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, _Rex_ vs. _Doran_. 3 Carr. & P.
412, _Rex_ vs. _Smith_. Ib. _Rex_ vs. _Flower_, 413. 3 T. R. _Young_
vs. _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offences, the indictment first found shall be deemed to be superseded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 these offences
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 government is 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 court
whether 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 formed _since_ that 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 ever could 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
and hopeless 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 committed _some_ offence
against law, you are, therefore, to discard all scruples and find him
guilty of _this_ offence, 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 being _stolen_. 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 of the 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 for _stealing_. What then, let us inquire, are the
ingredients which constitute the offence of stealing,--which are
indispensable to 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 indictment _from the possession_ of 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,
the chances 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 the inward 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 a
_per 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 have fled 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.