Rights | 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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October 22, 2012

Milly’s Mary Ann?

Fanshaw v. Jones, 33 NC 154 (1850).

Henry Britt found an infant mulatto child at his doorstep in Currituck County. He took the baby in, named her Mary Ann, reared her as a free child and, at his death, left her $200. Britt’s wife dissented from the will, asserting that Mary Ann was in fact a slave. The purported evidence: about 1829, one Wilson, a Caswell County “negro-trader,” sold to one Willis a pregnant slave named Milly. Milly ran away from Willis to the house of a widow who lived near Britt, “bringing with her a female infant, perfectly naked and apparently not more than a day old.” The widow told Milly that she and the baby would die if they remained exposed in the woods and advised her to return to her owner. Milly left, and a few days later an infant, Mary Ann, was found at Britt’s. The widow could not swear that Milly’s baby was Mary Ann, but Mary Ann was a “bright mulatto” and resembled Milly. Britt and his wife were childless and brought the child up “tenderly,” becoming much attached. After about four years, Willis showed up to claim Mary Ann, but Britt refused to give her up without valid title and asserted his belief that she was the child of a white man and a colored woman. After Britt’s death in 1836, Mary Ann lived with his administrator, William Jones, who did not claim as part of Britt’s estate. The lower court found that whether or not Mary Ann was the child of a slave, the verdict was in favor of Jones, the administrator. The Supreme Court, however, deemed the jury instructions invalid and ordered a new trial.

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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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October 20, 2012

Adultery and fornication.

State v. Joel Fore and Susan Chestnut, __ NC __ (1841)

Joel Fore of Lenoir County, a free man of color, and Susan Chesnut, a white woman, lived together and had one or more children, and the inartful pleading of their indictment would not defeat a finding that marriages between such persons were null and void under the Act of 1838, and subsequent cohabitation between them was adultery and fornication.

Joseph [sic] Fore married Susan Chestnut on 13 January 1840 in Craven County. (See marriage records of that county.) The 1840 census of Lenoir County shows Joel Fore as the head of household that included one white female aged 30-40, one colored male aged 24-36, and 5 slaves. By 1860, the family had moved to Moore County, where Joel, “Susa” and their children Tootle, Elizabeth, Nancy, Anna J., Hardey, Henry and Sarah, aged 1-20, are described as white. In 1870, Joel and Susan Fore and their children are listed in Greenwood township, Moore County. Joel and children Augustus and Henry are classified as mulatto. Susan and the remaining children as white.

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October 17, 2012

Grandfathered in.

The following Wayne County free men of color registered to vote, naming Absalom Artis, as their qualifying ancestor under the Grandfather Clause: A.B. Artis, age 29; Mack Artis, age 52; Joseph Artis, age 21; Nathan Artis, age 42; and Donnie Artis, age 21. Albert Artis, age 58, named Absalom’s son Edwin Artis. All the voters lived in Nahunta township except Nathan, who lived in Saulston.

With an express design to disenfranchise black voters, in 1900, North Carolina passed a constitutional amendment requiring that voters be able to read and write a section of the state constitution and pay a poll tax. To avoid disenfranchising illiterate whites, the amendment contained a “grandfather clause,” which exempted a registrant from the literary requirement if he or a lineal ancestor was eligible vote on 1 Jan 1867. A number of free men of color were thus able to thwart the law’s intent.

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October 16, 2012

Went a-hunting with white folks.

State v. John Harris, 51 NC 448 (1858)

An indictment against John Harris, a free man of color, for carrying firearms. Harris had obtained a license from the Craven County court “to keep about his person, and carry on his own land a shot-gun.” At the time of the alleged offense, Harris, “in company with certain white persons, went a hunting” and carried his gun off his property. The trial judge found that Craven County had no power to limit Harris’ gun license and judged him not guilty. On appeal, the Supreme Court disagreed.

Two free black men named John Harris appear in the 1850 census of Craven County, one born in 1785, the other in 1828.

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October 14, 2012

When the upstir was about the Negro rising I readily delivered my gun.

State of North Carolina } To the worshipful — the Court of pleas and

Wayne County } quarters sessions August Term 1841

From the observance of an act of Assembly Ratified 11th Jany, 1841 prohibiting Negroes &c from Carrying fire Arms at Page 61 and Chapter 30.

Free Willis Petitions your worships that he be allowed to keep and use a shot-gun and Ammunition at his home as usual

As it may pleas your worships I have ever been permitted to Keep a shot-gun and ammunition and no charge has Ever been against me for any injury done thereby — And when the upstir was about the Negro rising I readily delivered my gun to Mr Henry Sasser who Kept it Untill the stir was all over and then gave it to me again August 17th 1841 Willis

Willis lives at one End of my plantation and as I apprehend no danger in his Keeping his gun and ammunition and as he does me some benefit by destroying the Vermin around my fields I would rather he could retain his gun Benajah Herring

Benajah Herring’s petition to Wayne County Superior Court secured Free Willis’ freedom in the 1830s. The “Negro rising” referred to probably was Nat Turner’s Rebellion in Southampton County, Virginia, and/or an aborted slave revolt in Duplin and Sampson Counties, NC, both with took place in the late summer of 1831. Willis Herring appears, immediately adjacent to Benajah Herring, as a head of household in the 1840 census of Wayne County. He lived alone.

Records of Slaves and Free People of Color, Wayne County Records, North Carolina State Archives.

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