Summary
In S. v. Jowers, 33 N.C. 555, it is held that insolence from a free negro to a white man will excuse battery, in analogy to the principle which had been previously settled in respect to the insolence of a slave to a white man.
Summary of this case from State v. DavisOpinion
December Term, 1850.
Insolence from a free person of color to a white man will excuse a battery in the same manner and to the same extent as in the case of a slave.
APPEAL from the Superior Court of Law of ANSON, at Fall Term, 1850, Battle, J., presiding.
Attorney-General for the State.
(556) No counsel for defendant.
The defendant, a white man, was indicted for an affray with Bob Douglass, a free black man. The evidence was that the defendant and Bob got into a quarrel, when the defendant asked Bob why he had reported at a certain place that he, the defendant, had told a lie, to which Bob replied, because he had told one. Upon this the defendant struck Bob, and a fight ensued, in the course of which Bob struck the defendant with the butt end of a wagon whip, and the latter knocked him down with the broken limb of a tree. The defendant's counsel contended that the insulting language used by the free negro justified the blow which the defendant gave him, and that he afterwards used no more violence than was necessary to protect him in the fight.
The presiding judge charged that, though the courts have held that insulting language used by a slave may justify a white man in striking him, yet the principle did not apply to the case of a free negro, stricken under similar circumstances, by a white man.
The defendant was convicted, and, judgment being pronounced against him, appealed.
It is settled that insolent language from a slave is equivalent to a blow by a white man, in its legal effect, as an excuse for a battery. If a blow is given by a white man, a return of it is excusable in self-defense, to prevent a repetition of the injury; so, if a slave gives insolent language, a blow is excusable in self-defense, being necessary to put a stop to his insolence.
The question presented to this case is, Does the principle apply to free negroes? His Honor was of opinion that it did not. In this a majority of this Court believe there is error.
The same reasons by which a blow from a white man upon a slave is excusable on account of insolent language, apply to the case of a free negro who is insolent. It is a maxim of the common law, where there is the same reason there is the same law.
But it is suggested that free negroes differ from slaves in this: they have a right to own property and to make contracts, which necessarily must frequently give rise to a difference of opinion, and if a free negro disputes the accounts of a white man, it is insolence, and will excuse a battery.
It is unfortunate that this third class exists in our society. All we can do is to make it accommodate itself to the permanent rights of free white men. What amounts to insolence is a question for the court, and is the subject of review in the Court of supreme jurisdiction; this is some protection. But as compared with a slave, how stands the case? If a slave is insolent, he may be whipped by his master, or by order of a justice of the peace; but a free negro has no master to correct him, a (557) justice of the peace cannot have him punished for insolence, it is not an indictable offense, and unless a white man, to whom insolence is given, has a right to put a stop to it in an extrajudicial way, there is no remedy for it. This would be insufferable. Hence we infer from the principles of the common law that this extrajudicial remedy is excusable, provided the words or acts of a free negro be in law insolent. Such a being as a slave or a free negro did not exist when the ancient common law was in force. But the excellence of that "perfection of reason" consists in the fact that it is flexible and its principles expand so as to accommodate it to any new exigence or condition of society, like the bark of a tree, which opens and enlarges itself, according to the growth thereof, always maintaining its own uniformity and consistency.
PER CURIAM. Judgment reversed, and a venire de novo.
Cited: Windley v. Gaylord, 52 N.C. 54.
(558)