But, gentlemen, these are not the only hardships and oppressions to which my client has been subjected. How many, at the most, are the offences against the laws of this District which he has committed? He came here on the 13th of April, in the schooner Pearl. He departed on the 15th. On the 17th, he was arrested near the mouth of the Potomac, with a company of alleged slaves on board his vessel. Was not this all one transaction? Can it be divided and separated into a multitude of distinct offences? Can this one deed be made an offence against different laws? If not, then there is another clause in the constitution set at nought,—that clause which declares that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.”
And yet, gentlemen, what do we find on the records of this court? One hundred and fifteen indictments against this prisoner for this one act; and one hundred and fifteen indictments also against each of the other prisoners for engaging in the same. Three hundred and forty-five indictments! Reams of indictments for a single deed! Nor is this the only injustice. Each of the prisoners is indicted for having violated, by this one act, separate and distinct laws. There is an old law of Maryland against stealing slaves, and another law against transporting them out of the jurisdiction; and these laws are claimed, by virtue of an act of Congress, to be in force in this District. Now, if the prisoner stole the slaves, he is not guilty of the separate offence of transporting. If he is guilty of transporting, he is not guilty of stealing. That the two offences should have been committed by one and the same act, is a legal impossibility. If the grand jury first found the prisoner guilty of the offence of stealing the slaves, they thereby declared that he was not guilty of the different offence of transporting. Or, if they first found him guilty of the offence of transporting, they thereby declared that he was not guilty of the separate offence of stealing. To proceed, therefore, after a finding for one offence, to charge the prisoner with the other, was not only a legal absurdity, but a grievous injustice.
Besides, if these slaves were stolen, as is alleged, from forty-one different masters, the whole might have been charged in different counts in the same indictment, and the prisoner might be found guilty upon as many of the counts as law and evidence would warrant.
So there was but one act of transportation. Even, therefore, if it were just to charge the prisoner with the breach of two different laws for the same act, still, as the transportation of the whole was but one, it should have been charged only in one indictment.
See how fatal to any man must such a course of proceeding be. If the stealing were charged in one indictment, it would be tried by one jury; and the evidence being to a great degree the same, the whole trial might be brought within a limited period of time. But with forty-one indictments, there must be forty-one trials, before forty-one different juries; for neither government nor prisoner would consent that a jury, who had given an adverse verdict, should try another of the cases. Now, gentlemen, I care not for the enormous expense of such a proceeding,—ten dollars on each indictment, enuring to the benefit of the district attorney,—
Here Mr. Key, the district attorney, interrupted and said: If Mr. Mann thinks I am to have ten dollars on each of these indictments, he is mistaken; and in my argument to the jury I shall deny it.
Mr. Carlisle. Mr. Mann is not mistaken in the general statement, that the district attorney receives ten dollars on each indictment. He receives ten dollars on each, until the income of his office amounts to six thousand dollars a year. It is only when the emoluments of the office reach that sum that he ceases to draw his ten dollars on each indictment.
Mr. Mann. I was saying, gentlemen, that I care comparatively nothing for the amount of expense incurred in consequence of these three hundred and forty-five indictments. Far graver consequences than the mere expenditure of money are involved. Who can maintain or survive a contest against such a host of indictments, sustained by all the power and resources of the government? Were a man rich as Crœsus, it would exhaust his means. Were he brave as a martyr, it would outweary his endurance. Were he innocent as a child unborn, still, on the mere doctrine of chances, he might fail in some one case, out of such a multitude. Were he in the prime of life, its setting sun might go down in darkness and sorrow before the final verdict of acquittal could be pronounced in his favor. Under such a practice with regard to indictments, coupled with such a practice in regard to bail, an accusation would be as fatal as crime itself, however innocent the accused might be. The law provides a statute of limitations as to offences. Could it have foreseen such an abuse as this, it would have provided a statute of limitations against the number of prosecutions for a single offence; for the government might as well try a man, on a separate indictment, for each hair of a horse he had stolen, and hold him, on each of them, to separate bail. The English courts, gentlemen, have provided a remedy for the beginnings of this injustice. They have decided, again and again, that when even two indictments are found against a man for the same offence, they will compel the prosecutor to make his election between them,—to proceed upon one and abandon the other. 2 Leach’s Cr. Cas., 608, Rex vs. Doran. 3 Carr. & P. 412, Rex vs. Smith. Ib. Rex vs. Flower, 413. 3 T. R. Young vs. The King, (in error,) 106. See, also, in support of the same principle, New York Revised Statutes, vol. 2, part 4, ch. 2, § 42, where provision is made that “if there be at any time pending against the same defendant two or more indictments for the same offence, or two indictments for the same matter, although charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.”
But, gentlemen, there is another aspect of this case, which presents, in a manner still more glaring, the enormity of the proceeding to which we are subjected. Under each of the forty-one indictments against this prisoner for stealing, he is liable, if convicted, to be sentenced to twenty years’ imprisonment, which would make an aggregate imprisonment of more than eight hundred years. Methuselah himself must have been caught young, in order to survive such a sentence. The very shortest time which the court, in its discretion, could imprison, after a conviction on all these indictments, would be two hundred and eighty-seven years! Did the law ever contemplate so cruel and revengeful a proceeding? Did the law ever suppose that the court, after having sentenced a man to eight hundred years’ imprisonment, or even to two hundred and eighty years’ imprisonment, should go on, and sentence him to twenty years, or even to seven years more?—when the court must know that it would be imposing sentences to be executed centuries after the prisoner would be dead, and after he would have left his prison, not to return to this world, but to go to another.
But even this is not all. Behind these forty-one indictments for stealing stand drawn up, in battle array, against this same prisoner, seventy-four other indictments for transporting the very slaves whom he is charged to have stolen. The penalty for each of these offences is a fine of two hundred dollars, with imprisonment till paid. The aggregate of these fines would be $14,800. But a penalty not inflicted by the statute, but superadded by this unwarrantable proceeding of the government, is the defence of seventy-four successive cases, under which the wealthiest, the strongest, and the most innocent man must break down, and be swept to ruin.