Fourth Generation Inclusive

Cox v. Dove, a Free Negro, 1 NC 72 (1796) .

1. A slave can not be a witness against a free negro.

2. In trespass quare clausum fregit, the defendant under the general issue may give in evidence a license.

Trespass quare clausum fregit and non culpabilis pleaded.

To prove the entry a negro slave was called and offered to be sworn.

But the Court (WILLIAMS, J., saying he never heard such a thing asked: HAYWOOD, J., tacente,) refused to admit the witness, although the defendant was stated to be a negro. 2, 1777, 2, 42, 307.

The case of State v. George, ante, p. 40, was cited: but much argument was not offered by the plaintiff’s counsel; there being other witnesses, attending to prove the fact intended to have been proved by the slave. He having been offered only to come at the opinion of the judges.

Slade, for the defendant, offered to read in evidence, a letter from the plaintiff to the defendant, authorizing him to tend turpentine trees on the premises.

Martin, for the plaintiff, objected to this: on the ground that if the defendant meant to avail himself of the plaintiff’s license, he ought not to have denied the entry, which he had done by pleading non culpabilis; at all events he ought to have pleaded justification. He cited Co. Litt., 282.

The Court, HAYWOOD, J., and STONE, J., nevertheless permitted the letter to be read: on the authority of a case cited out of Buller’s Nisi Prius, 90. Hatton & Neale, per Jones, C. J., 1683.

The plaintiff proved a trespass committed by cutting timber, and had a verdict.

NOTE.–Upon the first point see State v. George, ante, and 1 Rev. Stat., ch. 31, sec. 81. The law was later clearly settled that a slave is a competent witness against a free negro.

[Sidenote: Though I have a law degree, I’m not completely confident about my interpretation of this bizarrely fashioned decision. Thus, I present it in its entirety.  — LYH]