52 N.C. 52 | N.C. | 1859
The battery was alleged to have been committed on one Edward Hart. The defendant was a free negro, residing within the limits of the town of New Bern, and the said Hart was, at the time of the transactions in question, a regularly appointed and qualified constable for the said town. Hart had received, and had in his hands, a notice directed to the defendant for him to show cause why he should not work on the streets as the penalty for not having paid his taxes. The notice was founded on the following ordinance of the town of New Bern:
"Ordered, that all free negroes who have not paid their taxes shall be made to work on the streets two days for each and every dollar of tax due the town by them, and if he refuses to do the same, upon due notice being given him, he shall pay a fine, at the discretion (53) of the mayor, not exceeding $10."
The officer, acting under the notice in his hands, arrested the defendant, and attempted to tie him, when the latter struck him. *42
Upon this state of facts the defendant's counsel contended that he was, in law, not guilty, and asked his Honor so to charge the jury, but he refused, and gave his opinion that, in law, he was guilty. Verdict and judgment for the State, and appeal by the defendant. The conviction of the defendant may involve the proposition that a free negro is not justified under any circumstances in striking a white man. To this we cannot yield our assent. Self-defense is a natural right, and although the social relation of this third class of our population, and a regard for its proper subordination, requires that the right should be restricted, yet nothing short of manifest public necessity can furnish a ground for taking it away absolutely; because a free negro, however lowly his condition, is in the "peace of the State," and to deprive him of this right would be to put him on the footing of an outlaw. So, while the law will not allow a free negro to return blow for blow, and engage in a fight with a white man, under ordinary circumstances, as one white man may do with another, or one free negro with another, he is not deprived, absolutely, of the right of self-defense, but a middle course is adopted, by which, in order to make out a justification for a battery on a white man, the free negro is required to allege and prove that it became necessary for him to strike in order to protect himself from great bodily harm or grievous oppression.
This conclusion is, we think, deducible from the adjudications of our courts, and considerations growing out of the abnormal state of society caused by the existence of free negroes in our midst, calling for a new application of the principles of the common law, the excellence (54) of which consists in the fact that it is flexible and expands so as to embrace any new exigence or condition of society; so that, while on the principle of self-protection the paramount rights of the white population are secured, the rights of this inferior race are made to give place as far, but no further, than is necessary for that purpose.
In S. v. Jowers,
In S. v. Cesar, 31 N.C. 389 [
Without undertaking to decide that a free negro stands precisely on the same footing with a slave who strikes a white man other than his master or one having authority over him, we think it follows from the principles established by these cases that, although a free negro, upon receiving an ordinary blow, is not allowed to strike back and get into a fight with a white man, yet, if there be cruelty or unusual circumstances of oppression, a blow is excusable; because, in such a case, a resort to the natural right of self-protection is not inconsistent with that feeling of submission to white men which his lowly condition imposes and public policy requires should be exacted.
If in the case now under consideration the conviction of the defendant involves simply the proposition of law stated above, then we differ from his Honor in respect to its application. An officer of the town having a notice to serve on the defendant, without any authority whatever,arrests him and attempts to tie him! Is not this gross (55) oppression? For what purpose was he to be tied? What degree of cruelty might not the defendant reasonably apprehend after he should be entirely in the power of one who had set upon him in so high-handed and lawless a manner? Was he to submit tamely? Or was he not excusable in resorting to the natural right of self-defense?
Upon the facts stated, we think his Honor ought to have instructed the jury to find the defendant not guilty. There is error.
PER CURIAM. Venire de novo.