In doing some research today on actions on account, I managed to run across a fairly musty case, Mitchell v. Clarke, 3 N.C. 13, 1 Martin 25 (Superior Court, 1791). I figured it might be interesting to explore the case a little further, give it some context, and see where this goes; I present the text below, with my discussion after the jump:
“Motion by Iredell for plaintiff to prove work and labor done, not by the plaintiff himself, but by negroes which he employed: and goods &c. sold and delivered for the use of the defendant, by sundry persons and paid for by the plaintiff, under the book debt act.
Objected by Mr. Attorney General Moore, that this is neither within the spirit nor letter of the act, because the work was not done by the plaintiff himself, &c.
But, on a long time taken up in discussing the subject, the court overruled the objection, and admitted the plaintiff to swear.”
This is the entirety of the opinion, but in truth it’s not a substantial issue – this is realistically a ruling on a sole point of evidentiary law, although a modern court might write a two-page opinion for the same effect. This is also a Superior Court case, but is listed as a Supreme Court case in modern databases. This is because in the beginning decades of North Carolina’s existence, there was just a Superior Court, with three (and by 1791, four) judges who rode circuit throughout half of the state. Walter Clark’s North Carolina Reports contains a brief synopsis of the system as it then existed.
At this point, without my seeing more of the underlying litigation, Messrs. Mitchell and Clarke are likely to remain anonymous to me; the players within the opinion memorandum itself, however, are interesting. Iredell, being listed as making a motion, possibly refers to James Iredell. That’s problematic, however, because after February 1790, Iredell was an Associate Justice of the United States Supreme Court. This case appears to have been heard during that April 1791 term; Iredell, however, may have filed the motion prior to being commissioned as a Supreme Court Justice. It appears, from Clark, that the last term of court in Edenton would have been in November 1789, a year-and-a-half prior. Iredell may have filed the motion at issue at any point during 1789 or early 1790, but the motion could have been deferred to the next Edenton session, which appears to have been 1791. This is a hunch, and of course my volumes of Higginbotham’s Papers of James Iredell are in storage until I move into my new house…
This hunch on timing is supported by the Court’s listing of Alfred Moore as Attorney General. At the time, Attorney General was a part-time job, and Moore (as had Iredell before him) found time to take private cases. Moore was Attorney General until 1790, when he was replaced by Solicitor General John Haywood (but not this John Haywood – that’s a whole ‘nother blog post). Moore would also go on to be appointed to the United States Supreme Court in 1799.
The judges in this case appear to have been Samuel Spencer (former revolutionary-era executive, famed Anti-Federalist, and, perhaps apocryphally, a future victim of turkey-on-human homicide), Samuel Ashe (future Governor of North Carolina), and John Williams (signer of the Articles of Confederation, and Iredell’s successor on the Court). These are all very heady names for such a minor incident in North Carolina’s legal history.
As for the case itself, it centers on a simple thing – what we would now call an action on account – but which, back in 1791, was known as a “book debt”, meaning a debt evidenced solely by the creditor’s record of it in his accounting books. In 1739, the Colonial Assembly had passed a statute, signed by Governor Gabriel Johnston, allowing for the collection of such debts; in order to do so, a plaintiff would file his claim under oath, and produce the actual book evidencing the debt. This was fairly monumental for two reasons.
First, under a long-standing rule of English common law, which had been carried on past the American Revolution, a person interested (meaning, generally, financially interested) in the outcome of a case was “incompetent” to testify, even on their own behalf. This act, and the successor act that followed in 1756, removed this incompetency for the purpose of collecting this type of debt (See Kitchen v. Tyson, 7 N.C. 314, 3 Murph. 314 (Supreme Court, 1819)). This was critical because, as the Colonial Assembly recognized in 1739, an action for money owed based on the sale of goods or provision of services would be pretty hard to prove, since the goods or services would likely not be self-evident, and third-party witnesses may be hard to come by.
Second, the statute looks awfully similar to North Carolina Rule of Evidence 803(6), which allows for the admissibility of certain business records, provided they are records of the sort typically kept in the course of the record-keeper’s business. I doubt this case would have served as a direct inspiration for that rule, but the general common-sense rule certainly played into the modern rule’s drafting.
The twist, then, comes with the fact that the Plaintiff did not, in fact, provide evidence of his own work, which appears to have typically been requirement; in this instance, he desired to prove that the Defendant owed him for work done by slaves lent to the Defendant, among other things. One significant factor is that, at common law in North Carolina, slaves were often considered incompetent to testify in any capacity at court; after the passage of a 1777 statute, even free blacks could not testify in a trial against whites (for more on this, see John Hope Franklin’s The Free Negro in North Carolina, pp. 82-83).
This apparently caused a problem for Mr. Mitchell, because without having (a) provided the work himself, and (b) competent witnesses to testify that the work had been provided, he would be otherwise unable to prove that Mr. Clarke owed him on an account. The Court resolves this after “a long time taken up in discussing the subject” in Mr. Mitchell’s favor, presumably rejecting Moore’s stricter interpretation of the statute.
While the Court didn’t provide us with it’s reasoning, it makes one wonder if the Court’s reasoning was based in Mitchell’s property interest in his slaves. If the slaves were considered “people”, but couldn’t testify due to their traditional legally-presumed incompetence, that puts many slave-owners at a substantial disadvantage, since many larger owners rented out their slaves for profit. If, however, the slaves were considered property, and were treated as implements of work at the control of their master, then perhaps the Court reasoned that Mitchell constructively provided the work himself, or rented personal property to Clarke, thereby falling within the ambit of the statute.
Of course, whether or not a philosophical discussion of that level took place is something that at least I, from my vantage point, have no way to verify. It’s interesting, though, to think about the economic implications if the Court had bought Moore’s argument, essentially granting that slaves are not implements, but rather individual economic actors.
Well, now that that’s over, I’ll note that I enjoy looking through old cases, and I may try to explore some more in this format, given that it allows me to combine my love of history with my legal training. I doubt, though, you’ll ever be able to read many cases with two future Supreme Court justices on opposing sides!