rights | Fourth Generation Inclusive

July 2, 2013

They have always been a nuisance, and now become a great danger.

North Carolina. To the Senate & House of Commons, Your memorialists, citizens of Currituck County, respectfully petition your honorable bodies to take immediate steps to relieve the people of this State of the free negro population, which has always been a nuisance, and now become an element of great danger. Scattered over the State, having at all times free communication with the slaves, the free negroes furnish a ready and safe medium for the diffusion of incendiary doctrines which we have abundant reason to believe have, especially of late, been instilled into the minds of the slaves, and they thereby rendered insubordinate and ripe for any wicked enterprise to which they may be instigated by Northern Emissaries. The minds of our people have for several years past been directed to this source of danger, but recent events have produced a deep and settled conviction of the necessity of guarding against it, either by expelling the free negroes, or reducing them all to the condition of slavery. Your memorialists are [page torn] with us qualms as to the right of the Legislature either to expel them from the State, or to reduce them to a condition of slavery. Disfranchised in this State by the convention of 1835, the Supreme Court of the United States, the highest judicial tribunal in our country, by a late decision has decided that they are not citizens under the Constitution; and it must be admitted that here, the only rights to which they are entitled are strictly & solely legal, and therefore subject to revision or change by act of the Gen’l Assembly. Whatever diversity of opinion, however, may be Entertained in reference to this question, it strikes your Petitioners that there is one view of the subject that cannot fail to impress the mind of Every good citizen; all must admit that the present is a time of great danger; such in fact as never before Endangered the peace & safety of the Southern States, and threatened the institution of slavery; it is unnecessary to enter into any statement of facts to prove the truth of this declaration, what is the first duty of the people of North Carolina? Surely, to provide all necessary means to ward off the threatened danger – your Memorialists, firmly believing the removal of the free Negroes from the State, or their reduction to the same condition of the slave population, one of the necessary means, hold that the plain right of self defense would justify such action on their part through their Legislature, and that such legislation at this time would meet the approving voice of the whole body of the Southern people & challenge the approbation of all others throughout the country who properly appreciate our position & respect our rights. But your Memorialists do not design submitting any argument upon the subject to your honorable bodies, either as to the right or the expediency of the policy they recommend; nor do they propose to advise any particular plan for the accomplishment of the object in view, being content to leave the matter to your own good judgement, guided as they believe it will be by sound patriotism and a just sense of your representative duties. They cannot refrain, however, from suggesting that according to their own judgements the wisest and most judicious policy would be to provide for the removal of all such as might choose to go to the Northern States within a certain fixed time, and to authorise the several county courts to sell as slaves all such as remained after the Expiration of the time named in the act and believing that sound policy requires that all proper means should be resorted to to strengthen the institution of slavery by increasing the number of slave holding citizens and otherwise, your Memorialists would recommend, in case the above policy be adopted, that the right of purchase should be confined to these citizens of the state who are not already owners of slaves; that no one person should be allowed to become the purchaser of more than one, except in the case of mothers and small children, that all negroes so purchased shall be exempt from execution for debt, and not transferable by sale and purchase for a term of years. Trusting that your honorable bodies will give this subject that serious attention which its importance entitles it to, your petitioners will ever pray &c

General Assembly Session Records, November 1860-February 1861, Petitions Box 8, North Carolina State Archives.

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June 27, 2013

Rather than trust his client’s color before the jury …

Wm. W. Johnson v. Peter G. Basquere, Justice, and others, Freeholders, and Thomas Miller v. Boon, Tax Collector of St. Paul’s, and Rice, Sheriff, 28 S.C.L. 329 (1843).

The South Carolina Court of Appeals heard these cases on the issue of whether, where a “narrator” has argued that he is “entitled to occupy in society the status of a free white man,” he can discontinue proceedings by motion for non-suit or leave of court before publication of the verdict.

In Johnson v. Basquere, the narrator, who was about to be tried as a free person of color, filed a declaration in prohibition alleging that he “had a right to occupy in society the status of a free white man of South Carolina.” The defendants denied that he was a free white man, and the issue was put to a jury. “Much evidence was offered on both sides. Many witnesses on the part of the narrator, said that he was received in society, and regarded as a free white man, whilst witnesses on the part of defendants, testified that his great grand-mother, by the mother’s side, was a mulatto. The case was submitted to the jury, after full argument and a fair trial. When the jury returned to the court room, the foreman stepped to the clerk’s desk to write his verdict, and when he was about to deliver the record to the clerk, a motion was made to poll the jury, which the presiding Judge refused.” The narrator’s counsel –suspecting an unfavorable verdict – then moved to discontinue the proceeding without publishing the verdict. This motion was granted.

Johnson was in court, “and had the appearance of a white man. He had been a member of a volunteer company, and had voted at the general election for members of the Legislature. There was no question but what his lineage on his father’s side, was that of white, and rather respectable people. His mother, Mary, was the daughter of one Nancy Patrick, formerly Nancy Miller. [Mr.] Patrick, who had married Nancy, was regarded a colored man, and Mary was born in wedlock; but several witnesses said Patrick never claimed her, and that her mother said she was the child of an Irish schoolmaster, Ellis, living in the neighborhood at the time she was begotten and born, and she was so generally regarded. Nancy Miller’s father was a white man, who married Elizabeth Tan,” Johnson’s great-grandmother. “Elizabeth Tan was a colored woman, with thick skin and long hair; and from what came out in another case, she was originally from North Carolina, and claimed to be an Egyptian.”

In Miller v. Boon, the question was whether the narrator “was subject to a poll tax imposed on free persons of color, of African origin and taint; or whether he was entitled to occupy the position of a free white man.” In an earlier matter, a judge had held that the narrator, Isaac Winningham, and his wife Rachel,“were not subject to be taxed as free persons of African origin, but that they were exempt from such a tax, as the descendants of Egyptians.” Winningham’s counsel argued that this decision ruled and rested his case. The solicitor then called Winningham into court – “and his appearance was that of a mulatto. At this stage of the proceedings, and perhaps when the Solicitor was about calling witnesses to shew that narrator was a mulatto, the counsel for narrator moved to discontinue his proceeding, preferring to rely on the [earlier] judgment …, rather than to trust to his client’s color, before the jury. The presiding Judge granted the motion.”

The court of appeals determined that both parties to the action are voluntary and entitled to stop proceedings to take a more prudent course. Decisions upheld.

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June 24, 2013

The prisoner escaped; the question is moot.

The State v. George, a free negro, 1 NC 62 (1794).

The issue: Whether a slave could testify as a witness against a free negro.

The decision of the Superior Court of Law and Equity: “Mr. Solicitor General Jones had drawn a bill of indictment for burglary against the defendant: and at the moment it was about to be sent to the grand jury, and the book was handed to the witnesses:

Martin called the attention of the Court to the table: observing that one of the witnesses about to be sworn, was a negro slave; that although the defendant was a negro, yet, he being a free man, it was perhaps improper that a slave should testify against him.

McCoy, J. [Ashe, J., tacente.]

If there be anything in the objection, the Court will attend to it at the trial.

The slave was sworn, and the bill was found. The prisoner being arraigned, pleaded not guilty; but made his escape before the day assigned for his trial.”

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June 18, 2013

A slave is not a competent witness against a free negro?

Cox v. Dove, a Free Negro, 1 NC 72 (1796) .

1. A slave can not be a witness against a free negro.

2. In trespass quare clausum fregit, the defendant under the general issue may give in evidence a license.

Trespass quare clausum fregit and non culpabilis pleaded.

To prove the entry a negro slave was called and offered to be sworn.

But the Court (WILLIAMS, J., saying he never heard such a thing asked: HAYWOOD, J., tacente,) refused to admit the witness, although the defendant was stated to be a negro. 2, 1777, 2, 42, 307.

The case of State v. George, ante, p. 40, was cited: but much argument was not offered by the plaintiff’s counsel; there being other witnesses, attending to prove the fact intended to have been proved by the slave. He having been offered only to come at the opinion of the judges.

Slade, for the defendant, offered to read in evidence, a letter from the plaintiff to the defendant, authorizing him to tend turpentine trees on the premises.

Martin, for the plaintiff, objected to this: on the ground that if the defendant meant to avail himself of the plaintiff’s license, he ought not to have denied the entry, which he had done by pleading non culpabilis; at all events he ought to have pleaded justification. He cited Co. Litt., 282.

The Court, HAYWOOD, J., and STONE, J., nevertheless permitted the letter to be read: on the authority of a case cited out of Buller’s Nisi Prius, 90. Hatton & Neale, per Jones, C. J., 1683.

The plaintiff proved a trespass committed by cutting timber, and had a verdict.

NOTE.–Upon the first point see State v. George, ante, and 1 Rev. Stat., ch. 31, sec. 81. The law was later clearly settled that a slave is a competent witness against a free negro.

[Sidenote: Though I have a law degree, I’m not completely confident about my interpretation of this bizarrely fashioned decision. Thus, I present it in its entirety. — LYH]

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June 7, 2013

A mulatto of that class called free negroes.

The committee of Divorce and Alimony to whom was refered the petition of William Smith of Heartford county have considered the Same and Report:

That it appears from the petition its self, that, the petitioner is a mulatoe of that class commonly called free Negroes. The committee are of opinion, that it is not only contrary to the true policy of this state, But unbecomeing the dignity of this house, to act on applications of this sort. The [sic] therefore recommend the adoption of the accompanying Resolution – Resolved, that the Member who Introduced the petitioner William Smith of Heartford county have leave to withdraw the same.

Respectfully submitted, /s/ Mathew Bain, Chm.

General Assembly Session Records, January 1827, North Carolina State Archives.

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May 7, 2013

A grievance so oppressive.

To the Honorable the General Assembly of the State of North Carolina.

Your petitioners coloured persons citizens of this State would approach your Honorable Body with all the defference & respect due to the Character of representatives of the People

They beg leave to state that some of them whose names are assigned to this petition bore an honorable part in the seven years War which established the Liberties of their Common Country: That during that eventful period they were taught to believe that all men are by nature free & equal, and that the enjoyment of life, liberty and property aught to be secured alike to every Citizen without exception & without distinction.

With these views they need not attempt to express to your Honorable Body the deep concern with which they learned of the passage of A Law at the last Session of the Legislature by which their lives & liberties are virtually placed at the mercy of Slaves. They would ask of your Honorable Body whether their situation even before the Revolution was not preferable to one in which their dearest rights are held by so slight a tenure as the favour of Slaves and the will & caprice of their vindictive masters: for it cannot escape the notice of your Honorable Body that persons of this description are bound to a blind obedience, and know no Law, but the will of their masters:

Your petitioners will not believe that your Honorable Body will hesitate to lend a compassionate ear to their well-grounded complaints, and to redress a grievance so oppressive to them, and so wholly incongenial with the spirit of our republican government

They therefore humbly pray your Honorable Body that the Act of the last Session of the Legislature making Slaves competent witnesses against them in Criminal Cases may be repealed.

/s/ Alien Brown, John X Rutniel, William Brown Senr, William Smith, James Smith, John Stafford, Willis W. Leer, William Weaver, Wiley Cotton, Larrance Weaver, Richd Cotton, Elias X Weaver, John X Flood, Whitmill Cavers, Dannel Copland, William Weaver, Micaiah Cotton, Reubin Trumbil, James Runeals, Phillip X Jones, John Manley, Jerra Reed, Thomas Weaver, Benjamon Copeland, Samuel X Flood, David X Boon, William Known Jnr., John Weaver, Isaac C. Hall, David Milton, Deanel Garner, Moses Manly, Dempsy X Flood, John Sears, Briton X Read, Jesse Weaver, James Reynolds, John Bizzell, Alien Hall, Orren Wyott, Kinston Robbins, William Manly, Malichia Neckins, Bryant Manley, William Hirass, William Weaver, John Weaver, Natthanuel Dolby, Jesse Flood, Shadrack Reed, Charles Weaver, Harvy Washington Hall.

[At left edge: Petition of Coloured persons to Legislature]

Appended to this petition is a supporting petition signed by 84 white citizens of Hertford County.

General Assembly Session Records, November-December 1822, Box 4, North Carolina State Archives.

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May 5, 2013

Licensed to carry, no. 2.

The licenses authorizing free negroes to carry fire arms are for one year –

Persons Names Date of license

Loftin Chance June 1854

Ezekiel Chance June 1854

John A. Wiggins June 1854

Jacob Wiggins June 1854

Richard Brown June 1854

Willis Lewis June 1854

Frank Pettiford September 1854

Israel Pettiford Sept’r 1854

Wright Pettiford Sept’r 1854

Ben Banton Sept’r 1854

Stanly Moore Sept’r 1854

Jno. Archibald Wiggins Sept’r 1854

James Gaudett Sept’r 1854

John Gaudett Sept’r 1854

Rufus Chance December 1854

Kelso Davis December 1854

The Licenses to retail spirituous liquors by the small measure are issued by the Sheriff who is required to furnish a list to the grand jury – persons sometimes obtain permission of the Court but fail to pay the Sheriff the State tax & obtain his license.

Records of Slaves and Free Persons of Color, Craven County Records, North Carolina State Archives.

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May 5, 2013

Unlawfully did migrate, no. 4.

State of North Carolina, Wilson County } Court of Pleas & Quarter Sessions October Term 1850

The Jurors for the State aforesaid upon their oath present that Gray Powel a free negro late of the county of Wilson on the 1st day of June AD 1859 at & in the said county unlawfully did migrate into the State of North Carolina contrary to the provisions of the act of the general assembly in such cases made & provided & that the said Gray Powel afterwards to wit up to this time doth yet remain in said State & in the county aforesaid contrary to the form of the Statute in each case made & provided & against the peace & dignity of the State /s/ B.B. Barnes Solicitor

Slave Records, Wilson County Records, North Carolina State Archives.

In the 1850 census of Stephen Powell, 47, wife Synthia, 36, and children Gray, 9, Queen Anne, 8, Dolly, 7, Crockett, 3, and Noab, 1. [Sidenote: If this is the right Gray Powell, it suggests that he left the state prior to 1859 and tried to return. — LYH]

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May 2, 2013

Nights as well as days.

State of North Carolina, Wayne County } Court of Pleas and Quarter Sessions, November term AD 1860

The Grand Jurors for the State upon their oath present that Willie Simmons a Free Negro late of the county of Wayne with force and arms at and in Said county of Wayne on the first day of November in the year of our Lord one thousand eight hundred and Sixty and on divers other days times, nights as well before or afterwords up to the taking of this inquisition a Shot Gun did keep in his house and he the said Willie Simmons did wear keep and Carry the aforesaid Shot Gun without having obtained a license therefor from the Court of Pleas and Quarter Sessions of Wayne County within one year next preceeding the time of keeping wearing and carrying the aofresaid Shot Gun contrary to the form of the Statute in Such case made and provided and against the Peace and dignity of the State. Everitt. Sol.

Records of Slaves and Free Persons of Color, Wayne County Records, North Carolina State Archive.

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April 18, 2013

No victuals-selling or butter-buying.

TOWN ORDINANCE.

At a meeting of the Commissioners of the Town of Hillsborough, held on Tuesday evening, August 3d, it was ORDERED, That the Ordinance of March 13^th be so altered, that the Magistrate of Police shall not be authorized to issue any new licence to any slave or free negro, to sell victuals at the Depot, after this date, or to any white person without the payment of five dollars per month.

And it is further ordered, That no slave or free negro shall be permitted to buy chickens, butter, eggs, or other provisions, for the purpose of selling again, under the penalty of twenty lashes, if a slave, or a fine of ten dollars if a free negro, for every offence. Teste, DENNIS HEARTT, Town Clerk. August 5.

Hillsborough Recorder, 5 August 1863.

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