
    
      Thos. White and Martha his wife, William Bass and John Bass vs. The Tax Collector of Kershaw District.
    
    In cases relating to the status of persons alleged to he colored and claiming to be white, where color and features are doubtful, the question partakes more of a political than a legal character, and belongs almost entirely to the jury; and should be determined, not solely by the admixture of negro blood, but by reputation, by reception in society, and by the exercise of the privileges of a white man.
    
      Before O’Neall, J. at Kershaw, Spring Term, 1846,
    The report of his Honor, the presiding Judge, is as follows :
    “ Mrs. White, William Bass and John Bass were the rel-atrix and relators in these cases in prohibition. They claimed to be white people, and not liable to the capitation tax imposed on them by the tax collector.
    Their ancestry was thus established. The grandmother of the relators was a well known and much respected mulatto woman about Camden. In an old record, to establish her caste, it was alleged her mother was a white woman. Such was also the proof accompanying the record. Their grandfather was Josiah Bass. Mrs. Rhochelle proved he was a revolutionary soldier. Their father, Elijah Bass, was in court. He was a dark quadroon, if he was one ; from his color he appeared to be a mulatto. Their mother was in court. She was a white woman. She and her husband proved excellent characters. Mrs. White shewed plainly the corrupt blood. Her brother, William Bass, to my eye, appeared an ordinary white sand hill boy. John was at home, and unable to come to court. Martha was married to a white man, a Scotchman. Her child, at the breast, was a fair, blue-eyed white child ; no one, (not knowing its mother,) would say that it had any admixture of African blood. The characters of the relatrix and rel-ators were proved to be good. Their father is a man of some property, but was never admitted to any of the privileges of a white man. His family have been raised respectably, and have associated freely with the whites in the neighborhood. Elijah Bass was never himself subjected to a capitation tax, as far as any examination could be made. Mr. Shannon proved that he was tax collector from 1819 to 1827. That neither he nor his predecessors taxed him. Since then, no tax has been imposed on him or his family, until now.
    The case was most favorably presented to a very intelligent jury. They found the relatrix and relators to be free mulattoes. A jury on the other side of the house, found the grand children of Elijah Bass (children of one of his sons by a white woman) to be free white people.
    I wish the court may be able to find some ground to give a new trial. For if any people tinged with African blood are worthy to be rated as white, the relatrix and relators present the very best claim to be so rated.”
    The relatrix and relators appealed, and now moved this court for a new trial, on the following grounds:
    1. Because although it was not proved by witnesses upon the stand, that Elijah Bass had been admitted to all of the rights and privileges of a free white man, yet the affidavits of respectable persons were given in evidence (neither objected to or contradicted) stating that “ Elijah Bass is not a clear-blooded white man; but has always been treated by his neighbors as a free white man. He visits and is visited by them as a free white man, eats with them at their tables, and they with him at his, and is honest and industrious, and is very much respected by his neighbors and all who know him, for his good character and sober and industrious habits. He is now about seventy years old, and has been residing for upwards of fifty years in this district; and during all that time has supported a good character, and has never paid this capitation tax or been required to have a guardian, and has never, to our knowledge, been refused any of the rights and privileges of a free white man ; and we have heard and believe he has been examined as a witness in a law suit in the Court of Common Pleas at Camden, in which free white persons were u parties. He owns lands and slaves, and has raised and educated his children, the relators, in a respectable manner, and is in all respects ¿'worthy man. Milberry E. Bass,'his wife, the mother of- his children, the relators, is a free white woman of good character, and is respected as such by the neighbors.
    “The relators, William C. Bass, John W.Bass and Martha It. White, were educated as free white persons'at school with the other white children of the neighborhood, and are treated in society as free white persons ; they visit and are visited by their neighbors as free white persons, and are honest and industrious and highly respected by their neighbors and all who know them, for their good character and conduct, and have never, to our knowledge, been refused any of the rights and privilege’s of free white persons.
    “ William C. Bass is about twenty-two years old and John W. Bass is about nineteen; both of them live with their father and mother.
    
      “ Martha R. White is about seventeen years old, and has married a respectable free white man, Mr. Thomas White, who is well educated and' teaches a respectable school in the neighborhood of his father-in-law, and she is- highly respected, and exercises and enjoys all the rights and privileges of a free white woman, and is treated as such by all her neighbors, and is very much respected by them for her good character and correct deportment.” — And it is therefore respectfully submitted that these persons, by exercising and enjoying all these rights and privileges, for so long a time, with the consent and approbation of society and the acquiescence of the State, have established their caste, and are entitled- by law to be considered free white persons, and that his Honor should have so charged the jury. ,
    
      2. Because his -Honor should have submitted it to the jury upon the evidence- to ,say, whether the case of “ The guardian oj Molly Bass vs. William Lang,” was made to establish her caste as a free white woman, or her freedom.
    
      3. Because plaintiffs were surprised by the evidence of Mr. Salmond.
    
      Smart and Wethers, for the motion.
    Caldwell, Solicitor, contra.
   Curia, per

Frost, J.

The relators have filed this suggestion to prohibit the collection from them of the capitation tax, imposed on “ free negroes, mulattoes and musti-zoes,” claiming that they are white persons.

The claim involves all the civil and political rights of citizenship. For the law recognizes only three classes of persons ; freemen under the constitution, or citizens; slaves ; and free negroes, mulattoes and mustizoes, who constitute the third class. A firm and wise policy has excluded this class from the rights of citizenship in this and almost every State in which they are found. The constant tendency of this class to assimilate to the white, and the desire of elevation, present frequent cases of embarrassment and difficulty. The disqualification arises from descent from one of the African race; and the various degrees in which the physical peculiarities are transmitted in descent, makes those peculiarities a very uncertain criterion of caste. It may happen that persons, in equal degree from the African stock, may present such different complexions and features that they would readily be assigned to different castes. Habit and education have so strongly associated with the European race the enjoyment of all the rights and immunities of freedom, that color alone is felt and recognized as a claim. On the contrary, a strong repugnance prevails against a participation in the rights of citizenship by any who bear in their persons the traces of their servile origin. This aversion is, however, mitigated by the deference which honesty, sobriety and industry, and the qualities that unite in a respectable character, enforce on the mind. It would be difficult, if not impolitic, to define by precise and inflexible rules the line of separation between the two classes. Whatever rules may be adopted, the question of the reception of colored persons into the class of citizens, must partake more of a political than a legal character, and, in a great degree, be decided by public opinion, expressed in the verdict of a jury. So far as the subject is controlled by rules of evidence, it will be found that they give effect to public sentiment rather than assume to direct and control it. If the color and other characteristics of African descent be distinctly marked and obvious, the condition of the person is determined by inspection only. State vs. Scott, 1 Bail. 270. Where color and features are doubtful, there is no rule on the subject; only it is to be considered settled, that it is not every admixture “of negro blood, however slight or remote,” which will make a person of color, within the meaning of the law; nor on the contrary, “is the condition to be determined solely by the distinct and visible mixture of negro blood; but by reputation, by reception in society, and by the exercise of the privileges of a white man.” State vs. Davis, 2 Bail. 558; State vs. Cantey, 2 Hill, 616. The question is one properly for the jury, and the court will rarely feel authorized to interfere with their verdict.

In this case, the father of the relators is confessedly a mulatto. Martha White is obviously a colored person. William had the appearance of a sand-hill boy ; and John did not appear in court. It was attempted to be proved that Josiah Bass, the father of Elijah Bass, was a white man. One affidavit states that he served in the revolutionary war. The color of Elijah Bass affords proof of his negro descent, which the jury might well require more evidence than one affidavit to contradict. Molly Bass, the grand-mother of the relators, was a well known mulatto woman. The record of the suit for ravishment of ward, itself, affords presumption of her caste: being a remedy appropriated to the trial of a disputed claim of freedom. The statement in the declaration that her mother was a white woman, was material to her claim of freedom, and established it, if true. But the suit was instituted by the friends of Molly Bass, without any adversary claimant, and the allegations and proofs in the case must be received with the cautious allowance given to ex parte statements. It is stated in the affidavit, which is incorporated in the grounds of appeal, that the relators were received and educated at school with white children. But this affidavit is no part of the proof in the case. It is not pretended that Elijah Bass ever exercised, or claimed to exercise, the rights of citizenship in any particular.

The attempt to incorporate the relators among the constitutional freemen of the State, rests on the respectability of the family; the marriage of two of them with white persons ; their social equality in the neighbourhood ; and the omission of the tax collector to enforce from them, for many years, the capitation tax.

Respectability would give as good a claim to a large number of mulattoes. Marriage with a white person has never been held to elevate a colored person into the class of citizens; nor has mere social intercourse.

That they have not paid capitation tax for many years, gives no prescriptive right to civil and political franchises. The jury have considered the effect of all the circumstances which have been urged on this court to set aside the verdict. No sufficient reasons have been shewn to disturb their decision. It may be observed that the child of Mary White is not concluded by this record. There is then no inconsistency between the verdict in this case, and that which found the grandchildren of Elijah Bass (children of one of his sons by a white woman) to be white persons. Motion refused.

Evans and Wardlaw, JJ. concurred.

Richardson and O’Neall, JJ. We dissent, and think that a new trial should have been granted.

Butler, J. absent.  