Arthur Barkshire and Elizabeth Keith/Kuth Indiana Supreme Court court case – 1856

Arthur Barkshire and Elizabeth Keith were married on 18 June 1854 in Ohio County, Indiana. Elizabeth lived in the state of Ohio before their marriage and Arthur moved his new bride to Ohio County, Indiana. Unfortunately, the 1851 Indiana Constitution stated that “No negro or mulatto shall come into or settle in the State, after the adoption of this Constitution.” Arthur and Elizabeth were free blacks in 1854 and Elizabeth’s move to Indiana was therefore illegal. Arthur was found guilty for “encouraging Negro to remain in the State of Indiana” in the Ohio County Common Pleas Court and fined $10. He appealed to the Indiana Supreme Court saying that because of their marriage Elizabeth should be able to legally move to Indiana as his wife. Unfortunately the Supreme Court disagreed, says that since all contracts made with black who illegally entered the state shall be void, that their marriage contract was also void. The transcript from the Supreme Court as found in the Common Pleas Court records is below.

Ohio County, Indiana Marriage Record Volume 1, p. 170; FHL digital film 4455441.
Ohio County, Indiana, Common Pleas Court, Order Book 1, p. 271-274

Indiana vs. Arthur Barkshire} information for encouraging Negro to remain in the State of Indiana

Come the parties and the following opinion of the Supreme Court of the State of Indiana in the above entitled case was received and ordered to be entered of Record in this court viz

State of Indiana, Supreme Court} May Term 1856
Monday May the twenty sixth 1856
Present: The Hon. William Z. Stuart, Ch[ief] J[udge], Samuel B. Gookins, Samuel E. Perkins, Andrew Davison} Judges

Arthur Barkshire vs. The State of Indiana} Appeal from the Ohio Common Pleas

Now at this time come the Parties by this attornies and the court being now sufficiently advised of and concerning the premises give the following opinion and Judgment pronounced by Judge Stuart.

This was a proceeding by Complaint against Barkshire for bringing a negro woman into this state in June 1854, and harboring her here in contravention of the Constitution and laws of Indiana. Trial by the court finding guilty and fine ten dollars. Barkshire appeals. The facts agreed upon by the parties are briefly these. That Arthur Barkshire the defendant is a man of color, that he has resided in Rising Sun Indiana for the last ten years, that since the adoption of the Constitution on the first of November 1851 said Arthur married a colored woman by the name of Elizabeth Kuth, who now resides with him as wife in Ohio County Indiana, that the marriage was solemnized in this State, that Elizabeth moved to the State of Indiana during the Summer of 1854 from the State of Ohio where she had long resided, that Elizabeth is a negro or mulatto, and that the defendant lived with and harbored her as his wife in Rising Sun, before and at the time of information filed.

The only question presented by the Record is, does this evidence warrant the conviction.

The 13th art[icle] of the Constitution provides that upon the adoption of that instrument in November 1851, no Negro or Mulatto shall come into or settle in the state, that all contracts made with those coming in contrary to such prohibition shall be void, that to employ or encourage such Negro to remain in the State shall be punished by fine, that all such fines shall be appropriated to Colonization, and the General Assembly shall pass laws to carry the provisions of the article into effect. I. R. S. 67.

Accordingly the General Assembly passed an act to enforce the 13th article of the Constitution Section 7th of that enactment reads “Any person who shall employ a Negro or Mulatto who shall have come into the State of Indiana subsequent to the 31st of October 1851 or shall encourage such Negro or Mulatto to remain in the state shall be fined in any sum not less than $10 nor more than $500.” I. R. S. 375.

At the same Session another act was passed to provide for the Colonization of Negros, Mulattos &c who were residents of this state on the 1st day of November 1851, and appropriating $5000 for that purpose. I. R. S. 222.

The policy of the State is thus clearly evolved. It is to exclude any further ingress of Negros and to remove those already among us as speedily as possible. The 13th art[icle] of the Constitution inaugurating this Policy was separately submitted to a vote of the people under the title “of exclusion and colonization of Negros.” It is matter of history how emphatically it was approved by the popular voice.

The marriage solemnized in Ohio County is urges as an exception, taking the case out of the Statute, but such an exception cannot be admitted; both because no such exception is Recognized either in the Constitution or in the law enacted to give it effect. And because the marriage itself, solemnized in contravention of both must be regarded as void. Marriage in this State is but a Civil Contract. As such it is clearly embraced in the Constitutional provision copied into the subsequent Law which declares all contracts made with Negros and Mulattos coming into the State contrary to the provisions of the 13th Art[icle] void. The consequences are not a legitimate consideration for the Courts. A Constitutional Policy so decisively adopted and so clearly conducive to the separate and ultimate good of both races should be rigidly enforced. So that Barkshire can claim nothing from the supposed relation of husband and wife. To give that relation any consideration favorable to him would be to countenance an infraction of the fundamental law. Barkshire can therefore be regarded only as any other person would be who encouraged the negro woman Elizabeth to remain in the State. It may not be improper to observe, though not before the court in this case, that Elizabeth herself seems to be liable under the 9th Sect of the Act to the same penalties for coming into the State or settling here.

It is therefore considered by the court that the Judgment of the court below be in all things affirmed at the costs of the appellant. All which is ordered to be certified to said Court.

State of Indiana SS.
I, William B. Beach clerk of the Supreme Court of said State certify that the foregoing is a full, true, and complete copy of the opinion and Judgment of said court in the above entitled cause.

In testimony whereof I hereto subscribe my name and affix the seal of said court at the city of Indianapolis this twenty fifth day of July AD 1856.

Wm. B. Beach C. S. C. per Joseph S. Kentzel dep[uty]

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