuals and families who refused to remove with their tribe west of the Mississippi, but desired to become citizens of the States where they resided, ceased to be a part of the Cherokee Nation and henceforth became citizens of and were subject to the laws of the State in which they resided. And by the laws of North Carolina, where appellant and soldier resided, there is but one law of marriage (marriages according to Indian customs not being recognized), and appellant's marriage must be proved to be a legal marriage according to the law of that State, in accordance with the act of August 7, 1882. Cases cited: Eastern Band of Cherokee Indians v. The United States and Cherokee Nation, 117 U. S., 299, and State v. Ta cha ma tah, 84 N. C., 614. Polly Ann Chulaska Sinla, Indian (Asst. Sec. Reynolds), 7 P. D., 353.

Section 4705, Revised Statutes, has no application to claims for pension under the third section of the act of June 27, 1890, as the right does not depend upon the incurrence of wounds, injuries, or disease incurred in the service. Ibid.

Claimant, a slave, having been joined in marriage to the soldier (also a slave, who died in the service) by a ceremony deemed by them obligatory, and having habitually recognized each other as husband and wife and being so recognized by their neighbors, and having lived together up to soldier's enlistment, notwithstanding soldier's owner opposed such marriage, comes within the provisions of section 4705, Revised Statutes, and is pensionable. Mary J. Smith, colored (Asst. Sec. Reynolds), 7 P. D., 403.

To entitle minor children "of colored and Indian soldiers and sailors" to pension it must be proved that their parents were joined in marriage by some ceremony deemed by them obligatory or habitually recognized each other as man and wife, and were so recognized by their neighbors, and lived 13201

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