Chapter XVI: Part 16

The place which will be awarded him in the rank of orators will not be the highest. Indeed at oratorical effects, purely as such, he never aimed. There is no doubt but that he might have employed the resources of oratory, other than the very highest, to a much greater extent than he did. All who have heard him in capital trials, and on other occasions when great interests were at stake, were persuaded that he possessed reserved resources of this kind to which he did not give play, and which he could have called into requisition at will. That he refrained was matter of deliberate judgment. He preferred to address himself to the understanding. He relied wholly upon argument, disdaining the adjuncts of mere rhetoric. He knew that the triumphs of reason are more durable than those which are the offspring of excited feeling. Reaction and change follow the latter; the former leave full, permanent conviction.

As a parliamentary speaker and as an advocate he stood in the first rank. His style was that which finds so much favor among eminent English statesmen, that style in which the results of thought and research are given with the warmth and ease of animated and unpremeditated conversation.

In addition to his high intellectual endowments, nature had to him been profuse in external gifts. In person he was the ideal of the patrician. His features, regular and classic in their outline, would have satisfied a sculptor. The habitual expression of his face was one of blended thought, refinement and quiet will. His form was noble and commanding; cast, indeed, in nature's finest mould. These advantages were set off by a dress always scrupulously neat, and sufficiently conformed to the prevailing mode to escape observation. The advantages, thus slightly touched upon, were singularly calculated to impress favorably the mind of any audience. If we add that he appeared before every audience with the prestige of a character, which calumny itself would own to be without a blemish, the causes of his uniform success are easy to discern.

He possessed in many respects the temperament of a great commander. As difficulties thickened around him his courage seemed to rise, and his resources to develop. No man ever fought a losing cause with more courage and constancy. When in important cases the tide of testimony unexpectedly turned and flowed dead against him there was nothing in his look or manner that betrayed the change. His attention would be redoubled, but in all else there was so much of calm composure that lookers-on, inattentive to the evidence, have left the court house under the impression that he would gain the cause. He preserved, under all circumstances in the trial of causes, the lofty tenor of his bearing. He was never betrayed into an altercation with witnesses. It may be that awe of his character, and a consciousness of his practiced sagacity and penetration constrained witnesses, when in his hands, to an unwonted utterance of the truth. This impression may have been assisted, and probably was, by the fairness and integrity observable in his whole bearing. But whatever the cause, it is certain he never resorted to boisterous tones or a browbeating manner. Equally removed was his manner from all the arts of cajolery. In his examination of the most refractory witness his mien was calm, his look observant and penetrating, his voice never or but slightly raised above its ordinary tone. In such a contest, the contest between acute, disciplined reason, and cunning or obstinate knavery, the victory was always on the side of the former.

In his moral constitution he was complete on every side. All his conduct in life was regulated not only by the highest sense of honor, but by the most scrupulous sense of duty. This supreme sense of duty in everything that he did, whether great or small, was his distinguishing characteristic. From his cradle to his grave not a shadow of a shade ever rested upon him. Esteeming a stainless character as the highest of all earthly possessions, he exercised the most scrupulous caution in his judgment of others. Few men were more often in the public arena. He took part in all the political canvasses of his time; in many of which partisan feeling was inflamed to the highest pitch. Yet he never assailed the motives of his opponent and never left any feeling of personal injury rankling in his bosom. He always contended for principle, and disdained to use any argument which reason would not sanction.

In debate he was a model of candor, and whoever might be his opponent he would always accept Mr. Graham's statement of his position. In all his intellectual conflicts, whether at the bar, on the hustings or in the Senate, under no provocation was he ever excited to an unseemly exhibition of temper. "Although," said a gentleman of high distinction, who knew him long and well (Hon. S. F. Phillips), "I have been present at the bar, and upon other public occasions when he must have been greatly tried, I have never seen his countenance degraded by an expression of passion. His look may at times have been stern and high, but at all times it could with advantage have been committed to marble or canvas."

It was the opinion of that eminent lawyer, Archibald Henderson, that public men should mingle much with the people--that there is to be found the true school of common sense. Either because he held the same opinion, but more probably from inclination, his intercourse with the people was constant and cordial. When in attendance on his courts it was his custom when the day was fine to repair, after the adjournment of court, to the portico of his hotel, or the lawn in front of it, and sit for an hour or two. This was often his custom after the evening meal, usually served in his circuit at hours primitively early. Here he became the centre of a group of citizens all of whom he received with courtesy. The talk on such occasions was free and general; and, whatever the topic, he listened to their views with attention, and in turn frankly gave his own. Thus his information in regard to all matters of general interest was minute and particular. It was thus, too, that he became informed as to the current opinion in regard to public men and public measures. This intimate knowledge of the people was one of the great sources of his strength; it rendered his judgment of the probable fate of State and national questions of great value. His judgment upon such matters, in the counties in which his circuit lay, was almost infallible.

In his social relations Mr. Graham was one of the most attractive of men. Few had so wide a circle of friends, or friends so attached. His manner to all men was urbane; to his friends cordial and sincere. There was, except to a very few, and at times even to them, a shade of reserve in his manners; but there was nothing of pride; nothing expressive of conscious superiority. There was great dignity, tempered by unfailing courtesy. Perhaps this tinge of reserve made his subsequent unbending the more agreeable. In his social hours, in the long winter evenings at court, with the circle gathered around the blazing hearth--it is as he was then seen that his friends love best to recall him. For many years there met together at one of his courts a number of gentlemen of high intellectual gifts and attainments. These were Hon. Robert Gilliam, Hon. Abram W. Venable, the present Judge of the Seventh Circuit, and others less known. With such men there was no need that any limitations should be imposed on the conversation. Except in the field of exact science they were very much at home in all. The conversation ranged wide, law, cases in court, history, biography, politics--largely interspersed with anecdotes--formed the topics.

The moral dignity of man never received a higher illustration than in the life before us. We admire the pure patriot in whose thoughts the State--her weal and her glory--was ever uppermost; the learned jurist who, from his ample stores informed, moulded the laws of his own commonwealth; the eloquent advocate who stood always ready to redress the wrong, whether of the individual or the community at large; the wise statesman who swayed the destinies of his State more than any of his generation. But we render the unfeigned homage of the heart to him, who by the majesty of his moral nature, passed pure and unsullied through the wide circle of trials and conflicts embraced in his life; and who, in his death, has left a fame that will be an incentive and a standard to the generous youth of North Carolina through all the ages that are to come.

* * * * *

The foregoing sketch is the main body of a memorial address on the "Life and Character of Governor Graham," delivered in Raleigh before the bench and bar of the Supreme Court, June 8, 1876.

Much of it has been omitted; for, while it was a labor of love (and there is much labor in it), it is too long for the scope of this work. If Mr. McGehee's power of condensation had been equal to his zeal and to his admiration and knowledge of Governor Graham's life and work this memorial would have been monumental.

As it stands now in its original form, or even as abridged in this book, in spite of some just criticisms which could be made against its style and method, it is an example of industry to those who seek to collect and preserve the facts which illustrate the lives of distinguished North Carolinians.

Who now, after the lapse of twenty years, could and would write this life? Who has done a similar service in respect to the lives of Mangum, Pearson, and others perhaps equally worthy?

Mr. McGehee's sketch is, however, rather a panegyric. No great man needs to be bolstered up with compliments, and praise cannot preserve mediocrity from oblivion.

Nothing better illustrates the defects of Southern education than the glittering generalities with which we would whitewash our distinguished dead--as if they needed it--or as if flattery could "soothe the dull, cold ear of death." We must show, rather than say, our great men are great, and for this purpose works are more effectual than words. By their fruits ye shall know them.

BARTHOLOMEW FIGURES MOORE.

BY ED. GRAHAM HAYWOOD.

A great lawyer, a cherished and distinguished citizen having fallen in our midst, in obedience to an honored custom, we turn aside from the ordinary pursuits and ambitions to pay this sad tribute to our illustrious brother.

Bartholomew Figures Moore having passed the age allotted to man by the Psalmist, in the midst of his friends and kindred, departed this life in the city of Raleigh, November 27, A. D. 1878. He was the son of a Revolutionary soldier, and born at the family residence near Fishing Creek in Halifax county, January 29, 1801.

Having prepared himself for college, he entered the University of the State in 1818, and in 1820 graduated with honor in a class of recognized ability.

Leaving the University, Mr. Moore read law with Hon. Thomas N. Mann, an able and distinguished lawyer of Nash county. After obtaining his license he entered upon the practice of his profession at the then flourishing village of Nashville, the county seat. His success for some years was not by any means flattering, yet the first five hundred dollars he received from his professional services he expended in traveling and familiarizing himself with his country.

In December, 1828, he married Louisa, a daughter of George Boddie, Esq., of Nash county, who lived only until the 4th of November, 1829. In April, 1835, he married Lucy W., likewise a daughter of George Boddie, who, having witnessed and shared his toils and triumphs, survives him, blessed with a large and estimable family.

He returned, in 1835, to Halifax, his native county, and while pursuing his profession, was elected successively to the House of Commons from 1836 to 1844, with the exception of 1838, when he was defeated in consequence of having voted to give State aid to the Wilmington and Weldon Railroad Company, of which he was a warm friend and an able advocate.

He was appointed Attorney-General of the State in 1848, and, upon the convening of the General Assembly in December, elected to the same position. This office he continued to hold and fill with great acceptability until he resigned it in consequence of being appointed a commissioner to revise the statute law of the State. To him was assigned the principal labor of arranging the matter and superintending the publication of the _Revised Code_.

While ample success crowned his professional career in Halifax county, yet in 1848 he removed to Raleigh, where he resided till the time of his death. Bringing with him his well-established reputation for research and ability, he continued to command an extended and lucrative practice in this and other parts of the State.

Mr. Moore early secured a high reputation as an able and profound lawyer by an elaborate brief in the celebrated case of the _State_ vs. _Will_, a slave (_1 Devereux and Battle's Law_). It was a case that awakened a general and profound interest throughout the country and settled the true relations between master and slave in our State. It recognized the right of the slave to defend himself against the assaults of his master in the preservation of his own life. It is reserved to but few of the profession to so impress their views upon the courts, in advance of public opinion, and to prepare so admirable a collocation of the law and to establish so durable a reputation upon any one case.

Mr. Moore was a close and painstaking student; reluctant to appear in any case without careful preparation; yet when he entered the combat, the rich and fertile resources of his well-stored mind clearly manifested that nothing rusted in his intellectual armory.

His mind was logical, his manner forcible, his ideas, without undue ornamentation, were clothed in strong and graphic language. He seized at once the strong points of his case, and pressed them with skill and sagacity. Possessed of a strong mind and robust constitution, he was a fine exemplification of the _mens sana in corpore sano_.

In politics he was a Whig, and admired a strong and stable government; an ardent lover of civil liberty, he watched with jealousy all legislation tending to encroach upon the guaranteed rights of the citizen.

A bold and avowed Union man, while the States were engaged in an unremitting and unrelenting civil war, his high character and recognized integrity secured him, even amidst the clash of arms, a respectful hearing, for it was known that he sympathized with his own people in their unequal conflict, and that often his hasty expressions were the result of deep convictions. Recognized as a pronounced and outspoken Unionist, it was but natural that he should be sought for and consulted by the President of the United States at the termination of the war.

His respect, however, for the constitutional limitations of the General Government compelled him to oppose the whole reconstruction policy, for he was incapable of yielding to the intrigues of the politician or the subservient traffic of a mere placeman.

He was a leading member of the State convention called by the President, and ably advocated the adoption of all such measures as were proclaimed as indispensably necessary to a rehabilitation of the State, believing that wise statesmanship required an early submission to the demands of the General Government.

Reared in a conservative school of politics, and devotedly attached to his State and the high character of her judiciary, he ever looked with distrust upon the election of judges for short terms and by popular ballot as an alarming inroad.

As a citizen, to the poor he was liberal and unostentatious, to his equals, frank and manly, to all, kind and just.

That he had his faults, none will deny; he was impatient of contradiction, at times impetuous and irascible, yet these were but the natural emotions of an ardent and sanguine temperament, and while they tended to obscure, did not infect those true and excellent qualities which lay beneath the surface.

He lived literally within the Augustan age of the profession in our State. With a Gaston, Daniel, and Ruffin on the bench, the logical and versatile Badger, the strong and rugged Saunders, the able, astute Haywood and their illustrious compeers as rivals at the bar, it is praise enough to say that he was ever equal to the emergency of any occasion.

He was the wisest man I ever knew. At his decease and almost for his whole life, though filling only a private station, he had come to be recognized as a distinct and efficient moral power in regulating the social and political welfare of the State. He lived almost to the utmost limit of the span allotted by the Psalmist to man. Satisfied with only some very brief honorable rest in extreme old age, he spent all these years of his life in active, unremitting, assiduous labor, and finished his career without a taint upon his honor or a stain upon his reputation. His life covers many epochs in our State and national history, and among them, the most solemn and imperative political crisis through which State and nation have yet passed. For forty years he was a leader in the legal profession, and for perhaps a quarter of a century he was the very head of the bar--_facile princeps_. Of all the gentlemen who composed the Raleigh bar, when I was first admitted to practice, he was the last relict--Badger, the two Busbees, Husted, Jones, Manly, Mariott, Miller, Rogers, Saunders, Sheppard, are all gone, sunk down--down with the tumult they made!

His thorough and life-long devotion to the enforcement of the laws preserving civil liberty, distinguished him among his fellows. No circumstances of danger--no allurements of ambition--no fear of consequences--no regard for himself, his family, his fortune, his future--no specious arguments of expediency ever tempted him upon any occasion to refrain from boldly and perseveringly, in public and in private, urging and enforcing his objections, whenever, wherever and in whatsoever form the liberty of the humblest citizen was threatened or invaded.

For solid wisdom, penetrating foresight, invariable sagacity, he had no peer, and he has left behind none like him. He had nothing but observation, reason and a sense of duty to guide him, and these he obeyed under trials and temptations which it is to be hoped, for the sake of public virtue, are not to become common. In the presence of such manly, unselfish, heroic virtue, I uncover my head and put the shoes from off my feet and lift up my heart to God in thankfulness for the example of this His faithful soldier and servant. According to his lights he did his duty--a hard and painful duty it was, and the event has proved that his lights were as true as the sun in heaven. Every man is to be judged, so far as human judgment is to be passed upon him at all, by the tenor of the motives which actuated him, and to which the main current of his life responded. Judged by this standard his course with reference to the late social war must command admiration even of those who most earnestly condemned his action.

I do not think Mr. Moore had genius, but his talents were great, his will imperative, his industry unbounded, and his habit of methodical and exhaustive analysis unequaled. He had no great oratorical gifts, except to those cultivated minds to which lucidity of arrangement and logical presentation of a subject are most pleasing and convincing. Even his voice when addressing an audience was harsh and unmusical. But he was the most successful lawyer we had, and I remember watching his mode of managing a cause with admiration and wonder, and studying it, as the most perfect model within my reach. In this respect his professional skill and acumen were, and to the very end continued to be, unapproachable.

On a more favorable occasion it is to be hoped that some person well qualified for the task will lay before the profession a full, critical and careful history and examination of some of the numerous great causes in which he appeared and his arguments therein; in one or the other of which, as I verily believe, is exhibited every variety of intellectual excellence demanded for the elucidation and application of law in the courts of justice. His briefs in the _State_ vs. _Will_, _Moye_ vs. _May_, and _Walton_ vs. _Gatling_ are all models; each one has its distinct method and discloses a special excellence.

During the period I knew him, which extended through a quarter of a century, I never knew him to make a mistake of judgment. I do not mean that he never, upon some passing matter, erred in act or opinion, but in great crises when the waters of revolution were out and the files of political experience furnished no precedent for guidance--when all was on the hazard and he was called upon to use his wisdom in suggesting the best means applicable to the production of the best results, in predicting what results must follow from one course of action or another--he was almost infallible--his predictions were prophecies. His bare opinions had come to have in this community the weight of actual knowledge. "He was a man, take him for all in all, I shall not look upon his like again."

And in this connection let me say one word of a single episode in Mr. Moore's career, with which I have heard some thoughtless persons find fault. I speak of his well known hostility to secession and the Confederate cause. Surely those who impute blame to him have not considered his motives, his opinions, his conduct. Mr. Moore was by conviction a Federalist, both in politics and in the construction which, as a lawyer, he gave to the Constitution of the United States; he denied always, from first to last, the right of secession; he thought the only safety for his people, for the State, for the nation, for civil liberty even, was in the perpetuation of the Union; with his far-seeing intellect he knew and foretold the fierce struggle to come, the bloodshed, the evil passions, the crime, the suffering which would accompany it, its failure, the dreadful consequences, the perils to all civil liberty and all rights of person and property which would result, many of which are not yet past. He made no secret of his opinions and his feelings at any time--he was constant, in season and out of season, in proclaiming them from the housetops, and in endeavoring to convert others to his views; to him the result--the failure--was always present in all its shocking and useless reality; and when the good opinion of his neighbors and friends (which he cherished as much as any man) was at stake, and his liberty, his future, his reputation, his very life, was on the hazard of a die--he yet stood steadfast as the Northern Star--"Of whose true, fixed and resting quality there is no fellow in the firmament."

Which of his faultfinders would have done as much under like circumstances? Which one of us, I pray you, oh! hot-blooded secessionists, Hebrew of the Hebrews, if we had had his prevision, would have obeyed the dictates of our convictions and have exhibited such courageous virtue?

But, in my opinion, the _Revised Code_ is the greatest monument he has left of the excellent and rare endowments of his mind; especially does it illustrate his profound knowledge of the written law of North Carolina at the date of its preparation. Lord Coke said of Littleton's treatise on _tenures_, "I affirm, and take upon me to maintain, against all opposites whatsoever, that it is a work of as absolute perfection in its kind, and as free from error, as any book that I have ever known to be written of any human learning"; and I venture to adopt his language as applicable to the _Revised Code_. Its great and surpassing excellence can only be fully perceived and appreciated by those who have studied it, and have long had occasion to apply it practically. They will have seen that it is far more than a bare compilation of statutes--far more than a codification of existing acts of Assembly, but that it has amended and perfected every such act in those particulars in which it has been proved by experience to be imperfect. It indicates a profound and exact knowledge of every principle which had been established, and every decision which had then been made by our courts, and an exhaustive, methodical analysis of the fundamental principles of the common law.

Having carefully arranged his affairs, and provided for the wife and children whom he loved, and disposed of his great estate, he retired to his chamber and folded his mantle about him to die as he had lived, with decency. Weary and worn, perhaps disappointed, certainly disenchanted, disillusioned of all the bright dreams of his green manhood--let us follow him there: be ye sure that sacred chamber was not haunted by memories of evil deeds, of sins that had sorrowfully come home at nightfall--with hopes that had borne no fruit, with resolves abandoned almost as soon as formed. His strength failed him more and more; painlessly he sinks into the lethargy of approaching death, while his children gather around his couch. What are the last feeble syllables which they hear from the dying lips of this gray-haired veteran--"I am tired now. I am going to my mother in Heaven."

Perhaps he knew that there were some heavy items underscored against him, but he also knew that the mercy of God can even outdo the hope He gives us for token and keepsake. A greater and a grander end, after a life of mark and power, might, to his early aspirations and self-conscious strength, have seemed the bourne intended. If it had befallen him--as but for himself it would have done--to appear more actively in official life, where men are moved by ambition and bold decision, his name would have been more famous in history--but perhaps also better known to the devil. As it was, he lay there dying, and was well content. The turbulence of his life was past, the torrent and the eddy, the attempt at fore-reaching upon his age, and the sense of impossibility, the strain of his mental muscles to stir the "great dead trunks of orthodoxy"--and then, the self-doubt, the chill, the depression which follow such attempts, as surely as ague tracks the pioneer--thank God, all this was over now--the violence gone--and the dark despair. Of all the good and evil things which he had known and felt, but two yet dwelt in the feeble heart--only two still showed their presence in his dying eyes and words. Each of these two were good--if two indeed they were--faith in the Heavenly Father, and love of the earthly children.

"When the young are stricken down, and their roses nipped in an hour by the destroying blight, even the stranger can sympathize, who counts the scant years on the gravestone, or reads the notice in the newspaper corner. The contrast forces itself upon you. A fair young creature, bright and blooming yesterday, distributing smiles, levying homage, inspiring desire, conscious of her power to charm, and gay with the natural enjoyment of her conquests--who, in his walk through the world has not looked on many such a one; and, at the notion of her sudden call away from beauty, triumph, pleasure, her helpless outcries during her short pain, her vain pleas for a little respite, her sentence and its execution, has not felt a shock of pity? When the days of a long life come to their close, and a white head sinks to rise no more, we bow our own with respect as the mourning train passes, and salute the heraldry and devices of yonder pomp, as symbols of age, wisdom, deserved respect, merited honor--long experience of suffering and action. The wealth he has achieved is the harvest he has sowed; the title on his hearse, fruits of the field he bravely and laboriously wrought in. Around his grave are unseen troops of mourners waiting; many and many a poor pensioner trooping to the place; many weeping charities; many kind actions; many dear friends beloved and deplored, rising up at the toll of that bell to follow the honored hearse; dead parents waiting above, and calling 'come son,' lost children, heaven's foundlings, hovering around like cherubim, and whispering 'welcome, father.'"

"Here lies one who reposes after a long feast, where much love has been; here slumbers, in patience and peace, a veteran, with all his wounds in front, and not a blot on his scutcheon after fourscore years of duty well done in the fierce and ceaseless campaign of life."

"Oh, yet we trust that somehow good
Will be the final goal of ill,
To pangs of nature, sins of will,
Defects of doubt, and taints of blood;

"That nothing walks with aimless feet;
That no one life shall be destroy'd,
Or cast as rubbish to the void,
When God hath made the pile complete;

"That not a worm is cloven in vain;
That not a moth with vain desire
Is shrivel'd in a fruitless fire,
Or but subserves another's gain.

"Behold, we know not anything;
I can but trust that good shall fall
At last--far off--at last, to all,
And every winter change to spring.

"So runs my dream; but what am I?
An infant crying in the night;
An infant crying for the light;
And with no language but a cry."

* * * * *

This sketch is the best part of Mr. Haywood's address to the bench and bar of Wake county, delivered shortly after Mr. Moore's death. If he presents the character of his subject correctly, as far as he goes, he does not make a complete sketch.

Mr. Haywood had the reputation of having more learning than judgment, and his reading in law was very wide; he was not the man to go into details and marshal the facts requisite for a perfect sketch.

Mr. Moore feared lest his fellow-countrymen should misjudge the motives which made him a Union man during the war. He therefore inserted in his will an _item_ which explains his views. No great man is ever careless of what his people and their posterity may think of his conduct. The records of his adopted county will safely keep his eloquent words, and the originality of _his_ method of preserving them will cause them to be republished from time to time.

Item 39 of Mr. Moore's will reads as follows:

"Prior to the late civil war I had been for more than thirty years much devoted to investigating the nature and principles of our Federal and State governments, and during that period, having been several times profoundly exercised as to the true and lawful powers of each--not as a politician, but as a citizen truly devoted to my country--I was unable, under my conviction of the solomn 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. I could not imagine a more terrible spectacle than that of beholding the sun shining upon the broken and dishonored fragments of States dissolved, discordant and belligerent, and on a land rent with civil feuds and drenched in fraternal blood. With this horrible picture of anarchy and blood looming up before my eyes, I could not, as a patriot, consent to welcome its approach to my own native land, and truly was I happy when I saw the sun of peace rising with the glorious promise to shine once more on States equal and free, honored and united. And although the promise has been long delayed by an unwise policy, and I myself may never see the full-orbed sun of liberty shine on my country and every part of it as once it did, yet I have strong hopes that my countrymen will yet be blessed with that glorious light."

The argument of Mr. Moore, or _brief_, as it is called, in the _State_ vs. _Will_, is the best thing of the kind in the law books of this State. I cannot prophesy much of a future in any field of public service for that young man who shall fail to be impressed and interested by this powerful production. I therefore give it entire.

ARGUMENT IN THE STATE _vs._ WILL.

BY B. F. MOORE.

The defendant was indicted for the murder of one Richard Baxter, and on the trial before Judge Donnell, at Edgecombe, on the last Circuit, the jury returned the following special verdict, viz.:

"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.