SKETCH
Of the Opening Argument in the Case of the United Statesvs.Daniel Drayton, indicted, (in forty-one several Bills of Indictment,) for stealing and carrying away, in the Schooner Pearl, a Cargo of Slaves from Washington, in the District of Columbia, on the Night of the 15th of April, 1848; tried before Thomas H. Crawford, Judge of the Criminal Court of the District of Columbia. P. B. Key, District Attorney; Horace Mann and James M. Carlisle, Counsel for the Prisoner.
Of the Opening Argument in the Case of the United Statesvs.Daniel Drayton, indicted, (in forty-one several Bills of Indictment,) for stealing and carrying away, in the Schooner Pearl, a Cargo of Slaves from Washington, in the District of Columbia, on the Night of the 15th of April, 1848; tried before Thomas H. Crawford, Judge of the Criminal Court of the District of Columbia. P. B. Key, District Attorney; Horace Mann and James M. Carlisle, Counsel for the Prisoner.
Gentlemen of the Jury;
I rise before you under circumstances rarely exceeded in embarrassment. I am an utter stranger to his honor, the judge, and to all of you, gentlemen, who compose the jury. Among all the eager faces in this crowded hall, there is not one with which I am familiar. I suppose there is not one man in this vast assembly who has any sympathy for my client or for me.
The case before us is acknowledged, on all sides, to be one of great moment. It directly affects human interests,—large pecuniary interests,—and these are among the most active and powerful of human impulses. It is a case which has given birth to great excitement. It has been narrated with formidable exaggerations in the public papers; it has been angrily discussed in both houses of Congress, and bruited over the land. From what has transpired in and about this court room, since the trial commenced, I perceive that each individual seems not only to be convinced that the prisoner at the bar has committed a great offence, but, like a lightreflected from a multiplying glass, he sees that offence multiplied a thousand fold in the opinions and feelings of those around him. I cannot forbear to add, that it is a case, also, which, in some of its aspects, touches the deepest and tenderest sympathies of the human heart; for this prosecution not only deals with human beings as offenders, but with human beings and human rights, as the subject matters of the offence.
We have been called to trial, too, at an untimely hour. I have not had time for the preparation and investigation which so important a case demands. Added to this, my colleague, [Mr.Carlisle,] was taken ill on the day he was retained, and, until the evening immediately preceding the commencement of the trial, I had no opportunity for a single interview with him, and then but for an hour, in his sick chamber. During all this time, too, as some of you may know, my attention has been called away by official duties elsewhere.
Gentlemen, let me come a little closer to my relations to this case and to yourselves. I stand here, on this side of the table; you sit there, on the other side. Ourpersonsare near to each other; but should I not greatly deceive myself, were I to suppose that ouropinionswere as near together as our persons? We are within shaking-hands’ distance of each other; still, our convictions and sentiments on certain subjects may be wide asunder as the poles. On a subject of vast importance and gravity,—a subject reflected from every feature of this case,—I was born, and from my birth have been trained up, in one set of ideas; and I mean no discourtesy when I say that you have been born and trained in another set of ideas. Hence it is natural, yes, it is inevitable,—is it not?—that we should approach this subject with widely different views, and, as it were, from opposite points of the moral compass. I am admonished, then, in the outset, that your prepossessionsare against me. The frame of your minds must be adverse to the reception of my views. We are in a position where the hearer, consciously or unconsciously, braces himself against the pressure of the speaker’s arguments. And of all difficult positions in which advocate or orator was ever placed, the most difficult is that of encountering the honest antipathies of his hearers. The heart, secure in its own convictions, closes itself against the argument that would overthrow them, as a fond parent bars his doors against the foe that would carry away his children.
But, gentlemen, amid all these adverse circumstances, and amid these conflicts of hostile and perhaps irreconcilable feelings, is there not some common ground on which you and I can stand together, and greet each other as brethren? Is there not one spot where we can stand side by side, as friends, sympathize with each other, and act together in harmony? Yes, gentlemen, thereisone such spot.It is the ground ofDUTY. In this case, I have certain duties to perform; you, too, have certain duties to perform; and the feeling of a common duty is always creative of the feeling of brotherhood. We are called to these duties as by the voice of God; we are to perform them as under the eye of the Omniscient. Here we are embarked in a common cause. From this moment, then, let all feelings of alienation or repugnance be banished from between us.
Gentlemen, this prisoner has requested me to be his counsel; and I, perhaps unwisely, have acceded to his request. I have taken an oath to be true to him. This has imposed certain responsibilities upon me, which, before Heaven, I may not escape. In this I find my strength. With the fierce excitement, which blazed forth in this District when the prisoners of the “Pearl” were first arrested, still hot around me; with the generally adverse feelings which I suppose youentertain towards the side of the cause which I have espoused, and therefore against its advocate; with these thronged spectators, who show, at every turn and incident of the trial, what their feelings are towards the prisoner and his defenders, I should not be able to stand here one moment, were it not for the supporting, uplifting sentiment, glowing through every fibre of my frame, that I am here in the performance of a high and holy duty. In all else I may be weak; in this I am strong.[4]
So you, gentlemen, sit there to perform a duty. Swearing upon the Holy Evangelists, you have invoked the vengeance of Heaven upon your souls, if, consciously and wittingly, you swerve a hair’s breadth from the line of rectitude; if you allow any partiality in favor of a cherished institution, or any prejudice against the prisoner, to close your eyes or blind your minds to any fact of evidence or rule of law which may be adduced in his behalf.
I might even add a consideration of a lighter nature leading to the same result. Your fortune and mine, for some days to come, I suppose to be settled. I know not how protracted this trial may be, but, gentlemen, we are in it, for longer or shorter, for better or worse; and while we are in it, we shall be obliged to come together from day to day, and live in each other’s presence and company. Now, I trust you have too much philosophy about you to make bad worse. And so of myself. Were we fellow-travellers in the same stage-coach or steamboat, and were doomed to be so for a week or a fortnight, it would be most unwise to add to our inevitable discomforts that of striving to annoy each other; so, when packed together in this room, which seems to have been constructed forcreatures that do not breathe, and with the thermometer above ninety degrees, I trust any icy feelings we may have had towards each other will speedily melt away. In a word, I heartily concur, and I trust you will do the same, in the opinion of the old man who declared, according to the anecdote, that after the experience of a long life, he had found it best to submit to what he could not possibly help.
What, then, is the business before us? Daniel Drayton is set here at the bar charged with a grave offence, and you are impanelled to try him. And who is Daniel Drayton? We shall prove to you that he is a man of sober and industrious life, against whose character, as a just, upright, exemplary citizen, no charge was ever before preferred. Whatever may have been his errors in regard to the transaction which has brought him before you, he has, in consequence of it, passed through scenes which must move your sympathy. He has been torn from his family and immured in a loathsome cell. From feeling that sense of security from lawless violence, which every man, whether guilty or innocent, is entitled to feel, he has been in imminent danger of being torn in pieces by an infuriated mob. Yes, gentlemen, on Tuesday, the eighteenth day of April last, this man, this fellow-citizen of ours, in this capital of the nation, within sight of Congress, and of the President’s house, and within hearing of them, too, was pursued by a mob, from near the river’s side on the south of us to the very doors of the jail on the north,—a mob estimated to consist of from four to six thousand people,—many of them armed with deadly weapons; the thrusts of a dirk knife, which was drawn upon him, coming within an inch of his body; amid wrathful cries of “Hang him!” “Lynch him!” accompanied by all the profanities and abominations of speech which usually issue from the foul throat of that hideous monster—A MOB. Arrived at thejail, the mob besieged him there. When afterwards, and while under examination before magistrates of the city, a distinguished gentleman and member of Congress, [the Hon. Joshua R. Giddings, of Ohio,] appeared at his request and in his defence, the mob surrounded the gates of the jail, demanding the immediate expulsion of the counsel; and the jailer, to save bloodshed, insisted upon his departure. The storm swept beyond the prison and the prisoner. It assailed all who were supposed to sympathize with him. The office of a newspaper in this city, (the National Era,) was threatened with demolition. At a mob meeting, votes were passed,—without any great scrutiny, I presume, into the qualifications of the voters,—that the paper should be discontinued. Its editor was waited upon at night, or at midnight, by a mob-elected committee, and a peremptory demand was made upon him to remove his establishment beyond the District, or to abandon it.
But I will not dwell longer upon these details, so disgraceful to the capital of a republic that calls itselffree, and so abhorrent to the feelings of every right-minded man. Were I to enumerate all the perils, the indignities, and the privations to which my client has been subjected, the day would be too short for the narration.
After Drayton’s examination, he was held to bail. And what, think you, was the amount of the bail demanded? Seventy-six thousand dollars! and seventy-six thousand dollars also for each of the other prisoners,—$228,000 for the seventy-six alleged slaves, when the common market value of such slaves in this neighborhood would not, I suppose, be more than three or four hundred dollars apiece;—and though all of them, too, had been returned, and were in possession of their claimants at the time. Has the fact never yet come to the knowledge of the magistrates of the District of Columbia,that the constitution of the United States declares that “excessive bail shall not be required”?
But, gentlemen, these are not the only hardships and oppressions to which my client has been subjected. How many, at the most, are the offences against the laws of this District which he has committed? He came here on the 13th of April, in the schooner Pearl. He departed on the 15th. On the 17th, he was arrested near the mouth of the Potomac, with a company of alleged slaves on board his vessel. Was not this all one transaction? Can it be divided and separated into a multitude of distinct offences? Can this one deed be made an offence against different laws? If not, then there is another clause in the constitution set at nought,—that clause which declares that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.”
And yet, gentlemen, what do we find on the records of this court? One hundred and fifteen indictments against this prisoner for this one act; and one hundred and fifteen indictments also against each of the other prisoners for engaging in the same. Three hundred and forty-five indictments! Reams of indictments for a single deed! Nor is this the only injustice. Each of the prisoners is indicted for having violated, by this one act, separate and distinct laws. There is an old law of Maryland against stealing slaves, and another law against transporting them out of the jurisdiction; and these laws are claimed, by virtue of an act of Congress, to be in force in this District. Now, if the prisoner stole the slaves, he is not guilty of the separate offence of transporting. If he is guilty of transporting, he is not guilty of stealing. That the two offences should have been committed by one and the same act, is a legal impossibility. If the grand jury first found the prisoner guilty of the offence of stealing the slaves, they thereby declared that he was not guilty of thedifferent offence of transporting. Or, if they first found him guilty of the offence of transporting, they thereby declared that he was not guilty of the separate offence of stealing. To proceed, therefore, after a finding for one offence, to charge the prisoner with the other, was not only a legal absurdity, but a grievous injustice.
Besides, if these slaves were stolen, as is alleged, from forty-one different masters, the whole might have been charged in different counts in the same indictment, and the prisoner might be found guilty upon as many of the counts as law and evidence would warrant.
So there was but one act of transportation. Even, therefore, if it were just to charge the prisoner with the breach of two different laws for the same act, still, as the transportation of the whole was but one, it should have been charged only in one indictment.
See how fatal to any man must such a course of proceeding be. If the stealing were charged in one indictment, it would be tried by one jury; and the evidence being to a great degree the same, the whole trial might be brought within a limited period of time. But with forty-one indictments, there must be forty-one trials, before forty-one different juries; for neither government nor prisoner would consent that a jury, who had given an adverse verdict, should try another of the cases. Now, gentlemen, I care not for the enormous expense of such a proceeding,—ten dollars on each indictment, enuring to the benefit of the district attorney,—
Here Mr.Key, the district attorney, interrupted and said: If Mr. Mann thinks I am to have ten dollars on each of these indictments, he is mistaken; and in my argument to the jury I shall deny it.
Mr.Carlisle. Mr. Mann is not mistaken in the general statement, that the district attorney receives ten dollars on each indictment. He receives ten dollarson each, until the income of his office amounts to six thousand dollars a year. It is only when the emoluments of the office reach that sum that he ceases to draw his ten dollars on each indictment.
Mr.Mann. I was saying, gentlemen, that I care comparatively nothing for the amount of expense incurred in consequence of these three hundred and forty-five indictments. Far graver consequences than the mere expenditure of money are involved. Who can maintain or survive a contest against such a host of indictments, sustained by all the power and resources of the government? Were a man rich as Crœsus, it would exhaust his means. Were he brave as a martyr, it would outweary his endurance. Were he innocent as a child unborn, still, on the mere doctrine of chances, he might fail in some one case, out of such a multitude. Were he in the prime of life, its setting sun might go down in darkness and sorrow before the final verdict of acquittal could be pronounced in his favor. Under such a practice with regard to indictments, coupled with such a practice in regard to bail, an accusation would be as fatal as crime itself, however innocent the accused might be. The law provides a statute of limitations as to offences. Could it have foreseen such an abuse as this, it would have provided a statute of limitations against the number of prosecutions for a single offence; for the government might as well try a man, on a separate indictment, for each hair of a horse he had stolen, and hold him, on each of them, to separate bail. The English courts, gentlemen, have provided a remedy for the beginnings of this injustice. They have decided, again and again, that when even two indictments are found against a man for the same offence, they will compel the prosecutor to make his election between them,—to proceed upon one and abandon the other. 2 Leach’s Cr. Cas., 608,Rexvs.Doran. 3 Carr. & P. 412,Rexvs.Smith.Ib.Rexvs.Flower, 413. 3 T. R.Youngvs.The King, (in error,) 106. See, also, in support of the same principle, New York Revised Statutes, vol. 2, part 4, ch. 2, § 42, where provision is made that “if there be at any time pending against the same defendant two or more indictments for the same offence, or two indictments for the same matter, although charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.”
But, gentlemen, there is another aspect of this case, which presents, in a manner still more glaring, the enormity of the proceeding to which we are subjected. Under each of the forty-one indictments against this prisoner for stealing, he is liable, if convicted, to be sentenced to twenty years’ imprisonment, which would make an aggregate imprisonment of more than eight hundred years. Methuselah himself must have been caught young, in order to survive such a sentence. The very shortest time which the court, in its discretion, could imprison, after a conviction on all these indictments, would be two hundred and eighty-seven years! Did the law ever contemplate so cruel and revengeful a proceeding? Did the law ever suppose that the court, after having sentenced a man to eight hundred years’ imprisonment, or even to two hundred and eighty years’ imprisonment, should go on, and sentence him to twenty years, or even to seven years more?—when the court must know that it would be imposing sentences to be executed centuries after the prisoner would be dead, and after he would have left his prison, not to return to this world, but to go to another.
But even this is not all. Behind these forty-one indictments for stealing stand drawn up, in battle array, against this same prisoner, seventy-four other indictments for transporting the very slaves whom he is charged to have stolen. The penalty for each of theseoffences is a fine of two hundred dollars, with imprisonment till paid. The aggregate of these fines would be $14,800. But a penalty not inflicted by the statute, but superadded by this unwarrantable proceeding of the government, is the defence of seventy-four successive cases, under which the wealthiest, the strongest, and the most innocent man must break down, and be swept to ruin.
Corresponding with the oppressive character of all these preliminaries was the manner of the prosecutor, in his opening argument. He has seen fit to use language against the prisoner the most vehement and denunciatory. He has imputed to him every base motive that can actuate a depraved heart, and showered upon him the coarsest epithets that can describe a villain. Now if it shall turn out that my client is innocent, then all these criminations are unjust and cruel; and even should it be proved that he is guilty, it is no part of his punishment to be compelled to sit here in enforced silence, hour after hour, and hear himself denounced and vilified in language as unfitted to his character as to the sobriety of judicial proceedings.
Gentlemen, the representative of the government, like the government itself, should be dispassionate and calm. Majesty is one of the attributes of sovereignty, and serenity is inseparable from majesty. The government is not a being of wrath, of ferocity, of vindictiveness; and the exhibition of such passions is as unsuitable to the representative of the government as to the government itself. Though the image of justice may be represented as holding the sword of power in one hand, yet she is also represented as holding the balance of equity in the other; but when the government assumes the guilt of the prisoner, before it has been found, and denounces him in bitterest epithets as criminal, while as yet the law presumes him to be innocent,—the only proper emblem of such a governmentis an image which, a few years ago, might have been seen surmounting the dome of the court house in Taunton, in the county of Somersetshire, in England, to which the artist had originally given both the balance and the sword; but a storm, careering through the sky, had swept the balance away, so that nothing but the avenging sword was left; and there the hateful figure stood aloft, an image of wrath untempered by equity.
But, gentlemen, let me trust that the prisoner has at length escaped from the turbulent and perilous scenes which have hitherto destroyed his peace and threatened his life. Let me trust that the fell spirits which prompted the proposal, made by one of his captors while he was yet on board the steamboat, and previous to his return to this city, that he should be brought up and hung at the yard-arm,—as was testified to by the government’s witnesses,—is at length exorcised; let me trust that the demoniac cry of vengeance which was shouted by the mob, and the thirst for blood which their conduct betokened, while the prisoner, bound and defenceless, was conducted from the river to the jail, has found no welcoming response in your bosoms. Let me trust, also, that the violence of manner and the bitterness of language which have been so freely employed in the opening of this case, have not disturbed the balance of your minds, or so ruffled their serenity that the images of truth shall be distorted as they are reflected from them.
Gentlemen, the spot on which a jury are seated should be a place separate and apart from the rest of the world; sacred, and inaccessible to the passions and prejudices that move the community without. It should be a place consecrated to the inquiry, “What is truth?” and to the application of its conclusions to the conduct of men. When you took your seats in that place, you were severally asked by the courtwhether you had formed any opinion respecting the guilt or innocence of the prisoner, and you severally answered in the negative. The final opinion, then, which shall be expressed in your verdict, must be an opinion which you have formedsincethat time, and from the law and testimony here introduced. Into that opinion, no other element must be allowed to enter. The prejudged guilt of the prisoner, as manifested by repeated attempts to take his life; the demand which may exist, and which I suppose does exist, out of doors, that he shall be convicted, innocent or guilty; the anticipation that you are to meet an angry community, if you acquit him;—all these considerations, if they obtrude upon your minds, must be sternly rebuked and banished. The record of your verdict will survive these temporary excitements. It should be a verdict, therefore, which you can look upon, at the close of life, with conscientious satisfaction. It must be one which your children can look at with a filial and honorable regard for their fathers’ uprightness. In a case which has excited so much attention, both here and throughout the country, you, too, must expect to be put on trial; your verdict will go into the great record of history, to be passed upon by your country and by posterity.
Once, gentlemen, in the state to which I belong, a case arose in which the deepest and holiest feelings of the community were intensely excited. One of the preludes to the great drama of the American revolution was the slaughtering, in the year 1770, of five American citizens, in the streets of Boston, by the British soldiery. The supposed offenders were brought to trial for the homicide. They were defended by John Adams and Josiah Quincy,—illustrious names! The public breast throbbed with excitement. The sight of butchered countrymen made the blood seethe in the hearts of their fellow-citizens. If there evercould be a case where the law might be wrested to meet the popular outcry for redress; if there ever could be a case where the evidence might be strained and distorted to bring the facts within strained and distorted law, so as to visit a high outrage with a moral, if not a legal penalty, the “Boston Massacre” of 1770 supplied all its conditions. That cause was tried, and the prisoners were acquitted. The storm of popular disaffection soon cleared away, and now twelve purer and fairer names are not inscribed on the roll of fame than the names of those twelve jurymen, who dared to brave public opinion, and to perform an act of arduous, if not of perilous justice. Noble and illustrious bravery of the soul, which, when the yelling fiends of popular passion and prejudice beset the ascending pathway of virtue, can look to conscience, to posterity, and to God, and defy them all! Follow their example, gentlemen, and, whatever fierce sounds of public condemnation may be now rung in your ears, you will have the same glorious reward, and your children, and all the good men of your country, will honor your memories.
Gentlemen, in the vehement appeals which were made to you by the government’s counsel, for the condemnation of the prisoner, you were told that he had “invaded this District, and ruthlessly carried away more than a hundred thousand dollars’ worth of its property;” and you were warned that, if you let such a man escape, you might as well abandon at once all property in slaves. But it so happens, gentlemen, that you are sworn to try this prisoner for stealing John and Sam, two slaves of one Andrew Hoover, of the alleged value of fourteen hundred dollars only. Is each of these forty-one cases against the prisoner to be inflamed and exasperated by charging him with plundering the District to the amount of more than a hundred thousand dollars? A pretty strong effort of fancy, is it not?to work up the fourteen hundred dollars of the indictment into more than four millions in the argument! Is this to be another of the oppressive consequences of multiplying the one alleged offence of the prisoner into forty-one separate offences? Is the government’s counsel to botch up any sort of nefarious charge against the prisoner, and then call upon you to find him guilty on these strained and overwrought exaggerations of his conduct? No, gentlemen! This would be to suppose that you sit there to administer the worst kind of Lynch law,—a kind that has all its injustice, while screening itself from the odium of its violence. The object of civil society is to protect rights and to redress wrongs. For these great purposes laws are enacted, courts are established, juries are instituted, and rules of evidence are framed. Without civil society, each man would have a right to preserve his own rights and to redress his own wrongs. Civil society takes away something from a man’s rights, but it adds immensely to his powers; it makes him stronger than any individual oppressor, and, on the whole, it protects its members far better than they could protect themselves. But civil society, like every thing human, is imperfect. Once out of ten times, or once out of twenty times, it may fail to accomplish the end for which it was established. The very instruments it has framed may sometimes be the cause of its failure. What then? We do but fail in each tenth, or each twentieth case, when, without the social organization, failure might have been the general rule. And, therefore, even if a guilty person does sometimes escape, all we can say is that civil society has not done its work infallibly. It has done well, though it has not done all. But suppose this very civil society, wielding as it does the combined and terrible strength of the whole community, should turn its collected force against an innocent man, and crush him, then in what an utter andhopeless ruin is he overwhelmed! How much better for him had its powerful machinery never existed, than that he should be ground to powder beneath its wheels! Now, such might be the case with every prisoner, if juries were to act without strict obedience to law, and a strict observance of the forms of law. Any appeals, therefore, made to you, that because this prisoner may have committedsomeoffence against law, you are, therefore, to discard all scruples and find him guilty ofthisoffence, I regard as treason against justice, as a monstrous perversion of judicial proceedings; yes, as a thousand times worse than any guilt of the prisoner, even supposing the distorted features of the picture, drawn by the government’s counsel, to be genuine. It would be nothing less than Lynch law, perpetrated by twelve picked and sworn men, instead of a mob.
Gentlemen, the district attorney in his opening has not deigned to tell us on what law he proceeds. He has accused the prisoner of stealing often enough, but has read no statute, and referred to no decision, which creates or describes any such offence. Hence a task which clearly belonged to him is devolved upon me.
After the District of Columbia was ceded to the United States, Congress passed a general law, adopting the laws of Maryland, for that part of the District which had been ceded by Maryland. This trial, therefore, must proceed upon laws originally passed by Maryland. By the act of 1737, ch. 2, § 4, it is provided that any person “who shall steal any negro or other slave,” “or who shall counsel, hire, aid, abet, or command any person or persons” to do so, shall suffer death as a felon. The punishment has since been changed to imprisonment in the United States prison, for a term of not less than seven, nor more than twenty years. [Here comments were made at length on the preamble of the statute, and the class of cases to which the law was intended to apply.]
This act was designed to prevent slaves from beingstolen. But a man might lose a slave without his being stolen. The slave might be enticed or persuaded to run away. Experience, doubtless, made the masters aware of this. Hence, fourteen years afterwards, by the act of 1751, ch. 14, § 10, it was provided that “if any person shall entice and persuade any slave within this province to run away, and who shall actually run away from the master,” &c., he shall be punished, &c.
But there was still another way of depriving a master of the service of his slave. Hence the act of 1796, ch. 67, § 19, made it a separate and distinct offence for any person to be guilty of “the transporting of any slave or person, held to service,” from the state.
Now, here, gentlemen, are four distinct legal provisions, all designed to protect slave property. By these provisions, four distinct legal offences are created. The law, by creating and defining these offences, has authoritatively declared that one of them is not either of the others of them. “Stealing” is one thing. “Counselling, hiring,” &c., a man to steal, is not stealing itself. “Enticing and persuading” a slave to run away from his master is not stealing. “Transporting” a slave out of the jurisdiction is not stealing. The inquiry for you, therefore, is whether the prisoner is guilty of any of these offences, and if of any, then, of which.
Now, gentlemen, let me take advantage of a map which is lying here accidentally before me, to illustrate this case. Four states,—Pennsylvania, Maryland, Virginia, and North Carolina, are here represented. The boundaries between them are distinctly marked. Pennsylvania is not Maryland, nor either of the others. Maryland is not Virginia, nor either of the others; and so of the rest. Just so it is with the offences created by these statutes. Any one of them is not either ofthe others. It is as plain that the offence of “transporting” a slave out of the jurisdiction is as different from the offence of stealing a slave, as this geographical shape of Maryland is different from this geographical shape of Pennsylvania. As, therefore, if the geographical metes and bounds of the State of Maryland were shown to you, you could not say, upon your oaths, that it was a description of the State of Pennsylvania; so, if the offence of “transporting” be proved to you, you cannot say, on your oaths, that it is the offence of stealing.
Or take an illustration from other things. The object of a sun-dial, a watch, a clock, and a chronometer is the same. All are made for the measurement of time, as all these laws were made for the protection of slave property. But could you, therefore, on your oaths, convict a man of stealing a chronometer, when he had only taken a clock or a watch? No, you could find him guilty only of the thing proved to have been done.
Or, again, suppose a law should be made to protect a man’s property in his books; and the stealing of books, generally, should be punishable by five years’ confinement in the penitentiary. Such a general law would include all books. Suppose a subsequent law should inflict a lighter penalty for stealing an octavo volume, and a still lighter one for a duodecimo. Then it would be necessary, in an indictment, to set out the kind of book stolen, and no man could be lawfully punished for the weightier offence who had only committed the lighter. So here, the first law punished “stealing,” the next “enticing,” and the next “transporting.”
Now, gentlemen, I maintain that, at most, nothing but the offence of “transporting” has been proved against this prisoner. But he is arraigned forstealing. What then, let us inquire, are the ingredients which constitute the offence of stealing,—which are indispensableto its perpetration? They are, 1. That the property shall be taken by the thief from the possession of the owner. 2. That it shall be taken into the possession of the thief,—that is, that the taker shall exercise some act of control or ownership over it. And, 3. That this taking by the thief, from the possession of the owner, and into his own possession, shall be for the felonious purpose of converting the said property to his own use.
Now, I think it is not too much to say, that neither one of these three indispensable ingredients of larceny has been proved in this case.
1. It is not proved that the prisoner took the two slaves mentioned in the indictmentfrom the possessionof Andrew Hoover. Could not some other person besides the prisoner have put it into the heads of these slaves to leave their master? There are white men in this city hostile to the institution of slavery, and desiring the freedom of all slaves. Could they not have said to Hoover’s slaves, “Here is a schooner at the wharf; it is to sail at such a time; be there, and you may escape to a free state”? Here, too, are thousands of free negroes, or colored persons, in this District, with whom the slaves are in daily and open communication. Could they not have infused into the mind of these slaves the idea of liberty? Is it not a thousand times more probable that it was done by some citizen in the District, or by some colored acquaintance or friend of theirs, enjoying the means of constant communication with them, than that it was done by an entire stranger to them, as the prisoner was? Can aught be conceived more absurd or preposterous than that the prisoner should go round the streets of Washington, picking up a slave here and there, to complete his cargo, as the driver of a stage-coach goes round picking up passengers? Should he accost a colored man in the streets, and ask him if he were a slave, thechances are three to one that the person addressed would turn out to be a freeman; for I suppose the proportion, in this District, of the free colored persons to the slaves to be as great as this. If the fourth man or woman he might meet should prove to be a slave, how could he know but what he might be addressing one so attached to the place, to his home and relatives, and to his master, that even the sweets of freedom would not tempt him to leave; and that the consequence would be an immediate reporting of the interview, and sudden detection and punishment? But a person on the spot would know who were slaves, and what slaves were discontented with their condition; he could select the occasion when a slave had been punished by his master, when his body was smarting, and his mind was fired with indignation against him, and then sow the seeds of discontent and the hopes of escape in a fruitful soil. If, then, the slaves were, in fact, instigated to leave their master’s possession, the probabilities are a thousand to one that they were so instigated by some other person or persons resident here, and not by the prisoner. If this were so, and they came on board the prisoner’s schooner, after having absconded from their master, then he did not take them from Hoover’s possession, and so is not guilty of the first ingredient in the crime of larceny.
But is there not still another way in which slaves may be induced to leave the possession of their master? Though we may call men slaves, yet are they not human beings?—degraded from the natural dignity of manhood, it is true, and dwarfed in their mental stature, but still human beings; subject to the passions of our common nature, animated by its hopes, inflamed by its resentments, and shrinking and flying through fear from the uplifted rod. As human beings, could not the desire of escape from their master’s possession have originated with themselves?—prompted by theinward and instinctive longings for liberty, which spring perennial in the human breast.
The attorney for the government, in his opening, dwelt long and earnestly on the value of this species of property. He described it as the most valuable kind of property known in the District, and therefore most vigilantly to be guarded. Doubtless it has a certain pecuniary value; and, as it increases in intelligence, activity, and skill, its value is greatly enhanced. But with this enhanced value comes aper contra. With increased intelligence and mental development, the desires natural to manhood spring up;—the longing for liberty, and for the possession of free agency; the desire of selecting one’s own field of labor, and means of enjoyment; the desire of commanding the rewards of one’s own toil. So that, as the value of a slave increases, the strength of the tenure by which he is held becomes less secure. It is a weight of gold suspended by a cord. The master wishes to increase the mass. He adds little by little, until the weight snaps the cord, and he loses the whole.
Hoover says he had been offered $1400 for the two slaves mentioned in the indictment, and had refused the offer. Their services were probably worth to him a dollar a day each. One of them was employed in driving a cart about the city. As he saw a handful of money paid to his master every week, or every month, for his own earnings, think you he never asked himself, why that money could not be his? When three out of every four colored men whom he met, from day to day, were receiving their own earnings, and making those earnings minister to their comforts and their pleasures, might not Hoover’s slaves have said, “Why are not our earnings our own? and, if we cannot possess them here, why should we not go to a country where the laborer is deemed, in the language of Scripture, to be worthy of his hire?” and so havefled of their own accord? for, though we are prone to apply the precepts of the gospel to others rather than to ourselves, yet this is a passage which they would be likely to take home.
But this is not all, gentlemen. In this capital of a nation so boastful of its freedom, the common air is vocal with the accents of liberty. Many of the colored people can read. Who knows but some of them have read the Declaration of American Independence; and,in their blindness and simplicity of mind, applied its immortal truths to themselves? “All men are created equal!” and among their “inalienable rights” “are life,LIBERTY, and the pursuit of happiness!” Who knows but that they may have seen these doctrines, with a constellation of names subscribed to them as glorious as any that ever shone in history’s firmament? If such ideas once got possession of a man’s mind, do you think that fire or water could ever burn them or drown them out? Those who cannot read, can hear; and if you are to keep from them the perpetually recurring sights and sounds which must awaken the quick instincts of liberty, you must extinguish their eyes, and seal up their ears in everlasting silence. The last spring was one of peculiar “refreshing” to the ardent lovers of liberty. The recent events of Europe were the theme of every tongue. Not only in the market-place, in the street, and in after-dinner conversations, was the emancipation of Europe the subject of discussion, but stormy eloquence rushed forth from the capital of the nation, like winds from the cave of Æolus, and roared and raved till all but the dead must have heard it. Nay, more, gentlemen, one of the witnesses identified the day when the defendant’s schooner, the Pearl, came to anchor in the waters of this city, because he remembered it as the day of the “torchlight procession.” And what was the “torchlight procession”? You all know;—drumsbeating, music playing, bonfires blazing, the house of the President and of high official dignitaries illuminated, the trees of the avenue fancifully lighted up with many-colored lanterns; men, women, children, and slaves, all out, and all agog to see and to hear of the wonderful things which “liberty” had done, or hadnotdone, on the other side of the Atlantic. There, too, moved in long procession men who were elected for the occasion, from among the nation’s elect,—heads of departments, senators, and representatives,—men distended almost to bursting with eloquence for regenerated Europe, who must speak or die! They marched to an open space on Pennsylvania Avenue, where, on an extempore rostrum, they eased themselves of their repletion of patriotism; while people of all kinds, conditions, and colors stood below, empty and agape, to receive what the upper divinities might send down. And now let me read to you, gentlemen of the jury, some of the precious things that were said on that memorable evening,—only two nights before the escape of the slaves in the schooner Pearl,—and see, after you have tasted of the yeast, if you can wonder at the fermentation:—
“——Events which hold outto the whole family of manso bright a promise ofthe universal establishment ofCIVILand religious liberty, and the general destruction of monarchical power throughout the world.”“New and endearing ties”—“between the people of liberated France, andthe twenty millions of freemenwho dwell, in all the plenitude of social and political happiness, between the great seas which water the eastern and western shores of this vast continent.”“I feel authorized to declare that there isnot onein this vast multitude whose sympathies are not deeply enkindled in behalf of France and Frenchmen.”“——Such has been the extraordinary course of events in France, and in Europe, within the last two months, that the more deliberately we survey the scene which has been spreadout before us, and the more rigidly we scrutinize the conduct of its actors, the more confident does our conviction become that theglorious workwhich has been so well begun cannot possibly fail of complete accomplishment; that the age ofTYRANTS AND SLAVERYis rapidly drawing to a close; and that the happy period to be signalized by theuniversal emancipation of manfrom thefetters of civil oppression, and the recognitionin all countriesof the great principles ofpopular sovereignty, equality, andBROTHERHOOD, is, at this moment, visibly commencing.”[Here JudgeCrawfordbroke in, with great sharpness, and said, “Mr.Mann, such inflammatory language cannot be allowed in this court. We have institutions that may be endangered by it. The court thinks it its duty to interfere. The counsel cannot be allowed to proceed with such inflammatory language.”Mr.Carlislehere rose, and, for the space of ten or fifteen minutes, with the crowded audience hushed to a grave-like silence, he interspersed resistless logic with noble sentiments, in a strain of eloquence rarely, if ever, surpassed. He vindicated every word his colleague had said, both as to matter and manner, and obtested Heaven to preserve American tribunals of justice from following the examples of the worst times of English judicial tyranny, when the basest minions of the crown were elevated to the bench, that they might overawe and abash counsel in their defence of prisoners whom the king had foredoomed to punishment.JudgeCrawford. (Trembling with emotion.) Mr.Mann’scourse of argument was perfectly legitimate. It was the inflammatory language that I objected to. It was the language, and not the argument, that was objectionable.]
“——Events which hold outto the whole family of manso bright a promise ofthe universal establishment ofCIVILand religious liberty, and the general destruction of monarchical power throughout the world.”
“New and endearing ties”—“between the people of liberated France, andthe twenty millions of freemenwho dwell, in all the plenitude of social and political happiness, between the great seas which water the eastern and western shores of this vast continent.”
“I feel authorized to declare that there isnot onein this vast multitude whose sympathies are not deeply enkindled in behalf of France and Frenchmen.”
“——Such has been the extraordinary course of events in France, and in Europe, within the last two months, that the more deliberately we survey the scene which has been spreadout before us, and the more rigidly we scrutinize the conduct of its actors, the more confident does our conviction become that theglorious workwhich has been so well begun cannot possibly fail of complete accomplishment; that the age ofTYRANTS AND SLAVERYis rapidly drawing to a close; and that the happy period to be signalized by theuniversal emancipation of manfrom thefetters of civil oppression, and the recognitionin all countriesof the great principles ofpopular sovereignty, equality, andBROTHERHOOD, is, at this moment, visibly commencing.”
[Here JudgeCrawfordbroke in, with great sharpness, and said, “Mr.Mann, such inflammatory language cannot be allowed in this court. We have institutions that may be endangered by it. The court thinks it its duty to interfere. The counsel cannot be allowed to proceed with such inflammatory language.”Mr.Carlislehere rose, and, for the space of ten or fifteen minutes, with the crowded audience hushed to a grave-like silence, he interspersed resistless logic with noble sentiments, in a strain of eloquence rarely, if ever, surpassed. He vindicated every word his colleague had said, both as to matter and manner, and obtested Heaven to preserve American tribunals of justice from following the examples of the worst times of English judicial tyranny, when the basest minions of the crown were elevated to the bench, that they might overawe and abash counsel in their defence of prisoners whom the king had foredoomed to punishment.JudgeCrawford. (Trembling with emotion.) Mr.Mann’scourse of argument was perfectly legitimate. It was the inflammatory language that I objected to. It was the language, and not the argument, that was objectionable.]
[Here JudgeCrawfordbroke in, with great sharpness, and said, “Mr.Mann, such inflammatory language cannot be allowed in this court. We have institutions that may be endangered by it. The court thinks it its duty to interfere. The counsel cannot be allowed to proceed with such inflammatory language.”
Mr.Carlislehere rose, and, for the space of ten or fifteen minutes, with the crowded audience hushed to a grave-like silence, he interspersed resistless logic with noble sentiments, in a strain of eloquence rarely, if ever, surpassed. He vindicated every word his colleague had said, both as to matter and manner, and obtested Heaven to preserve American tribunals of justice from following the examples of the worst times of English judicial tyranny, when the basest minions of the crown were elevated to the bench, that they might overawe and abash counsel in their defence of prisoners whom the king had foredoomed to punishment.
JudgeCrawford. (Trembling with emotion.) Mr.Mann’scourse of argument was perfectly legitimate. It was the inflammatory language that I objected to. It was the language, and not the argument, that was objectionable.]
Mr.Mann. Gentlemen of the jury, as the interdict against the line of argument I was pursuing,—now acknowledged to be just and proper,—has been withdrawn, I take it up where I left it, and proceed.
Mr.Key, district attorney. I demand to know from what paper the gentleman reads.
Mr.Mann. (Holding up the paper and pointing to its heading.) From Mr. Ritchie’s Washington Union, of April 20th. Isn’t that good authority on this subject?
Mr.Key. From whose speech does the gentleman read?
Mr.Mann. From the speech of the Hon. HenryS. Foote, a senator in Congress from the State of Mississippi.
Mr.Key. The gentleman cannot read a paper to the jury, unless he expects to prove it.
Mr.Mann. I deny that as a principle; but, if required, will call Mr. Foote to swear to his speech.
JudgeCrawford. Mr. Mann knows Mr. Foote did not mean his language forourslaves. (A suppressed laugh around the bar.)
Mr.Mann. May it please your honor, while nothing, on the one hand, will ever deter me from doing my duty to a client, yet, on the other hand, I am moved to say that I have been trained from my youth to such respect for a court of justice, that I would say nothing to it or before it which should not be fitting and appropriate, as apples of gold in pictures of silver. Let me then restate my argument, that we may see whether, and by whom, this rule has been departed from. I reiterate, then, if slaves are property, they are a peculiar kind of property. They are instinct with the common desires of humanity, and among them one of the deepest and strongest is the love of liberty. And just in proportion as their value is increased by intelligence and development, just in that proportion is the bond weakened by which they are held. In all places slaves hear something, but in this place they hear much, of what is said in behalf of human liberty and of human rights. If they hear this, and are above the condition of brutes, they will apply it to themselves. Every Fourth of July oration, if understood, is a torch to light up another St. Domingo. If they hear the word “slave” used in reference to those who have been deprived of their natural rights in other countries, they will apply that word to their own condition in this. If they hear the word “tyrants” used in reference to one who deprives others of their rights, for “tyrants” they will read “masters;” and nomortal power, or law, or art, can help it, but by blotting out all that is human within them. The slaves in this city are constantly hearing what must remind them that they are slaves; and therefore they are constantly incited to escape from their bondage. The torchlight procession, with its speeches and parade, wasoneamong ten thousand of these incitements. The slaves, therefore, who went on board the Pearl, might have obtained the idea of escape from some other person than from the prisoner,—from some orator who lays down rules for the meridian of Europe, which do not quite suit the meridian of America. Hence they might have gone and applied to the prisoner for a passage. To this he might have assented. And if so, then his offence can be nothing beyond the offence of “transporting,” and is not the offence ofstealing, as charged in this indictment.
And, as to the inflammatory language which the court charges me with having used: every word which was uttered by me, and which the court characterizes and denounces as “inflammatory,” and thinks not proper to be spoken in this court room, because it may endanger the institutions of this city, was the exact language of the Hon. Mr. Foote, senator in Congress from the State of Mississippi, uttered by him from the rostrum, on Pennsylvania Avenue, the most public place in this city, on the evening of the 13th of April last, to thousands of people there assembled, men, women, children, negroes and all.
I had marked, may it please the court, several other passages,—for this purpose most pungent and piercing,—in the speeches of that evening, to be read on this occasion; but as I think both court and jury are already pretty well apprised of the pertinency and force of my argument under this head, I shall content myself with reading one passage more. It is from the speech of the Hon. Frederick P. Staunton, representativein Congress from Tennessee, delivered on the same occasion, and printed in the same paper:—