Where the Sun First Rises in Tennessee & Tennessee History Begins


Instructions to the Jury

Joshua F. PERKINS vs John R. WHITE

The top portion appears to be TAR Nelson's own words to the jury, and the lower section, the Judge's instructions. Pam

In the progress of the trial of this case the court stated to the jury that no hearsay evidence was to be regarded by them except upon the subject of pedigree or blood of the Plaintiff. And that they might look to the general reputation of the pedigree or race of the Plaintiff and his ancestors lineal and collateral attitude declarations of deceased persons who were acquainted with his ancestors as to their pedigree or race, color origins as appearance and as to their opinions as to plaintiffs pedigree or race, founded upon their inspection and acquaintance as to color and general appearance and pedigree.

And to the foregoing instructions of the Court given during the progress of the case, the Plaintiff by his council excepts in law.

During the whole progress of the case, the Plaintiff by his council objected as it was introduced to all of the evidence in this case herein before set out in its bill of exceptions, and the depositions hereto amended which contain the opinions of the various witnesses examined as to the blood or race of the Plaintiff and his relatives lineal and collateral, where such opinions were founded merely upon inspection. Plaintiff by his council in like manner objected as it will his introduced to all the evidence in this case of the general and common reputation as to the pedigree of the Plaintiff and his said relatives and insisted that no proof of common reputation or hearsay as to the pedigree could be admitted except when the hearsay was derived from members of the family, that is the relatives lineal and collateral of the Plaintiff, And to the action of the Court in permitting the evidence above mentioned, as being objected to, to go to the jury, the Plaintiff by his council excepts in law.

The Plaintiff by his council also excepts to the rejection of the South Carolina Transcript herein before mentioned.

His Honor excluded from the jury so much of the deposition of Anna Graves as details the conversation of Jock Perkins in regard to his services and those of his sons in the Revolutionary War and also so much as related to George Perkins discharge because the said proof was mainly hearsay as to a particular fact and to this action of the Court the Plaintiff by his council excepts.

The Court also excluded from the jury all the evidence contained in this bill of exceptions and the exhibit items. To of hearsay of particular facts and to this action of the Court the Plaintiff excepts.

Among other things the Plaintiff by his council requested the Honorable Court to instruct the jury as follows,

1. That the statements of members of the family in which Plaintiff is descended in regard to their pedigree are better and more reliable then hearsay evidence of common reputation as to pedigree because the family are more deeply interested in having a knowledge of their descent.

2. That next in grade to the statements of the family is the evidence of contemporaries of the plaintiffs ancestors as to their pedigree.

3. That more evidence of opinion as to the pedigree of the Plaintiff is less reliable than that of the knowledge of members of the family as derived from the statements made prior to any litigation.

4. That if the great grandfather of Plaintiff was an Indian or Negro and he is descended on the mother's side from a white woman, without any further Negro or Indian blood than such as he derived on the father's side, then the Plaintiff is not of mix blood, or within the third generation inclusive; in other words that if the Plaintiff has not in his veins more than 1/8 of Negro or Indian blood, he a citizen of this state and it would be slanderous to call him a Negro.

5. That if it appears from the proof that the plaintiff, his ancestors and collateral kindred have considered the rights of citizenship in voting at elections, acting as jurors, being witnesses in suits between white men, marrying and living with white women, filling civil offices, and sending their children to common schools for more than 20 years, such enjoyment of the rights and privileges of free white citizen of this state is primary and conclusive proof that the Plaintiff is entitled to all the rights and privileges of free white citizens of this state.

But his Honor refused in all respects to charge the jury as above requested and his instructions then as follows,

Jacob F. Perkins vs. John R. White

charge of the Court

This Court among other things instructs the jury as follows. Persons that are known and recognized by the Constitution and laws of Tennessee, as free persons of color are those who by the act of 1794 section 32 are taken and deemed to be capable in law to be certified in any case what is in, except against each other or in the language of the statute " all Negroes, Indians, Mulattoes, and all persons of mixed blood descended from Negro or Indian ancestors to the third generation inclusive though one ancestor of each generation may have been a white person, white bond or free". The statute includes as examples those only who are either of the Negro or the Indian blood or mixture of both and who a fall within the third generation inclusive. To make one then a free person of color, 1/8 of his or her entire blood must be either of the Negro or of the Indian race or a mixture of the two amounting to 1/8. To illustrate what is meant by the language of the statute, " to the third generation inclusive though one ancestor of each generation may have been a white person." If the proof in this case shows that Jock Perkins was the great grandfather of Plaintiff on the paternal line and that he was a full blooded Negro and that by cohabitation between him and a full blooded white woman, Jacob Perkins was induced. Jacob would be the first generation, 1/2 of whose blood would be Negro, and Jacob cohabitation with a full blooded white woman and induced Joshua Perkins, then Joshua would be the second generation, 1/4 of whose blood would be Negro, and if Joshua and a full blooded white woman induced the Plaintiff, then the Plaintiff would be the third generation inclusive and 1/8 of his blood of the Negro race, and a person of color. If however the great grandfather Jock Perkins was less than a Negro of the full blood, then the plaintiff would be less than 1/8 Negro, and not a person of color, unless he may have derived a sufficiency of Indian or Negro blood from his other ancestors, either of the paternal or the maternal lines to make up the deficit. The Court further instructs the jury that the statements and declarations of the plaintiffs ancestors and kindred respecting their pedigree and blood was competent testimony before them, that like all other testimony in the case it was their providence and duty to weigh it and to each and every part of it such consideration and affect as they in this judgment might think it is entitled to receive, the (undecipherable) is that the ancestors and family relations of the Plaintiff would be most correctly informed as to their and his blood and pedigree; and where (undecipherable) no suspicion attaching to their motion is in making representations concerning their pedigree and races from which they sprang more weight should be given to the their statements then to those who communications with the family: but that the jury might look to the circumstances that surround them at the time and if they perceive a strong (undecipherable) and feeling of in (undecipherable) prompting them to misrepresent their blood and pedigrees and produce false (undecipherable) and misinformation on the subject in it would so (undecipherable) the force of the testimony and they should give it less credit, on the other hand if the representations are made against the interest and predictions of the persons making them, that circumstance would add to the force and effect of the testimony and the jury should give it more weight and credit.

The Court also instructs the jury that the privileges of the citizen which the Plaintiff and his ancestors have enjoyed as voters, jurors, witnesses, public offices and managing and giving in marriage with white persons, and the like, and the length of time that this high privilege had been enjoyed, all the facts and circumstances to which they could look in making up their verdict upon the in question of the plaintiff’s blood and they should receive due consideration. But if after looking at all the testimony the jury should be satisfied that the Plaintiff is a person of color, neither the description before given privileges no matter how long enjoyed by him and his ancestors would not constitute him a citizen and the verdict should be for the Defendant.

The Court charged upon other questions in the case, but the in foregoing is the only part of the charge to which exception was taken by the plaintiff’s council.

Also charged that the opinion of witnesses was founded upon more observation or inspection as to blood or pedigree is less reliable then the proof of facts known, which the jury can determine these questions for themselves.

And to the action of his Honor in refusing to charge the law as herein before requested and in giving the foregoing instructions to the jury, as well as to his refusal to grant a new trial the Plaintiff by his council excepts in law and tenders this his bill of exceptions which he in prays may be signed and sealed by the Court and made in part of the record which is done accordingly.

17 to July 1858

J. M. Welcher



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For the Plaintiff
For the Defendant
Intstructions for the Jury


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Pamela R. Cresswell

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