Attorney, found seventy-four indictments against each of us prisoners,
based on this act, one for each of the slaves found on board the vessel,
two excepted, who were runaways from Virginia, and the names of their
masters not known. As it would have been possible to have fined us
about, fifteen thousand dollars apiece upon these indictments, besides
costs, and as, by the laws of the District, there is no method of
discharging prisoners from jail who are unable to pay a fine, except by
an executive pardon, one would have thought that this might have
satisfied. But the idea that we should escape with a fine, though we
might be kept in prison for life from inability to pay it, was very
unsatisfactory. It was desired to make us out guilty of a penitentiary
offence at the least; and for that purpose recourse was had to an old,
forgotten act of Maryland, passed in the year 1737, the fourth section
of which provided "That any person or persons who, after the said tenth
day of September [1737], shall steal any ship, sloop, or other vessel
whatsoever, out of any place within the body of any county within this
province, of seventeen feet or upwards by the keel, and shall carry the
same ten miles or upwards from the place whence it shall be stolen, _or
who shall steal any negro or other slave_, or who shall counsel, hire,
aid, abet, or command any person or persons to commit the said offences,
or who shall be accessories to the said offences, and shall be thereof
legally convicted as aforesaid, or outlawed, or who shall obstinately or
of malice stand mute, or peremptorily challenge above twenty, shall
suffer death as a felon, or felons, and be excluded the benefit of the
clergy."
They would have been delighted, no doubt, to hang us under this act; but
that they could not do, as Congress, by an act passed in 1831, having
changed the punishment of death, inflicted by the old Maryland statutes
(except in certain cases specially provided for), into confinement in
the penitentiary for not less than twenty years.
To make sure of us at all events, not less than forty-one separate
indictments (that being the number of the pretended owners) were found
against each of us for stealing slaves.
Our counsel afterwards made some complaint of this great number of
indictments, when two against each of us, including all the separate
charges in different counts, would have answered as well. It was even
suggested that the fact that a fee of ten dollars was chargeable upon
each indictment toward the five-thousand-dollar salary of the District
Attorney might have something to do with this large number. But the
District Attorney denied very strenuously being influenced by any such
motive, maintaining, in the face of authorities produced against him,
that this great number was necessary. He thought it safest, I suppose,
instead of a single jury on each charge against each of us, to have the
chance of a much greater number, and the advantage, besides, of repeated
opportunities of correcting such blunders, mistakes and neglects, as the
prisoner's counsel might point out.
On the 6th of July, I was arraigned in the criminal court, Judge
Crawford presiding, on one of the larceny indictments, to which I
pleaded not guilty; whereupon my counsel, Messrs. Hall and Mann, moved
the court for a continuance till the next term, alleging the prevailing
public excitement, and the want of time to prepare the defence and to
procure additional counsel. But the judge could only be persuaded, and
that with difficulty, to delay the trial for eighteen days.
When this unexpected information was communicated to the committee at
Boston, a correspondence was opened by telegraph with Messrs. Seward,
Chase and Fessenden. But Governor Seward had a legal engagement at
Baltimore on the very day appointed for the commencement of the trial,
and the other two gentlemen had indispensable engagements in the courts
of Ohio and Maine. Under these circumstances, as Mr. Hall was not
willing to take the responsibility of acting as counsel in the case, and
as it seemed necessary to have some one familiar with the local
practice, the Boston committee retained the services of J.M. Carlisle,
Esq., of the Washington bar, and Mr. Hildreth again proceeded to
Washington to give his assistance. Just as the trial was about to
commence, Mr. Carlisle being taken sick, the judge was, with great
difficulty, prevailed upon to grant a further delay of three days. This
delay was very warmly opposed, not only by the District Attorney, but by
the same Mr. Radcliff whom we have seen figuring as chairman of the
mob-committee to wait on Dr. Bailey, and who had been retained, at an
expense of two hundred dollars, by the friends of English, as counsel
for him, they thinking it safest not to have his defence mixed up in any
way with that of myself and Sayres. Before the three days were out,
Governor Seward, having finished his business in Baltimore, hastened to
Washington; but, as the rules of the court did not allow more than two
counsel to speak on one side, the other counsel being also fully
prepared, it was judged best to proceed as had been arranged.
The trials accordingly commenced on Thursday, the 27th of July, upon an
indictment against me for stealing two slaves, the property of one
Andrew Houver.
The District Attorney, in opening his case, which he did in a very
dogmatic, overbearing and violent manner, declared that this was no
common affair. The rights of property were violated by every larceny,
but this case was peculiar and enormous. Other kinds of property were
protected by their want of intelligence; but the intelligence of this
kind of property greatly diminished the security of its possession. The
jury therefore were to give such a construction to the laws and the
facts as to subject violators of it to the most serious consequences.
The facts which seemed to be relied upon by the District Attorney as
establishing the alleged larceny were--that I had come to Washington,
and staid from Monday to Saturday, without any ostensible business, when
I had sailed away with seventy-six slaves on board, concealed under the
hatches, and the hatches battened down; and that when pursued and
overtaken the slaves were found on board with provisions enough for a
month.
It is true that Houver swore that the hatches were battened down when
the Pearl was overtaken by the steamer; but in this he was contradicted
by every other government witness. This Houver was, according to some
of the other witnesses, in a considerable state of excitement, and at
the time of the capture he addressed some violent language to me, as
already related. He had sold his two boys, after their recapture, to the
slave-traders; but had been obliged to buy them back again, at a loss of
one hundred dollars, by the remonstrances of his wife, who did not like
to part with them, as they had been raised in the family. Perhaps this
circumstance made him the more inveterate against me.
As to the schooner being provisioned for a month, the bill of the
provisions on board, purchased in Washington, was produced on the trial,
and they were found to amount to three bushels of meal, two hundred and
six pounds of pork, and fifteen gallons of molasses, which, with a
barrel of bread, purchased in Alexandria, would make rather a short
month's supply for seventy-nine persons!
It was also proved, by the government witnesses, that the Pearl was a
mere bay-craft, not fit to go to sea; which did not agree very well with
the idea held out by the District Attorney, that I intended to run these
negroes off to the West Indies, and to sell them there. But, to make up
for these deficiencies, Williams, who acted as the leader of the steamer
expedition, swore that I had said, while on board, that if I had got off
with the negroes I should have made an independent fortune; but on the
next trial he could not say whether it was I who told him so, or whether
somebody else told him that I had said so. Orme and Craig, with whom I
principally conversed, and who went into long details, recollected
nothing of the sort; and it is very certain that, as there was no
foundation for it, and no motive for such a statement on my part, I
never made it. Williams, perhaps, had heard somebody guess that, if I
had got off, I had slaves enough to make me independent; and that guess
of somebody else he perhaps remembered, or seemed to remember, as
something said by me, or reported to have been said by me; and such
often, in cases producing great public excitement, is the sort of
evidence upon which men's lives or liberty is sworn away. The idea,
however, of an intention to run the negroes off for sale, seemed
principally to rest on the testimony of a certain Captain Baker, who had
navigated the steamer by which we were captured at the mouth of the
Potomac, and who saw, as he was crossing over to Coan river for wood, a
long, black, suspicious-looking brig, with her sails loose, lying at
anchor under Point Lookout, about three miles from our vessel. This was
proved, by other witnesses, to be a very common place of anchorage; in
fact, that it was common for vessels waiting for the wind, or otherwise,
to anchor anywhere along the shores of the bay. But Captain Baker
thought otherwise; and he and the District Attorney wished the jury to
infer that this brig seen by him under Point Lookout was a piratical
craft, lying ready to receive the negroes on board, and to carry them
off to Cuba!
Besides Houver, Williams, Orme, Craig and Baker, another witness was
called to testify as to the sale of the wood, and my having been in
Washington the previous summer. Many questions as to evidence arose, and
the examination of these witnesses consumed about two days and a half.
In opening the defence, Mr. Mann commenced with some remarks on the
peculiarity of his position, growing out of the unexpected urgency with
which the case had been pushed to a trial, and the public excitement
which had been produced by it. He also alluded to the hardship of
finding against me such a multiplicity of indictments,--for what
individual, however innocent, could stand up against such an accumulated
series of prosecutions, backed by all the force of the nation? Some
observations on the costs thus unnecessarily accumulated, and, in
particular, on the District Attorney's ten-dollar fees, produced a great
excitement, and loud denials on the part of that officer.
Mr. Mann then proceeded to remark that, in all criminal trials which he
had ever before attended or heard of, the prosecuting officer had stated
and produced to the jury, in his opening, the law alleged to be
violated. As the District Attorney had done nothing of that sort, he
must endeavor to do it for him. Mr. Mann then proceeded to call the
attention of the jury to the two laws already quoted, upon which the two
sets of indictments were founded. Of both these acts charged against
me--the stealing of Houver's slaves, and the helping them to escape
from their master--I could not be guilty. The real question in this
case was, Which had I done?
To make the act stealing, there must have been--so Mr. Mann
maintained--a taking _lucri causa_, as the lawyers say; that is, a
design on my part to appropriate these slaves to my own use, as my own
property. If the object was merely to help them to escape to a free
state, then the case plainly came under the other statute.
In going on to show how likely it was that the persons on board the
Pearl might have desired and sought to escape, independently of any
solicitations or suggestions on my part, Mr. Mann alluded to the meeting
in honor of the French revolution, already mentioned, held the very
night of the arrival of the Pearl at Washington. As he was proceeding to
read certain extracts from the speech of Senator Foote on that occasion,
already quoted, and well calculated, as he suggested, to put ideas of
freedom and emancipation into the heads of the slaves, he was suddenly
interrupted by the judge, when the following curious dialogue occurred:
"_Judge Crawford_.--A certain latitude is to be allowed
to counsel in this case; but I cannot permit any
harangue against slavery to be delivered here.
"_Carlisle (rising suddenly and stepping forward_).--I
am sure your honor must be laboring under some strange
misapprehension. Born and bred and expecting to live and
die in a slave-holding community, and entertaining no
ideas different from those, which commonly prevail here,
I have watched the course of my associate's argument
with the closest attention. The point he is making, I
am sure, is most pertinent to the case,--a point it
would be cowardice in the prisoner's counsel not to
make; and I must beg your honor to deliberate well
before you undertake to stop the mouths of counsel, and
to take care that you have full constitutional warrant
for doing so.
"_Judge Crawford_.--I can't permit an harangue against
slavery."
Mr. Mann proceeded to explain the point at which he was aiming. He had
read these extracts from Mr. Foote's speech, delivered to a
miscellaneous collection of blacks and whites, bond and free, assembled
before the _Union_ office, as showing to what exciting influences the
slaves of the District were exposed, independently of any particular
pains taken by anybody to make them discontented; and, with the same
object in view, he proposed to read some further extracts from other
speeches delivered on the same occasion.
"_District Attorney_.--If this matter is put in as
evidence, it must first be proved that such speeches
were delivered.
"_Mann_.--If the authenticity of the speeches is denied,
I will call the Honorable Mr. Foote to prove it.
"_District Attorney_.--What newspaper is that from which
the counsel reads?
"_Mann_ (_holding it up_).--The Washington _Union_, of
April 19th."
And, without further objection, he proceeded to read some further
extracts.
He concluded by urging upon the jury that this case was to be viewed
merely as an attempt of certain slaves to escape from their masters, and
on my part an attempt to assist them in so doing; and therefore a case
under the statute of 1796, punishable with fine; and not a larceny, as
charged against me in this indictment.
Several witnesses were called who had known me in Philadelphia, to
testify as to my good character. The District Attorney was very anxious
to get out of these witnesses whether they had never heard me spoken of
as a man likely to run away with slaves? And it did come out from one of
them that, from the tenor of my conversation, it used sometimes to be
talked over, that one day or other it "would heave up" that I had helped
off some negro to a free state. But these conversations, the witness
added, were generally in a jesting tone; and another witness stated that
the charge of running off slaves was a common joke among the watermen.
According to the practice in the Maryland criminal courts,--and the same
practice prevails in the District of Columbia,--the judge does not
address the jury at all. After the evidence is all in, the counsel,
before arguing the case, may call upon the judge to give to the jury
instructions as to the law. These instructions, which are offered in
writing, and argued by the counsel, the judge can give or refuse, as he
sees fit, or can alter them to suit himself; but any such refusal or
alteration furnishes ground for a bill of exceptions, on which the case,
if a verdict is given against the prisoner, may be carried by writ of
error before the Circuit Court of the District, for their revisal.
My counsel asked of the judge no less than fourteen instructions on
different points of law, ten of which the judge refused to give, and
modified to suit himself. Several of these related to the true
definition of theft, or what it was that makes a taking larceny.
It was contended by my counsel, and they asked the judge to instruct the
jury, that, to convict me of larceny, it must be proved that the taking
the slaves on board the Pearl was with the intent to convert them to my
own use, and to derive a gain from such conversion; and that, if they
believed that the slaves were received on board with the design to help
them to escape to a free state, then the offence was not larceny, but a
violation of the statute of 1796.
This instruction, variously put, was six times over asked of the judge,
and as often refused. He was no less anxious than the District Attorney
to convict me of larceny, and send me to the penitentiary. But, having a
vast deal more sense than the District Attorney, he saw that the idea
that I had carried off these negroes to sell them again for my own
profit was not tenable. It was plain enough that my intention was to
help them to escape. The judge therefore, who did not lack ingenuity,
went to work to twist the law so as, if possible, to bring my case
within it. Even he did not venture to say that merely to assist slaves
to escape was stealing. Stealing, he admitted, must be a taking, _lucri
causa_, for the sake of gain; but--so he told the jury in one of his
instructions--"this desire of gain need not be to convert the article
taken to his--the taker's--own use, nor to obtain for the thief the
value in money of the thing stolen. If the act was prompted by a desire
to obtain for himself, or another even, other than the owner, a money
gain, or any other inducing advantage, a dishonest gain, then the act
was a larceny." And, in another instruction, he told the jury, "that if
they believed, from the evidence, that the prisoner, before receiving
the slaves on board, imbued their minds with discontent, persuaded them
to go with him, and, by corrupt influences and inducements, caused them
to come to his ship, and then took and carried them down the river, then
the act was a larceny."
Upon these instructions of the judge, to which bills of exceptions were
filed by my counsel, the case, which had been already near a week on
trial, was argued to the jury. The District Attorney had the opening and
the close, and both my counsel had the privilege of speaking. For the
following sketch of the argument, as well as of the legal points already
noted, I am indebted to the notes of Mr. Hildreth, taken at the time:
"_District Attorney_.--I shall endeavor to be very brief
in the opening, reserving myself till I know the grounds
of defence. It is the duty of the jury to give their
verdict according to the law and evidence; and, so far
as I knew public opinion, there neither exists now, nor
has existed at any other time, the slightest desire on
the part of a single individual that the prisoner should
have otherwise than a fair trial. I think, therefore,
the solemn warnings by the prisoner's counsel to the
jury were wholly uncalled for. There was, no doubt, an
excitement out of doors,--a natural excitement,--at such
an amount of property snatched up at one fell swoop; but
was that to justify the suggestion to a jury of twelve
honest men that they were not to act the part of a mob?
The learned counsel who opened the case for the prisoner
has alluded to the disadvantage of his position from the
fact that he was a stranger. I acknowledge that
disadvantage, and I have attempted to remedy it, and so
has the court, by extending towards him every possible
courtesy.
"The prisoner's counsel seems to think I press this
matter too hard. But am I to sit coolly by and see the
hard-earned property of the inhabitants of this District
carried off, and when the felon is brought into court
not do my best to secure his conviction? [The District
Attorney here went into a long and labored defence of
the course he had taken in preferring against the
prisoner forty-one indictments for larceny, and
seventy-four others, on the same state of facts, for
transportation. He denied that the forty-one larcenies
of the property of different individuals could be
included in one indictment, and declared that if the
prisoner's counsel would show the slightest authority
for it he would give up the case. After going on in this
strain for an hour or more, attacking the opposite
counsel and defending himself, in what Carlisle
pronounced 'the most extraordinary opening argument he
had ever heard in his life,' the District Attorney came
down at last to the facts of the case."]
"In what position is the prisoner placed by the
evidence? How is he introduced to the jury by his
Philadelphia friends? These witnesses were examined as
to his character, and the substance of their testimony
is, that he is a man who would steal a negro if he got a
chance. He passed for honest otherwise. But he says
himself he would steal a negro to liberate him, and the
court says it makes no difference whether he steals to
liberate or steals to sell. Being caught in the act, he
acknowledges his guilt, and says he was a deserter from
his God,--a backslider,--a church-member one year--the
next, in the Potomac with a schooner, stealing
seventy-four negroes! Why say he took them for gain, if
he did not steal them? Why say he knew he should end his
days in a penitentiary? Why say if he got off with the
negroes he should have realized an independent fortune?
Did he not know they were slaves? He chartered the
vessel to carry off negroes; and, if they were free
negroes, or he supposed them to be, how was he to
realize an independent fortune? He was afraid of the
excitement at Washington. Why so, if the negroes were
not slaves? There was the fact of their being under the
hatches, concealed in the hold of the vessel,--did not
that prove he meant to steal them? Add to that the other
fact of his leaving at night. He comes here with a
miserable load of wood; gives it away; sells it for a
note; did not care about the wood, wanted only to get it
out; had a longing for a cargo of negroes. The wood was
a blind; besides he lied about it;--would he have ever
come back to collect his note? But the prisoner's
counsel says the slaves might have heard Mr. Foote's
torch-light oration, and so have been persuaded to go. A
likely story! They all started off, I suppose, ran
straight down to the vessel and got into the hold!
Seventy-four negroes all together! But was not the
vessel chartered in Philadelphia to carry off negroes?
This shows the excessive weakness of the defence. And
how did the slaves behave after they were captured? If
they had been running away, would they not have been
downcast and disheartened? Would not they have said, Now
we are taken? On the other hand, according to the
testimony of Major Williams, on their way back they were
laughing, shouting and eating molasses in large
quantities. Nero fiddled when Rome was burning, but did
not eat molasses. What a transition, from liberty to
molasses!
"Then it is proved that the bulkhead between the cabin
and the hold was knocked down, and that the slaves went
to Drayton and asked if they should fight. Did not that
show his authority over them,--that the slaves were
under his control, and that he was the master-spirit? It
speaks volumes. [Here followed a long eulogy on the
gallantry and humanity of the thirty-five captors. One
man did threaten a little, but he was drunk.]