Caselaw | Fourth Generation Inclusive

February 6, 2013

Deep-rooted and virtuous prejudices.

State of North Carolina, Wayne County } At a Superior Court of Law began and held for the County of Wayne at the Court House in Waynesborough the first Monday after the fourth Monday of March 1828. Appeared there and then into Court Jesse Barden, and by his attorney Lewis D. Henry Esq’r., filed the following Petition under the act of 1827 –

North Carolina, Wayne County } To the Honorable the Judge of the Superior Court of Law for Said County – The Petition of Jesse Barden, Humbly Shews that he is a Citizen of this County, That he intermarried with one Ann Mariah Bradberry about the Month of April in the Year 1827, That at the time he married her he cherished a fond affection for her and believed her to be good woman, and that she would make an excellent wife, That at the time of their marriage She had a child, which he believed was his own and had been begotten by him before their intermarriage, That her Conduct and Manners were so artfully devised during their Courtship, that he entertained the opinion She was a virtuous woman and that she had never departed from the path of Moral rectitude but in the instance alluded to, and then from the excess of an ardent and imprudent passion for himself, That shortly after their intermarriage however, your Petitioner discovered that Child So born before their marriage was a black child, to his utter Horror and astonishment, and which has Completely ruined his peace and Happiness for life, That as soon as Your Petitioner was Satisfied of the Colour of the Child and of the artful wiles that the said Ann Mariah had employed during their courtship to decoy him with the Conjugal Connection, by protestations of affection that she had made to him from time to time. He was so overcome with her perfidity that he not only broke off all connection with her, but has turned her from his House.

He prays Your Honor therefore that these facts may be inquired into and that he may be divorced from the bonds of Matrimony with the said Ann Mariah his wife, and such other and further relief as You may think proper.

This affiant swears that the facts Set forth in this Petition are true to the Best of his knowledge and belief and that the Said Complaint is not made out of Levity or Collusion between him and his said wife and for the mere purpose of being freed and Separated from each other. /s/ Jesse Barden

Sworn to Subscribed before me the 3^rd day of April 1828. Rob’t Strange

Whereupon it was ordered by the Court that a Subpoena and Copy of the Petition issue to the defendant returnable to the next Term which was done and the Sheriff of Wayne made return thereon that the defendant was not to be found [in] his County. After which It was ordered by the Court that an alias subp’a and copy of Petition issue to defendant returnable to Spring Term of Said Court 1829, which was issued.

This matter reached the North Carolina Supreme Court in Jesse Barden v. Ann M. Barden, 14 NC 548 (1832). In distinguishing the case from another decided the same term, Justice Thomas Ruffin noted that “in so young an infant, whose mother was white, it might not be in the power of an ordinary man, from inspection of the face and other uncovered parts of the body, to discover the tinge, although it were so deep as to lead to the belief now, that it is the issue of a father of full African blood.” The case was remanded to ascertain (1) that the child was mixed race; (2) that both Bardens were white; (3) that Jesse Barden believed at the time of his marriage that the child was white; (4) that his belief was based on Ann Mariah’s misrepresentations; and (5) that the child’s “real color” was not obvious. If all were true, Barden was entitled to a divorce. “This is a concession to the deep rooted and virtuous prejudices of the community on this subject.”

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February 3, 2013

Their father bound them out, but wanted them back.

Haywood Musgrove v. Wm. J. Kornegay, et al., 52 NC 71 (1859).

On a writ of habeas corpus, Simon and Lucretia Musgrove, colored children, were brought into Wayne County Superior Court upon the petition of their father, Haywood Musgrove. William J. Kornegay, in his defense, presented a deed that Musgrove had executed to Kornegay, purporting to bind the children to him as apprentices. It appeared that Simon was over twelve years old at the time of the transaction; assented to the binding, but did not sign the deed; and served Kornegay three or four years. However, Lucretia was only three or four years old at the time and did not assent to the binding in any way.

The court ordered Simon and Lucretia returned to Kornegay, and their father appealed.

The Supreme Court: “A father is entitled to the services of his child until he arrive at the age of twenty-one.” He has a right of property in the child’s services, may enforce them by reasonable correction, and if the child absconds or is taken away, may recover custody by habeas corpus. However, a father cannot assign this interest to a third person, unless the child is old enough to enter a contract (age twelve at the time) and assents to the assignation by executing the contract with his father. In this case, Lucretia was too young to be sign a contract and should be returned to her father. And though Simon was more than twelve years old, he did not sign the deed, “the proper order is to discharge the infant and permit him to go where he pleases. Order below reversed. This order will be entered, and judgment against Kornegay for costs.”

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February 1, 2013

Five blows.

State v. Nehemiah Norman, 53 NC 220 (1860).

This indictment for assault and battery was tried in Washington County Superior Court.

Richard Fisher, a free man of color, had been convicted of larceny and was ordered to be sold to cover fines and costs. A man named Peacock purchased Fisher’s services – essentially as an apprentice – for five years. Before that term expired, Fisher was “taken up” on the charge of killing one Hussell, who was found dead in his yard. Defendant Nehemiah Norman gave Fisher “five licks” to make him reveal the gun used to shoot Hussell. Peacock was present when Fisher was whipped and gave his consent, saying “it ought to be done.” The county court found Norman not guilty, and the State appealed.

The state supreme court: “No free person, of whatsoer color, can, according to law, be thus coerced.” And even the assent of an apprentice’s master cannot legalize it. The state legislature placed a convict sold to pay off the fines levied for his offense in the condition of an apprentice. This relationship is regulated by general principles, including that which holds that a master cannot whip for unlawful purposes. Under these circumstances, the five blows Norman inflicted on Fisher are technically an indictable battery.

Judgment of the lower court reversed and entered for the State.

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January 31, 2013

The expert testifies, “He is mulatto.”

State v. Asa Jacobs, 51 N.C. 284 (1859).

Asa Jacobs was indicted in Brunswick County, as a free negro, for carrying firearms.

In the lower court, the State called a certain Pritchett to give an opinion on Jacobs’ ancestry. He testified that he had known Jacobs a long time, but had never seen any of Jacobs’ ancestors, and knew nothing of them by reputation. Jacobs’ lawyer objected that Pritchett’s lack of actual knowledge disqualified him from rendering an opinion on whether Jacobs was a free negro. The court ruled that Pritchett could answer questions to establish whether he was qualified to testify as an expert.

Pritchett then stated that he was a planter and had been an owner and manager of slaves for more than twelve years; that “he had paid much attention to and had had much observation of the effects of the intermixture of negro or African blood with the white and Indian races;” and that from such attention and observation, he was well satisfied that he could distinguish between the descendants of a negro and a white person and the descendants of a negro and Indian; and further, that he could also say whether a person was full African, or had more or less than half African “blood” in him, and whether the cross or intermixture was white or Indian. On this basis, Pritchett was admitted to testify and stated his opinion that Jacobs was a mulatto – that is, half African and half white. Jacobs’ counsel excepted to the admission of this evidence, and upon Jacobs’ conviction, appealed to the Supreme Court.

The Court noted that even a common observer can detect, from outward appearance, the “intermixture of the white and black races;” it is not a matter of science or skill. Nonetheless, it by no means follows that the ability to ascertain the extent of “negro blood” is not so. “On the contrary, we believe that it would often require an eye rendered keen, by observation and practice, to detect, with any approach to certainty, the existence of any thing less than one-fourth of African blood in a subject.” North Carolina law defined a free negro as one who is “descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person.” He may, therefore, be a person who is only a sixteenth African. The ability to detect “the infusion of so small a quantity of negro blood in one, claiming the privilege of a white man, must be a matter of science,” and, therefore, subject to the testimony of an expert. Pritchett, the court determined, proved that he possessed the necessary qualification to testify as such.

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January 29, 2013

It is not slander, per se, to charge a white man with being a free negro.

Abner C. McDowell v. William Bowles, 53 NC 184 (1860).

“It is not actionable, per se, to charge a white man with being a free negro; and it does not alter the case, that such man was a minister of the gospel.”

This slander case was tried in Surry Superior Court. Abner McDowell charged that, when he attempted to vote at a constable’s election, William Bowles said that McDowell had no right to vote, that he was a free negro, and that “if you let free negroes vote, here, let Zach. Warden vote also.” (Warden was, in fact, a free man of color.) McDowell declared that he was “a clear blooded white man, and a regular licensed minister of the Baptist Church” and charged Bowles with slander.

Bowles moved for summary judgment on the ground that his alleged words were not actionable. The court agreed, and McDowell appealed.

The state Supreme Court noted that slanderous words fell into three categories: those that impute a crime; those that “impute an contagious disease, by which the party impugned would be excluded from society;” and those derogatory with respect to a person’s profession. “We are not aware of any class of defamatory words, which are held to be actionable, that would embrace the language complained of in this case.”

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January 26, 2013

He once sold a free negro named Wingfield.

State v. John C. Hardin, 19 NC 407 (1837).

John C. Hardin (and John Haney, whose case went to the Supreme Court separately) was indicted for negro-stealing in Rutherford county. Hardin’s trial was removed to Burke County, where he was convicted on both counts in the indictment. At trial, the State proved that a slave, the property of Nancy Davis, was stolen, or seduced, or went, from Davis’ Rutherford County plantation, on the fourth Saturday of July, 1836.

A witness named Robins testified that on the day after the slave disappeared, he saw Haney at a meeting house in the neighborhood. Haney told him that a negro had come to him the preceding night a little before day and requested that Haney go that evening and tell Hardin to meet him at a place called Webb’s old field that night, about an hour after dark. In the course of the conversation, Haney remarked, “Hardin has missed the one he has been trying to secure; but good luck will come after bad. Tell him, this boy has come to me.” Robins and Hardin went to the place and at the time appointed. Haney whistled and “a large negro-man” When asked where he had come from, Haney said, “He came from the widow Davis.” Haney then remarked, “You, Robins, must take him off. It will be a safe trip, as the widow has not energy to press like some people. In the mean time Hardin will keep him till you get ready to start.” As Haney left, he remarked to Hardin, “You know our agreement,” to which Hardin replied, “yes, it will do.” Hardin, Robins, and the slave then went to a point about a half-mile distant from Hardin’s house. Hardin thought there might be somebody at his house and directed Robin and the slave to stay in the woods until he checked and returned. Hardin did not return that night, but came with food the next morning. Hardin, Robins and the slave agreed that Robins would take the negro to South Carolina and sell him; that Robins would leave that day and to prepare; and that the enslaved man would meet him the next day at a point designated on the road. All proceeded accordingly, and Robins and another associate, Williams, carried the slave to South Carolina and sold him for nine hundred dollars. Williams was paid part, Haney was paid one hundred and forty-five dollars, and Hardin was paid two hundred and fifty-five dollars. (Hardin insisted upon having the largest share because of “his having tried so long to get a negro, in which he met with bad luck.”) Robins testified that his habits had been moral and upright until he met Hanes and Hardin, who influenced him to join a club that had members spread over the country. This was his first adventure in selling slaves. However, when further pressed, Robins admitted that he had once sold a free negro named Wingfield for one thousand dollars, of which he gave two hundred dollars to Wingfield himself (for agreeing to be sold); two hundred dollars to a man in South Carolina for helping him to sell Wingfield; one hundred dollars to Haney; ninety dollars to Hardin; and the rest for himself. Robins also stated Haney told him and Hardin, “You know our plan is to steal the negro again and sell him over, so you must make up something to pay for doing that,” and each gave Haney twenty-five more dollars.

Hardin was found guilty and sentenced to death. He appealed, arguing that (1) the jury relied upon the uncorroborated testimony of a co-conspirator, and (2) he had only conveyed away, not stolen, the slave. The state supreme court rejected the former argument, but agreed with the latter, i.e. that Hardin was a “mere accessory” to the actual theft of the slave. Venire de novo awarded.

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January 22, 2013

Something wrong was going on.

State v. Edmund Martin, 34 NC 157 (1851).

Edmund Martin, a free man of color, was indicted in Forsyth County Superior Court for stealing a slave named Giles, the property of George W. Smith. The State’s first witness was Edward Booker. Booker testified that in late October or November 1850, he was on his way south with his son Henry and a man called Null carrying a load of tobacco belonging to a man named Hamlett in Stokes County. They stopped at a campground near Martin’s property. There one of Null’s horses became violently ill, and Martin helped secure and administer aid. While they treated the horse, Booker gave Martin two or three drinks. Martin told Booker that he “liked his looks,” asked if wagoning was a slow business, and told him that he could put him into a business that could make money much faster, if he could be trusted. Martin could make Booker “rich as Hairston.” Booker asked if Martin was referring to horses, and Martin replied that he was not, but his stock was worth $600 to $1200 a piece, “and, by being smart, [Booker] could make five or six hundred dollars in a few weeks.” Booker admitted that he would like to make more money in an honest business. Martin did not explicitly disclose his plans, but Booker inferred them and agreed to call on Martin when he returned in five or six weeks.

On the first Saturday of December, Booker returned and agreed to enter into business with Martin. Martin told him he had several slaves concealed at some distance – “he could not keep them near him for fear of being suspected: that there were a great many fox hunters around him, and he had frequently been tracked by their dogs, and been compelled to stand in water up to his waist for an hour at a time in cold weather.” The slaves believed that Martin was going to send them to a free state. While Booker and Martin were talking, a man named Rains came in to speak privately with Martin, and Booker learned that Rains, too, was going to transport slaves for Martin. Booker agreed to return around Christmas when Martin would have a slave ready. Booker was to take the slave, sell him, and divide the profits with Martin. Booker returned the Thursday after Christmas, but Martin told him he could get things ready before Saturday. Their plans were thwarted by the arrival of another white man, who persisted in staying all night despite Martin’s efforts to get him to leave. On Sunday Booker returned to Martin’s house. Martin gave “Jeff.,” a slave, a dram and told him to fetch the slave. Some time after midnight, Booker heard someone enter the kitchen-end of the house, and Martin brought the slave Giles to him and told him they needed to leave as soon as possible. Martin told Booker to get his horse and go by himself to Thompson’s lane about a mile away. There were too many wagoners camping nearby and his neighbor Swicegood’s dogs were “very bad.” Martin would take Giles via short-cut and meet him at the lane. Booker took Giles to Salem to “Mr. Lash,” but, as the Forsyth jail was not completed, took him on to the jail in Germantown. Booker, who claimed he had been pretending to work with Martin in order to catch him in his crime, immediately sent word to Giles’ owner Smith. Booker met with Smith, and the two hatched a plan. Booker returned to Martin with $400 counterfeit money and a fictitious note for $300. He paid off Martin, who was quite pleased, and made arrangements to take another slave, this one a blacksmith. Booker then went to magistrate McDonald to tip him off to his and Smith’s plan. When he returned to Martin’s, Martin chained his horse to the smokehouse, confronted him with the counterfeit money, accused him of betrayal and threatened to kill him that night. Martin said that he belonged to a Murrel clan, and his brothers would kill Booker if he did not. Another white man there opined that Booker had treated Martin badly. Booker, alarmed, left without his horse and went to a neighbor’s house. The next day he sent for magistrate McDonald and had Martin arrested.

Wallis McDonald, the magistrate, testified that Booker had come to his house, about four or five miles from Martin’s, and with some minor variations told him essentially what he had testified to on the stand.

Richmond Swicegood testified that he lived about 300 yards from Martin, that he saw Booker at Martin’s house frequently, that he thought “something wrong was going on” and decided to watch the house. The night was very wet and rainy, but he “slipped up near” the house and heard Martin trying to get rid of Wood, the white man that Booker testified would not leave. Martin went into the kitchen house, and Swicegood stood near a crack and heard Martin tell his son Henry, “I never told your mother ‘till yesterday what Booker was staying here for.” Martin then said that “by being smart” he could make five or six hundred dollars in six or seven weeks; “it was a dangerous business, but he did not know any better they could do.” Satisfied that Martin was up to no good, he decided to consult a neighbor.

G.M. Smith testified that he lived in Davidson County, about seven or eight miles from Martin; that his slave Giles left without permission on 22 November 1850; that he found him in the Germantown jail on 8 January 1851; that he sold Giles immediately; and that on his way home from Germantown he saw Booker, who saw him and Giles.

At the close of evidence, the court’s instructions to the jury included a warning that Martin “was to be tried as if he were a white man” and that “they were to divest themselves of prejudice on account of his color.” Having, perhaps, done so, the jury found Martin guilty, and he appealed to the state Supreme Court. Citing State v. Hardin, the court ordered a new trial on the grounds that, as there was no evidence Martin had actually the slave from his owner, he could not have committed a capital felony under the statute.

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January 12, 2013

Lucy sues for all.

Thomas v. Palmer, 54 US 249 (1854).

Nathiniel P. Thomas of Caswell County, among other things, devised and bequeathed as follows:

“My mill tract of land, situate in Caswell county, containing eighty-five acres, on the waters of Pumpkin Creek, adjoining the lands of Carter Powell, and others, and the Crowder tract of land, containing about sixty-six acres, adjoining the same. I do hereby devise to my executor, to be sold on a liberal credit, and the proceeds of the said sale to be placed at interest, after investing a portion of the same in purchasing a suitable home for my mulatto woman, Lucy, and children, purchased of the trustees of Robert A. Crowder; the interest in the said two tracts to be appropriated towards their support, and until the amount of said sale becomes due, I direct my executor to appropriate a sufficient amount out of the proceeds of my estate generally, for their maintainance and support.

3rd. My mulatto woman, Lucy, as aforesaid, I do hereby devise and bequeath, to Nathaniel J. Palmer, together with her children, Mary Jane, James and Newton, and any other children that she may have, in trust and confidence, nevertheless, that he will provide for them a suitable home, as aforesaid, and for her support, and that of her children, until they are able to support themselves, out of the proceeds of the real estate aforesaid. And in the event of the death of the said Nathaniel J. Palmer, the said woman, and children are to be held by my friend, William Bryant, of Pittsylvania county, Virginia, as trustee aforesaid, and in the event of his death, they are to be held by such trustee as he may select, and the County Court of Caswell approve and appoint, it being understood that the said woman and children are not to be removed from the county of Caswell, without her free will and consent, and a copy of this will recorded in the clerk’s office of the county, to which she may remove.”

In a codicil to this will, Thomas provided: “In the event that the laws of North Carolina, or the policy of the same, as construed by the Supreme Court, shall present any obstacle to the fulfillment of the trust mentioned in the foregoing will in relation to my mulatto woman, Lucy, and her children, I do hereby authorise and direct my executor, to send them to such State, territory or country as she may select, and he may think best, and I do hereby charge my estate with a sum sufficient to provide for their removal to such State, territory, and country, and for their comfortable settlement there; it being my will and desire, that she shall not be continued in slavery.”

When Lucy was advised that North Carolina’s laws forbade her to remain in the State and obtain any of the advantages proposed in Thomas’ will or codicil, she moved with her children to Ohio.

In her suit, Lucy Thomas and her children alleged that they were able to get to Ohio, but had not been provided with a home or settlement as the will directed, and “that they are in want, and destitution, and that the children being small, the mother is unable to support herself and them, without the assistance of the fund provided in the will.” They argued that the codicil of the will validated the provision made for them in the will and that they are entitled to the proceeds of the sale of the two tracts of land, which amounts to some $1,500; to the expenses of their removal; and to a comfortable settlement out of the Thomas’ estate.

Palmer, the executor, objected to this construction, arguing that there is nothing in the codicil to validate the deficient and illegal devises in the body of the will, and the plaintiffs are not entitled to any thing but the expenses of their removal and a comfortable settlement in Ohio. He asserted that he had already advanced funds to them to assist their move, and as soon as the condition of the estate allowed, would provide for their comfortable settlement.

The Supreme Court determined: “Emancipation is not forbidden by our laws; but a negro, who is set free, is required forthwith to leave the State; for it is against public policy to have the number of free negroes increased, or to allow negroes to remain among us in a qualified state of slavery. … It follows that the provision in the will by which Lucy and her children were to remain in this State under the care and protection of one, who was to act nominally as master, but was to provide a house for them to live in, and apply the interest of a certain fund for their support and maintenance, so as to let them have the control of their own time, is void. Fortunately for the complainants, the testator became aware of this in time to make provision by a codicil for their emancipation and removal to another country….”

The complainants insisted, in error, that the codicil had the further effect of making valid the provision that is made for them in the will, and that they were entitled to the provisions of both. “In other words, that besides having the expenses of their removal and comfortable settlement in another country paid out of the estate of the testator, they are entitled to the fund produced by the sale of the two tracts of land. We do not think so.”

The provision made by the codicil was intended as a substitute for the provision made by the will in the event that the will could not be carried out. “The intention is clearly this: If the negroes can be kept in this State, they are to be provided for as directed by the will. If they cannot remain here and be so provided for; then, they are to be provided for as directed by the codicil. There is not the slightest intimation that the two modes of providing for them are in any degree, or to any extent, to be cumulative.”

In the 1860 census of Ward 6, Cleveland, Cuyahoga County, Ohio: Lucy Thomas, 35, nurse, daughter Mary J., 14, and Lucy B. Hill, 25. The Thomases were born in North Carolina, and Hill in England. No color designation was marked.

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January 10, 2013

Daddy’s baby.

Julius A. Howell et al. v. Henry Troutman, 53 NC 304 (1860).

This Rowan County case involved a contested will. Jacob Troutman’s last will and testament contained the following bequests and devises:

“Item 3d. I will and bequeath to Ann Allmond two hundred and fifty dollars, provided the said Ann shall live with my wife, Polly, and assist her in health and in sickness; and if the said Ann shall faithfully perform her duty to my said wife during the life of my wife or widowhood, then at the death of my said wife, I will and bequeath to the said Ann, five dollars more.”

“Item 4. All the ballance of my estate and property of every kind and description, including my gold mine and every thing else, I will and bequeath to Lucy, the infant child of the said Ann Allmond, and if the said Lucy should die without lawful children or child, then it is my will, that all I have willed to the said Lucy, shall be divided between the children of my brothers, David Troutman, John Troutman, and my sister, Sarah Earnhart’s children.”

Troutman’s execution of the will was duly proven by the three subscribing witnesses, who also testified that in their opinion he was of sound mind when he signed it.

Jacob Troutman and his wife Polly had no children. Ann Allmond lived in their house as a housekeeper from 1849 to 1858. (Troutman died in the fall of the latter year.) A witness at trial testified that Ann Allmond was a white woman and her daughter Lucy, in his opinion, was a mulatto; that Lucy died at about age three; and that, both before and since Lucy’s death, Troutman told him that the child was his, and accounted for her color from a fright which Ann Allmond had received while pregnant. The witness further testified that he had done a lot of business for Jacob Troutman; that Troutman sent Ann out of the room during the drafting of the will; that the witness urged Troutman to leave his brother Henry Troutman something, but he declined, saying that Henry would spend it in litigation. The witness also stated that Troutman had become displeased with Henry because of some lawsuit they had had.

Witness James Montgomery swore that he had no doubt that Lucy was a half-blood mulatto, based on her color; that he was a neighbor and had frequent opportunities to see the child; and that Troutman believed the child was his, said he knew she was, and that he intended to make a lady of her.

Dr. J. P. Cunningham testified that he was a practicing physician in the vicinity of Jacob Troutman’s residence; that on one occasion he was called upon by Troutman to visit Lucy; that when he arrived, he found her in his arms; that he called her “daddy’s baby”; and that the child was unquestionably a negro.

Dr. John R. Wilson, also a practicing physician, testified that Lucy was, in his opinion, a mulatto, and that Troutman had once remarked to him that he loved the child as much as if she were his own, and that Allmond had gone out and picked it up somewhere.

J. C. Barnhart swore that he was a justice of the peace in the county when Ann Allmond was pregnant, and issued a warrant for her to make her swear to the father or give bond as prescribed by law; that she gave the bond and Jacob Troutman either became her surety or procured someone to do so, he did not remember which; and that Troutman was a man of sound mind, though very illiterate.

J. M. Long, Esq., the draftsman of the will, testified that, after Lucy’s death, Troutman asked him whether another will was necessary to dispose of the part he had left for the child; that he advised him that it was not, but that the property would go over to his relatives under the provisions of the existing will.

Henry Troutman’s counsel insisted that the jury should hear testimony that the will was procured by the false representations and undue influence of Ann Allmond. However, the County Court charged the jury that there was no evidence of such influence as would invalidate the will and, if they believed the testimony, the decedent was of sound mind; also, that the will was properly attested and executed. Henry Troutman’s counsel excepted.

The Supreme Court’s decision: The fact that Troutman bequeathed a legacy to the mulatto child of his housekeeper, a white woman, which the mother had induced him to believe was his, is no evidence that his will was obtained by fraud and undue influence. “Supposing that he did believe the child was his, and that the mother of it told him so, there is not the slightest testimony to show that she ever even asked him to make a will in favor of her and the child, or that she knew, before the will was made, that he intended to make one, or, afterwards, that he had made it.” “The truth is, that the old man, being childless by his wife, took a strange fancy to the child of his housekeeper, and whether it were his or not, he had a father’s love for it, and our law imposes no prohibition upon a man to prevent him from bestowing his property upon the object of his affection. Affection or attachment, as Sir John Nichol said, ‘would be a very strong ground of support of a testamentary act.’”

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January 8, 2013

Despite their family’s care.

Nancy Midgett v. Willoughby McBryde, 48 NC 21 (1855).

“Nancy Midgett, is a white woman, but her two children are mulattoes begotten by a negro father.” The Currituck County Court ordered that children be bound to Willoughby McBryde. Midgett presented evidence that for the last three years she had been living near her father in a house he built for her; that he had taken charge of her children and kept them diligently and industriously employed; that he was himself an honest, respectable and industrious man, well able to take care of her and her children and willing to do so; and that she herself had, during the last three years, behaved orderly and industriously. Accordingly, contended Midgett’s counsel, the children did not fall within the category of those liable to be bound out by the County Court. The trial judge disagreed, upheld the County Court’s action, and Midgett appealed.

The North Carolina Supreme Court held that the County Court had power to bind out all free base-born children of color, without reference to the occupation or condition of the mother. The provision of the statute that refers to the occupation or employment of the parents is confined to cases of free negroes and mulattoes whose children are”legitimate.” “In such cases, if the parents have no honest or industrious occupation, the children may be bound out. These considerations do not arise when the child is a bastard.” Judgment affirmed.

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Category: Caselaw