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 government, 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."