this: If Drayton came here to carry off these people,
and, by machinations, prevailed on them to go with him,
and knew they were slaves, it makes no difference
whether he took them to liberate, or took them to sell.
If he was to be paid for carrying them away, that was
gain enough. Suppose a man were to take it into his head
that the northern factories were very bad things for the
health of the factory-girls, and were to go with a
schooner for the purpose of liberating those poor devils
by stealing the spindles, would not he be served as this
prisoner is served here? Would they not exhaust the
law-books to find the severest punishment? There may be
those carried so far by a miserable mistaken
philanthropy as even to steal slaves for the sake of
setting them at liberty. But this prisoner says he did
it for gain. We might look upon him with some respect
if, in a manly style, he insisted on his right to
liberate them. But he avowedly steals for gain. He lies
about it, besides. Even a jury of abolitionists would
have no sympathy for such a man. Try him anyhow, by the
word of God--by the rules of common honesty--he would be
convicted, anyhow. He is presented to the world at large
as a rogue and a common thief and liar. There can be no
other conception of him. He did it for dishonest gain.
"The prisoner must be convicted. He cannot escape. There
can be no manner of doubt as to his guilt. I am at a
loss, without appearing absurd in my own eyes, to
conceive what kind of a defence can be made.
"I have not the least sort of feeling against the wretch
himself,--I desire a conviction from principle. I have
heard doctrines asserted on this trial that strike
directly at the rights and liberty of southern citizens.
I have heard counsel seeking to establish principles
that strike directly at the security of southern
property. I feel no desire that this man, as a man,
should be convicted; but I do desire that all persons
inclined to infringe on our rights of property should
know that there is a law hero to punish them, and I am
happy that the law has been so clearly laid down by the
court. Let it be known from Maine to Texas, to earth's
widest limits, that we have officers and juries to
execute that law, no matter by whom it may be violated!
"_Mann_--for the prisoner--regretted to occupy any more
of the jury's time with this very protracted trial. I
mentioned, some days since, that the prisoner was
liable, under the indictments against him, to eight
hundred years imprisonment,--a term hardly to be served
out by Methuselah himself; but, apart from any
punishment, if his hundred and twenty-five trials are
to proceed at this rate, the chance is he will die
without ever reaching their termination. The District
Attorney has dwelt at great length on what passed the
other day, and more than once he has pointedly referred
to me, in a tone and manner not to be mistaken. I have
endeavored to conduct this trial according to the
principles of law, and to that standard I mean to come
up. My client, though a prisoner at this bar, has
rights, legal, social, human; and upon those rights I
mean to insist. This is the first time in my life that I
ever heard a prisoner on trial, and before conviction,
denounced as a liar, a thief, a felon, a wretch, a
rogue. It is unjust to apply these terms to any man on
trial. The law presumes him to be innocent. The feelings
of the prisoner ought not to be thus outraged. He is
unfortunate; he may be guilty; that is the very point
you are to try.
"This prisoner is charged with stealing two slaves, the
property of Andrew Houver. Did he, or not? That point
you are to try by the law and the evidence. Because you
may esteem this a peculiarly valuable kind of property,
you are not to measure out in this case a peculiar kind
of justice. You have heard the evidence; the law for the
purposes of this trial you are to take from the judge.
But you are not to be led away with the idea that you
must convict this prisoner at any rate. It is a
well-established principle that it is better for an
indefinite number of guilty men to escape than for one
innocent man to be convicted and punished; and for the
best of reasons,--for to have the very machinery
established for the protection of right turned into an
instrument for the infliction of wrong, strikes a more
fatal blow at civil society than any number of
unpunished private injuries.
"Nor is there any danger that the prisoner will escape
due punishment for any crimes he may have committed.
Besides this and forty other larceny indictments hanging
over his head, there are seventy-four transportation
indictments against him. Now, he cannot be guilty of
both; and which of these offences, if either, does the
evidence against him prove?
"Who is this man? Look at him! You see he has passed the
meridian of life. You have heard about him from his
neighbors. They pronounce him a fair, upright, moral
man. No suspicion hitherto was ever breathed against his
honesty. He was a professor of religion, and, so far as
we know, had walked in all the ordinances and commands
of the law blameless. Now, in all cases of doubt, a fair
and exemplary character, especially in an elderly man,
is a great capital to begin with. This prisoner may have
been mistaken in his views as to matters of human right;
but, as to violating what he believed to be duty, there
is not the slightest evidence that such was his
character, but abundance to the contrary. He is found
under circumstances that make him amenable to the law;
let him be tried,--I do not gainsay that; but let him
have the common sentiments of humanity extended toward
him, even if he be guilty.
"The point urged against him with such earnestness--I
may say vehemence--is, not that he took the slaves
merely, but that he took them with design to steal. His
confessions are dwelt upon, stated and overstated, as
you will recollect. But consider under what
circumstances these alleged confessions were made. There
are circumstances which make such statements very
fallacious. Consider his excitement--his state of
health; for it is in evidence that he had been out of
health, suffering with some disorder which required his
head to be shaved. Consider the armed men that
surrounded him, and the imminent peril in which he
believed his life to be. It is great injustice to brand
him with the foul epithet of liar for any little
discrepancies, if such there were, in statements made
under such circumstances. Other matters have been forced
in, of a most extraordinary character, to prejudice his
case in your eyes. It has been suggested--the idea has
been thrown out, again and again--that, under pretence
of helping them to freedom, he meant to sell these
negroes. This suggestion, which outruns all reason and
discretion, is founded on the simple fact of a brig seen
lying at anchor in a place of common anchorage,
suggesting no suspicious appearance, but as to which you
are asked to infer that these seventy-six slaves were to
be transported into her, and carried to Cuba or
elsewhere for sale. What a monstrous imagination! What a
gross libel on that brig, her officers, her crew, her
owners, all of whom are thus charged as kidnappers and
pirates; and all this baseless dream got up for the
purpose of influencing your minds against the prisoner!
It marks, indeed, with many other things, the style in
which this prosecution is conducted.
"Take the law as laid down by the court, and it is
necessary for the government to prove, if this
indictment is to be sustained, that the prisoner
corrupted the minds of Houver's slaves, and induced and
persuaded them to go on board his vessel. They were
found on board the prisoner's vessel, no doubt; but as
to how they came there we have not a particle of
evidence. Here is a gap, a fatal gap, in the
government's case. By what second-sight are you to look
into this void space and time, and to say that Drayton
enticed them to go on board? [The counsel here read from
1 _Starkie on Evidence,_ 510, &c., to the effect that
the prosecution are bound by the evidence to exclude
every hypothesis inconsistent with the prisoner's
guilt.] Now, is it the only possible means of accounting
for the presence of Houver's slaves on board to suppose
that this prisoner enticed them? Might not somebody else
have done it? Might they not have gone without being
enticed at all? We wished to call the slaves themselves
as witnesses, but the law shuts up their mouths. Can
you, without any evidence, say that Drayton enticed
them, and that by no other means could they come
onboard? Presumptive evidence, as laid down in the
book--an acknowledged and unquestioned authority--from
which I have read, ought to be equally strong with the
evidence of one unimpeached witness swearing positively
to the fact. Are you as sure that Drayton enticed those
slaves as if that fact had been positively sworn to by
one witness, testifying that he stood by and saw and
heard it? If you are not, then, under the law as laid
down by the court, you can not find him guilty.
"_Thursday, Aug_. 13.
"_Carlisle_, for the prisoner.--The sun under which we
draw our breath, the soil we tottle over, in childhood,
the air we breathe, the objects that earliest attract
our attention, the whole system of things with which our
youth is surrounded, impress firmly upon us ideas and
sentiments which cling to us to our latest breath, and
modify all our views. I trust I am man enough always to
remember this, when I hear opinions expressed and views
maintained by men educated under a system different from
that prevailing here, no matter how contrary those views
and opinions may be to my own.
"It may surprise those of you who know me,--the moral
atmosphere in which I have grown up, and the opinions
which I entertain,--but never have I felt so deep and
hearty an interest in the defence of any case as in
this. This prisoner I never saw till I came from a sick
bed into this court, when I met him for the first time.
I had participated strongly in the feeling which in
connection with him had been excited in this community.
As you well know, I have and could have no sympathy with
the motives by which he may be presumed to have been
actuated. Why, then, this sudden feeling in his behalf?
Not, I assure you, from mercenary motives. His acquittal
or his condemnation will make no difference in the
compensation I receive for my services. The overpowering
interest I feel in this case originates in the fact that
it places at stake the reputation of this District, and,
in some respects, of the country itself, of which this
city is the political capital. The counsel for the
government has dwelt with emphasis on the great amount
and value of property placed at hazard by this prisoner.
There is something, however, far more valuable than
property--a fair, honorable, impartial administration of
justice; and of the chivalrous race of the south it may
be expected that they will do justice, though the
heavens fall! God forbid that the world should point to
this trial as a proof that we are so besotted by passion
and interest that we cannot discern the most obvious
distinctions and that on a slave question with a jury of
slave-holders there is no possible chance of justice!
Many, I assure you, will be ready to fasten this charge
upon us. It is my hope, my ardent desire, it is your
sworn duty, that no step be taken against this prisoner
without full warrant of law and evidence. The duty of
defence I discharge with pleasure. I could have desired
that this prisoner might have been defended entirely by
counsel resident in this District. It would have been my
pride to have shown to the world that of our own mere
motion we would do justice in any case, no matter how
delicate, no matter how sore the point the prisoner had
touched.
"My learned friend, the District Attorney, has alluded
to the courtesy which he and the court have extended to
my associate in this cause. I hope he does not plume
himself upon that. A gentleman of my associate's
learning, ability, unexceptionable deportment, and high
character among his own people, must and will be treated
with courtesy wherever he goes. But, at the same time
that he boasts of his courtesy, the District Attorney
takes occasion to charge my associate with gross
ignorance of the law. He says the forty-one charges
could not have been included in one indictment, and
offers to give up the case if we will produce a single
authority to that effect. It were easy to produce the
authority [see 1 _Chitty_, C.L. Indictment], but,
unfortunately, the District Attorney has made a promise
which he can't fulfil. The District Attorney is mistaken
in this matter; at the same time, let me admit that in
the management of this case he has displayed an ability
beyond his years. This is the first prosecution ever
brought, so far as we can discover, on this
slave-stealing statute, either in this District or in
Maryland. This statute, of the existence of which few
lawyers were aware,--I am sure I was not,--has been
waked up, after a slumber of more than a century, and
brought to bear upon my client. It is your duty to go
into the examination of this novel case temperately and
carefully; to take care that no man and no court, upon
review of the case, shall be able to say that your
verdict is not warranted by the evidence. If the case is
made out against the prisoner, convict him; but if not,
as you value the reputation of the District and your own
souls, beware how you give a verdict against him!
"You are not a lynch-law court. It is no part of your
business to inquire whether the prisoner has done
wrong, and if so to punish him for it. It is your sole
business to inquire if he be guilty of this, special
charge set forth against him in this indictment, of
stealing Andrew Houver's two slaves. The law you are not
expected to judge of; to enlighten you on that matter,
we have prayed instructions from the court, and those
instructions, for the purpose of this trial, are to be
taken as the law. The question for you is, Does the
evidence in this case bring the prisoner within the law
as laid down by the court? To bring him within that law,
you are not to go upon imagination, but upon facts
proved by witnesses; and, it seems to me, you have a
very plain duty before you. This is not a thing done in
a corner. Take care that you render such a verdict that
you will not be ashamed to have it set forth in letters
of light, visible to all the world.
"There are two offences established by the statutes of
Maryland, between which, in this case, it becomes your
duty to distinguish. Everything depends on these
statutes, because without these statutes neither act is
a crime. At common law, there are no such offences as
stealing slaves, or transporting slaves. Now, which of
these two acts is proved against this prisoner? In some
respects they are alike. The carrying the slaves away,
the depriving the master of their services, is common to
both. But, to constitute the stealing of slaves,
according to the law as laid down by the court, there
must be something more yet. There must be a corruption
of the minds of the slaves, and a seducing them to leave
their masters' service. And does not this open a plain
path for this prisoner out of the danger of this
prosecution? Where is the least evidence that the
prisoner seduced these slaves, and induced them to leave
their masters? Has the District Attorney, with all his
zeal, pointed out a single particle of evidence of that
sort? Has he done anything to take this case out of the
transportation statute, and to convert it into a case of
stealing? He has, to be sure, indulged in some very
harsh epithets applied to this prisoner,--epithets very
similar to those which Lord Coke indulged in on the
trial of Sir Walter Raleigh, and which drew out on the
part of that prisoner a memorable retort. My client is
not a Raleigh; but neither, I must be permitted to say,
is the District Attorney a Lord Coke. I should be sorry
to have it go abroad that we cannot try a man for an
offence of this sort without calling him a liar, a
rogue, a wretch. [The District Attorney here
interrupted, with a good deal of warmth. He insisted
that he did not address the prisoner, but the jury, and
that it was his right to call the attention of the jury
to the evidence proving the prisoner to be a liar, rogue
and wretch.]
_Carlisle_--I do not dispute the learned gentleman's
right. It is a matter of taste; but with you, gentlemen
of the jury, these harsh epithets are not to make the
difference of a hair. You are to look at the evidence;
and where is the evidence that the prisoner seduced and
enticed these slaves?
"It may happen to any man to have a runaway slave in his
premises, and even in his employment. It happened to me
to have in my employ a runaway,--one of the best
servants, by the way, I ever had. He told me he was
free, and I employed him as such. If I had happened to
have taken him to Baltimore, there would have been a
complete similitude to the case at bar, and, according
to the District Attorney's logic, I might have been
indicted for stealing. Because I had him with me, I am
to be presumed to have enticed him from his master! As
to the particular circumstances under which he came into
my employment, I might have been wholly unable to show
them. Is it not possible to suppose a great number of
circumstances under which these slaves of Houver left
their master's service and came on board the Pearl,
without any agency on the part of this prisoner? Now,
the government might positively disprove and exclude
forty such suppositions; but, so long as one remained
which was not excluded, you cannot find a verdict of
conviction. The government is to prove that the prisoner
enticed and seduced these negroes, and you have no right
to presume he did so unless every other possible
explanation of the case is positively excluded by the
testimony. Is it so extravagant a supposition that Mr.
Foote's speech, and the other torch-light speeches
heretofore alluded to, heard by these slaves, or
communicated to them, might have so wrought upon their
minds as to induce them to leave their masters? I don't
say that they had any right to suppose that these
declamations about universal emancipation had any
reference to them. I am a southern man, and I hold to
the southern doctrine. I admit that there is no
inconsistency between perfect civil liberty and holding
people of another race in domestic servitude. But then
it is natural that these people should overlook this
distinction, however obvious and important. Nor do they
lack wit to apply these speeches to their own case or
interest in such matters. I myself have a slave as quick
to see distinctions as I am, and who would have made a
better lawyer if he had had the same advantages. It came
out the other day, in a trial in this court, that the
colored people have debating-societies among themselves.
It was an assault and battery case; one of the
disputants, in the heat of the argument, struck the
other; but then they have precedents for that in the
House of Representatives. Is it an impossible, or
improbable, or a disproved supposition, that a number of
slaves, having agreed together to desert their masters,
or having concerted such a plan with somebody here,
Drayton was employed to come and take them away, and
that he received them on board without ever having seen
one of them? If his confessions are to be taken at all,
they are to be taken together; and do they not tend to
prove such a state of facts? Drayton says he was hired
to come here,--that he was to be paid for taking them
away. Does that look as if he seduced them? [The counsel
here commented at length on Drayton's statements, for
the purpose of showing that they tended to prove nothing
more than a transportation for hire; and he threw no
little ridicule on the 'phantom ship' which the District
Attorney had conjured up in his opening of the case, but
which, in his late speech, he had wholly overlooked.]
"But, even should you find that Drayton seduced these
slaves to leave their masters, to make out a case of
larceny you must be satisfied that he took them into his
possession. Now, what is possession of a slave? Not
merely being in company with him. If I ride in a hack, I
am not in possession of the driver. Possession of a
slave is dominion and control; and where is the
slightest evidence that this prisoner claimed any
dominion or control over these slaves? The whole
question in this case is, Were these slaves stolen, or
were they running away with the prisoner's assistance?
The mere fact of their being in the prisoner's company
throws no light whatever on this matter.
"The great point, however, in this case is this,--By the
judge's instructions, enticement must be proved. Shall
the record of this trial go forth to the world showing
that you have found a fact of which there was no
evidence?
"I believe in my conscience there is a gap in this
evidence not to be filled up except by passion and
prejudice. If that is so, I hope there is no one so
ungenerous, so little of a true southerner, as to blame
me for my zeal in this case, or not to rejoice in a
verdict of acquittal. It is bad enough that strangers
should have got up a mob in this District in relation to
this matter. It would, however, be a million times worse
if juries cannot be found here cool and dispassionate
enough to render impartial verdicts.
"_District Attorney_.--I hope, gentlemen of the jury,
you will rise above all out-of-door influence. Make
yourselves abolitionists, if you can; but look at the
facts of the case. And, looking at those facts, is it
necessary for me to open my lips in reply? In a case
like this, sustained by such direct testimony, such
overwhelming proof, I defy any man,--however crazy on
the subject of slavery, unless he be blinded by some
film of interest,--to hesitate a moment as to his
conclusions. [The District Attorney here proceeded at
great length, and with a great air of offended dignity,
to complain of having been schooled and advised by the
prisoner's counsel, and to justify the use of the foul
epithets he had bestowed on the prisoner.] This is not a
place for parlor talk. I had chosen the English words
that conveyed my meaning most distinctly. It was all
very well for the prisoner's counsel to smooth things
over; but was I, instead of calling him a liar, to say,
he told a fib? When I call him a thief and a felon, do I
go beyond the charge of the grand jury in the
indictment? If this is stepping over the limits of
propriety, in all similar cases I shall do the same. I
do not intend to blackguard the prisoner,--I do not
delight in using these epithets. My heart is not locked
up; I am no Jack Ketch, prosecuting criminals for ten
dollars a head. I sympathize with the wretches brought
here; but when I choose to call them by their proper
names I am not to be accused of bandying epithets. [The
District Attorney then proceeded also at great length,
and in a high key, to justify his hundred and
twenty-five indictments against the prisoner, and to
clear himself from the imputation of mercenary motives,
on the ground that the business of the year,
independently of these indictments, would furnish the
utmost amount to which he was entitled. He next referred
to the matter of the brig testified to by Captain Baker,
which had been made the occasion of much ridicule by the
prisoner's counsel. Part of the evidence which he had
relied on in connection with the brig had been ruled
out; and the law, as laid down by the court, according
to which taking to liberate was the same as taking to
steal, had made it unnecessary for him, so he said, to
dwell on this part of the case. Yet he now proceeded to
argue at great length, from the testimony in the case,
that there must have been a connection between the brig
and the schooner; that, as the schooner was confessedly
unseaworthy, and could not have gone out of the bay, it
must have been the intention to put the slaves on board
the brig, and to carry them off to Cuba or elsewhere and
sell them. The testimony to this effect he pronounced
conclusive.]