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;--drums beating, 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 had _not_ done, 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 out _to the whole family of man_ so bright
a promise of _the universal establishment of_ CIVIL _and religious
liberty_, and the general destruction of monarchical power throughout
the world.”
“New and endearing ties”--“between the people of liberated France, and
_the twenty millions of freemen_ who 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 is _not one_ in 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 spread out before us, and the more
rigidly we scrutinize the conduct of its actors, the more confident
does our conviction become that the _glorious work_ which has been so
well begun cannot possibly fail of complete accomplishment; that the
age of TYRANTS AND SLAVERY is rapidly drawing to a close; and that the
happy period to be signalized by the _universal emancipation of man_
from the _fetters of civil oppression_, and the recognition _in all
countries_ of the great principles of _popular sovereignty, equality,
and_ BROTHERHOOD, is, at this moment, visibly commencing.”
[Here Judge CRAWFORD broke 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. CARLISLE here 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.
Judge CRAWFORD. (Trembling with emotion.) Mr. MANN’S course 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. Henry S. 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.
Judge CRAWFORD. Mr. Mann knows Mr. Foote did not mean his language for
_our_ slaves. (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 no mortal 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, was
_one_ among 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 of _stealing_, 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,
representative in Congress from Tennessee, delivered on the same
occasion, and printed in the same paper:--
“It has been truly said here this evening, that our example has been
of essential service to France. Who can doubt it? How different would
have been the struggle for liberty to be secured by republicanism,
if there had been no example of a stable republican government to
which the patriot could point, for the encouragement of his people!
It is said we are propagandists. We do not, indeed, propagate our
principles with the sword of power; but there is one sense in which we
are propagandists. We cannot help being so. Our example is contagious.
In the section of this great country where I live, on the banks of
the mighty Mississippi river, we have the true emblem of the tree of
liberty. There you may see the giant cottonwood spreading his branches
widely to the winds of heaven. Sometimes the current lays bare his
roots, and you behold them extending far around and penetrating to
an immense depth in the soil. When the season of maturity comes, the
air is filled with a cotton-like substance, which floats in every
direction, bearing, on its light wings, the living seeds of the mighty
tree. They lodge upon every bank of sand which emerges from the bosom
of the receding tide, and soon a young forest is seen to lift its head
from the surface of the barren waste. Thus the seeds of freedom have
emanated from the tree of our liberties. They fill the air. They are
wafted to every part of the habitable globe. And even in the barren
sands of tyranny they are destined to take root. The tree of liberty
will spring up every where, and nations shall recline in its shade.”
And thus, gentlemen of the jury, I say that while some of the seeds of
liberty which we scatter are wafted to a foreign realm, and fall upon a
foreign soil, others will drop upon the hearts of bondmen and bondwomen
at home, and will there fructify and mature into _their_ appropriate
harvest.
Such, gentlemen, are the considerations that lead me to believe that
the slaves found on board the schooner Pearl left the possession of
their masters of their own accord, or at the private suggestion of
some friend, and not at that of the prisoner; or because they were
publicly incited thereto by that boastful spirit amongst us which
is forever shouting the praises of liberty, while restricting the
application of its principles. I therefore infer that the prisoner has
not committed the act which forms the first ingredient in the offence
of larceny,--the taking of property from the possession of the owner.
2. To constitute the offence of larceny, the prisoner must have taken
the slaves into his own possession. Now, of this there is not a
particle of evidence. For aught that appears, the slaves might have
been passengers, on board his schooner, for a fare. They themselves
might have paid this fare, or others might have paid it for them. In
either case, they were no more in possession of the prisoner than you
or I are in possession of a railroad corporation, when we travel in its
cars.
3. The third question is, whether, even if the prisoner did take the
slaves named in this indictment from the possession of Andrew Hoover,
and into his own possession, he did so for the felonious purpose of
converting them to his own use.
The act of stealing, gentlemen, springs from the impulse to acquire
property, as a means of gratification. This impulse or desire to obtain
the means of enjoyment is universal. The law denounces its penalties
against stealing, in order to repress the excesses of this propensity,
and to confine it to honest acquisitions. Hence one man may interfere
with the property of another in a thousand ways, without being guilty
of stealing. It is not the mere taking of another man’s property,
therefore, which constitutes stealing, but the taking of it _in order
to convert it to the use of the taker_, and so to save himself the
labor of earning it. Hence I may take a man’s plough from his field,
or his wagon from his barn, and use them temporarily; but if I return
them again to the owner, it is not stealing, but only a trespass. So,
according to the books, I may take a man’s horse from his stable, ride
him thirty miles, in order to flee from justice, and then, if I abandon
the horse, it is not stealing. It is only a trespass.
The doctrine, gentlemen, which I wish to enforce upon your minds, is,
that every act of taking another man’s property is not stealing. When
a wag, riding with a clergyman to church, took his sermon from his
pocket, for the purpose of enjoying his embarrassment when he should
get into the pulpit, and find himself in the presence of the enemy
without any ammunition, such taking was not stealing; for doubtless the
rogue had no intention of appropriating either the sermon or its morals
to his own use.
So it is related of Sir Walter Scott, that, when he was a boy at
school, he got within one of the head of his class. But the boy at the
head never made a mistake, and so he stood there, as perseveringly
as the letter A stands at the head of the alphabet. But Sir Walter
observed that, when his classmate was reciting, his fingers always
fumbled with a button on his jacket, and, watching his opportunity
at their next romping on the playground, he cut off the button from
his rival’s jacket; and, at the very next lesson, the boy, being
disconcerted at not finding the button, missed his answer, and Sir
Walter rose to the head. But surely this was not stealing.
The reason why, in each of these cases, one would not be guilty of
stealing, is, that he does not mean to make the article taken his own.
He gets a temporary advantage from it, but does no act that proves
a design of permanent or unlimited ownership. Hence there is the
broadest and most striking difference between stealing and malicious
mischief. If one man takes the property of another, merely to destroy
or annihilate it, out of ill will or revenge towards the owner, this
is malicious mischief only, and not stealing. It is not punished as
stealing. Morally, it may be as wrong,--perhaps worse than stealing
itself. But this impulse which prompts to the _destruction_ of
another man’s property is vastly weaker than that which leads to its
_appropriation_. The latter is gratified a thousand times where the
former is once, and therefore the law visits the former with the milder
penalty. If taking property from its owner from revenge, and for the
malicious purpose of destroying it, be not stealing, but only malicious
mischief, then surely taking the property for the benevolent purpose
of doing a kindness to the property itself,--as to a slave,--is not
stealing.
Take an illustration. Wild animals are the property of no one. The
undomesticated hares that run over my fields, the pigeons that fly over
my house, or the fishes that swim in my streams, are not my property so
that they can be the subjects of larceny. If a man takes them, he is
liable in trespass for entering my grounds, and that is all. But if I
confine hares in a warren, or pigeons in a cote, or fishes in a seine,
then they are my property, and are the subjects of larceny, because I
have reduced them to possession. Under such circumstances, if a man
shoots or catches them for his table.--that is, to convert them to his
own use,--he steals them; but if a man merely releases them from their
confinement, breaks open their enclosures to let them go free, he is at
most only guilty of malicious mischief. The English nobility send to
France for foxes. These are caught in the Pyrenees or other mountains,
brought across the English channel, and placed in the parks of noblemen
preparatory to the barbarous amusement of a fox-hunt. Now, if one lord
should take a fox from the park of another lord, for the pleasure of
hunting him down, on his own premises, this would be stealing; but
if he should only assist a fox to escape out of the park, for the
benevolent purpose of restoring him to his natural liberty, this would
not be stealing, but only a trespass. In such a case, the man who
enlarges the fox does not do it in order to save himself the labor or
expense of catching a fox; that is, he does not convert the fox to his
own use.
Let me give you another illustration, which I select for the beauty
of the language in which it is conveyed, and for the nobleness of the
sentiments that accompany it. In the “Sentimental Journey” of Sterne,
the following incident is related:--
“I was interrupted, in the heyday of this soliloquy, with a voice
which I took to be of a child, which complained, it could not get out.
I looked up and down the passage, and seeing neither man, woman, nor
child, I went out without further attention.
“In my return back through the passage, I heard the same words
repeated twice over, and looking up, I saw it was a starling, hung in
a little cage. ‘I can’t get out, I can’t get out,’ said the starling.
“I stood looking at the bird, and to every person who came through the
passage, it ran fluttering to the side which they approached, with
the same lamentation of its captivity,--‘I can’t get out,’ said the
starling. God help thee! said I, but I’ll let thee out, cost what it
will; so I turned about the cage to get at the door. It was twisted
and double twisted so fast with wire, there was no getting it open
without pulling the cage to pieces. I took both hands to it.
“The bird flew to the place where I was attempting his deliverance,
and, thrusting his head through the trellis, pressed his breast
against it as if impatient. I fear, poor creature, said I, I cannot
set thee at liberty. ‘No,’ said the starling, ‘I can’t get out. I
can’t get out,’ said the starling.
“I vow I never had my affections more tenderly awakened.”
And then he bursts out into that apostrophe to Slavery, which has
thrilled the hearts of all his readers in times past, and will continue
to thrill the heart of every reader in all time to come:--
“Disguise thyself as thou wilt, still, Slavery, still thou art a
bitter draught! and, though thousands in all ages have been made to
drink of thee, thou art no less bitter on that account. ’Tis thou,
thrice sweet and gracious goddess, LIBERTY, whom all in public or in
private worship, whose taste is grateful, and ever will be so till
Nature herself shall change. No _tint_ of words can spot thy snowy
mantle, or chemic power turn thy sceptre into iron. With thee to smile
upon him as he eats his crust, the swain is happier than his monarch,
from whose court thou art exiled. Gracious Heaven! grant me but
health, thou great Bestower of it, and give me but this fair goddess
as my companion, and shower down thy mitres, if it seems good unto thy
divine providence, upon those heads which are aching for them.”
Had Sterne released that bird, and sent it abroad to rejoice in its
native fields of air, would his myriads of readers, who have been
delighted at the story, have convicted him of _stealing_?
Now for the application. These slaves, by the law of nature, were as
free as you or I. By the law and force of man, they have been subjected
to bondage. If the prisoner took them, and took them either to sell
them or to use them himself, then he took them, in the language of the
law, for the felonious purpose of converting them to his own use; and
such taking would be larceny according to the law. But if he took them
for the purpose of carrying them to a free state, and of thus restoring
them to their natural liberty, then he did not intend to convert them
to his own use, and is not guilty of stealing.
There is another view of this case. The harshest doctrines in favor
of slavery only claim, that a master has a right to the _services_ of
his slave. He has not a right to his flesh and bones, so that he can
cut up the former for dog’s meat, and grind the latter for compost. To
constitute larceny, then, of this kind of property, the prisoner must
have deprived the master of the _services_ of his slaves, with the
intent, with the felonious intent, to use _those services_ himself, or
to sell them to another, which would be the most effective act of use.
But no evidence of any such intent has been adduced in this case. I
therefore maintain, that neither of the three ingredients necessary to
constitute the offence of larceny has been proved by the government.