THE LEGAL DECISION.
The time for the session of the Supreme Court had now arrived, and
Clayton's cause was to be reconsidered. Judge Clayton felt exceedingly
chagrined, as the time drew near. Being himself the leading judge of the
Supreme Court, the declaration of the bench would necessarily be made
known through him.
"It is extremely painful to me," he said, to Mrs. Clayton, "to have this
case referred to me; for I shall be obliged to reverse the decision."
"Well," said Mrs. Clayton, "Edward must have fortitude to encounter the
usual reverses of his profession. He made a gallant defence, and
received a great deal of admiration, which will not be at all lessened
by this."
"You do not understand me," said Judge Clayton. "It is not the coming
out in opposition to Edward which principally annoys me. It is the
nature of the decision that I am obliged to make--the doctrine that I
feel myself forced to announce."
"And must you, then?" said Mrs. Clayton.
"Yes, I must," said Judge Clayton. "A judge can only perceive and
declare. What I see, I must speak, though it go against all my feelings
and all my sense of right."
"I don't see, for my part," said Mrs. Clayton, "how that decision can
possibly be reversed, without allowing the most monstrous injustice."
"Such is the case," said Judge Clayton; "but I sit in my seat, not to
make laws, nor to alter them, but simply to declare what they are.
However bad the principle declared, it is not so bad as the proclamation
of a falsehood would be. I have sworn truly to declare the laws, and I
must keep my oath."
"And have you talked with Edward about it?"
"Not particularly. He understands, in general, the manner in which the
thing lies in my mind."
This conversation took place just before it was time for Judge Clayton
to go to his official duties.
The court-room, on this occasion, was somewhat crowded. Barker, being an
active, resolute, and popular man, with a certain class, had talked up a
considerable excitement with regard to his case. Clayton's friends were
interested in it on his account; lawyers were, for the sake of the
principle; so that, upon the whole, there was a good deal of attention
drawn towards this decision.
Among the spectators on the morning of the court, Clayton remarked
Harry. For reasons which our readers may appreciate, his presence there
was a matter of interest to Clayton. He made his way towards him.
"Harry," he said, "how came you here?"
"The ladies," said Harry, "thought they would like to know how the thing
went, and so I got on to my horse and came over."
As he spoke, he placed in Clayton's hand a note, and, as the paper
touched his hand, a close spectator might have seen the color rise in
his cheek. He made his way back to his place, and opened a law-book,
which he held up before his face. Inside the law-book, however, was a
little sheet of gilt-edged paper, on which were written a few words in
pencil, more interesting than all the law in the world. Shall we commit
the treason of reading over his shoulder? It was as follows:--
"You say you may to-day be called to do something which you think
right, but which will lose you many friends; which will destroy
your popularity, which may alter all your prospects in life; and
you ask if I can love you yet. I say, in answer, that it was not
your friends that I loved, nor your popularity, nor your prospects,
but _you_. I _can_ love and honor a man who is not afraid nor
ashamed to do what he thinks to be right; and therefore I hope ever
to remain yours,
NINA.
"P. S. I only got your letter this morning, and have but just time
to scribble this and send by Harry. We are all well, and shall be
glad to see you as soon as the case is over."
"Clayton, my boy, you are very busy with your authorities," said Frank
Russel, behind him. Clayton hastily hid the paper in his hand.
"It's charming!" said Russel, "to have little manuscript annotations on
law. It lights it up, like the illuminations in old missals. But say,
Clayton, you live at the fountain-head;--how is the case going?"
"Against me!" said Clayton.
"Well, it's no great odds, after all. You have had your triumph. These
after-thoughts cannot take away that.... But hush! There's your father
going to speak!"
Every eye in the court-room was turned upon Judge Clayton, who was
standing with his usual self-poised composure of manner. In a clear,
deliberate voice, he spoke as follows:--
"A judge cannot but lament, when such cases as the present are brought
into judgment. It is impossible that the reasons on which they go can be
appreciated, but where institutions similar to our own exist, and are
_thoroughly understood_. The struggle, too, in the judge's own breast,
between the feelings of the man and the duty of the magistrate, is a
severe one, presenting strong temptation to put aside such questions, if
it be possible. It is useless, however, to complain of things inherent
in our political state. And it is criminal in a court to avoid any
responsibility which the laws impose. With whatever reluctance,
therefore, it is done, the court is compelled to express an opinion upon
the extent of the dominion of the master over the slave in North
Carolina. The indictment charges a battery on Milly, a slave of Louisa
Nesbit....
"The inquiry here is, whether a cruel and unreasonable battery on a
slave by the hirer is indictable. The judge below instructed the jury
that it is. He seems to have put it on the ground, that the defendant
had but a special property. Our laws uniformly treat the master, or
other person having the possession and command of the slave, as entitled
to the same extent of authority. _The object is the same, the service of
the slave_; and the same powers must be confided. In a criminal
proceeding, and, indeed, in reference to all other persons but the
general owner, the hirer and possessor of the slave, in relation to both
rights and duties, is, for the time being, the owner.... But, upon the
general question, whether the owner is answerable _criminaliter_, for a
battery upon his own slave, or other exercise of authority or force, not
forbidden by statute, the court entertains but little doubt. That he is
so liable, has never been decided; nor, as far as is known, been
hitherto contended. There has been no prosecution of the sort. The
established habits and uniform practice of the country, in this respect,
is the best evidence of the portion of power deemed by the whole
community requisite to the preservation of the master's dominion. If we
thought differently, we could not set our notions in array against the
judgment of everybody else, and say that this or that authority may be
safely lopped off.
"This has indeed been assimilated at the bar to the other domestic
relations: and arguments drawn from the well-established principles,
which _confer_ and _restrain_ the authority of the parent over the
child, the tutor over the pupil, the master over the apprentice, have
been pressed on us.
"The court does not recognize their application. There is no likeness
between the cases. They are in opposition to each other, and there is an
impassable gulf between them. The difference is that which exists
between freedom and slavery; and a greater cannot be imagined. In the
one, the end in view is the happiness of the youth born to equal rights
with that governor on whom the duty devolves of training the young to
usefulness, in a station which he is afterwards to assume among freemen.
To such an end, and with such a subject, moral and intellectual
instruction seem the natural means; and, for the most part, they are
found to suffice. Moderate force is superadded only to make the others
effectual. If that fail, it is better to leave the party to his own
headstrong passions, and the ultimate correction of the law, than to
allow it to be immoderately inflicted by a private person. With slavery
it is far otherwise. The end is the profit of the master, his security,
and the public safety; the subject, one doomed, in his own person and
his posterity, to live without knowledge, and without the capacity to
make anything his own, and to toil that another may reap the fruits.
What moral considerations shall be addressed to such a being, to
convince him what it is impossible but that the most stupid must feel
and know can never be true,--that he is thus to labor upon a principle
of natural duty, or for the sake of his own personal happiness? Such
services can only be expected from one who has no will of his own; who
surrenders his will in implicit obedience to that of another. Such
obedience is the consequence only of uncontrolled authority over the
body. There is nothing else which can operate to produce the effect. THE
POWER OF THE MASTER MUST BE ABSOLUTE, TO RENDER THE SUBMISSION OF THE
SLAVE PERFECT. I most freely confess my sense of the harshness of this
proposition. I feel it as deeply as any man can. And, as a principle of
moral right, every person in his retirement must repudiate it. But, in
the actual condition of things, it must be so. There is no remedy. This
discipline belongs to the state of slavery. They cannot be disunited
without abrogating at once the rights of the master, and absolving the
slave from his subjection. It constitutes the curse of slavery to both
the bond and the free portions of our population. But it is _inherent in
the relation_ of master and slave. That there may be particular
instances of cruelty and deliberate barbarity, where in conscience the
law might properly interfere, is most probable. The difficulty is to
determine where a _court_ may properly begin. Merely in the abstract, it
may well be asked which power of the master accords with right. The
answer will probably sweep away all of them. But we cannot look at the
matter in that light. The truth is that we are forbidden to enter upon a
train of general reasoning on the subject. We cannot allow the right of
the master to be brought into discussion in the courts of justice. The
slave, to remain a slave, must be made sensible that there is no appeal
from his master; that his power is, in no instance, usurped, but is
conferred by the laws of man, at least, if not by the law of God. The
danger would be great, indeed, if the tribunals of justice should be
called on to graduate the punishment appropriate to every temper, and
every dereliction of menial duty.
"No man can anticipate the many and aggravated provocations of the
master which the slave would be constantly stimulated by his own
passions, or the instigation of others, to give; or the consequent wrath
of the master, prompting him to bloody vengeance upon the turbulent
traitor; a vengeance _generally practised with impunity, by reason of
its privacy_. The court, therefore, disclaims the power of changing the
relation in which these parts of our people stand to each other.
* * * * * * * * *
"I repeat, that I would gladly have avoided this ungrateful question.
But, being brought to it, the court is compelled to declare that while
slavery exists amongst us in its present state, or until it shall seem
fit to the legislature to interpose express enactments to the contrary,
it will be the imperative _duty_ of the judges _to recognize the full
dominion of the owner over the slave_, except where the exercise of it
is forbidden by statute.
"And this we do upon the ground that _this dominion is essential to the
value of slaves as property, to the security of the master and the
public tranquillity, greatly dependent upon their subordination_; and,
in fine, as most effectually securing the general protection and comfort
of the slaves themselves. Judgment below reversed; and judgment entered
for the defendant."
During the delivery of the decision Clayton's eyes, by accident, became
fixed upon Harry, who was standing opposite to him, and who listened
through the whole with breathless attention. He observed, as it went on,
that his face became pale, his brow clouded, and that a fierce and
peculiar expression flashed from his dark-blue eye. Never had Clayton so
forcibly realized the horrors of slavery as when he heard them thus so
calmly defined in the presence of one into whose soul the iron had
entered. The tones of Judge Clayton's voice, so passionless, clear, and
deliberate; the solemn, calm, unflinching earnestness of his words, were
more than a thousand passionate appeals. In the dead silence that
followed, Clayton rose, and requested permission of the court to be
allowed to say a few words in view of the decision. His father looked
slightly surprised, and there was a little movement among the judges.
But curiosity, perhaps, among other reasons, led the court to give
consent. Clayton spoke:--
"I hope it will not be considered a disrespect or impertinence for me to
say that the law of slavery, and the nature of that institution, have
for the first time been made known to me to-day in their true character.
I had before flattered myself with the hope that it might be considered
a guardian institution, by which a stronger race might assume the care
and instruction of the weaker one; and I had hoped that its laws were
capable of being so administered as to protect the defenceless. This
illusion is destroyed. I see but too clearly now the purpose and object
of the law. I cannot, therefore, as a Christian man, remain in the
practice of law in a slave state. I therefore relinquish the profession,
into which I have just been inducted, and retire forever from the bar of
my native state."
"There!--there!--there he goes!" said Frank Russel. "The sticking-point
has come at last. His conscience is up, and start him now who can!"
There was a slight motion of surprise in the court and audience. But
Judge Clayton sat with unmoved serenity. The words had struck to the
depth of his soul. They had struck at the root of one of his strongest
hopes in life. But he had listened to them with the same calm and
punctilious attention which it was his habit to give to every speaker;
and, with unaltered composure, he proceeded to the next business of the
court.
A step so unusual occasioned no little excitement. But Clayton was not
one of the class of people to whom his associates generally felt at
liberty to express their opinions of his conduct. The quiet reserve of
his manners discouraged any such freedom. As usual, in cases where a
person takes an uncommon course from conscientious motives, Clayton was
severely criticised. The more trifling among the audience contented
themselves with using the good set phrases, quixotic, absurd,
ridiculous. The elder lawyers, and those friendly to Clayton, shook
their heads, and said, rash, precipitate, unadvised. "There's a want of
ballast about him, somewhere!" said one. "He is unsound!" said another.
"Radical and impracticable!" added a third.
"Yes," said Frank Russel, who had just come up, "Clayton _is_ as radical
and impracticable as the Sermon on the Mount, and that's the most
impracticable thing I know of in literature. We all _can_ serve God and
Mammon. We have discovered that happy medium in our day. Clayton is
behind the times. He is _Jewish_ in his notions. Don't you think so, Mr.
Titmarsh?" addressing the Rev. Mr. Titmarsh.
"It strikes me that our young friend is extremely _ultra_," said Mr.
Titmarsh. "I might feel disposed to sympathize with him in the feelings
he expressed, _to some extent_; but it having pleased the Divine
Providence to establish the institution of slavery, I humbly presume it
is not competent for human reason to judge of it."
"And if it had pleased the Divine Providence to have established the
institution of piracy, you'd say the same thing, I suppose!" said Frank
Russel.
"Certainly, my young friend," said Mr. Titmarsh. "Whatever is divinely
ordered, becomes right by that fact."
"I should think," said Frank Russel, "that things were divinely ordered
because they were right."
"No, my friend," replied Mr. Titmarsh, moderately; "they are right
because they are ordered, however contrary they may appear to any of our
poor notions of justice and humanity." And Mr. Titmarsh walked off.
"Did you hear that?" said Russel. "And they expect really to come it
over us with stuff like that! Now, if a fellow don't go to church
Sundays, there's a dreadful outcry against him for not being religious!
And, if they get us there, that's the kind of thing they put down our
throats! As if they were going to make practical men give in to such
humbugs!"
And the Rev. Mr. Titmarsh went off in another direction, lamenting to a
friend as follows:--
"How mournfully infidelity is increasing among the young men of our day!
They quote Scripture with the same freedom that they would a book of
plays, and seem to treat it with no more reverence! I believe it's the
want of catechetical instruction while they are children. There's been a
great falling back in the teaching of the Assembly's Catechism to
children when they are young! I shall get that point up at the General
Assembly. If that were thoroughly committed when they are children, I
think they would never doubt afterwards."
Clayton went home and told his mother what he had done, and why. His
father had not spoken to him on this subject; and there was that about
Judge Clayton which made it difficult to introduce a topic, unless he
signified an inclination to enter upon it. He was, as usual, calm,
grave, and considerate, attending to every duty with unwearying
regularity.
At the end of the second day, in the evening, Judge Clayton requested
his son to walk in to his study. The interview was painful on both
sides.
"You are aware, my son," he said, "that the step you have taken is a
very painful one to me. I hope that it was not taken precipitately, from
any sudden impulse."
"You may rest assured it was not," said Clayton. "I followed the deepest
and most deliberate convictions of my conscience."
"In that case, you could not do otherwise," replied Judge Clayton. "I
have no criticisms to make. But will your conscience allow you to retain
the position of a slave-holder?"
"I have already relinquished it," replied Clayton, "so far as my own
intentions are concerned. I retain the legal relation of owner simply as
a means of protecting my servants from the cruelties of the law, and of
securing the opportunity to educate and elevate them."
"And suppose this course brings you into conflict with the law of the
state?" said Judge Clayton.
"If there is any reasonable prospect of having the law altered, I must
endeavor to do that," said Clayton.
"But," said Judge Clayton, "suppose the law is so rooted in the nature
of the institution, that it cannot be repealed without uprooting the
institution? What then?"
"I say repeal the law, if it do uproot the institution," said Clayton.
"_Fiat justitia ruat coelum._"
"I supposed that would be your answer," said Judge Clayton, patiently.
"That is undoubtedly the logical line of life. But you are aware that
communities do not follow such lines; your course, therefore, will place
you in opposition to the community in which you live. Your conscientious
convictions will cross self-interest, and the community will not allow
you to carry them out."
"Then," said Clayton, "I must, with myself and my servants, remove to
some region where I can do this."
"That I supposed would be the result," said Judge Clayton. "And have you
looked at the thing in all its relations and consequences?"
"I have," said Clayton.
"You are about to form a connection with Miss Gordon," said Judge
Clayton. "Have you considered how this will affect her?"
"Yes," said Clayton. "Miss Gordon fully sustains me in the course I
have taken."
"I have no more to say," said Judge Clayton. "Every man must act up to
his sense of duty."
There was a pause of a few moments, and Judge Clayton added:--
"You, perhaps, have seen the implication which your course throws upon
us who still continue to practise the system and uphold the institution
which you repudiate."
"I meant no implications," said Clayton.
"I presume not. But they result, logically, from your course," said his
father. "I assure you, I have often myself pondered the question with
reference to my own duties. My course is a sufficient evidence that I
have not come to the same result. Human law is, at best, but an
approximation, a reflection of many of the ills of our nature. Imperfect
as it is, it is, on the whole, a blessing. The worst system is better
than anarchy."
"But, my father, why could you not have been a reformer of the system?"
"My son, no reform is possible, unless we are prepared to give up the
institution of slavery. That will be the immediate result; and this is
so realized by the instinct of self-preservation, which is unfailing in
its accuracy, that every such proposition will be ignored, till there is
a settled conviction in the community that the institution itself is a
moral evil, and a sincere determination felt to be free from it. I see
no tendency of things in that direction. That body of religious men of
different denominations, called, _par excellence_, the church, exhibit a
degree of moral apathy on this subject which is to me very surprising.
It is with them that the training of the community, on which any such
reform could be built, must commence; and I see no symptoms of their
undertaking it. The decisions and testimonies of the great religious
assemblies in the land, in my youth, were frequent. They have grown
every year less and less decided; and now the morality of the thing is
openly defended in our pulpits, to my great disgust. I see no way but
that the institution will be left to work itself out to its final
result, which will, in the end, be ruinous to our country. I am not
myself gifted with the talents of a reformer. My turn of mind fits me
for the situation I hold. I cannot hope that I have done no harm in it;
but the good, I hope, will outweigh the evil. If you feel a call to
enter on this course, fully understanding the difficulties and
sacrifices it would probably involve, I would be the last one to throw
the influence of my private wishes and feelings into the scale. We live
here but a few years. It is of more consequence that we should do right,
than that we should enjoy ourselves."
Judge Clayton spoke this with more emotion than he usually exhibited,
and Clayton was much touched.
"My dear father," he said, putting Nina's note into his hand, "you made
allusion to Miss Gordon. This note, which I received from her on the
morning of your decision, will show you what her spirit is."
Judge Clayton put on his spectacles, and read over the note
deliberately, twice. He then handed it formally to his son, and
remarked, with his usual brevity,--
"She will do!"