"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!