Caselaw | Fourth Generation Inclusive

November 7, 2012

A separate and distinct class.

The State v. Elijah Newsom, 27 NC 250 (1844).

The law: “Be it enacted, &c. That if any free negro, mulatto, or free person of color, shall wear of carry about his or her person, or keep in his or her house, any shot gun, musket, rifle, pistol, sword, dagger or bowie-knife, unless he or she shall have obtained a licence therefor from the Court of Pleas and Quarter Sessions of his or her county, within one year preceding the wearing, keeping or carrying thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor.”

In Cumberland County, Elijah Newsom, a free person of color, was indicted for carrying a shotgun without a license on 1 June 1843. He was found guilty in Superior Court and filed an appeal. The Supreme Court held that the law violated neither the 2nd Amendment nor Article 3 of the Bill of Rights: “From the earliest period of our history, free people of color have been among us, as a separate and distinct class, requiring, from necessity, in many cases, separate and distinct legislation.” “Free people of color in this State are not to be considered as citizens, in the largest sense of the term, or, if they are, they occupy such a position in society, as justifies, the legislature in adopting a course of policy in its acts peculiar to them — so that they do not violate those great principles of justice, which lie at the foundation of all laws.” Judgment upheld.

In the 1860 census of Cumberland County, Elijah Neuson, 80, “turpentiner,” is listed with wife Clarisa, 60.

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November 6, 2012

Disfranchisement? Mere error in judgment.

Jared Peavey v. William A. Robbins et al., 48 NC 339 (1856).

Election inspectors refused to receive a vote from Jared Peavey. At trial in Brunswick Superior Court, Peavey called a witness who testified that Peavey’s mother and grandmother were white women, that his father was a dark colored man with straight hair, and his grandfather was a red-faced mulatto with dark straight hair. The judge charged the jury that, if Peavey’s grandfather “was half and half, that is, half white and half black,” then Peavey was “within the fourth degree,” i.e. within four generations of a black ancestor, and could not prevail. Moreover, election inspectors are, under the law, the exclusive judges of voter qualifications and, no corruption being charged here, were not responsible for mere error in judgment.

Jerod Peavy, 20, and wife Elizabeth, 18, appear in the 1850 census of Brunswick County. Both are described as mulatto.

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November 5, 2012

40 years’ acquiescence gives effect.

Augustine Cully v. Lovick Jones et al., 31 NC 168 (1848).

This was an action for false imprisonment. Plaintiff Augustine Cully‘s mother Phebe was the slave of Jane Thompson. Thompson’s will directed her executor Reuben Jones “to obtain the freedom of Phebe, if practicable, on account of her meritorious services.” In November 1806, Jones filed a petition in Carteret County court for Phebe’s freedom. Phebe and her children were thereafter permitted to act as free people. However, Jones neglected to give the required bond for the action until 1816, when he was ordered to do so, and did. Phebe’s daughter Augustine was born in 1808 and lived as a free person until just before this action commenced, when Lovick Jones seized her and claimed her as a slave.

The NC Supreme Court held that, though Augustine Cully was born before the bond was effectuated, neither Reuben Jones, who neglected his duty, nor anyone claiming for or by him could take advantage of that omission, much less a mere wrong-doer. “More than forty years have allowed to pass from the act of emancipation and [Augustine’s birth], before any claim was made to hold her as a slave; during all which time, she passed as a free person and was so treated and considered by the community, in which she lived. After so long an acquiescence, almost any thing will be presumed, in order to give effect to the act of emancipation.”

The 1850 census of New Bern, Craven County, shows a household that included Phillis Martin, 85; Augustin Cully, 35; Adam Cully, 40 and blind; Joseph Martin, 29, and Alex. Martin, 27, both sailors; Abner Cully, 14; Eliza Cully, 11; Elizabeth Cully, 9; and Adam Cully, 5. All were described as black.

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November 4, 2012

Just so you know, they might be free.

Free Jack v. Woodruff, 10 NC 106 (1824).

An action for freedom. Free Jack was the son of a woman of color named Jane Scott, who, in 1774 was “in the possession of” one Allen, who asserted that Jane was free. In 1784, Jack was indented by Surry County court to one Meredith, who frequently said he was free, but then sold him to Moses Woodruff. Woodruff sold Jack with the warning that he was reported to be free and caveat emptor. Allen, meanwhile, sold Jane Scott to Abraham Cresong, who sold her and twelve of her children to William Terrill Lewis on 22 October 1788. Lewis, fearing he would lose them otherwise, sent the children out of state. Woodruff, to prove that Jane was a slave, introduced a Rowan County record that showed that Jane and her children had been “set at liberty” on a writ of habeas corpus by a Surry County court, but that judgment had been reversed for want of jurisdiction. The judgment in the lower court was for Free Jack, and Woodruff appealed. Upon consideration of certain evidentiary questions involving parol evidence and hearsay, the Supreme Court ordered a new trial.

The Scott family’s struggles to maintain their freedom were generational. Jane’s grandson Samuel’s travails similarly lead to the state’s highest court. See Samuel Scott v. Joseph Williams, 12 NC 376 (1828).

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October 30, 2012

Did the slave help free the free man’s slave?

The State v. Edmund, a slave, 15 NC 340 (1833).

This was an indictment of Edmund in New Hanover County for violating the Act of 1825, chapter 22, i.e. concealing a slave on board a vessel for the purpose of conveying her beyond state limits and helping her escape. Edmund was a slave, the property of a Mr. West of Virginia, who had absconded years before, passed as a free man and served as a steward aboard the brig Fisher. Nathan Green, the alleged owner of the concealed slave, was a free man of color, “a dark mulatto,” and a North Carolina resident. Edmund was convicted of the offense and appealed his death sentence on the bases that (1) as a slave, Edmund was not a person within the meaning of the Act and (2) Nathan Green, as a free man of color, was not a citizen of the state. The Supreme Court ordered a new trial on the alternate ground that the indictment was defective.

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October 29, 2012

It is the misfortune of their children.

Frances Howard v. Sarah Howard, 51 NC 235 (1858).

In about 1818, Miles Howard, then a slave, “without other ceremony, took for his wife, by consent of his master” a slave named Matilda, who belonged to a Mr. Burt. Miles was immediately thereafter emancipated, bought Matilda, and had a daughter named Frances. Miles freed Matilda, and they had seven more children, Robert, Eliza, Miles, Charles, Lucy, Ann and Thomas, before Matilda died. A few years later, Miles married a free woman of color “with due ceremony” and had four children, Sarah, John, Nancy and Andrew. In 1836, Frances was emancipated by an Act of the State Legislature. After Miles’ death, his children by Matilda claimed their share of Miles’ estate, but his children by the free woman of color claimed to be Miles’ sole heirs. Halifax County Superior Court found for the defendants, and plaintiffs appealed. After an exegesis on slave marriage, the state Supreme Court held that, because thet did not marry legally once freed, neither Frances nor the rest of Matilda’s children were legitimate. “It is the misfortune of their children that they neglected or refused [to marry lawfully], for no court can avert the consequences.” Judgment for Sarah and her full siblings.

The 1850 census of Halifax County shows Miles Howard (51), who was a barber, wife Caroline (25) and children Frances (25), Charles (17), Lucy (11), Thos. (8), Sarah (4), John (2) and Nancy (5 mos.) Son Miles Jr. (23), also a barber, lived nearby.

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October 26, 2012

A mere question.

Samuel Scott v. Joseph Williams, 12 NC 376 (1828).

Samuel Scott sued Joseph Williams for assault and battery and false imprisonment. Jane Scott, an allegedly free woman, had been indented to Williams’ father, and Samuel was “given” to Williams by his father as a slave. Samuel proved at trial that he was the son of Jemima, who was the daughter of Jane Scott, and the question was whether Jane was free. The trial judge instructed the jury that Jane’s “colour might enter into their consideration” in making the determination. “If she was of a black African complexion, they might presume from that fact, that she was a slave; if she was of a yellow complexion, no presumption of slavery arose from her color.” The jury returned a verdict for Scott with substantial damages, and Williams appealed. Williams argued that the jury instructions were incorrect and that damages ought to be minimal as “it was an action brought to decide a mere question of property between innocent persons.” The Supreme Court demurred, refused to grant a new trial, and affirmed the judgment.

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October 24, 2012

He knew his great-grandfather, and he was a coal-black negro.

State v. Whitmel Dempsey, 31 NC 384 (1849)

Whitmel Dempsey was indicted as a free man of color for carrying arms without a license. A state’s witness testified that he had heard an old man named Barnacastle say that he knew Dempsey and his family and that Dempsey’s great-grandfather, who was called Joseph Dempsey alias Darby, was a coal-black negro. The Bertie County Superior Court received this evidence over Dempsey’s objection. Dempsey then gave evidence that Joseph Dampsey’s mother was a white woman; that Joseph was a reddish, copper-colored man with curly red hair and blue eyes; that Joseph’s wife was white; that Joseph and his wife had a son named William; that William also married a white woman and had a son named Whitmel; and that that Whitmel married a white woman, who was Whitmel the defendant’s mother. The court found that, assuming that Joseph Dempsey was half-negro, Whitmel, being his great-grandson and therefore within the fourth generation from black ancestors, was a free person of color. After a treatise on the scope and definition of the term, the Supreme Court upheld Dempsey’s conviction.

The 1840 census of Bertie County listed six Dempsey heads of household, including a Whitmel. All were classified as free people of color. Bertie County records show that a Whitmell Dempsey married Anna Bowen on 17 June 1806.

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October 21, 2012

Rachel’s remand.

State v. Rachel Freeman, 49 NC 5 (1856).

Rachel Freeman, a free colored woman and an indentured servant to Abraham Whitfield, was indicted for burning his dwelling-house in Cumberland County. There was no direct evidence, but the lower court admitted circumstantial evidence, including the fact that Rachel had been a servant during two earlier arson attempts. The Supreme Court noted that this evidence no more fingered Rachel than another servant and held that she was entitled to a trial with a new jury as she had been convicted on the basis of irrelevant testimony and circumstantial evidence.

Rachel Freeman appears in neither the 1850 nor 1860 censuses of North Carolina.

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October 20, 2012

One who sells his services does not cease to be free.

James Casey v. L.S. Robards, 60 NC 434 (1864)

The issue in a case from Haywood County Superior Court: if a free man sells his services for 99 years, by deed, does he cease to be a free man?

In 1859, James Casey, a free negro, conveyed his services to James R. Love. On 10 September 1864, Lt. L.S. Robards took Casey into custody as a conscript. Love’s executors objected, claiming Love’s services. Under an act of the Confederate Congress dated 17 February 1864, “all male free negroes, and other persons of color, resident in the Confederate states, between the ages of 18 and 50 years, shall be held liable to perform such duties with the army, or in connection with the military defenses of the country in the way of work upon fortifications or in government works for the production or preparation of material of war, or in military hospitals, as the Secretary of War may … prescribe; and … shall receive rations and clothing and compensation in the rate of $11 per month. …”

Casey asserted that his contract with Love degraded him from free man to slave, and therefore he was not liable to conscription. The NC Supreme Court first pointed out that, if Casey were not free, he had no status to sue, and his case must be dismissed on that basis. However, one who sells his services does not cease to be free, and free negroes could be compelled to render service.

James Casey, age 27, appears with George Casey, 24, and Leander Casey, 15, all described as mulatto, in the 1860 census of Haywood County in the household of James R. Love, an exceptionally wealthy farmer and slaveowner. Casey’s death certificate, filed in Haywood County, reveals that he lived in or near Waynesville, was about 84 when he died on 11 March 1918, and was the son of Jim Moore and Harriet Casey.

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