State v. Will and Some Other Things, Too

On Saturday I thought I'd take a break and go to the dedication of a new highway marker -- over east of here in Edgecombe County -- to the State v. Will case.  Will, you may recall, was a slave who in the 1830s was attacked by his overseer and -- after being shot and chased -- fought back and inflicted a mortal knife wound.  Will was tried and convicted of murder and sentenced to death, but on appeal to the North Carolina Supreme Court, Justice William Gaston reduced Will's conviction from murder to felonious slaying. Will was guilty of only manslaughter because he defended himself --as any human would do -- from an attack.  State v. Will acknowledged that a slave might fight back against an overseer, even though less than five years earlier State v. Mann had stated that the owner must have uncontrolled authority over the body of the slave.  After Gaston's opinion, Will was transported out of the state, to Mississippi.  (Where he was executed for killing a slave, btw.)  (I've flattened down a lot of nuance here -- if you're interested in this more, I talk about it a bunch in an article on the Nat Turner trials.)  

I think two things were at work in Will.  First, Will's owner hired a distinguished lawyer, B.F. Moore, to defend him and make the case that even enslaved people might defend themselves against an attack.  In essence this subordinated everyone to the rule of law.  It limited the power (not by much, but some) of overseers over enslaved people (or maybe it's more appropriate to say that it gave space to enslaved people to fight back and in that way limited the complete authority of the owner over the slave.)  Second, and probably most importantly, William Gaston-- who had taken a mildly antislavery stance in a graduation address at UNC in 1833 -- wrote the opinion.  Gaston had helped Quakers hold slaves in a state of quasi-slavery before he went on the bench and I suspect that Gaston was critical to the outcome and certainly the wording of the opinion.

I'm glad to see this highway marker -- in part because it's one of the few that I know of that is a monument to a slave "rebel."  And I think the marker's language does a nice job of telling the story without taking what would surely be a controversial stand over Will.  One of the things that I like about Will's case -- and those of the Nat Turner rebels and the other rebels I've been spending time of late working on (also from northeastern North Carolina) -- is that we know so little that we can speculate about their motives and their lives.

I returned home to read a couple of books that have been on my list for a while -- first was Andrew Fede's book on homicide of slaves (so pretty closely related to State v. Will), Homicide Justified.  Andrew looks around the ancient and early modern world to assess how legal systems treated those who killed slaves -- and especially to the US South.  The short version is that you shouldn't expect a lot of justice there.  I hope to talk about this with more nuance soon.

And I finished up Allen Mendenhall's new book on Emerson's poetics and Holmes' dissents.  Allen's book joins two of my favorite figures -- Ralph Waldo Emerson and Oliver Wendell Holmes.  He argues that Holmes used Emerson's aesthetics in his dissents and thus introduced a sense that law evolved.  I think Allen's book deserves a lot of attention and is super creative.  I'm not sure I buy the strong version of his thesis -- that there was some sort of influence here, where Emerson's literary method created a sense that the common law evolved.  But I certainly buy the idea that transcendentalism influenced law both before the Civil War and afterwards towards retesting old assumptions -- and thus undermined a static vision of law.  For me what is most salient about Holmes (and I'd add for some pre-Civil War jurists and treatise-writers, too) was that history cast a long shadow over law and that history might also be used to critique law.  Where the historical school of jurisprudence all too often said that history told us what was -- and therefore in the words of Alexander Pope what was right -- that in Holmes' hands history also might undermine law.  History could show us why we had arrived at one particular outcome, which might not actually be the one most fitted to the current stage in the United States.  History moved from supporter of the status quo to underminer of it.  Allen has opened my eyes that aesthetics had something to do with this, too.  The form of language and the beauty of it helped to undermine the static vision of law.  In this, Holmes was joined by a great many other people -- including those on the front lines of civil rights -- who collectively said that the law was out of touch with reality.  I want to see if I can expand my remarks about historical jurisprudence some to take account of Mendenhall.

Soon I'll be talking about what literature on southern law a Nazi lawyer cited.  You'll be surprised by at least some of them.

Comments

[anon]

Quite a leap from self defense to murdering babes in their cribs.

WHen you are reading that Nazi, think about your defense of the latter and what that sort of thinking promotes.

[concerned_citizen]

Thanks Al, interesting as always.

Side note, typo in "fought back and inflicted a moral knife wound", "moral" s/b "mortal".

[Al Brophy]

anon -- obviously there's a ton of difference between Will and Nat & the other rebels. That Gaston recognized some right for Will, however, to fight back was unusual (and a departure from State v. Mann, which spoke about the owner's uncontrolled authority over the body of the slave and how the slave needed to know that there was no appeal from the owner's rights of dominion).

concerned -- thanks for the edit. I've fixed that.

[anon]

There is no defense for brutally slaughtering children and other innocents to "terrorize" a target racial group (here, white people) into political capitulation (ending slavery), even though that capitulation, at the earliest possible time, would have been morally correct.

One needs to recognize the good in the folks who supported "some right for Will" (which I doubt you will do) and the bad in "Nat" (of whom you always speak with almost reverential deference).

Today, we face many zealots who believe that brutally slaying innocent people is morally justified. Until scholars are no longer able to wear blinders when reporting on those whom they support, the moral reckoning necessary to realize what every child knows (two wrongs don't make a right) will be even harder to achieve.

And, the one sided rehashing of painful history to only inflict further pain under the pretense of "revealing" that which I think every fair minded person already knows in general if not the particulars, while never acknowledging the humanity that triumphed and hopefully will triumph again today is not history, it is propaganda. Which is to say, like almost everything that we hear today posing as critical thought.

Again, study your Nazi scholar with these thoughts in mind, and I think you may learn different lessons.

[Anon JD/MD]

Al, thank you for the great post. Disregard the white supremacist nonsense from anon above. Anon claims that African Americans who “terrorized” their masters in an attempt to end slavery were evil zealots. They even make a cryptic comparison of the slave revolt to the modern day terrorist groups. But compare Nat Turner and his just cause, to our cause in World War II.

As the Soviets marched west, German refugees fled to cities like Dresden. These cities were home to factories and thousands of workers that supported the German war effort. Despite the tens of thousands of residents and refugees living in these cities, the United States and Britain dropped incendiary bombs on the city centers. Countless people, including children, died horrifically in firestorms. Bombing raids were timed in close proximity to each other to inflict maximum damage. As soon as one bombing raid ended and first responders came out to attempt to put out the fires, another bombing raid arrived to inflict more damage and casualties. The purpose of the fire-bombing was to terrorize and demoralize the German people. The United States also dropped incendiary bombs on Japanese cities as well, horrifically killing tens of thousands of civilians.

Despite the fact that the United States and allies targeted civilians, we hold political leaders such as Churchill and Truman, and military leaders such as Marshall and Eisenhower, in high esteem. You will never hear people like anon compare our heroes from World War II to modern day terrorist groups. We were fighting a war against evil in World War II, just like Nat Turner was fighting a war against the evil slave owners.

And consider the war we are currently fighting against the zealots that anon mentions. To this day, the United States kills civilians, including children, in war. We launch drone strikes and bomb enemy targets, even if children will be killed, as long as the harm caused is not excessive compared to the expected military advantage. You will never hear people like anon complain about that fact.

Anon is presenting the usual, tiring, hypocritical nonsense rampant in today’s political discourse. They claim that it is indefensible for people of color, fighting in a war for freedom, to kill their white owners. Then they complain that the rules of engagement, designed to minimize civilian casualties, are too stringent and hamstring our military.

[anon]

Nothing to respond to above, Anon JD/MD. You have spun yourself into a frenzy based on speculation and conjecture ... perhaps you should rethink your rant in light of the news yesterday.