And thus, gentlemen of the jury, I say that while some of the seeds of liberty which we scatter are wafted to a foreign realm, and fall upon a foreign soil, others will drop upon the hearts of bondmen and bondwomen at home, and will there fructify and mature into their appropriate harvest.
Such, gentlemen, are the considerations that lead me to believe that the slaves found on board the schooner Pearl left the possession of their masters of their own accord, or at the private suggestion of some friend, and not at that of the prisoner; or because they were publicly incited thereto by that boastful spirit amongst us which is forever shouting the praises of liberty, while restricting the application of its principles. I therefore infer that the prisoner has not committed the act which forms the first ingredient in the offence of larceny,—the taking of property from the possession of the owner.
2. To constitute the offence of larceny, the prisoner must have taken the slaves into his own possession. Now, of this there is not a particle of evidence. For aught that appears, the slaves might have been passengers, on board his schooner, for a fare. They themselves might have paid this fare, or others might have paid it for them. In either case, they were no more in possession of the prisoner than you or I are in possession of a railroad corporation, when we travel in its cars.
3. The third question is, whether, even if the prisoner did take the slaves named in this indictment from the possession of Andrew Hoover, and into his own possession, he did so for the felonious purpose of converting them to his own use.
The act of stealing, gentlemen, springs from the impulse to acquire property, as a means of gratification. This impulse or desire to obtain the means of enjoyment is universal. The law denounces its penalties against stealing, in order to repress the excesses of this propensity, and to confine it to honest acquisitions. Hence one man may interfere with the property of another in a thousand ways, without being guilty of stealing. It is not the mere taking of another man’s property, therefore, which constitutes stealing, but the taking of it in order to convert it to the use of the taker, and so to save himself the labor of earning it. Hence I may take a man’s plough from his field, or his wagon from his barn, and use them temporarily; but if I return them again to the owner, it is not stealing, but only a trespass. So, according to the books, I may take a man’s horse from his stable, ride him thirty miles, in order to flee from justice, and then, if I abandon the horse, it is not stealing. It is only a trespass.
The doctrine, gentlemen, which I wish to enforce upon your minds, is, that every act of taking another man’s property is not stealing. When a wag, riding with a clergyman to church, took his sermon from his pocket, for the purpose of enjoying his embarrassment when he should get into the pulpit, and find himself in the presence of the enemy without any ammunition, such taking was not stealing; for doubtless the rogue had no intention of appropriating either the sermon or its morals to his own use.
So it is related of Sir Walter Scott, that, when he was a boy at school, he got within one of the head of his class. But the boy at the head never made a mistake, and so he stood there, as perseveringly as the letter A stands at the head of the alphabet. But Sir Walter observed that, when his classmate was reciting, his fingers always fumbled with a button on his jacket, and, watching his opportunity at their next romping on the playground, he cut off the button from his rival’s jacket; and, at the very next lesson, the boy, being disconcerted at not finding the button, missed his answer, and Sir Walter rose to the head. But surely this was not stealing.
The reason why, in each of these cases, one would not be guilty of stealing, is, that he does not mean to make the article taken his own. He gets a temporary advantage from it, but does no act that proves a design of permanent or unlimited ownership. Hence there is the broadest and most striking difference between stealing and malicious mischief. If one man takes the property of another, merely to destroy or annihilate it, out of ill will or revenge towards the owner, this is malicious mischief only, and not stealing. It is not punished as stealing. Morally, it may be as wrong,—perhaps worse than stealing itself. But this impulse which prompts to the destruction of another man’s property is vastly weaker than that which leads to its appropriation. The latter is gratified a thousand times where the former is once, and therefore the law visits the former with the milder penalty. If taking property from its owner from revenge, and for the malicious purpose of destroying it, be not stealing, but only malicious mischief, then surely taking the property for the benevolent purpose of doing a kindness to the property itself,—as to a slave,—is not stealing.
Take an illustration. Wild animals are the property of no one. The undomesticated hares that run over my fields, the pigeons that fly over my house, or the fishes that swim in my streams, are not my property so that they can be the subjects of larceny. If a man takes them, he is liable in trespass for entering my grounds, and that is all. But if I confine hares in a warren, or pigeons in a cote, or fishes in a seine, then they are my property, and are the subjects of larceny, because I have reduced them to possession. Under such circumstances, if a man shoots or catches them for his table.—that is, to convert them to his own use,—he steals them; but if a man merely releases them from their confinement, breaks open their enclosures to let them go free, he is at most only guilty of malicious mischief. The English nobility send to France for foxes. These are caught in the Pyrenees or other mountains, brought across the English channel, and placed in the parks of noblemen preparatory to the barbarous amusement of a fox-hunt. Now, if one lord should take a fox from the park of another lord, for the pleasure of hunting him down, on his own premises, this would be stealing; but if he should only assist a fox to escape out of the park, for the benevolent purpose of restoring him to his natural liberty, this would not be stealing, but only a trespass. In such a case, the man who enlarges the fox does not do it in order to save himself the labor or expense of catching a fox; that is, he does not convert the fox to his own use.
Let me give you another illustration, which I select for the beauty of the language in which it is conveyed, and for the nobleness of the sentiments that accompany it. In the “Sentimental Journey” of Sterne, the following incident is related:—