“It has been truly said here this evening, that our example has been of essential service to France. Who can doubt it? How different would have been the struggle for liberty to be secured by republicanism, if there had been no example of a stable republican government to which the patriot could point, for the encouragement of his people! It is said we are propagandists. We do not, indeed, propagate our principles with the sword of power; but there is one sense in which we are propagandists. We cannot help being so. Our example is contagious. In the section of this great country where I live, on the banks of the mighty Mississippi river, we have the true emblem of the tree of liberty. There you may see the giant cottonwood spreading his branches widely to the winds of heaven. Sometimes the current lays bare his roots, and you behold them extending far around and penetrating to an immense depth in the soil. When the season of maturity comes, the air is filled with a cotton-like substance, which floats in every direction, bearing, on its light wings, the living seeds of the mighty tree. They lodge upon every bank of sand which emerges from the bosom of the receding tide, and soon a young forest is seen to lift its head from the surface of the barren waste. Thus the seeds of freedom have emanated from the tree of our liberties. They fill the air. They are wafted to every part of the habitable globe. And even in the barren sands of tyranny they are destined to take root. The tree of liberty will spring up every where, and nations shall recline in its shade.”
“It has been truly said here this evening, that our example has been of essential service to France. Who can doubt it? How different would have been the struggle for liberty to be secured by republicanism, if there had been no example of a stable republican government to which the patriot could point, for the encouragement of his people! It is said we are propagandists. We do not, indeed, propagate our principles with the sword of power; but there is one sense in which we are propagandists. We cannot help being so. Our example is contagious. In the section of this great country where I live, on the banks of the mighty Mississippi river, we have the true emblem of the tree of liberty. There you may see the giant cottonwood spreading his branches widely to the winds of heaven. Sometimes the current lays bare his roots, and you behold them extending far around and penetrating to an immense depth in the soil. When the season of maturity comes, the air is filled with a cotton-like substance, which floats in every direction, bearing, on its light wings, the living seeds of the mighty tree. They lodge upon every bank of sand which emerges from the bosom of the receding tide, and soon a young forest is seen to lift its head from the surface of the barren waste. Thus the seeds of freedom have emanated from the tree of our liberties. They fill the air. They are wafted to every part of the habitable globe. And even in the barren sands of tyranny they are destined to take root. The tree of liberty will spring up every where, and nations shall recline in its shade.”
And thus, gentlemen of the jury, I say that while some of the seeds of liberty which we scatter are wafted to a foreign realm, and fall upon a foreign soil, others will drop upon the hearts of bondmen and bondwomen at home, and will there fructify and mature intotheirappropriate harvest.
Such, gentlemen, are the considerations that lead me to believe that the slaves found on board the schooner Pearl left the possession of their masters of their own accord, or at the private suggestion of somefriend, and not at that of the prisoner; or because they were publicly incited thereto by that boastful spirit amongst us which is forever shouting the praises of liberty, while restricting the application of its principles. I therefore infer that the prisoner has not committed the act which forms the first ingredient in the offence of larceny,—the taking of property from the possession of the owner.
2. To constitute the offence of larceny, the prisoner must have taken the slaves into his own possession. Now, of this there is not a particle of evidence. For aught that appears, the slaves might have been passengers, on board his schooner, for a fare. They themselves might have paid this fare, or others might have paid it for them. In either case, they were no more in possession of the prisoner than you or I are in possession of a railroad corporation, when we travel in its cars.
3. The third question is, whether, even if the prisoner did take the slaves named in this indictment from the possession of Andrew Hoover, and into his own possession, he did so for the felonious purpose of converting them to his own use.
The act of stealing, gentlemen, springs from the impulse to acquire property, as a means of gratification. This impulse or desire to obtain the means of enjoyment is universal. The law denounces its penalties against stealing, in order to repress the excesses of this propensity, and to confine it to honest acquisitions. Hence one man may interfere with the property of another in a thousand ways, without being guilty of stealing. It is not the mere taking of another man’s property, therefore, which constitutes stealing, but the taking of itin order to convert it to the use of the taker, and so to save himself the labor of earning it. Hence I may take a man’s plough from his field, or his wagon from his barn, and use them temporarily; but if Ireturn them again to the owner, it is not stealing, but only a trespass. So, according to the books, I may take a man’s horse from his stable, ride him thirty miles, in order to flee from justice, and then, if I abandon the horse, it is not stealing. It is only a trespass.
The doctrine, gentlemen, which I wish to enforce upon your minds, is, that every act of taking another man’s property is not stealing. When a wag, riding with a clergyman to church, took his sermon from his pocket, for the purpose of enjoying his embarrassment when he should get into the pulpit, and find himself in the presence of the enemy without any ammunition, such taking was not stealing; for doubtless the rogue had no intention of appropriating either the sermon or its morals to his own use.
So it is related of Sir Walter Scott, that, when he was a boy at school, he got within one of the head of his class. But the boy at the head never made a mistake, and so he stood there, as perseveringly as the letter A stands at the head of the alphabet. But Sir Walter observed that, when his classmate was reciting, his fingers always fumbled with a button on his jacket, and, watching his opportunity at their next romping on the playground, he cut off the button from his rival’s jacket; and, at the very next lesson, the boy, being disconcerted at not finding the button, missed his answer, and Sir Walter rose to the head. But surely this was not stealing.
The reason why, in each of these cases, one would not be guilty of stealing, is, that he does not mean to make the article taken his own. He gets a temporary advantage from it, but does no act that proves a design of permanent or unlimited ownership. Hence there is the broadest and most striking difference between stealing and malicious mischief. If one man takes the property of another, merely to destroy or annihilate it, out of ill will or revenge towards the owner, this ismalicious mischief only, and not stealing. It is not punished as stealing. Morally, it may be as wrong,—perhaps worse than stealing itself. But this impulse which prompts to thedestructionof another man’s property is vastly weaker than that which leads to itsappropriation. The latter is gratified a thousand times where the former is once, and therefore the law visits the former with the milder penalty. If taking property from its owner from revenge, and for the malicious purpose of destroying it, be not stealing, but only malicious mischief, then surely taking the property for the benevolent purpose of doing a kindness to the property itself,—as to a slave,—is not stealing.
Take an illustration. Wild animals are the property of no one. The undomesticated hares that run over my fields, the pigeons that fly over my house, or the fishes that swim in my streams, are not my property so that they can be the subjects of larceny. If a man takes them, he is liable in trespass for entering my grounds, and that is all. But if I confine hares in a warren, or pigeons in a cote, or fishes in a seine, then they are my property, and are the subjects of larceny, because I have reduced them to possession. Under such circumstances, if a man shoots or catches them for his table.—that is, to convert them to his own use,—he steals them; but if a man merely releases them from their confinement, breaks open their enclosures to let them go free, he is at most only guilty of malicious mischief. The English nobility send to France for foxes. These are caught in the Pyrenees or other mountains, brought across the English channel, and placed in the parks of noblemen preparatory to the barbarous amusement of a fox-hunt. Now, if one lord should take a fox from the park of another lord, for the pleasure of hunting him down, on his own premises, this would be stealing; but if he should only assist a fox to escape out of the park, for the benevolentpurpose of restoring him to his natural liberty, this would not be stealing, but only a trespass. In such a case, the man who enlarges the fox does not do it in order to save himself the labor or expense of catching a fox; that is, he does not convert the fox to his own use.
Let me give you another illustration, which I select for the beauty of the language in which it is conveyed, and for the nobleness of the sentiments that accompany it. In the “Sentimental Journey” of Sterne, the following incident is related:—
“I was interrupted, in the heyday of this soliloquy, with a voice which I took to be of a child, which complained, it could not get out. I looked up and down the passage, and seeing neither man, woman, nor child, I went out without further attention.“In my return back through the passage, I heard the same words repeated twice over, and looking up, I saw it was a starling, hung in a little cage. ‘I can’t get out, I can’t get out,’ said the starling.“I stood looking at the bird, and to every person who came through the passage, it ran fluttering to the side which they approached, with the same lamentation of its captivity,—‘I can’t get out,’ said the starling. God help thee! said I, but I’ll let thee out, cost what it will; so I turned about the cage to get at the door. It was twisted and double twisted so fast with wire, there was no getting it open without pulling the cage to pieces. I took both hands to it.“The bird flew to the place where I was attempting his deliverance, and, thrusting his head through the trellis, pressed his breast against it as if impatient. I fear, poor creature, said I, I cannot set thee at liberty. ‘No,’ said the starling, ‘I can’t get out. I can’t get out,’ said the starling.“I vow I never had my affections more tenderly awakened.”
“I was interrupted, in the heyday of this soliloquy, with a voice which I took to be of a child, which complained, it could not get out. I looked up and down the passage, and seeing neither man, woman, nor child, I went out without further attention.
“In my return back through the passage, I heard the same words repeated twice over, and looking up, I saw it was a starling, hung in a little cage. ‘I can’t get out, I can’t get out,’ said the starling.
“I stood looking at the bird, and to every person who came through the passage, it ran fluttering to the side which they approached, with the same lamentation of its captivity,—‘I can’t get out,’ said the starling. God help thee! said I, but I’ll let thee out, cost what it will; so I turned about the cage to get at the door. It was twisted and double twisted so fast with wire, there was no getting it open without pulling the cage to pieces. I took both hands to it.
“The bird flew to the place where I was attempting his deliverance, and, thrusting his head through the trellis, pressed his breast against it as if impatient. I fear, poor creature, said I, I cannot set thee at liberty. ‘No,’ said the starling, ‘I can’t get out. I can’t get out,’ said the starling.
“I vow I never had my affections more tenderly awakened.”
And then he bursts out into that apostrophe to Slavery, which has thrilled the hearts of all his readers in times past, and will continue to thrill the heart of every reader in all time to come:—
“Disguise thyself as thou wilt, still, Slavery, still thou art a bitter draught! and, though thousands in all ages have been made to drink of thee, thou art no less bitter on that account. ’Tis thou, thrice sweet and gracious goddess,Liberty, whom all in public or in private worship, whose taste is grateful, and ever will be so till Nature herself shall change. Notintof words can spot thy snowy mantle, or chemic power turn thy sceptre into iron. With thee to smile upon him as he eats his crust, the swain is happier than his monarch, from whose court thou art exiled. Gracious Heaven! grant me but health, thou great Bestower of it, and give me but this fair goddess as my companion, and shower down thy mitres, if it seems good unto thy divine providence, upon those heads which are aching for them.”
“Disguise thyself as thou wilt, still, Slavery, still thou art a bitter draught! and, though thousands in all ages have been made to drink of thee, thou art no less bitter on that account. ’Tis thou, thrice sweet and gracious goddess,Liberty, whom all in public or in private worship, whose taste is grateful, and ever will be so till Nature herself shall change. Notintof words can spot thy snowy mantle, or chemic power turn thy sceptre into iron. With thee to smile upon him as he eats his crust, the swain is happier than his monarch, from whose court thou art exiled. Gracious Heaven! grant me but health, thou great Bestower of it, and give me but this fair goddess as my companion, and shower down thy mitres, if it seems good unto thy divine providence, upon those heads which are aching for them.”
Had Sterne released that bird, and sent it abroad to rejoice in its native fields of air, would his myriads of readers, who have been delighted at the story, have convicted him ofstealing?
Now for the application. These slaves, by the law of nature, were as free as you or I. By the law and force of man, they have been subjected to bondage. If the prisoner took them, and took them either to sell them or to use them himself, then he took them, in the language of the law, for the felonious purpose of converting them to his own use; and such taking would be larceny according to the law. But if he took them for the purpose of carrying them to a free state, and of thus restoring them to their natural liberty, then he did not intend to convert them to his own use, and is not guilty of stealing.
There is another view of this case. The harshest doctrines in favor of slavery only claim, that a master has a right to theservicesof his slave. He has not a right to his flesh and bones, so that he can cut up the former for dog’s meat, and grind the latter for compost. To constitute larceny, then, of this kind of property, the prisoner must have deprived the master of theservicesof his slaves, with the intent, with the felonious intent,to usethose serviceshimself, or to sell them to another, which would be the most effective act of use. But no evidence of any such intent has been adduced in this case. I therefore maintain, that neither of the three ingredients necessary to constitute the offence of larceny has been proved by the government.
And now, gentlemen, in closing, I will narrate to you the worst of the prisoner’s case. I will make confession for him of the length and breadth of his offence. There resides in this city a man named Daniel Bell, who was once held as a slave, but who purchased his own freedom. He had a family, consisting of his wife and eight or ten children. These were manumitted by their master, when he was brought to that most searching of all earthly tribunals,—the death bed. After the master’s decease, his heirs attempted to reclaim the property; for the living and the dying have very different views on the subject of slavery. Their ground of claim was, that the master was not of sound and disposing mind when he made the deed of manumission. But the magistrate who prepared the deed, and before whom it was executed and acknowledged, set that pretence aside by his own knowledge of the grantor’s sanity; and so the family of Bell passed as free, and were treated as free, for years. At length this magistrate died, and immediately the attempt to reduce the family to bondage was renewed. A trial was had, and through default of the now deceased magistrate’s testimony, a verdict against them was obtained. But new evidence was discovered, and one of the most respectable counsellors of this court, Joseph H. Bradley, Esq., made oath as to his belief in the sufficiency of that evidence, and moved for a new trial. It was while these proceedings were pending, in behalf of the wife and children, that they became alarmed lest they should be clandestinely sent to the south, and there be plunged into irredeemable slavery. Believing themselves free,and fearing bondage, they did send to Philadelphia for assistance, (I tell you the worst of it,) in being rescued from such a fate. This defendant, Drayton, being led also to believe that they were free, did come to assist them. Drayton might have said to himself, “Men go to assist Poles and Hungarians, and even Texans, and get glory for it; and why should I not assist free women and children in imminent danger of bondage?” He arrived here on Thursday evening, the 13th of April, and, having no other special business, prepared to sail from here, and did so sail, on Saturday evening, the 15th. Bell’s family knew the place where the defendant’s vessel was anchored, and the time fixed for its departure. Drayton, expecting to meet them there at the time appointed, was not at his vessel during the whole evening. But one thing happened which he did not expect, and had not provided against. Bell’s family had a few friends whom they thought they could take with them. They did not propose any spoiling of the Egyptians, but thought the escape of a few Israelites lawful. But these friends hadtheirfriends, and they still another circle; and so, while the defendant was absent from his vessel on Saturday evening, and without his knowledge or consent, they flocked down and stowed themselves in the hold; so that,—and I say now, gentlemen, what I religiously believe to be true,—when these slaves were ordered to come on deck after the capture, the prisoner was as much astonished as any body at the number of fishes that had got into his net.
These, gentlemen, are the facts, and, as I believe, all the important facts pertaining to this case; and on these facts we claim that you must acquit the prisoner of the offence of larceny.
Note.This case and one or two others were tried, and, in consequence of a series of most extraordinary rulings by the court, a verdict of “guilty” was rendered.Every lawyer knows that in the course of a trial, when counsel canhave no time for examination or reflection, they take exceptions, wherever an objection to the decision of the judge seems probably, or even plausibly good. A clew, therefore, will be given to the course which the court pursued throughout these trials, when the fact is stated, that, on appeal to the Superior Court,seventeenout oftwenty-fourof the rulings of the judge to which exception had been taken were set aside.The cases for larceny were remanded to be tried anew, when a verdict of “not guilty” was rendered in them all.Drayton, the captain, and Sayres, his mate, were afterwards convicted of “transporting” the slaves, and were fined.English, the “boy,” though indicted in one hundred and fifteen indictments, was discharged without a trial.Part of Bell’s free family were ransomed; the rest were sold and sent to the South.Although the facts pertaining to the mob, the repeated attempts upon Drayton’s life, the besieging of the jail, and the expulsion of Drayton’s counsel from it when engaged in his defence, all came out before the grand jury that found these scores and hundreds of indictments, and though it was notorious who some of the ringleaders of the mob were, yet no bill of indictment was ever found against any of them.
Note.This case and one or two others were tried, and, in consequence of a series of most extraordinary rulings by the court, a verdict of “guilty” was rendered.
Every lawyer knows that in the course of a trial, when counsel canhave no time for examination or reflection, they take exceptions, wherever an objection to the decision of the judge seems probably, or even plausibly good. A clew, therefore, will be given to the course which the court pursued throughout these trials, when the fact is stated, that, on appeal to the Superior Court,seventeenout oftwenty-fourof the rulings of the judge to which exception had been taken were set aside.
The cases for larceny were remanded to be tried anew, when a verdict of “not guilty” was rendered in them all.
Drayton, the captain, and Sayres, his mate, were afterwards convicted of “transporting” the slaves, and were fined.
English, the “boy,” though indicted in one hundred and fifteen indictments, was discharged without a trial.
Part of Bell’s free family were ransomed; the rest were sold and sent to the South.
Although the facts pertaining to the mob, the repeated attempts upon Drayton’s life, the besieging of the jail, and the expulsion of Drayton’s counsel from it when engaged in his defence, all came out before the grand jury that found these scores and hundreds of indictments, and though it was notorious who some of the ringleaders of the mob were, yet no bill of indictment was ever found against any of them.
FOOTNOTES:[4]In attendance upon the trial, and stationing themselves as near as practicable to the counsel for the defence, were men who cocked pistols and drew dirks upon Drayton, in the mob that pursued him.
[4]In attendance upon the trial, and stationing themselves as near as practicable to the counsel for the defence, were men who cocked pistols and drew dirks upon Drayton, in the mob that pursued him.
[4]In attendance upon the trial, and stationing themselves as near as practicable to the counsel for the defence, were men who cocked pistols and drew dirks upon Drayton, in the mob that pursued him.