MITCHELL, James  and  Nancy McWHORTER
Vol 5Z pp.216-217 Lived in 1815
(he a Portuguese- she of free Indian descent-
she of Colleton District- to Charleston)


The exceptions in the Act of 1740 in favor of "free Indians in amity with this Government," apply to "free Indians," and their descendants, domiciled in this State, although disconnected with any tribe of Indians; and not merely to Indians preserving a national character, and in amity with the State.

Before Frost, J. at Charleston, October 1847

This was an indictment for assault and battery.  Amelia Marchant, the prosecutrix, was offered as a witness, and was objected to, as a free colored person, and 
incompetent   to testify. An issue was directed, to try her status.
In support of her competency, Jacob Cohen, testified, that he had known Amelia Marchant all his life.  The family had been under the care of the witness' family.  The grandparents were free Indians, and she and her family have always passed as such.  Her grandmother was born on the premises of the witness' aunt, at Pocotaligo a hundred years ago.  She is the aunt of Thomas Mitchell, and sister of Robert --Her father, James Mitchell, was said to be a Portuguese.
Mr. Yeadon testified, that he knew the father and the mother of Amelia Marchant.  The family have always passed as persons of free Indian descent, not liable to capitation tax.  James Mitchell left a considerable estate.  After the death of Col. Cross, Mr. Yeadon was employed, professionally, in the partition of Mitchell's estate, when he first became acquainted with the family.  He was also retained by Robert and Thomas Mitchell, in the proceeding in prohibition, hereinafter mentioned, and then ascertained, from an examination of the records, that none of the family had ever paid a capitalization tax.

The record of an issue in prohibition, in which the City Council of Charleston were plaintiffs, and Robert Mitchell, defendant, was produced in evidence; and also a similar record, in which Thomas Mitchell was defendant.  It appeared that Judge O'Neall had granted a prohibition against the enforcement of a capitation tax upon the defendants and had ordered an issue to be made up, if the City Council were dissatisfied in which the City County Council should be plaintiffs.  At the trial of the issue no witnesses were called for the plaintiffs, and a verdict was found, that the defendants were "of free Indian descent, unmixed with African blood."  On the production of this record, Robert Mitchell was admitted as a witness at the last term.
-----Mr. Cohen, recalled.  Has heard his aunt and father say, James Mitchell was a Portuguese.  If he had been a mulatto, they would not have permitted Nancy to marry him.
The jury were instructed, that only three classes of persons are recognized in this State:  free white men under the constitution; slaves; and free persons of color; and that there is no intermediate fourth class, between the whites and slaves, enjoying peculiar rights, privileges, immunities, or exemptions.  The Act of 1740 declares that 'all negroes, Indians, mulattoes, or mestizoes, who now are, or hereafter shall to be born, shall be, and remain, forever hereafter, absolute slaves; and shall follow the condition of the mother." --"Free Indians in amity with this governmment, and negroes, mulattoes, or mestizos, who are now free," are excepted.  "If any negro, Indian, mulatto, or mestizo," shall claim his freedom, the same mode of trial is prescribed.  On such trial, 'it shall always be presumed, that every negro, Indian, mulatto and mestizo, is a slave, unless the contrary can be made to appear."

The Indians, 'In amity with this government," are excepted.  Respecting them, it is enacted, that the burden of proof "shall be on the person claiming such Indian as a slave."  "the evidence of all free Indians," like that of slaves, is admitted without oath, against slaves and free negroes, Indains, {except those 'In amity,"] mulattoes, and mestizoes."  All crimes and offenses, "committed by free negroes, Indians [except those 'in amity,'] mulattoes, or mestizoes," "shall be heard and adjudged in the same manner as is provided for the trial of crimes and offences committed by slaves." The same crime, "committed by an slave, free negro, mulatto, Indian, [those 'in amity' excepted] or mestizo" are declared capital felonies.

"Free Indians in amity with this government," it was held, referred to the tribes or nations of Indians which then occupied a large portion of the Province, whose independence and national character were recognized by the Provincial Government; and that between independent nations only, could the relation of ''amity'' properly be said to subsist; the relation of an individual to the government in whose jurisdiction he may reside, being that of allegiance.--  It was said, incidentally, in explanation of the law affirmed, for there was no evidence which required any instruction on that subject, that it might be,if a member of an independent tribe, inhabiting the State, should, during the national existence of the tribe, have separated from it and become incorporated with the citizens of the State, such Indian would be recognized as a citizen.

The jury were accordingly instructed,that the proper issue was, whether Amelia Marchant was a free white, or a free colored woman.  this question, they were told, was not to be determined by any prescribed degree of admixture between the white and degraded castes; but depended on complexion, and feature, reception in society, association, the exercise of the rights of citizen ship in voting, serving on juries, giving evidence in Court, and performing militia, or other duties proper to a free white man, and very much on character.
After the charge was concluded, the Attorney General moved that the jury should be instructed, as the proper issue, to enquire, "whether Amelia Marchant was of free Indian descent;" but it was refused, because  the issue pressed was immaterial; the testimony of a person of '' free Indian decent'' not being distinguishable, under the tct of 1740, from that of a person of free negro descent.
The Jury found Amelia Marchant to be a "free person of color."


















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