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)
STATE VS AMBROSIO BELMONT
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."
