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[Cite as State v. Chavers, 50 N.C. (5 Jones) 11
(1857). NOTE: This decision concerns a North Carolina law prohibiting
African-Americans from carrying firearms and to what degree interracial marriage
renders them non-African Americans and thereby not subject to the prohibition.
Cf. State v. Hannibal, 51 N.C. (6 Jones) 57 (1859).]
STATE v. WILLIAM CHAVERS.
1. It was held not to be error in a judge to
instruct the jury that, according to Rev. Code, ch. 107, sec.
79, a person must have in his veins less than one-sixteenth part of negro
blood before he will cease to be a free negro, no matter how far back you had to
go to find a pure negro ancestor.
2. An indictment charging the defendant, as a "free
person of color," with carrying arms, cannot be sustained; for the act (Rev. Code, ch. 107, sec. 66) is confined to "free
Indictment, tried before
Person, J., Spring Term, 1857, of Brunswick.
The defendant was charged, as a free person of color, with carrying a
shot-gun. It was proved that the defendant carried a shot-gun as charged in the
A witness proved that the defendant's father was a man of dark color
and had kinky hair; that he was a shade darker than the defendant himself, and
his hair was about as much kinked.(p.12)
A Mr. Green proved that he and the defendant, with others, came to
this court upon a steamboat from Wilmington, and that the price of a passage for
white persons was one dollar; that while on the way the defendant handed him one
dollar, and requested him to pay the fare of himself and his brother with that
sum, saying he understood that the fare of white persons was one dollar and
colored persons half price, and that he and his brother were colored persons,
and that the witness accordingly paid the fare of both of them with one
The defendant's counsel insisted, in his argument, that his client
was a white man, and called upon the jury to inspect him and judge for
The Court charged the jury "that every person who had one-sixteenth
of negro blood in his veins was a free negro. That the descendants of negro
ancestors became free white persons, not by being removed in generation only,
but by that, coupled with purification of blood, for if it was not so, then
persons of half negro blood might, and would become free white persons by law."
"Take," said his Honor, "two families, the father of one family a white person
and the mother a negro, and the father of the other family a negro and the
mother a white woman; the members of these families are of the half-blood, and
in the first generation from a negro, let them intermarry, and their descendants
intermarry, until by generation, they are removed beyond the fourth generation
from the pure negro ancestors, the father of the one and the mother of the
other, from whom they are descended, are they any the less free negroes in the
fifth than they were in the first generation from their negro ancestors? They
still have half negro blood in their veins, and that is all they had in the
first generation. In the fourth generation they were unquestionably free
negroes, but they certainly had no more negro blood than their children."
"Can it be then," continued his Honor, "that a remove by one
generation has the effect, in law, of turning a half negro into a free white man
in spite of the color of his skin or the kinking of his hair? It seems to me
both unreasonable (p.13)and absurd, and
therefore I cannot put such a construction upon the 79th section
of the 107th chapter of the Act of Assembly (Revised Code), declaring who
shall be deemed free negroes. My construction of the statute is that no person
in the fifth generation from a negro ancestor becomes a free white person unless
one ancestor in each generation was a white person; that is to say, unless there
shall be such a purification of negro blood by the admixture of white blood as
will reduce the quantity below the one-sixteenth part; and unless there is such
purification it makes no difference how many generations you should have to go
back to find a pure negro ancestor; even though it should be a hundred, still
the person is a free negro."
His Honor, therefore, instructed the jury, "if from inspection of the
defendant, the evidence as to the color of his father, and his own declarations
made upon the steamboat, taken all together, they should find that he had as
much as one-sixteenth of negro blood in him, he was a free negro, and they
should so find."
The defendant's counsel excepted to the charge.
The verdict was against the defendant. Judgment and appeal.
Attorney-General, for the State.
Shepherd and Baker, for the defendant.
Battle, J. The defendant
was indicted as a "free person of color," for carrying about his person a
shot-gun, contrary to sec. 66, chap. 107, Rev. Code. Section 79 of same chapter declares: "That all free persons
descended from negro ancestors to the fourth generation inclusive, though one
ancestor of each generation may have been a white person, shall be deemed free
negroes and persons of mixed blood." The defendant was convicted and moved for a
new trial upon two grounds: First. Because there was no evidence that he was a
free negro. Secondly. Because the Judge erred in his instructions to the jury
upon the meaning of the statute (p.14)which
prescribes who shall be considered such a person.
The counsel for the defendant insists upon both grounds in his
argument before us, but relies mainly on the last.
1. We think there was testimony sufficient to be left to the jury,
tending to prove that the defendant was a free negro. The evidence introduced to
show the color of his father--the kind of hair which he and his father both had,
was competent, and that, together with his confessions, and his own color, which
his own counsel called upon the jury to inspect, was sufficient for the
consideration of the jury upon the question submitted to them. Upon its weight
and its sufficiency to establish the fact of his being a free negro, it was for
them alone to decide.
2. The main objection to the charge of the Judge is that he, instead
of following the rule laid down by the 79th section of the
statute, to determine who should be regarded as a free negro within the
meaning of the 66th section, misled the jury by making the
quantity of the negro blood the test by which to ascertain the fact. Taking the
charge altogether, we think that it is not obnoxious to censure, and that it
lays down the rule correctly according to the statute. By that, as we understand
it, no person can cease to be a free negro, unless he has reached the fifth
generation from his African ancestor, with a white father or mother in each of
the first, second, or third and fourth generations. In that case a simple
arithmetical calculation will show that he will not have a sixteenth part of
African blood in his veins.
That part of his charge which speaks of the marriage of persons
belonging to two families, both of which have a mixture of white and negro
blood, was intended solely to guard the jury against being misled by any other
rule than that to which we have already adverted, to-wit, that there must be a
white father or mother in each generation from the African ancestor down to the
fifth, to exclude the descendant from the operation of the statute. With a view
to that rule, the Judge was right, for it is a mathematical truth, in saying
(p.15)that the person in the fourth generation
would necessarily have a sixteenth part of negro blood in him.
The motion for a new trial being denied him, the defendant, through
his counsel, moves here in arrest of the judgment, because he is charged, in the
indictment, as "a free person of color," whereas the section of the act, under
which he is indicted, makes it penal for any "free negro" to carry arms about
his person. The counsel contends that, although the terms "free negro" and "free
person of color" are often used in chapter 107, Rev. Code,
as synonymous, yet it is not always the case, and that therefore the indictment,
upon the section in question cannot be sustained in substituting the latter
description of the person for the former.
There can be no doubt that the two terms are sometimes used in the
act to which the counsel refers, as synonymous; as, for instance in sections 11 and 13, which prohibit free negroes from working in
certain swamps without a certificate; and we also think, with the counsel, that
there is at least one instance (and one is sufficient for his purpose), in which
the terms cannot be so regarded. The 44th section declares
that "any slave or free negro, or free person of color convicted by due course
of law, of an assault with intent to commit a rape upon the body of a white
female, shall suffer death." Here, three classes of persons seem to be included,
to-wit, slaves, free negroes, and free persons of color. The last section of the
act to which we referred in giving our opinion upon the motion for a new trial,
defines who shall be deemed free negroes and persons of mixed blood, but does
not declare who shall be embraced under the term "free persons of color." The
amendment to the Constitution of the State, Art. 1, sec. 3, chap.
3, to which the counsel for the State has referred us, does not remove
the difficulty, because the terms there used are "free negro, free mulatto, or
free person of mixed blood," with a similar definition to that given in the
section of the act above specified. Free persons of color may be, then, for all
we can see, persons colored by Indian blood, or persons descended from negro
ancestors beyond the fourth degree. The indictment then, in the present case,
may embrace a person who is not a free negro (p.16)within the meaning of the act, and for that reason it
cannot be sustained.
Per Curiam. Judgment