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.