He cannot go blow for blow, but he can defend himself.

by Lisa Y. Henderson

State v. Lawrence Davis, 52 NC 52 (1859).

This indictment for assault and battery arose in Craven Superior Court.  Lawrence Davis was a free negro living in New Bern.  Edward Hart was a regularly appointed and qualified constable for the town. Hart had a notice directing David to show cause why he should not work on the streets as the penalty for not having paid his taxes. (A New Bern ordinance: “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 of the Mayor, not exceeding $10.” Hart arrested Davis and, while he attempted to tie him, Davis struck him.

The lower court found Davis guilty, and he appealed.

The Supreme Court suggested that Davis’ conviction may have rested on 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, though a free negro ordinarily was not to return blow for blow or fight with a white man, “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.” Rather, to justify a battery on a white man, the free negro is required to prove that it was necessary for him to strike in order to protect himself from “great bodily harm or grievous oppression.” In other words, if there is cruelty or unusual circumstances of oppression, a blow is excusable. 

In this case, a constable serving a notice on the defendant, without any authority whatever, arrested him and attempted to tie him.  “Is not this gross 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 highhanded and lawless a manner? Was he to submit tamely? Or, was he not excusable for resorting to the natural right of self-defense?” 

Under these circumstances, the judge committed error, and a new trial was ordered.