One of the most remarkable cases ever tried in the North Carolina courts was the case of The State vs. Will. It was the most important case on the subject of slavery and fixed a slave’s right to defend himself against the cruel and unjust punishment of a master. It was decided at the December term, 1834, of the Supreme Court (State vs. Will, 1 Devereux and Battle, 121-172). The facts of the case are as follows:
Will was the slave of Mr. James S. Battle, of Edgecombe County, and was placed under the direction of an overseer named Richard Baxter, a man whose temper differed materially from that of his pious namesake. On January 22, 1834, Will and another slave had a dispute over a hoe which Will claimed the right of using exclusively, since he had helved it in his own time. The foreman, who was also a slave, directed another Negro to use the hoe, whereupon Will, after some angry words, broke the helve of the hoe and went off to work at a cotton screw about one-fourth of a mile away. The foreman reported the matter to Baxter, who at once went to his own house. While there his wife was heard to say: “I would not, my dear,” to which he replied very positively: “I will.” He then took his gun, mounted his horse, and proceeded to the cotton screw, ordering the foreman in the meantime to take his cowhide and follow at some little distance. He approached unobserved to Will, who was throwing cotton into the press, and ordered him to come down. The slave complied, taking off his hat in a humble manner. The two were heard to exchange some words, which were not understood, and then Will began to run. He had gone ten or fifteen yards when Baxter fired, filling with shot a place twelve inches square in the back of the fugitive. Testimony showed that this wound might have proved fatal; but the terrified slave continued to flee. After a moment the overseer directed two other slaves to pursue him through the fields, saying, “He could not go far,” while he himself left his gun and rode around the field. Here he met the fugitive and pursued him on foot. He soon overtook and collared him. At this time Will had run more than five hundred yards and Not more than eight minutes had elapsed since he was shot. Stinging and bleeding from the wounds of that outrage and fearing a worse punishment all his instincts of self-preservation were aroused. He closed with his antagonist and in the struggle drew a knife and got his adversary’s thumb in his mouth. The pursuing slaves now coming up were ordered to take hold of the enraged Negro. In striking at these new foes Will wounded the overseer in the thigh. In further struggling he wounded him with his knife in the upper arm, and it was this wound that proved fatal. After dealing these blows the slave released Baxter’s thumb and escaped to the woods; but later in the day of his own accord he surrendered himself to his master. The Next day he was arrested. On being told that Baxter had bled to death from the wound in the arm, he exclaimed: “Is it possible!” After the escape of Will the other slaves found the overseer sitting where the struggle had been. He said to them: “Will has killed me; if I had minded what my poor wife said I should not have been in this fix.” Will was tried in the lower court and convicted of murder. His plea was that he had been under the impression that his life was in danger and that the crime ought accordingly to be reduced from murder to manslaughter; and on the strength of this plea he appealed to the Supreme Court of the State. In this court he was represented by Bartholomew F. Moore, then a young lawyer of no great reputation, and George W. Mordecai. Against him was the Attorney General, J. R. J. Daniel.
It is the argument of Mr. Moore and the decision it won that has made this case famous. Bartholomew Figures Moore was born on January 20, 1801, near Fishing Creek, Halifax county. His father, James Moore, was a man of little wealth. The boy spent his early years on his father’s farm and in attendance on such schools as were at hand. Not born to wealth he learned from the first to have sympathy for the lowly, and he retained throughout a long and active life a deep confidence in the common man. He studied in the school of Mr. John Bobbitt, of Louisburg, N. C., and in 1820 graduated at the University. He then studied law and in 1823 began to practice it at Nashville, N. C. It was a hard struggle for a young man starting a profession in those days without influence or position. He worked with quiet determination, reading assiduously. At the end of seven years he had made, it is said, only seven hundred dollars by his profession; yet the first five hundred that he had he spent in travel. In 1835, after twelve years of struggle in Nash, he returned to his native county and settled on a small farm near the town of Halifax. At this time his reputation had begun to broaden and success came more rapidly. He was thrice chosen to the General Assembly, and in 1848 he was appointed Attorney General of the State. In the same year he removed to Raleigh, where he afterwards resided. In 1850 he was appointed a commissioner to prepare the Revised Code of the laws of the State, which was afterwards published in 1855. When the issues of the war came on he took a strong position against secession and expended all his energy to prevent that movement. In his will he said of this phase of his life: “I was unable, under my conviction of the solemn duties of patriotism, to give any excuse for, or countenance to, the civil war of 1861, without sacrificing all self-respect. My judgment was the instructor of my conscience and no man suffered greater misery than did I, as the scenes of battle unfolded the bloody carnage of war in the midst of our homes. I had been taught under the deep conviction of my judgment that there could be no reliable liberty of my State without the union of the States, and being devoted to my State, I felt that I should desert her whenever I should aid to destroy the Union.” After the war he was invited to Washington to consult with President Johnston in regard to the future policy with respect to the State. His advice was immediate restoration to the Union. The policy of Negro suffrage and military rule later adopted he opposed continually. Though a Republican he opposed the excesses of that party in politics. He continued for the most part in private life until his death, November 27, 1878. His painstaking and laborious study of the law had brought him ample reward. At his death his estate was valued at more than $600,000.
It was while struggling against many odds at Nashville that he was retained in the case of The State vs. Will. I have been unable to learn under what circumstances he came to be interested in this case. It is possible that this being the case of a slave it was thought that there was no need to be careful in selecting a lawyer. Yet it must be confessed that such a surmise is not in keeping with the feelings of humanity and honor, which have usually characterized members of the family of which Will was the property. At any rate no better lawyer, as the event showed, could have been employed.
The point of the case was the right of a slave to defend himself on due provocation from his master or from anyone in the position of the master. Would the provocation, which in the case of a white man would mitigate murder into manslaughter, be good in law in the case of a slave? Of course such a problem involved the whole relation of a slave to his master. It was of special importance at this time because, as Mr. Moore said in opening his argument, there was then a tendency in public opinion to consider “that any means may be resorted to coerce the perfect submission of the slave to the master’s will; and that any resistance to that will, reasonable or unreasonable, lawfully places the life of the slave at the master’s feet.” It was necessary, he added, to find the line ‘between the lawful and unlawful exercise of the master’s power.”
The “tendency” here referred to had been indicated five years earlier in the case of The State vs. Mann (2 Devereux, 263), in which the point was decided as to a master’s liability for a battery inflicted on his slave. Then it was decided that a master was “not liable for an indictment for a battery committed upon his slave.” The opinion was delivered by Judge Ruffin, who said, and his words sound like the sentence of fate for the unprotected slave: The end of slavery “is the profit of the master, his security, and the public safety. The subject is one doomed in his own person and his posterity to live without knowledge, and without the capacity to make anything his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being to convince him, what it is impossible but that the most stupid must feel and know can never be true, that he is thus to labor upon a principle of natural duty or for the sake of his own personal happiness? Such services can only be expected from one who has no will of his own, who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else that can operate to produce the effect. The power of the master must be absolute to render the submission of the slave perfect. I must freely confess my sense of the harshness of this proposition. I feel it as deeply as any man can. And as a principle of moral right every person in his retirement must repudiate it; but in the actual condition of things it must be true. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited without abrogating at once the rights of the master and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and free portions of our population.”
The harshness of this opinion strikes us more forcibly even than it struck the illustrious judge who delivered it. Yet it is not difficult to see that it grew logically out of the theory of slavery. To overthrow it demanded a sagacious appeal to the humane spirit of the court. That was the line followed by Mr. Moore. In opening his argument he laid down two propositions: “1. If Baxter’s shot had killed the prisoner, Baxter would have been guilty of manslaughter at least; and 2. This position being established the killing of Baxter under the circumstances related was manslaughter in the prisoner.” It was on the former of these propositions that he was confronted with Judge Ruffin’s opinion in The State vs. Mann. Of these sentiments he said: “It is humbly submitted that they are not only abhorrent and startling to humanity, but at variance with statute and decided cases.” “Absolute power,” he continued, “is irresponsible power, circumscribed by no limits save its own imbecility and selecting its own means with unfettered discretion.” The language of the court would have applied to slavery in ancient Rome or in Turkey, but it was in direct contradiction to the opinion of our own Judge Henderson, who had said that the master’s power extended “to the services and labor of the slave and no farther,” and that the authority over his life was reserved to the law. Judge Ruffin had added to his opinion the statement that he was gratified to know that public opinion would protect the slave from abuse under the harsh ruling of the law. This is an excuse that the apologists of slavery to this day have not ceased to repeat. It was met by Mr. Moore most effectively: “Wherein lies the necessity to clothe the master with absolute authority over the slave? If this necessity exists public sentiment is not so strong as is claimed. If it does not exist ‘the power is given for abuse and not to accomplish the object of slavery.’ It would seem that the result of the opinion of the court was ‘to teach the kind master how merciful and moderate he is in the midst of such plentitude of power and the cruel one how despised and desecrated he will be if he uses its legal license.’ ”
It is impossible to summarize here all of Mr. Moore’s argument; yet I cannot refrain from introducing one eloquent outburst. Judge Ruffin had said in the opinion already quoted that the slave must be made to realize that the master’s power was “in no one instance usurped.” This, exclaimed the generous attorney, repressed thought and “reduced into perfect tameness the instinct of self-preservation,” a result difficult to accomplish and lamentable if accomplished. But if the relation of slavery required “that the slave shall be disrobed of the essential features that distinguish him from the brute, the relation must adapt itself to the consequences and leave its subjects the instinctive privileges of a brute. I am arguing no question of abstract right, but am endeavoring to prove that the natural incidents of slavery must be borne with because they are inherent to the condition itself; and that any attempt to punish the slave for the exercise of a right which even absolute power cannot destroy is inhuman and without the slightest benefit to the security of the master or to that of society at large. The doctrine may be advanced from the bench, enacted by the legislature, and enforced with all the varied agony of torture and still the slave cannot believe and will not believe that there is no one instance in which the master’s power is usurped. Nature, stronger than all, will discover many instances and vindicate her rights at any and at every price. When such a stimulant as this urges the forbidden deed, punishment will be powerless to proclaim or to warn by example. It can serve no purpose but to gratify the revengeful feelings of one class of people and to inflame the hidden animosities of the other.” Was ever the cause of the slave pleaded more eloquently in the land of freedom than by this son of the yeoman class before the highest tribunal of the land of slaveholders ?
Attention was then turned to the question of provocation. Could a slave be provoked in law? Had Will been a white freeman or an apprenticed freeman, the crime would have clearly been manslaughter. Mr. Moore demanded for the slave all the consideration of a white man under like conditions, to whom he was similar in feelings of resentment and in the instinct of self-preservation. The law had not required him to extinguish this instinct, and he accordingly had full right to plead a legal provocation. In conclusion the counsel referred to the necessity of defining the position of a slave in regard to his life. “I feel and acknowledge,” lie said, “as strongly as any man can the inexorable necessity of keeping our slaves in a state of dependence and subservience to their masters, but when shooting becomes necessary to prevent insolence and disobedience it only serves to show the want of proper domestic rules.”
The slave Will was as fortunate in his judge as in his counsel. On the bench was William Gaston, as noted for his humanity as for his ability in his profession. To him fell the duty of writing the opinion. The task was performed clearly and emphatically. It was all on the side of the prisoner clearly giving him the right of defense against his master’s attempt to take his life. It declared: –Unconditional submission is, in general, the duty of the slave; unquestioned power is, in general, the legal right of the master. Unquestionably there are exceptions to this rule. It is certain that the master has not the right to slay his slave, and I hold it to be equally certain that the slave has the right to defend himself against the unlawful attempt of his master to deprive him of life. There may be other exceptions, but in a matter so full of difficulties, when reason and humanity plead with almost irresistible force on one side, and a necessary policy, rigorous, indeed, but inseparable from slavery, urges on the other, I fear to err should I undertake to define them.” The court hesitated to define exactly a legal provocation in a case like this. It did say that if a slave were excited into unlawful violence by the inhumanity of his master, it ought not to be concluded that such passions sprang from malice. “The prisoner is a human being,” said the court, “degraded by slavery, but yet having ‘organs, senses, dimensions, passions,’ like our own.” On the evidence no malice could be found, and, it was concluded, none had existed. The killing was accordingly a felonious homicide and not murder.
It was a notable victory and reflected as much credit on the State as on the brilliant and humane lawyer who had won it. It was quoted and commented upon extensively throughout the Union. It fixed forever afterwards the rights of a slave in cases like the one under consideration. In not another instance was a case of kindred nature brought before our courts. Most important of all it was a triumph of humanity and served to commit our law of slavery to a more lenient policy than existed in some other States
JOAN S. BASSETT.