
    
      Thomas, John and Henry Johnson vs. Thomas W. Boon, Tax Collector of St. Paul's Parish, and Henry W. Rice, Sheriff of Colleton District.
    
    1. On a question of color, arising out of the admixture of African and white blood, the jury, by our decisions, are the peculiar judges.
    2. On a question of this kind, the relator should always be present in court to be inspected by the jury.
    3. Where one of the relators, a full brother to the other two, was absent, the jury, unless they had believed his absence fully and fairly accounted for, had the right to regard it as a strong presumption against his claim. '
    4. Where, however, two were present and inspected, and the whole matter of descent, reputation and reception in society, with a strong description of the color of the absent relator, were in evidence before the jury, the court refused to disturb the verdict, finding them free white men,
    5. The absence of the mother of the relators held no ground for a new trial, as her attendance might have been procured by subpoena.
    
      Before O’Neale, J., Walterborough, Spring Term, 1842.
    
      Report. This was a declaration in prohibition. The Tax Collector of St. Paul’s issued his tax execution, which was about to be enforced by Sheriff Rice, against the relators, as free mulattoes. They applied for and obtained a prohibition nisi, on the ground that they were free white men, but were ordered to declare in prohibition. Two of the relators, Thomas and John, were in court, and submitted themselves to the inspection of the jury. Their full brother, Henry, who was proved to be a darker man than either of them, ivas not present; his absence was accounted for in this way: he is the overseer of Col. Perry, of St. Paul’s, whose crop was about being planted, and his employer was not willing he should attend court. Sally Johnson, the mother, was not at court; why she did not attend did not appear; whether her presence had been required by the respondents, was not shewn. Her sister of the whole blood, Mrs. Patrick, was shewn to the jury, and from inspection, I should say, was a quadroon. The father of the relators, Benjamin Johnson, (a white man,) proved that the relators were his children by Sally Johnson. She was the daughter of Lydia Tan, by John Erick Miller, a Dutchman, (a white man) her second husband. Lydia Tan’s mother was a white woman; her husband, Tan, was a colored man. According to this genealogy, the relators could not have had more than one-eighth of negro blood in their veins, possibly not more than one-sixteenth.
    On inspection, I thought Thomas and John very passable white men. Thomas, particularly, had light or sandy hair, and a sunburnt complexion. John was a darker man, black hair, and a skin of a darker shade than his brother. Their father, themselves, and the whole family, proved excellent characters. The father was a Methodist local preacher.
    Their father,Benjamin, and uncle, James, proved that the relators had been raised as white, and had been so received in society, and had exercised all the privileges of white people, such as mustering and voting. On one occasion, they said Thomas’s vote had been objected to. Daniel Blocker, a cousin by marriage, John Risher, Thomas Risher, Richard Hill, Robert Hoff, and Philip Jakes, gave the same testimony. On the part of the defendants, it was proved by Mr. Warren, who had caused the relators to be expelled from Captain Snipe’s company of tire Round O, that the «mother of the relators was just such a looking woman as Mrs. Patrick, who had been exhibited to the jury. When he went into the settlement, fifteen years ago, he. said he found Benjamin Johnson, thé father, enjoying all the privileges of a white man. The relators, he said, had always been regarded as colored. The relator Henry, he said, admitted to him he did not vote in St. Paul’s ; that he had been proceeded against for the tax; that he was resisting it, and if it was decided against him, he would move away. Robert Fishburne proved that the relators were considered as colored people. They associated with white persons, but never without question. Mr. Brunson said the mother and children, (the relators,) are colored. Thomas, he said, voted once for Sheriff, and that J. G. Waring took his vote out of the box, and scratched his name off the list. He, the witness, had visited the relators, had associated and eat with them. William Price proved that the relators were colored; but he always spoke to them when he met them. From the proof, it seemed in the section where the relators were raised, that little attention, in intercourse, was paid to the question whether the persons toere or were not colored.
    
    
      The jury were carefully instructed upon the legal principles settled by our courts, in the cases of The State vs. Hayes, 1 Bailey, 275; The State vs. Scott, 1 Bailey, 270; The State vs. Hanna, 2 Bailey, 558 ; and The State vs. Cantey, 2 Hill, 614. There was some misunderstanding, certainly, by Solicitor Edwards, of my charge, for I never thought or said that “ inspection was immaterial evidence in a question of color.” It was one of the matters referred to and presented to the jury, by which they might be enabled to decide whether the relators were or were not free white men. They were told, in deciding from inspection, they must resort to all the usual indicia of the negro race, such as color, hair, features, the feet, (fee. Color, they were told, was sometimes a deceptive test; that it ought to be compared with all the circumstances of the case, and if the jury were satisfied that the color, blood, and reception in society, would justify them in rating the relators as free white men, they had the right to do so. I said to the jury, that when men had been acknowledged as white men, and allowed all their privileges, it was bad policy to degrade them to the condition of free negroes.
    The jury very properly found the relators to be free white men.
    The respondents appealed, on the annexed grounds :
    1. Because the defendants were denied the right of offering for inspection to the jury, Henry Johnson, one of the relators, and he was not produced by them.
    2. Because the mother of the relators, Sally Johnson, was not offered for the inspection of the jury by the relators ; and when called for, (as was the case with Henry Johnson,) was not produced.
    3. Because the court charged that inspection was immaterial evidence in a question of color,
    4. Because the court charged strongly on the policy of the law.
    5. Because the verdict, in other respects, is contrary to policy, law and evidence.
    Edwards, Solicitor, for the motion.
    Henderson, Perry and Rhett, contra.
   Curia, per

O’Neall, J.

In this case the facts were properly submitted to the jury, and this is one of the very cases in which, above all others, their verdict should not be disturbed by tliis court. For by our decisions, they are made the peculiar judges of the question of caste, arising out of the admixture of African and white blood. It is, however, proper to remark, that the relator in prohibition should always be present in court to be inspected by the jury, and if there is a failure in this respect, it is a circumstance of great weight against the relator’s claim to be regarded as white. In this case.the defendants had the full benefit of Henry’s absence, and the jury, unless they believed his absence had been fully and fairly accounted for, had the right to regard it as a strong presumption against his claim.

The other two relators were inspected, and the whole matter of descent, reputation, reception in society, with a strong description of Henry’s color, were in evidence before the jury, and with all these lights, they thought fit to find the relators free white men, which they had the right to do, and their verdict is unquestionably right,

Fy If the defendants wished the presence of the relators’s mother, her attendance could have been procured by subpoena. If they neglected to avail themselves of the means of bringing her to court, they had no right to complain, if when called for, they found her not.

The motion is dismissed.

Evans and Wardlaw, JJ., concurred. Richardson, J., absent at the argument.

Butler, J.

In a question of color, I think it indispensable that the plaintiff should appear in court for inspection.  