Chapter III: Part 3

Accordingly, the grand jury, under the instructions of the District 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.]

"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.]

"The United States (said the District Attorney) have
laid before you the clearest possible case. I have just
gone through a pretty long term of this court; I see
several familiar faces on the jury, and I rely on your
intelligence. In fact, the only point of the defence is,
that the United States have offered no proof that
Drayton seduced and enticed these slaves to come on
board the Pearl; and that the prisoner's counsel are
pleased to call a gap, a chasm, which they say you can't
fill up. It is the same gap which occurs in every
larceny case. Where can the government produce positive
testimony to the taking? That is done secretly, in the
dark, and is to be presumed from circumstances. A man is
found going off with a bag of chickens,--your chickens.
Are you going to presume that the chickens run into his
bag of their own accord, and without his agency? A man
is found riding your horse. Are you to presume that the
horse came to him of its own accord? and yet horses love
liberty,--they love to kick up their heels and run. Yet
this would be just as sensible as to suppose that these
slaves came on board Drayton's vessel without his direct
agency. He came here from Philadelphia for them; they
are found on board his vessel; Drayton says he would
steal a negro if he could; is not that enough? Then he
was here some months before with an oyster-boat,
pretending to sell oysters. He pretended that he came
for his health. Likely story, indeed! I should like to
see the doctor who would recommend a patient to come
here in the fall of the year, when the fever and ague is
so thick in the marshes that you can cut it with a
knife. Cruising about, eating and selling oysters, at
that time of the year, for his health! Nonsense! He was
here, at that very time, hatching and contriving that
these very negroes should go on board the Pearl. But the
prisoner's counsel say he might have been employed by
others simply to carry them away! Who could have
employed him but abolitionists; and did he not say he
had no sympathy with abolitionists. So much for that
hypothesis. Then, he in fact pleads guilty,--he says he
expects to die in the penitentiary. Don't you think he
ought to? If there is any chasm here, the prisoner must
shed light upon it. If he had employers, who were they?
The prisoner's counsel have said that he is not bound to
tell; and that the witnesses, if summoned here, would
not be compelled to criminate themselves. But shall this
prisoner be allowed to take advantage of his own wrong?

"As to the metaphysics of the prisoner's counsel about
possession, that is easily disposed of. Were not these
slaves found in Drayton's possession, and didn't he
admit that he took them?