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!