Caselaw | Fourth Generation Inclusive

April 27, 2013

Miles Howard.

Miles Howard was born enslaved and, when he was about 11 years old, was brought to Halifax and sold to Thomas Burgess, a prominent attorney in the Halifax area. Burgess evidently took a liking to the young Miles and made sure that he learned a trade as a barber. Around 1818, Howard took a wife by consent of both his and her masters. Howard was emancipated very shortly afterwards. Burgess sold him property in Halifax in 1825 and more property later. In 1832, Burgess wrote to Senator Mangum regarding a free man of color who was a barber and a musician. The free man had purchased children from a former master. He had not been able to free them due to a law prohibiting this. He wished to move his family to a state where they could be freed and not held as his slaves. Evidently, nothing came from this request, as Howard later died in Halifax.

Burgess, in his will, gave “his worthy and excellent friend Miles Howard the Barber two lots in Halifax, now occupied by said Miles.” In 1838, in an act of emancipation the four children and slaves of Miles Howard were set free, and the family was baptized by a Catholic priest in Halifax. Between 1842 and 1846, Matilda died, and Howard married Caroline Valentine. The two had children who were also baptized Catholic. Howard handled various land transactions and was a sound businessman in Halifax. He died in 1857 without leaving a will. A lawsuit ensued, with the children of his first marriage seeking a share of his property and the children of his second marriage fighting them. The case went to North Carolina Superior Court, which ruled in favor of the children of the second marriage, because the first marriage was a slave marriage and not legal in the eyes of the law.

Adapted from http://www.nchistoricsites.org/halifax/people.htm

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April 27, 2013

A reasonable presumption.

State v. Thomas S. Jones, 20 NC 120 (1838).

This case arose in Chowan County on a charge of petit larceny of four pigs. Two were found in Thomas Jones’ possession, and two in the possession of a free person of color who bought them from Jones after he branded them with the mark of a long-dead uncle. Jones lived with his father, whose pigs were differently marked. A week after he was indicted, Jones left for Tennessee and did not return to Chowan County until the week before the next court term. Jones called his brother-in-law Dennis, who testified that Jones asked him to come to Edenton on a Sunday morning to hunt for some lost pigs, which he described particularly. After looking two or three places, they stopped at a free colored woman’s house and found the pigs. Jones took them, sold two, and took the rest to his father’s house. A Mrs. King and Jones’ brother William Jones also testified that Jones told them he had lost some pigs. Mr. Smith, a merchant in Edenton, testified that on Saturday night Jones asked him to help look for some pigs and the next morning told him he had found them. Witness McNider testified that “about a half an hour by sun” on Sunday, Jones told him he had found all his pigs in a negro woman’s possession. Jones was convicted.

“The presumption arising from possession of stolen goods is stronger or weaker as the possession is more or less recent. A recent possession raises a reasonable presumption of guilt.” Judgment affirmed.

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April 26, 2013

Between an African and a mulatto.

Alfred Nichols v. William F. Bell, 46 NC 32 (1853).

The first issue in the case involved a question of parol evidence. The second involved Alfred Nichols himself. Nichols was “neither black nor white, but … he was of a brown color, between that of an African and a mulatto, and … neither of his parents could have been a white person.” Further, “in Onslow, where the contract he was made, he was reputed to be a free person, was called and known as free Alfred Nichols.” Defendant Bell requested that the court instruct the jury that any person darker than a mulatto was presumptively a slave. The court declined. Affirmed, as the principle is incontroverted that only “black” skin carries the presumption. “Let the presumption rest upon the African color; that is a decided mark: but to carry it into shades, would lead us into darkness, doubt and uncertainty, for they are as various as the admixture of blood between the races, and against the rule that presumptions are always in favor of liberty.”

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April 25, 2013

He may or may not be the child’s father; she has no right to say.

State v. Barrow, 7 NC 121 (1819).

A man charged as the putative father of a “bastard child” is entitled to offer evidence that the mother of the child is “of mixed blood” within “the fourth degree” and therefore excluded by law from testifying against him. Case remanded to the county court to hear defendant’s Barrow’s evidence and determine the competency of the witness.

State v. Thomas Long, 31 NC 488 (1849).

This case arose in Martin County. In May 1848, Lucinda Simpson swore before two magistrates that Thomas Long was the father of her unborn child. The magistrates issued a warrant for Long to appear at the next term of court. He moved to dismiss the proceedings “for the reason that Lucinda Simpson was a woman of mixed blood, within the fourth degree, and therefore incompetent to give testimony against a white man.” The case was dismissed, but Simpson swore again in October 1848 (apparently after the child was born) that Long was the father. Long again succeeded in getting the matter quashed. The decision was upheld in Superior Court and appealed to the State Supreme Court. Double jeopardy; judgment affirmed.

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April 10, 2013

Tenant or servant?

Joseph Hare v. Barney Pearson, 26 NC 76 (1843).

This matter was appealed from Fall Term, 1843, Superior Court of Law of Nash County. The case involved an action of trover (wrongful possession of private property) for a quantity of corn. At trial, the Hare showed that Pearson rented a small tract of land in 1841 to Elijah Powell, a free man of color, for the year 1841. Powell agreed to pay one-half his corn crop as rent. On 13 March, 1841, an unnamed person obtained a judgment against Powell and an execution was levied on his growing crop the following June. When the corn was gathered, Powell and Pearson divided it equally and stored it in one barn. Before the sheriff’s sale on 8 February, 1842, more than half the corn had been removed from the barn. Pearson objected to the sale, claiming the remaining corn as his. The sale proceeded, and Hare bought was left. Pearson exclaimed that he would break every bone in Hare’s body before he would let Hare take the corn. Pearson offered evidence that he had not rented the land to Powell, and Powell was only a laborer with no ownership interest in the crop.

The Court left it to the jury to decide whether Powell was Pearson’s tenant in 1841 (in which case, the sheriff had a right to levy on the crop and Hare was entitled to its value after Pearson refused to give it over), or whether he was merely his servant (in which case Hare could not recover.) The jury returned a verdict for the plaintiff, and the defendant appealed.

The Supreme Court found that, even if Powell had been Pearson’s servant, the evidence showed that they had split the crop, giving Powell title to half. Powell was present at the sale, and it was he, rather than Pearson, who had standing to object to any irregularity. Pearson claimed Powell’s corn without title, and his threat to beat Hare rather than let him take his purchase amounted to conversion. This was a matter of law, not fact, and should not have been sent to the jury. Judgment affirmed.

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March 8, 2013

Trifling.

State v. Griffin Stewart, 31 NC 342 (1849).

Griffin Stewart was indicted in Nash County for murder in the death of Penny Anderson. Though unmarried, he and Anderson had lived together for several years as man and wife. On a Monday night in October 1848, Anderson was at home with Griffin. Witnesses reported hearing blows and lamentation, as if a woman were being beaten violently and begging for mercy. The outcry came from the direction of Stewart’s house. The next morning Penny Anderson was missing, and Stewart claimed, “She had gone to one Hale’s,” who lived about ten miles off. Anderson had not been at Hale’s, however, and could not be found anywhere. Six weeks later, her body was found, “partially buried in an out-of-the-way place,” some five hundred yards from Stewart’s house. Her badly decomposed body showed signs of violence, and she appeared to have been choked to death. She was identified by a ring, several articles of clothing, a broken finger, and other means.

Stewart was “of a black complexion.” He had lived in the area about ten years, and during all that time he passed for and was treated as a free man of color. He was treated as a free negro during trial and spoken of as such by the counsel. Circumstantial evidence tended strongly to show that Stewart had murdered her, and the jury found him guilty.

Stewart appealed on two grounds. First, evidence showed that the only people at Stewart’s house on the night of the murder were Stewart, Anderson, and Anderson’s grandson, who was between seven and eight years of age. The State did not call the boy as a witness and, in its opening address to the jury, Stewart’s counsel strongly urged that the jury presume that the child’s testimony would have hurt the State’s case. The State countered that the boy had no testimony to offer and, in case, Stewart’s counsel could have called him himself. Stewart’s lawyer then moved the Court to instruct the jury that they should not convict Stewart upon circumstantial evidence, when the boy’s direct testimony was available. The Court refused to give the instruction, and Stewart’s counsel moved for a new trial. However, the state Supreme Court found no error on this ground, noting that it is “in the discretion of the prosecuting officer, what witnesses he will examine.” “If other witnesses can shed more light on the controversy, it is competent for the prisoner to call them.”

Second, Counsel argued that Stewart, being black, was prima facie a slave, and the Court had committed error in not admonishing the mulatto witnesses, as required by law in the trial of a slave for a capital offense. The Supreme Court rejected this argument as well, reasoning that If Stewart had wished to be tried as a slave, he had raised the issue too late. Further, there was evidence to rebut the presumption of slave status, and Stewart had been treated as a free negro during the whole trial. “It would be trifling with the administration of justice, to allow a prisoner to pass himself off as a free negro, and take his chances for a verdict; and then turn around and insist that he was a slave.”

[Sidenote: In White Women, Black Men: Illicit Sex in the 19^th Century South, Martha Hodes notes that Penny Anderson was a white woman. I will supplement this post when I get a chance to study the case’s manuscript records. – LYH]

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March 8, 2013

Critical technicalities of buying liquor.

State v. Trim Hopkins, 49 NC 305 (1857).

This was an indictment In Perquimans County against Trim Hopkins, a free negro, for furnishing liquor to a slave. The indictment contained two counts; one for selling spiritous liquor to a slave; and the other for giving it to him. Hopkins was with Jack, a slave belonging to a Mr. Skinner, at a house where liquor was sold. Jack gave Hopkins some money to buy a quart of liquor, which Hopkins bought and immediately gave to Jack. Hopkins was convicted.

On appeal, the Supreme Court emphasized the two counts: one for selling spiritous liquor to a slave, the other for giving the liquor to the slave. “The Revised Code contains two chapters on this subject: the 34th and the 107th. The 87th section of the first provides — ‘No person shall sell or deliver to any slave, for cash, or in exchange for articles delivered, or upon any consideration whatever, or as a gift, any spiritous liquor,’ &c. The 67th section of the latter chapter is as follows: ‘If any free negro shall, directly or indirectly, sell, or give to any person, bond or free, any spiritous liquor, he shall be guilty of a misdemeanor.’ … The question presented to us is, do the facts stated in evidence bring the defendant within either clause of the recited chapters? We think they do not.”

Where a slave handed money to a free negro in a liquor shop, who handed it to the liquor dealer, received liquor in return, and then handed it to the slave, he was not guilty of either selling or giving the slave liquor. Judgment reversed.

The court also overturned the decision in State v. Jim Wright, 49 NC 308 (1857), on substantially the same grounds. There, Jim Wright, also a free man of color, was charged with selling and delivering a quart of spirits to Sam, a slave owned by a Mrs. Barron.

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February 28, 2013

Every presumption was to be made in favor of freedom.

May Stringer v. Shepherd W. Burcham, 34 NC 41 (1851).

May Stringer, a free woman of color, filed suit in Carteret County alleging false imprisonment.

At trial, her counsel introduced a record certified by Craven County Court showing that, in December 1807, William Jessup filed a petition to emancipate certain of his slaves for meritorious services. The petition was granted, and bond provided. Among the slaves was a woman named Sinah. Stringer, who was born after the decree of emancipation, was the daughter of Hannah, who was Sinah’s daughter. Sinah and her descendents had been regarded as free persons of color since their emancipation, except on one occasion, when a man claiming to be William Jessup’s son came to Craven about 1817 and tried to carry off Hannah and another person. He was arrested and had not been since heard of. The court held that, “after an acquiescence for 30 years by the public in the enjoyment of her freedom, every presumption was to be made in favor of” Stringer’s freedom, “especially against a trespasser and wrongdoer.”

The jury found in favor of the plaintiff, and Burcham appealed. The State Supreme Court affirmed the verdict.

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February 27, 2013

I won’t have her, but he won’t take her away from me.

The State v. Tackett, 8 NC 210 (1820).

This was an indictment against Tackett for the murder of Daniel, a slave, in Raleigh. Daniel’s free colored wife, Lotty, lived in a house on a lot owned by Richardson, a carpenter. Daniel generally was at his wife’s house at night. Tackett worked as a journeyman for Richardson and lived in Richardson’s house on the same lot. On the night that Daniel was killed, Richardson was awakened by a gunshot. Soon after, Richardson heard someone enter his room and set something down in the spot he usually kept his gun. Richardson’s gun was loaded with buckshot, and his family had been admonished not to use it. Richardson turned over and saw someone he thought was Tackett leaving. Shortly after, Richardson heard groans and complaints outside, as if from an injured person. He saw no more of Tackett that night, and Tackett did not sleep at home.

About a week to ten days before this night, Tackett, while drunk, told Richardson that he and Daniel had fought and said that he would kill Daniel. Because of this threat and of the rumor and his belief that Tackett “kept” Daniel’s wife, Richardson discharged him, but took him back again in a few days when he promised to behave better. Witnesses testified that at about 9:00 on the night of the shooting, Tackett went to a house in the suburbs where he said several times that he was uneasy and, when asked why, said that he had been downtown and gotten into a fight and was afraid the constables would get him. Soon after, he said he had shot a black man belonging to Mr. Ruffin and believed he spattered him well, because he took good sight at his legs and thighs, and the man “hollowed.” Tackett then said that he had been downtown and was returning home “the back way through the lot” and found Daniel lying on his belly on the ground near a window of Richardson’s house. Tackett said that he would have blown out Daniel’s brains if he had had a pistol. He asked Daniel who he was and what he was doing there, and Daniel replied by asking who he was and what he was doing there. Daniel then got up and said Richardson was not at home. The men then went into the yard together, where they remained a short while before Tackett went into the house, got Richardson’s gun, and shot Daniel, who was “dodging around the turning lathe.” Shortly after Daniel was wounded, neighbors, alarmed by his groans, found him and sent for a surgeon who examined his body and found a very large gunshot wound in the front and lower part of the abdomen.

Witnesses stated that Tackett did not appear to be drunk and asked permission to stay all night. He went to bed and seemed to be asleep when the constables came to arrest him. At that moment, he said it was hard to go out of a good warm bed to jail.

Witnesses also testified that two or three weeks before the homicide, Daniel told someone that Tackett “kept” his wife, showed a large stick that he said he had beaten Tackett with, and said that if Tackett did not let his wife alone, he would kill him. On another night, about a week to ten days before the homicide, Daniel was seen standing at Richardson’s gate, and, when asked who he was, said he was not afraid to tell his name, that he was Daniel, and that the devil had been to pay there. He said Richardson had whipped him and driven him off his lot, but he would be the death of Richardson or Tackett one. Another witness, who also was a carpenter and worked in Richardson’s shop, testified that about ten days before Daniel died, he came up to a workbench where Tackett was working in the street very near Richardson’s house. Tackett ordered him to leave, and Daniel said he was in the street and would not go. The men then fought, but the witness did not see and could not tell how it began. When the witness took notice of them, Daniel had the stile of a window sash in his hand and struck Tackett several times with it, hurting his eye. Daniel also caught hold of the adze Tackett picked up to strike him with. They scuffled for it; Daniel butted Tackett and got the adze from him. This witness also stated that very early in the next morning or the morning after that, he found Daniel lying in wait in Richardson’s garden with two stones in his hands. Daniel said he thought the witness was Tackett and had intended to knock his brains out. Further, after dinner on the day of the homicide, he saw Daniel downtown, and Daniel asked him where Tackett was. Daniel then said that he did not intend for Tackett and Lotty to out-do him and that she had behaved so meanly that he would not have her, but Tackett would not take her away from him, and that, if he did not let her alone, he would kill Tackett or Tackett would kill him.

Tackett then offered to prove that Daniel was a turbulent man and was insolent and impudent to white people, but the Court refused to hear such testimony unless it would prove that Daniel was insolent and impudent to Tackett in particular.

In its charge to the jury, the Court instructed that the case was to be determined by the same rules and principles of law as if the deceased had been a white man and went on to define murder. The jury found Tackett guilty of murder. Tackett’s lawyer moved for a new trial on the grounds that proper evidence had been rejected and the Court erred in the charge to the Jury. The motion was denied, and Tackett was sentenced to death. He appealed to the Supreme Court.

The Court held that, in the trial of one charged with the murder of a slave, it is permissible to give evidence that the deceased was turbulent and that he was insolent and impudent to white persons. Further, “it exists in the very nature of slavery, that the relation between a white and a slave is different from that between free persons; and therefore, many acts will extenuate the homicide of a slave, which would not constitute a legal provocation of done by a white person.”

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February 7, 2013

He cannot go blow for blow, but he can defend himself.

State v. Lawrence Davis, 52 NC 52 (1859).

This indictment for assault and battery arose in Craven Superior Court. Lawrence Davis was a free negro living in New Bern. Edward Hart was a regularly appointed and qualified constable for the town. Hart had a notice directing David to show cause why he should not work on the streets as the penalty for not having paid his taxes. (A New Bern ordinance: “Ordered that all free negroes, who have not paid their taxes, shall be made to work on the streets two days for each and every dollar of tax due the town by them, and if he refuses to do the same, upon due notice being given him, he shall pay a fine, at the discretion of the Mayor, not exceeding $10.” Hart arrested Davis and, while he attempted to tie him, Davis struck him.

The lower court found Davis guilty, and he appealed.

The Supreme Court suggested that Davis’ conviction may have rested on the proposition that a free negro is not justified, under any circumstances, in striking a white man. “To this, we cannot yield our assent. Self-defense is a natural right, and, although the social relation of this third class of our population, and a regard for its proper subordination requires that the right should be restricted, yet, nothing short of manifest public necessity can furnish a ground for taking it away absolutely; because a free negro, however lowly his condition, is in the “peace of the State,” and to deprive him of this right, would be to put him on the footing of an outlaw.” So, though a free negro ordinarily was not to return blow for blow or fight with a white man, “as one white man may do with another, or one free negro with another, he is not deprived, absolutely, of the right of self-defense.” Rather, to justify a battery on a white man, the free negro is required to prove that it was necessary for him to strike in order to protect himself from “great bodily harm or grievous oppression.” In other words, if there is cruelty or unusual circumstances of oppression, a blow is excusable.

In this case, a constable serving a notice on the defendant, without any authority whatever, arrested him and attempted to tie him. “Is not this gross oppression? For what purpose was he to be tied? What degree of cruelty might not the defendant reasonably apprehend after he should be entirely in the power of one who had set upon him in so highhanded and lawless a manner? Was he to submit tamely? Or, was he not excusable for resorting to the natural right of self-defense?”

Under these circumstances, the judge committed error, and a new trial was ordered.

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Category: Caselaw