Part 36

"That the prisoner, Will, was the property of James S. Battle, and the deceased, Richard Baxter, was the overseer of said Battle, and entrusted with the management of the prisoner at the time of the commission of the homicide; that early in the morning of the 22d day of January last, on which day the killing took place, the prisoner had a dispute with slave Allen, who was likewise the property of said Battle, and a foreman on the same plantation of which the deceased was overseer; that the dispute between the prisoner and the said Allen arose about a hoe which the former claimed to use exclusively on the farm on account of his having helved it in his own time; but which the latter directed another slave to use on that day. That some angry words passed between the prisoner and the foreman, upon which the prisoner broke out the helve, and went off about one-fourth of a mile to his work, which was packing cotton with a screw; that very soon after the dispute between the prisoner and the foreman, the latter informed the deceased what had occurred, who immediately went into his house; that while the deceased was in his house, his wife was heard to say, 'I would not, my dear,' to which he replied in a positive tone of voice, 'I will'; that in a very short time after this the deceased came out of his house to the place where the foreman was, and told him that he, the deceased, was going after the prisoner, and directed the foreman to take his cowhide and follow him at a distance; that the deceased then returned into the house and took his gun, mounted his horse and rode to the screw, a distance of about six hundred yards, where the prisoner was at work; that the deceased came up within twenty or twenty-five feet of the screw without being observed by the prisoner; dismounted and hastily got over the fence into the screw-yard; that the deceased, with his gun in his hand, walked directly to the box on which the prisoner was standing, engaged in throwing cotton, and ordered the prisoner to come down; that the prisoner took off his hat in an humble manner and came down; that the deceased spoke some words to the prisoner which were not heard by any of the three negroes present; that the prisoner thereupon made off, and getting between ten and fifteen steps from the deceased, the deceased fired upon him; that the report of the gun was very loud, and the whole load lodged in the prisoner's back, covering a space of twelve inches square; that the wound caused thereby might have produced death; that the prisoner continued to make off through a field, and after retreating in a run about one hundred and fifty yards in sight of the deceased, the deceased directed two of the slaves present to pursue him through the field, saying that 'he could not go far'; that the deceased himself, laying down his gun, mounted his horse, and having directed his foreman, who had just come up to pursue the prisoner likewise, rode round the field and headed the prisoner; that as soon as the deceased had done this, he dismounted, got over the fence and pursued the prisoner on foot; that as soon as the prisoner discovered he was headed, he changed his course to avoid the deceased, and ran in another direction towards the wood; that after pursuing the prisoner on foot two or three hundred yards, the deceased came up with him and collared him with his right hand; that at this moment the negroes ordered to pursue the prisoner were running towards the prisoner and the deceased; that the prisoner had run before he was overtaken by the deceased five or six hundred yards from the place where he was shot; that it was not more than six or eight minutes from the time of the shooting till the slaves in pursuit came to where the prisoner and deceased were engaged; that in a short time the said slaves came up, and being ordered by the deceased, one of them attempted to lay hold of the prisoner, who had his knife drawn, and the left thumb of the deceased in his mouth; that the prisoner struck at said slave with his knife, missed him and cut the deceased in the thigh. That in the scuffle between the prisoner and the deceased, after the deceased overtook the prisoner, the deceased received from the prisoner a wound in his arm which occasioned his death; and that the deceased had no weapons during the scuffle. That soon after, the deceased let go his hold on the prisoner, who ran towards the nearest woods and escaped; that the deceased did not pursue him, but directed the slaves to do so; that the deceased soon recalled the slaves, and when they returned the deceased was sitting on the ground bleeding, and as they came up the deceased said, 'Will has killed me; if I had minded what my poor wife said, I should not have been in this fix.' That besides the wound on his thigh the deceased had a slight puncture on his breast, about skin-deep, and a wound about four inches long and two inches deep on his right arm, above his elbow, which was inflicted by the prisoner, and which from loss of blood occasioned his death, and that he died on the same day in the evening; that the prisoner went the same day to his master and surrendered himself; that the next day, upon being arrested and informed of the death of the deceased, the prisoner exclaimed, 'Is it possible?' and appeared so much affected that he came near falling, and was obliged to be supported. That the homicide and all the circumstances connected therewith took place in Edgecombe county.

"But whether upon the whole matter aforesaid the said Will be guilty of the felony and murder in the said indictment specified and charged upon him, the said jurors are altogether ignorant, and pray the advice of the Court thereupon. And if upon the whole matter aforesaid it shall appear to the Court that he is guilty of the felony and murder wherewith he stands charged, then, they find him guilty. If upon the whole matter aforesaid, it shall appear to the Court that he is not guilty of the murder aforesaid charged upon him by said indictment, then the said jurors upon their oaths aforesaid, do say, that the said Will is not guilty of the murder aforesaid, as the said Will has for himself above in pleading alleged, but that the said Will is only guilty of feloniously killing and slaying the said Richard Baxter." Upon this special verdict, his Honor gave judgment that the prisoner was guilty of murder, and pronounced sentence of death; whereupon the prisoner appealed to the Supreme Court.

B. F. MOORE FOR THE PRISONER.--It is conceded that Baxter occupied the place of master, and, in his capacity of overseer, was invested with all the authority of owner, in the means of rendering the prisoner subservient to his lawful commands. With this concession, freely made, it is believed, that if the shot of the deceased had proved fatal, he had been guilty of murder, and not of manslaughter only. The instrument used, and the short distance between the parties, were calculated to produce death; and nothing but the want of malice could have deprived the act of any of the features of murder. The disobedience of running from his master on account of threatened chastisement, however provoking, does not justify the death of a slave. It is truly calculated to surprise the master into a sudden gust of passion, and, on this account, death inflicted during such a moment may well be mitigated to the offense of manslaughter. But it is only the surprise of the passions that will extenuate their transport. Divest the act of all idea of surprise, it then becomes deliberate, and in law, there will be no difference between shooting for the disobedience at the moment of running away, and many days thereafter. It is clear then, that if Baxter's shot had been fatal, he had been guilty of murder and not of manslaughter. For, that he loaded his gun and proceeded to the cotton-screw with the intent to shoot the prisoner, if the latter should make off, is manifest from his whole conduct, and particularly so, from the fact of his directing the foreman to walk behind at a distance. If he had armed himself for defense, expecting a conflict with the prisoner, he would have summoned his aid and kept it at his heels ready for the encounter. The bloody purpose of shooting had certainly been formed, and the time given him for reflection and the calm concoction of his plans evince a settled design and perfect deliberation. He was not surprised into the act of shooting; it was deliberate; it was expected and intended beforehand, and, therefore, murderous.

It is further believed by the prisoner's counsel, that if on firing the shot, Baxter had rushed towards him in a threatening manner, and the prisoner had turned, being unable to escape, and slain the deceased, the act had been homicide _se defendendo_, and this upon the clearest principles of criminal law.

The prisoner's counsel contends:

_First_, That if Baxter's shot had killed the prisoner, Baxter would have been guilty of manslaughter at the least.

_Second_, This position being established, the killing of Baxter under the circumstances stated is but manslaughter in the prisoner.

The first position would seem too plain to be argued; but as an opinion appears to be rapidly pervading the public mind that any means may be resorted to to coerce the perfect submission of the slave to his master's will, and that any resistance to that will, reasonable or unreasonable, lawfully places the life of the slave at his master's feet, it may be useful to attempt to draw the line, if there be any, between the lawful and unlawful exercise of the master's power. That there is such a line, though it may be difficult in all cases to find it and fix it with precision, is nevertheless true; and although the courts may resolve that in all cases short of homicide they will not look for it, yet, disagreeable and perplexing as the task may be, they cannot avoid the search so long as a master may be tried for the homicide of the slave, or so long as the slave may set up any defense for the homicide of his master.

It is not intended to combat the correctness of the decision in the _State_ vs. _Mann_, 2 Dev., 263, though that case leaves the slave, when his life is spared, under the slender guardianship of the "frowns and execrations" of a moral community against cruelty. That decision is not understood by me as some have expounded it. In declaring that a master cannot be indicted for a battery on his slave, the Court is not to be understood to affirm that he cannot be indicted for any offense which necessarily includes a battery. I apprehend the substance of their decision to be that they will take no cognizance of any violence done to the slave by the master which does not produce death. It is true, there is a portion of the opinion of the Court which puts the slave entirely out of the pale of the law, and secures the master in a despotic immunity. On page 266 the Court says: "Such obedience is the consequence of only uncontrolled authority over the body; there is nothing else which can operate to produce the effect; the power of the master must be absolute to render the submission of the slave perfect. In the actual condition of things it must be so, there is no remedy; this discipline belongs to the state of slavery; they cannot be disunited without abrogating at once the right of the master and absolving the slave from his obligation." These expressions, it must be admitted, are clear beyond cavil in their meaning, and that they were selected to convey, with great accuracy, the opinions of the learned judge who used them, may be well argued from the frank confession which he avows of their abhorrence. In truth, they do outlaw the slave and legalize his destruction at the will of his master. It is believed, however, that they were never intended to cover the entire relation between master and slave. If they were, it is humbly submitted that they are not only startling and abhorrent to humanity, but at variance with statute law and decided cases. Uncontrolled authority over the body is uncontrolled authority over the life; and authority, to be uncontrolled, can be subject to no question. Absolute power is irresponsible power, circumscribed by no limits save its own imbecility, and selecting its own means with an unfettered discretion. Absolute power is exempt from legal inquiry, and is absolved from all accountability for the extent or mode of its exercise.

During its operations it acknowledges no equal which may check its will, and knows no superior afterwards which may rightfully punish its deeds. The language of the Court does not strictly and precisely describe the relation of master and slave which subsisted in ancient Rome, and does now subsist in modern Turkey; a relation which this Court in the case of _State_ vs. _Read_ did most emphatically denounce as inhuman, unsuited to the genius of our laws, and unnecessary to protect the master in his legal rights. In that case Judge Henderson fixes the true boundary of the master's power. It extends, says he, to securing the services and labors of the slave, and no farther. And he expressly declares that a power over the life of the slave is not surrendered by the law, because the possession of such a power is noways necessary to the purposes of slavery, and that his life is in the care of the law.

The idea of the perfect submission of the slave is in true accordance with the policy which should regulate that condition of life, wherever it may exist. But whether it will more certainly result from the absolute power of the owner than from a large but limited authority, is questionable indeed. More especially, if it be true, as argued in the opinion already referred to, that the absolute power of the master, although left unrestrained by law, is checked and fettered by what is stronger than law, the irresistible force of public sentiment. If that force is now setting in a counter-current against the license of absolute power, either it is to be deprecated and stopped, or absolute power is most clearly proved to be unnecessary to the ends of slavery. The courts of the country should foster the enlightened benevolence of the age, and interpret the powers which one class of the people claim over another, in conformity, not with the spirit which tolerates the barbarian who is guilty of savage cruelty, but with that which heaps upon him the frowns and deep execrations of the community. All domestic police power must be regulated by the feelings and views of those who dispense it. If it be true, then, that public sentiment will no longer tolerate the excessive cruelties from the master, as is said by Taylor, Chief Justice, in the _State_ vs. _Hale_; by Henderson, Chief Justice, in the _State_ vs. _Read_; and by Ruffin, Chief Justice, in the _State_ vs. _Mann_; and if it be true, likewise, that the relation between master and slave is to be discovered from the opinions and feelings of the masters, we cannot hear without surprise that it is necessary, in the actual condition of things, to clothe the master with an uncontrolled and absolute authority over the body of the slave. If such necessity now exists, the rhetorician hath spoken, and not the judge. If such necessity does not exist, the power is given for abuse, and not to accomplish the objects of slavery. It would seem really, that whilst the courts are lauding the Christian benevolence of the times manifested by the humane treatment of the slaves, they are engaged in investigating to what possible extent the master may push his authority without incurring responsibility. They feel shocked at the discovery they make themselves, but rise from their labor with the consolation that few are so abandoned to a sense of public indignation as to enjoy the revealed prerogative. If the expression could be divested of the appearance of sarcasm, some truth might, perhaps, be found in the assertion that the great result of their disclosure has been to teach the kind master how merciful and moderate he is in the midst of such plenitude of power, and the cruel one, how despised and desecrated he will be if he use its legal license. Good men will feel no pleasure in the revealment, bad men will be freed from the check of ignorance.

It is further said in the _State_ vs. _Mann_, "That the slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power in no one instance is usurped." The language here is equally explicit, and altogether as strong, as that before quoted. It denies to the slave the smallest attribute of a rational or feeling creature. It not only represses thought, and extinguishes all power to deliberate on any command of his master, however repugnant to natural justice it may be, and whether its execution is to affect himself or others; but it professes to control into perfect tameness the instinct of self-preservation. It would be difficult, and if it were easy, it would be lamentable, to accomplish the former; but it would be impossible to effect the latter. Such insensibility to life would defeat the very object of its inculcation--the value of the slave. For we can never hope to regulate this powerful instinct of nature with an adjustment which will quietly yield all its love of life into the hands of a ferocious master and yet preserve it against the world beside. But if it were desirable so far to annihilate it, the task is beyond the reach of human ingenuity and not to be accomplished by the possession of absolute power, however fearfully enforced or terribly exercised. The relation of master and slave may repress all the noble energies and manly sentiments of the soul, and may degrade the moral being into a brute condition. And when this is done we shall not be astonished to see the moral brute exhibiting the instinct natural to the brute condition. How vain must it always be, when we shall have reduced humanity to its ultimate capability of degradation, to expect any embellishment of mind to adorn the wretched existence. If the relation require that the slave be disrobed of the essential features which distinguish him from the brute, the relation must adapt itself to the consequences and leave its subject 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 restrain or punish a 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 reclaim 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.

With great deference to the opinion already commented on, it would appear to me that a conclusion directly the reverse as to the necessity of the absolute power in the master should have been drawn from the premises. The slave can only expect to learn the law of the land as respects the power of the owner over him, from the manner in which it is generally, and almost universally, administered by the owner. If their treatment is now so mild or becoming so, as rarely to require the interposition of any tribunal for their protection, they will soon be taught by the conduct of their masters, if not already taught, that absolute power is not the master's right; and the consequence which may be expected will be that the slave will be prepared to resist its exercise when bad men attempt to commit the cruelties allowed by it. So important is it that the Court should, as far as possible, conform their exposition of the rights of men with those sentiments of the public which, by the Court themselves, are admitted to be wholesome and just. And especially should they do so when those rights are constituted by public opinion and almost exclusively by that alone.

Whatever be the power, however, which the master may possess, it is given with the sole view to enable him to coerce the services of the slave, and all experience teaches us that a power over life is not necessary to effectuate that end.

The usual modes of correction are found to be altogether sufficient. Punishment short of death serves the end of the master both as a corrective and as an example. Power over the life of the slave, being therefore unnecessary, ought not to be conceded. The use of highly dangerous weapons in cases of simple disobedience is not tolerated by the law, because they are calculated to produce death.

If the deceased had been resisted a great degree of force might have been used, and the law would not have been scrupulous in determining the excess. If he had been chastising the prisoner in the ordinary mode and death had ensued, it would have been nothing more than an unfortunate accident. But the prisoner was neither resisting his master nor did the calamity grow out of any attempt to chastise. It is confidently contended that a master has not by the law of the land the right to kill his slave for a simple act of disobedience, however provoking may be the circumstances under which it is committed; that if a slave be required to stand, and he run off, he has not forfeited his life. This is conclusive, if the law will never justify a homicide except it be committed upon unavoidable necessity, and will never excuse one, except it be done by misadventure or _se defendendo_. There is no principle of criminal law which will justify or excuse the death that has been caused through the provocation of the passions alone.

This court has repudiated all idea of similarity between the relation of master and apprentice, as understood in the English law, and that of master and slave as understood in ours. I cannot perceive the propriety of such total repudiation. The foundation of both relations is the same, to wit, service; and although the slave may stand in a lower grade than the mere apprentice, and be more dependent on his master, yet it is submitted that the difference is in the degree and not in the nature of the authority which the master of the one or the other may exercise. This seems to have been the idea of Justice Blackstone, who, in speaking of homicide by parents and masters caused by immoderate correction, proceeds: "Thus by an edict of the Emperor Constantine, when the rigor of the Roman law began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment; and if death accidentally ensued he was guilty of no crime; but otherwise, if he struck him with a club or a stone, and thereby occasioned his death, or if in any yet grosser manner (as by shooting), _immoderate suo jure utatur, tunc reus homicidii sit. 4 Bl. Com., 183._"