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, _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offences, the indictment first found shall be deemed to be superseded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.

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