Rather than trust his client’s color before the jury …
by Lisa Y. Henderson
Wm. W. Johnson v. Peter G. Basquere, Justice, and others, Freeholders, and Thomas Miller v. Boon, Tax Collector of St. Paul’s, and Rice, Sheriff, 28 S.C.L. 329 (1843).
The South Carolina Court of Appeals heard these cases on the issue of whether, where a “narrator” has argued that he is “entitled to occupy in society the status of a free white man,” he can discontinue proceedings by motion for non-suit or leave of court before publication of the verdict.
In Johnson v. Basquere, the narrator, who was about to be tried as a free person of color, filed a declaration in prohibition alleging that he “had a right to occupy in society the status of a free white man of South Carolina.” The defendants denied that he was a free white man, and the issue was put to a jury. “Much evidence was offered on both sides. Many witnesses on the part of the narrator, said that he was received in society, and regarded as a free white man, whilst witnesses on the part of defendants, testified that his great grand-mother, by the mother’s side, was a mulatto. The case was submitted to the jury, after full argument and a fair trial. When the jury returned to the court room, the foreman stepped to the clerk’s desk to write his verdict, and when he was about to deliver the record to the clerk, a motion was made to poll the jury, which the presiding Judge refused.” The narrator’s counsel –suspecting an unfavorable verdict – then moved to discontinue the proceeding without publishing the verdict. This motion was granted.
Johnson was in court, “and had the appearance of a white man. He had been a member of a volunteer company, and had voted at the general election for members of the Legislature. There was no question but what his lineage on his father’s side, was that of white, and rather respectable people. His mother, Mary, was the daughter of one Nancy Patrick, formerly Nancy Miller. [Mr.] Patrick, who had married Nancy, was regarded a colored man, and Mary was born in wedlock; but several witnesses said Patrick never claimed her, and that her mother said she was the child of an Irish schoolmaster, Ellis, living in the neighborhood at the time she was begotten and born, and she was so generally regarded. Nancy Miller’s father was a white man, who married Elizabeth Tan,” Johnson’s great-grandmother. “Elizabeth Tan was a colored woman, with thick skin and long hair; and from what came out in another case, she was originally from North Carolina, and claimed to be an Egyptian.”
In Miller v. Boon, the question was whether the narrator “was subject to a poll tax imposed on free persons of color, of African origin and taint; or whether he was entitled to occupy the position of a free white man.” In an earlier matter, a judge had held that the narrator, Isaac Winningham, and his wife Rachel,“were not subject to be taxed as free persons of African origin, but that they were exempt from such a tax, as the descendants of Egyptians.” Winningham’s counsel argued that this decision ruled and rested his case. The solicitor then called Winningham into court – “and his appearance was that of a mulatto. At this stage of the proceedings, and perhaps when the Solicitor was about calling witnesses to shew that narrator was a mulatto, the counsel for narrator moved to discontinue his proceeding, preferring to rely on the [earlier] judgment …, rather than to trust to his client’s color, before the jury. The presiding Judge granted the motion.”
The court of appeals determined that both parties to the action are voluntary and entitled to stop proceedings to take a more prudent course. Decisions upheld.