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.