Fourth Generation Inclusive

Historical Documents of Genealogical Interest to Researchers of North Carolina's Free People of Color

Tag: North Carolina Supreme Court

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 3rd 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.”

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.

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.

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.

They are bound to support their bastard children.

State v. John L. Lee, 29 NC 265 (1847).

On appeal from Craven County Superior Court, the issue in this case was whether John Lee, after having been tried and convicted of bastardy, could move to quash the proceedings against him on the grounds that Catharine Curtis, the mother of the child, was a woman of color and therefore incompetent to testify against a white man.  The verdict: too late.

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

On appeal from Martin County.  In May 1848, Lucinda Simpson, then pregnant, swore that the father of her child was Thomas Long. Long moved to dismiss proceedings against him on the grounds that Simpson was a woman of mixed blood within the fourth degree and therefore incompetent to give testimony against him.  The Court was satisfied that in fact she was of mixed blood and dismissed the case.  In October 1848, on Simpson’s oath, another warrant for the same pregnancy issued for Long.  These proceedings were dismissed based upon the earlier finding.  The Supreme Court held that the prior judgment was binding and the second case rightfully quashed and noted that the better course would have been an appeal. 

State v. Williamson Haithcock, 33 NC 32 (1850).

On appeal from Orange County.  Williamson Haithcock, an admitted free negro, was charged with bastardy by a white woman.  Haithcock’s counsel moved to quash on the grounds that bastardy laws did apply to such a case. The Supreme Court: “We are at a loss to conceive of any reason why the defendant should be exempted from the operation of the bastardy laws, merely because he is a free negro.  Free negroes are capable of holding property, they can sue and be sued, and are bound to support their bastard children, whether begotten a free white woman or free black woman.  They can set up no ‘exclusive privilege’ in this behalf.”