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;--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.

Slavery: letters and speeches · 第 9 / 45 段