"The substance of the law, as laid down by the judge, is

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.]

Personal Memoir of Daniel Drayton, for Four Years and Four Months a Prisoner (for Charity's Sake) in Washington Jail Including a Narrative of the Voyage and Capture of the Schooner Pearl · 第 5 / 7 段