University of Virginia Library

10. CHAPTER X.
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 toward 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:

“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 criticized. 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 slaveholder?”

“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 cœlum.”

“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!”