THE NECESSITY OF HIS CONDITION

“THE NECESSITY OF HIS CONDITION” was first published in 1957, and won the Ellery Queen Award for best short fiction published that year.

It is considered one of Avram Davidson’s most important stories. The topic is American slavery. An early rejection letter for the story said, “I’m glad you sent it to me. But we couldn’t touch it because of its theme.” The irony of the story is that it takes no sides. It simply draws the legal consequences of slavery to their awful conclusion.

Davidson’s own story notes said, “Really, I have, in part, to thank Life magazine for first implanting in my mind a certain detail of the Slave Code on which this story is based. This detail came to my attention years later during my long research into the institution of slavery in the United States as background for a projected article on the Dred Scott decision. The research produced much that was new to me, all of it of course unpleasant: did you know, for instance that (I believe) numerous Free Negroes themselves owned slaves?—And it also produced this story.

“It also produced the Queen’s Award (Ellery, not Elizabeth), the first large sum of money I had ever made. This story marks the turning point in my career as a writer.”

—GD

 

Sholto Hill was mostly residential property, but it had its commercial district in the shape of Persimmon Street and Rampart Street, the latter named after some long-forgotten barricade stormed and destroyed by Benedict Arnold (wearing a British uniform and eaten with bitterness and perverted pride). Persimmon Street, running up-slope, entered the middle of Rampart at right angles, and went no farther. This section, with its red brick houses and shops, its warehouses and offices, was called The T, and it smelled of tobacco and potatoes and molasses and goober peas and dried fish and beer and cheap cook-shop food and (the spit-and-whittle humorists claimed) old man Bailiss’s office, where the windows were never opened—never had been opened, they said, never were made to be opened. Any smell off the street or farms or stables that found its way up to Bailiss’s office was imprisoned there for life, they said. Old man Bailiss knew what they said, knew pretty much everything that went on anywhere; but he purely didn’t care. He didn’t have to, they said.

J. Bailiss, Attorney-at-Law (his worn old sign said), had a large practice and little competition. James Bailiss, Broker (his newer, but by no means new, sign), did an extensive business; again, with little competition. The premises of the latter business were located, not in The T, but in a white-washed stone structure with thick doors and barred windows, down in The Bottom—as it was called—near the river, the canal, and the railroad line.

James Bailiss, Broker, was not received socially. Nobody expected that bothered him much. Nothing bothered old man Bailiss much—Bailiss, with his old white hat and his old black coat and his old cowhide shoes that looked old even when they were new—turned old on the shoemaker’s last (the spit-and-whittle crowd claimed) directly they heard whose feet they were destined for.

It was about twenty-five years earlier, in 1825, that an advertisement—the first of its kind—appeared in the local newspaper.

“Take Notice! (it began). James Bailiss, having lately purchased the old arsenal building on Canal Street, will henceforth operate it as a Negro Depot. He will at all times be found ready to purchase all good and likely young Negroes at the Highest Price. He will also attend to Selling Negroes on Commission. Said Broker also gives Notice that those who have Slaves rendered unfit for labor by yaws, scrofula, chronic consumption, rheumatism, & C., may dispose of them to him on reasonable terms.”

Editor Winstanley tried to dissuade him, he said later. “Folks,” he told him, “won’t like this. This has never been said out open before,” the editor pointed out. Bailiss smiled. He was already middle-aged, had a shiny red face and long mousy hair. His smile wasn’t a very wide one.

“Then I reckon I must be the pioneer,” he said. “This isn’t a big plantation State, it never will be. I’ve give the matter right much thought. I reckon it just won’t pay for anyone to own more than half a dozen slaves in these parts. But they will multiply, you can’t stop it. I’ve seen it in my lawwork, seen many a planter broke for debts he’s gone into to buy field hands—signed notes against his next crop, or maybe even his next three crops. Then maybe the crop is so good that the price of cotton goes way down and he can’t meet his notes, so he loses his lands and his slaves. If the price of cotton should happen to be high enough for him to pay for the slaves he’s bought, then, like a dumned fool”—Bailiss never swore—“why, he signs notes for a few more. Pretty soon things get so bad you can’t give slaves away round here. So a man has a dozen of them eating their heads off and not even earning grocery bills. No, Mr. Winstanley; slaves must be sold south and southwest, where the new lands are being opened up, where the big plantations are.”

Editor Winstanley wagged his head. “I know,” he said, “I know. But folks don’t like to say things like that out loud. The slave trade is looked down on. You know that. It’s a necessary evil, that’s how it’s regarded, like a—well…” He lowered his voice. “Nothing personal, but … like a sporting house. Nothing personal, now, Mr. Bailiss.”

The attorney-broker smiled again. “Slavery has the sanction of the law. It is a necessary part of the domestic economy, just like cotton. Why, suppose I should say, ‘I love my cotton, I’ll only sell it locally’? People’d think I was just crazy. Slaves have become a surplus product in the Border States and they must be disposed of where they are not produced in numbers sufficient to meet the local needs. You print that advertisement. Folks may not ask me to dinner, but they’ll sell to me, see if they won’t.”

The notice did, as predicted, outrage public opinion. Old Marsta and Old Missis vowed no Negro of theirs would ever be sold “down the River.” But somehow the broker’s “jail”—as it was called—kept pretty full, though its boarders changed. Old man Bailiss had his agents out buying and his agents out selling. Sometimes he acted as agent for firms whose headquarters were in Natchez or New Orleans. He entered into silent partnerships with gentlemen of good family who wanted a quick return on capital, and who got it, but who still, it was needless to say, did not dine with him or take his hand publicly. There was talk, on and off, that the Bar Association was planning action not favorable to Bailiss for things connected with the legal side of his trade. It all came to nought.

“Mr. Bailiss,” young Ned Wickerson remarked to him one day in the old man’s office, “whoever said that ‘a man who defends himself has a fool for a client’ never had the pleasure of your acquaintance.”

“Thank you, boy.”

“Consequently,” the young man continued, “I’ve advised Sam Worth not to go into court if we can manage to settle out of it.”

“First part of your advice is good, but there’s nothing to settle.”

“There’s a matter of $635 to settle, Mr. Bailiss.” Wickerson had been practicing for two years, but he still had freckles on his nose. He took a paper out of his wallet and put it in front of them. “There’s this to settle.”

The old man pushed his glasses down his nose and picked up the paper. He scanned it, lips moving silently. “Why, this is all correct,” he said. “Hmm. To be sure. ‘Received of Samuel Worth of Worth’s Crossing, Lemuel County, the sum of $600 cash in full payment for a Negro named Dominick Swift, commonly called Domino, aged thirty-six years and of bright complexion, which Negro I warrant sound in mind and body and a slave for life and the title I will forever defend. James Bailiss, Rutland, Lemuel County.’ Mmm. All correct. And anyway, what do you mean, six hundred and thirty-five dollars?”

“Medical and burial expenses. Domino died last week.”

“Died, now, did he? Sho. Too bad. Well, all men are mortal.”

“I’m afraid my client doesn’t take much comfort from your philosophy. Says he didn’t get two days’ work out of Domino. Says he whipped him, first off, for laziness, but when the doctor—Dr. Sloan, that was—examined him, Doctor said he had a consumption. Died right quickly.”

“Negroes are liable to quick consumptions. Wish they was a medicine for it. On the other hand, they seldom get malaria or yella fever. Providence.”

He cut off a slice of twist, shoved it in his cheek, then offered twist and knife to Wickerson, who shook his head.

“As I say, we’d rather settle out of court. If you’ll refund the purchase price we won’t press for the other expenses. What do you say?”

Bailiss looked around the dirty, dusty office. There was a case of law books with broken bindings against the north wall. The south wall had a daguerreotype of John C. Calhoun hanging crookedly on it. The single dim window was in the east wall, and the west wall was pierced by a door whose lower panels had been scarred and splintered by two generations of shoes and boots kicking it open. “Why, I say no, o’ course.”

Wickerson frowned. “If you lose, you know, you’ll have to pay my costs as well.”

“I don’t expect I’ll lose,” the old man said.

“Why, of course you’ll lose,” the young man insisted, although he did not sound convinced. “Dr. Sloan will testify that it was not ‘a quick consumption.’ He says it was a long-standing case of Negro tuberculosis. And you warranted the man sound.”

“Beats me how them doctors think up long words like that,” Bailiss said placidly. “Inter’sting point of law just come up down in N’Orleans, Ned. One of my agents was writing me. Negro brakeman had his legs crushed in an accident, man who rented him to the railroad sued, railroad pleaded ‘negligence of his fellow-servant’—in this case, the engineer.”

“Seems like an unassailable defense.” The younger lawyer was interested despite himself. “What happened?”

“Let’s see if I can recollect the Court’s words.” This was mere modesty. Old man Bailiss’s memory was famous on all matters concerning the slave codes. “Mmm. Yes. Court said: ‘The slave status has removed this man from the normal fellow-servant category. He is fettered fast by the most stern bonds our laws take note of. He cannot with impunity desert his post though danger plainly threatens, nor can he reprove free men for their bad management or neglect of duty, for the necessity of his condition is upon him.’ Awarded the owner—Creole man name of Le Tour—awarded him $1300.”

“It seems right, put like that. But now, Dr. Sloan—”

“Now, Neddy. Domino was carefully examined by my doctor, old Fred Pierce—”

“Why, Pierce hasn’t drawn a sober breath in twenty years! He gets only slaves for his patients.”

“Well, I reckon that makes him what they call a specialist, then. No, Ned, don’t go to court. You have no case. My jailer will testify, too, that Domino was sound when I sold him. It must of been that whipping sickened him.”

Wickerson rose. “Will you make partial restitution, then?” The old man shook his head. His long hair was streaked with gray, but the face under it was still ruddy. “You know Domino was sick,” Wickerson said. “I’ve spoken to old Miss Whitford’s man, Micah, the blacksmith, who was doing some work in your jail awhile back. He told me that he heard Domino coughing, saw him spitting blood, saw you watching him, saw you give him some rum and molasses, heard you say, ‘Better not cough till I’ve sold you, Dom, else I’ll have to sell you south where they don’t coddle Negroes.’ This was just before you did sell him—to my client.”

The old man’s eyes narrowed. “I’d say Micah talks overmuch for a black man, even one of old Miss Whitford’s—a high and mighty lady that doesn’t care to know me on the street. But you forget one mighty important thing, Mr. Wickerson!” His voice rose. He pointed his finger. “It makes no difference what Micah heard! Micah is property! Just like my horse is property! And property can’t testify! Do you claim to be a lawyer? Don’t you know that a slave can’t inherit—can’t bequeath—can’t marry nor give in marriage—can neither sue nor prosecute—and that it’s a basic principle of the law that a slave can never testify in court except against another slave?”

Wickerson, his lips pressed tightly together, moved to the door, kicked it open, scattering a knot of idlers who stood around listening eagerly, and strode away. The old man brushed through them.

“And you’d better tell Sam Worth not to come bothering me, either!” Bailiss shouted at Wickerson’s back. “I know how to take care of trash like him!” He turned furiously to the gaping and grinning loungers.

“Get away from here, you mud-sills!” He was almost squeaking in his rage.

“I reckon you don’t own the sidewalks,” they muttered. “I reckon every white man in this state is as good as any other white man,” they said; but they gave way before him. The old man stamped back into his office and slammed the door.

*   *   *

IT WAS BAILISS’S custom to have his supper in his own house, a two-story building just past the end of the sidewalk on Rampart Street; but tonight he felt disinclined to return there with no one but rheumaticky old Edie, his housekeeper-cook, for company. He got on his horse and rode down toward the cheerful bustle of the Phoenix Hotel. Just as he was about to go in, Sam Worth came out. Worth was a barrel-shaped man with thick short arms and thick bandy legs. He stood directly in front of Bailiss, breathing whiskey fumes.

“So you won’t settle?” he growled. His wife, a stout woman taller than her husband, got down from their wagon and took him by the arm.

“Come away now, Sam,” she urged.

“You’d better step aside,” Bailiss said.

“I hear you been making threats against me,” Worth said.

“Yes, and I’ll carry them out, too, if you bother me!”

A group quickly gathered, but Mrs. Worth pulled her husband away, pushed him toward the wagon; and Bailiss went inside. The buzz of talk dropped for a moment as he entered, stopped, then resumed in a lower register. He cast around for a familiar face, undecided where to sit; but it seemed to him that all faces were turned away. Finally he recognized the bald head and bent shoulders of Dr. Pierce, who was slumped at a side table by himself, muttering into a glass. Bailiss sat down heavily across from him, with a sigh. Dr. Pierce looked up.

“A graduate of the University of Virginia,” the doctor said. His eyes were dull.

“At it again?” Bailiss looked around for a waiter. Dr. Pierce finished what was in his glass.

“Says he’ll horsewhip you on sight,” he muttered.

“Who says?” Bailiss was surprised.

“Major Jack Moran.”

Bailiss laughed. The Major was a tottery veteran of the War of 1812 who rode stiffly about on an aged white mare. “What for?” he asked.

“Talk is going around you Mentioned A Lady’s Name.” Pierce beckoned, and at once a waiter, whose eye old man Bailiss had not managed to catch, appeared with a full glass. Bailiss caught his sleeve as the waiter was about to go and ordered his meal. The doctor drank. “Major Jack says, impossible to Call You Out—can’t appear on Field of Honor with slave trader—so instead will whip you on sight.” His voice gurgled in the glass.

Bailiss smiled crookedly. “I reckon I needn’t be afraid of him. He’s old enough to be my daddy. A lady’s name? What lady? Maybe he means a lady who lives in a big old house that’s falling apart, an old lady who lives on what her Negro blacksmith makes?”

Dr. Pierce made a noise of assent. He put down his glass. Bailiss looked around the dining room, but as fast as he met anyone’s eyes, the eyes glanced away. The doctor cleared his throat.

“Talk is going around you expressed a dislike for said Negro. Talk is that the lady has said she is going to manumit him to make sure you won’t buy him if she dies.”

Bailiss stared. “Manumit him? She can’t do that unless she posts a bond of a thousand dollars to guarantee that he leaves the state within ninety days after being freed. She must know that free Negroes aren’t allowed to stay on after manumission. And where would she get a thousand dollars? And what would she live on if Micah is sent away? That old lady hasn’t got good sense!”

“No,” Pierce agreed, staring at the glass. “She is old and not too bright and she’s got too much pride on too little money, but it’s a sis”—his tongue stumbled—“a singular thing: there’s hardly a person in this town, white or black or half-breed Injun, that doesn’t love that certain old lady. Except you. And nobody in town loves you. Also a singular thing: here we are—”

The doctor’s teeth clicked against the glass. He set it down, swallowed. His eyes were yellow in the corners, and he looked at Bailiss steadily, save for a slight trembling of his hands and head. “Here we are, heading just as certain as can be towards splitting the Union and having war with the Yankees—all over slavery—tied to it hand and foot—willing to die for it—economy bound up in it—sure in our own hearts that nature and justice and religion are for it—and yet, singular thing: nobody likes slave traders. Nobody likes them.”

“Tell me something new.” Bailiss drew his arms back to make room for his dinner. He ate noisily and with good appetite.

“Another thing,” the doctor hunched forward in his seat, “that hasn’t added to your current popularity is this business of Domino. In this, I feel, you made a mistake. Caveat emptor or not, you should’ve sold him farther away from here, much farther away, down to the rice fields somewhere, where his death would have been just a statistic in the overseer’s annual report. Folks feel you’ve cheated Sam Worth. He’s not one of your rich absentee owners who sits in town and lets some cheese-paring Yankee drive his Negroes. He only owns four or five, he and his boy work right alongside them in the field, pace them row for row.”

Bailiss grunted, sopped up gravy.

“You’ve been defying public opinion for years now. There might come a time when you’d want good will. My advice to you—after all, your agent only paid $100 for Domino—is to settle with Worth for five hundred.”

Bailiss wiped his mouth on his sleeve. He reached for his hat, put it on, left money on the table, and got up.

“Shoemaker, stick to your last,” he said. Dr. Pierce shrugged. “Make that glass the final one. I want you at the jail tomorrow, early, so we can get the catalogue ready for the big sale next week. Hear?” The old man walked out, paying no attention to the looks or comments his passage caused.

On his horse Bailiss hesitated. The night was rather warm, with a hint of damp in the air. He decided to ride around for a while in the hope of finding a breeze stirring. As the horse ambled along from one pool of yellow gaslight to another he ran through in his mind some phrases for inclusion in his catalogue. Phyllis, prime woman, aged 25, can cook, sew, do fine ironing …

When he had first begun in the trade, three out of every five Negroes had been named Cuffee, Cudjoe, or Quash. He’d heard these were days of the week in some African dialect. There was talk that the African slave trade might be legalized again; that would be a fine thing. But, sho, there was always such talk, on and off.

The clang of a hammer on an anvil reminded him that he was close to Black Micah’s forge. As he rounded the corner he saw Sam Worth’s bandy-legged figure outlined against the light. One of the horses was unhitched from his wagon and awaited the shoe Micah was preparing for it.

A sudden determination came to Bailiss: he would settle with Worth about Domino. He hardly bothered to analyze his motives. Partly because his dinner was resting well and he felt comfortable and unexpectedly benevolent, partly because of some vague notion it would be the popular thing to do and popularity was a good thing to have before and during a big sale, he made up his mind to offer Worth $300—well, maybe he would go as high as $350, but no more; a man had to make something out of a trade.

As he rode slowly up to the forge and stopped, the blacksmith paused in his hammering and looked out. Worth turned around. In the sudden silence Bailiss heard another horse approaching.

“I’ve come to settle with you,” the slave trader said. Worth looked up at him, his eyes bloodshot. In a low, ugly voice Worth cussed him, and reached his hand toward his rear pocket. It was obvious to Bailiss what Worth intended, so the slave trader quickly drew his own pistol and fired. His horse reared, a woman screamed—did two women scream? Without his meaning it, the other barrel of his pistol went off just as Worth fell.

“Fo’ gawdsake don’t kill me, Mister Bailiss!” Micah cried. “Are you all right, Miss Elizabeth?” he cried. Worth’s wife and Miss Whitford suddenly appeared from the darkness on the other side of the wagon. They knelt beside Worth.

Bailiss felt a numbing blow on his wrist, dropped his empty pistol, was struck again, and half fell, was half dragged, from his horse. A woman screamed again, men ran up—where had they all come from? Bailiss, pinned in the grip of someone he couldn’t see, stood dazed.

“You infernal scoundrel, you shot that man in cold blood!” Old Major Jack Moran dismounted from his horse and flourished the riding crop with which he had struck Bailiss on the wrist.

“I never—he cussed me—he reached for his pistol—I only defended myself!”

Worth’s wife looked up, tears streaking her heavy face.

“He had no pistol,” she said. “I made him leave it home.”

“You said, ‘I’ve come to get you,’ and you shot him point-blank!” The old Major’s voice trumpeted.

“He tried to shoot Miss Whitford, too!” someone said. Other voices added that Captain Carter, the High Sheriff’s chief deputy, was coming. Bodies pressed against Bailiss, faces glared at him, fists were waved before him.

“It wasn’t like that at all!” he cried.

Deputy Carter came up on the gallop, flung the reins of his black mare to eager outthrust hands, jumped off, and walked over to Worth.

“How was it, then?” a scornful voice asked Bailiss.

“I rode up … I says, ‘I’ve come to settle with you’… He cussed at me, low and mean, and he reached for his hip pocket.”

In every face he saw disbelief.

“Major Jack’s an old man,” Bailiss faltered. “He heard it wrong. He—”

“Heard it good enough to hang you!”

Bailiss looked desperately around. Carter rose from his knees and the crowd parted. “Sam’s dead, ma’am,” he said. “I’m sorry.” Mrs. Worth’s only reply was a low moan. The crowd growled. Captain Carter turned and faced Bailiss, whose eyes looked at him for a brief second, then turned frantically away. And then Bailiss began to speak anxiously—so anxiously that his words came out a babble. His arms were pinioned and he could not point, but he thrust his head toward the forge where the blacksmith was still standing—standing silently.

“Micah,” Bailiss stuttered. “Ask Micah!”

Micah saw it, he wanted to say—wanted to shout it. Micah was next to Worth, Micah heard what I really said, he’s younger than the Major, his hearing is good, he saw Worth reach …

Captain Carter placed his hand on Bailiss and spoke, but Bailiss did not hear him. The whole night had suddenly fallen silent for him, except for his own voice, saying something (it seemed long ago) to young lawyer Wickerson.

“It makes no difference what Micah saw! It makes no difference what Micah heard! Micah is property!… And property can’t testify!”

They tied Bailiss’s hands and heaved him onto his horse.

“He is fettered fast by the most stern bonds our laws take note of … can’t inherit—can’t bequeath … can neither sue nor prosecute—”

Bailiss turned his head as they started to ride away. He looked at Micah and their eyes met. Micah knew.

“… it’s basic principle of the law that a slave can never testify in court except against another slave.”

Someone held the reins of old man Bailiss’s horse. From now on he moved only as others directed. The lights around the forge receded. Darkness surrounded him. The necessity of his condition was upon him.