The Trial of John Brown
October 25 to November 2, 1859
From THE LIFE, TRIAL AND EXECUTION OF CAPTAIN JOHN BROWN KNOWN AS "OLD BROWN OF OSSAWATOMIE," WITH A FULL ACCOUNT OF THE ATTEMPTED
INSURRECTION AT HARPER'S FERRY.
COMPILED FROM OFFICIAL AND AUTHENTIC SOURCES.
NEW YORK. ROBERT M. DE WITT, PUBLISHER.
Entered according to Act of Congress, in the year 1859, by ROBERT M. DE WITT,
In the Clerk's Office of the United States District Court for the Southern District of New York.
Oct. 25, 1859.
The Circuit Court of Jefferson County, Judge Richard Parker on the bench, assembled at two o'clock. The Grand Jury were called, and the Magistrate's Court reported the result of the examination in the case of Capt. Brown and the other prisoners. The Grand Jury retired with the witnesses for the State. At five o'clock they returned into Court and stated that they had not finished the examination of witnesses, and they were therefore discharged until ten o'clock to-morrow morning. It is rumored that Brown is desirous of making a full statement of his motives and intentions, through the press, but the Court has refused all further access to him by reporters, fearing that be may put forth something calculated to influence the public mind, and to have a bad effect upon slaves, The mother of Cook's wife was in the Court House throughout the examination.
Coffee says that he had a brother in the party, and that Brown had three sons in it. Also that there were two other persons, named Taylor and Hazlitt, engaged, so that, numbering Cook, five have escaped, twelve were killed, and five captured, making twenty-two in all.
Capt. Brown's object in refusing the aid of counsel is, that if he has counsel he will act be allowed to speak himself, and Southern counsel will not be willing to express his views.
The reason given for hurrying the trial, is, that the people of the whole country are kept in a state of excitement, and a large armed force is required to prevent attempts at rescue.
The prisoners, as brought into the Court, presented a pitiable sight--Brown and Stephens being unable to stand without assistance. Brown has three sword-stabs in his body, and one saber-cut over the heart. Stephens has three balls in his head, and had two in his breast and one in his arm. He was also cut on the forehead with a rifle bullet, which glanced off leaving a bad wound.
Oct. 26, 1859.
Brown has made no confession; but, on the contrary, says he has full confidence in the goodness of God, and is confident that he will rescue him from the perils that surround him. He says he has had rifles leveled at him, knives at his throat, and his life in as great peril as it now is, but that God has always been at his side. He knows God is with him, and fears nothing.
Alex. R. Boteler, member elect for Congress of this district, has collected from 50 to 100 letters from the citizens of the neighborhood of Brown's house, who searched it before the arrival of the marines. The letters are in the possession of Andrew Hunter, Esq., who has a large number of letters obtained from Brown's house by the marines and other parties. Among them is a roll of the conspirators, containing forty-seven signatures; an accurately traced map from Chambersburg to Brown's house; copies of letters from Brown, stating that as the arrival of too many men at once would excite suspicion, they should arrive singly; a letter from Merriam, stating that of the twenty thousand wanted, G. S. was good for one-fifth; also a letter from J. E. Cook, stating that the Maryland election was about to come off, the people will become excited, and we will get some of the candidates that will join our side.
The Circuit Court, Judge Parker presiding, met at 10 o'clock. The Grand Jury were called, and retired to resume the examination of witnesses. The Court took a recess awaiting the return of the Grand Jury.
M. Johnson, United States Marshal of Cleveland, Ohio, arrived this morning. He visited the prisoners, and identified Copland as a fugitive from justice in Ohio.
The excitement is unabated, and crowds of persons from the surrounding country are here. The event is regarded as proving the faithfulness of the slaves, and no fears are entertained of them; but a military guard is kept up, fearing an attempt to rescue the prisoners.
Consternation among the slaves is caused by the fear of being seized as Colonel Washington's were, and they firmly believe the object of the prisoners was to carry them South and sell them. Not a single slave has yet been implicated as even sympathizing with the insurrectionists. Those carried off have all been captured and returned to their masters.
Cannon are stationed in front of the Court House, and an armed guard is patrolling around the jail.
Capt. Brown has consented to allow Mr. Botts and his assistant, Mr. Green, to act as his counsel, they assuring him that they will defend him faithfully, and give him the advantage of every privilege that the law will allow.
Stephens declares that he does not desire to be defended by Northern counsel, preferring Southern, and that the Court should name them. There is a decided sympathy for Stephens, not only on account of his sufferings, but that he has shown none of that vindictiveness and hardihood that characterizes Brown. His regret is regarded as caused by the consequences of his folly, and the examination yesterday indicated that the other prisoners have lost their confidence in Brown, and are not disposed to follow him in his defiant course.
At 12 o'clock the Court reassembled.
The Grand Jury reported a true bill against the prisoners, and were discharged.
Charles B. Harding, assisted by Andrew Hunter, represents the Commonwealth; and Lawson Botts and his assistant Mr. Green, are counsel for the prisoners.
A true bill was read against each prisoner:
First: For conspiring with negroes to produce insurrection.
Second: For treason in the Commonwealth; and,
Third: For murder.
The indictment was as follows:
Judicial Circuit of Virginia, Jefferson County, to wit.--The Jurors of the Commonwealth of Virginia, in and for the body of the County of Jefferson, duly impaneled, and attending upon the Circuit Court of said county, upon their oaths do present that John Brown, Aaron C. Stephens, alias Aaron D. Stephens, and Edwin Coppie, white men, and Shields Green and John Copland, free negroes, together with divers other evil-minded and traitorous persons to the Jurors unknown, not having the fear of God before their eyes, but being moved and seduced by the false and malignant counsel of other evil and traitorous persons and the instigations of the devil, did, severally, on the sixteenth, seventeenth, and eighteenth days of the month of October, in the year of our Lord eighteen hundred and fifty-nine, and on divers other days before and after that time, within the Commonwealth of Virginia, and the County of Jefferson aforesaid, and within the jurisdiction of this Court, with other confederates to the Jurors unknown, feloniously and Traitorously make rebellion and levy war against the said Commonwealth of Virginia, and to effect, carry out, and fulfill their said wicked and treasonable ends and purposes did, then and there, as a band of organized soldiers, attack, seize, and hold a certain part and place within the county and State aforesaid, and within the jurisdiction aforesaid, known and called by the name of Harper's Ferry, and then and there did forcibly capture, make prisoners of, and detain divers good and loyal citizens of said Commonwealth, to wit: Lewis W. Washington, John M. Allstadt, Archibald M. Kitzmiller, Benjamin J. Mills. John E. P. Dangerfield, Armstead Ball, John Donoho, and did then and there slay and murder, by shooting with firearms, called Sharpe's rifles, divers good and loyal citizens of said Commonwealth, to wit: Thomas Boerly, George W. Turner, Fontaine Beckham, together with Luke Quinn, a soldier of the United States, and Hayward Sheppard, a free negro, and did then and there, in manner aforesaid, wound divers other good and loyal citizens of said Commonwealth, and did then and there feloniously and traitorously establish and set up, without authority of the Legislature of the Commonwealth of Virginia, a Government, separate from, and hostile to, the existing Government of said Commonwealth; and did then and there hold and exercise divers offices under said usurped Government, to wit: the said John Brown as Commander-in-Chief of the military threes, the said Aaron C. Stephens, alias Aaron D. Stephens, as Captain; the said Edwin Coppie, as Lieutenant, and the said Shields Green and John Copland as soldiers; and did then and there require and compel obedience to said officers; and then there did hold and profess allegiance and fidelity to said usurped Government; and under color of the usurped authority aforesaid, did then and there resist forcibly and with warlike arms, the execution of the laws of the Commonwealth of Virginia, and with firearms did wound and maim divers other good and loyal citizens of said Commonwealth, to the Jurors unknown, when attempting, with lawful authority, to uphold and maintain said Constitution and laws of the Commonwealth of Virginia, and for the purpose, end, and aim of overthrowing and abolishing the Constitution and laws of said Commonwealth, and establishing in the place thereof, another and different government, and constitution and laws hostile thereto, did then and there feloniously and traitorously, and in military array Join in open battle and deadly warfare with the civil officers and soldiers in the lawful service of the said Commonwealth of Virginia. and did then and there show and discharge divers guns and pistols, charged with gunpowder and leaden bullets, against and upon divers parties of the militia and volunteers embodied and acting under the command of Colonel Robert W. Baylor, and of Colonel John Thomas Gibson, and other officers of said Commonwealth, with lawful authority to quell and subdue the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie. Shields Green, and John Copland, and other rebels and traitors assembled, organized, and acting with them, as aforesaid, to the evil example of all others in like case offending, and against the peace and dignity of the Commonwealth.
Second Count.--And the Jurors aforesaid, upon their oaths aforesaid, do further present that the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, severally, on the sixteenth, seventeenth, and eighteenth days of October, in the year of our Lord eighteen hundred and fifty-nine, in the said County of Jefferson, and Commonwealth of Virginia, and within the jurisdiction of this Court, not having the fear of God before their eyes, but moved and seduced by the false and malignant counsels of others, and the instigations of the devil, did each severally, maliciously, and feloniously conspire with each other, and with a certain John E. Cook, John Kagi, Charles Tidd, and others to the jurors unknown, to induce certain slaves, to wit:--Jim, Sam, Mason, and Catesby. . . . . . . . . the slaves, and property of Lewis W. Washington, and Henry, Levi, Ben, Jerry, Phil, George, and Bill, the slaves and property of John H. Allstadt, and other slaves to the Jurors unknown, to rebel and make insurrection against their masters and owners, and against the Government and the Constitution and laws of the Commonwealth of Virginia: and then and there did maliciously and feloniously advise said slaves, and other slaves to the Jurors unknown, to rebel and make insurrection against their masters and owners, and against the Government, the Constitution and laws of the Commonwealth of Virginia to the evil example of all others in like cases offending and against the peace and dignity of the Commonwealth.
Third Count.--And the Jurors aforesaid, upon their oaths aforesaid, further present that the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, severally, on the sixteenth, seventeenth, and eighteenth days of October, in the year of our Lord one thousand eight hundred and fifty-nine, in the county at Jefferson and the Commonwealth of Virginia aforesaid, and within the jurisdiction aforesaid, in and upon the bodies of Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, white persons, and Hayward Sheppard, a free negro, in the peace of the Commonwealth then and there being, feloniously, willfully, and of their malice aforethought, did make an assault, and with firearms called Sharpe's rifles, and other deadly weapons to the Jurors unknown, then and there, charged with gunpowder and leaden bullets, did then and there feloniously, willfully, and of their malice aforethought, shoot and discharge the same against the bodies severally and respectively of the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, and Hayward Sheppard; and that the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, with the leaden bullets aforesaid, out of the firearms called Sharpe's rifles, aforesaid, shot and discharged as aforesaid, and with the other deadly weapons to the jurors unknown, as aforesaid, then and there feloniously, willfully, and of their malice aforethought did strike, penetrate and wound the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, Hayward Sheppard, each severally; to wit: the said Thomas Boerly in and upon the left side; the said George W. Turner in and upon the left shoulder; the said Fontaine Beckham in and upon the right breast; the said Luke Quinn in and upon the abdomen, and the said Hayward Sheppard in and upon the back and side, giving to the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, Hayward Sheppard, then and there with the leaden bullets, so as aforesaid shot and discharged by them, severally and respectively out of the Sharpe's rifles aforesaid. and with the other deadly weapons to the Jurors unknown, as aforesaid, each one mortal wound, of which said mortal wounds they the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, and Hayward Sheppard each died; and so the Jurors aforesaid, upon their oaths aforesaid, do say that the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, then and there, them the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, and Hayward Sheppard, in the manner aforesaid, and by the means aforesaid, feloniously, willfully, and of their, and each of their malice aforethought, did kill and murder, against the peace and dignity of the Commonwealth.
Fourth Count.--And the Jurors aforesaid, upon their oaths aforesaid, further present that the said John, Brown, Aaron C. Stephens, alias Aaron D. Stephens and Edwin Coppie and Shields Green, each severally on the seventeenth day of October, in the year of our Lord eighteen hundred and fifty-nine, in the County of Jefferson and Commonwealth of Virginia aforesaid, and within the jurisdiction of this Court, in and upon time bodies of certain Thomas Boerly, George W. Turner, and Fontaine Beckham, in the peace of the Commonwealth, then and there being feloniously, willfully, and of their malice aforethought, did make an assault, and with guns called Sharpe's rifles, then and there charged with gunpowder and leaden bullets, did then and there feloniously, willfully, and of their, and each of their malice aforethought, shoot and discharge the same against the bodies of the said Thomas Boerly, George W. Turner, and Fontaine Beckham and that the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, and Shields Green, with leaden bullets aforesaid, shot out of the Sharpe's rifles aforesaid, then and there, feloniously, willfully, and of their malice aforethought, did strike, penetrate, and wound the said Thomas Boerly, George W. Turner, and Fontaine Beckham, each severally, viz.: The said Thomas Boerly in and upon the left side; the said George W. Turner, in and upon the left shoulder and breast, and the said Fontaine Beckham in and upon the right breast, giving to the said Thomas Boerly, George W. Turner, and Fontaine Beckham, then and there, with leaden bullets aforesaid, shot by them severally out of Sharpe's rifles aforesaid, each one mortal wound, of which said mortal wounds they the said Thomas Boerly, George W. Turner, and Fontaine Beckham then and there died; and that the said John Copland, then and there, feloniously, willfully, and of his malice aforethought, was present, aiding, helping, abetting, comforting and assisting the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, and Shields Green in the felony and murder aforesaid, in manner aforesaid to commit. And so the Jurors aforesaid, upon their oaths, do say that the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, then and there them, the said Thomas Boerly, George W. Turner, and Fontaine Beckham, in the manner aforesaid and by the means aforesaid, feloniously, willfully, and of their and each of their malice aforethought, did kill, and murder against the peace and dignity of the Commonwealth of Virginia.
Lewis W. Washington, John H. Allstadt, John E. P. Dangerfield, Alexander Kelly, Emanuel Spangler, Armstead M. Ball, Joseph A. Brua, William Johnson, Lewis P. Starry, Archibald H. Kitzmiller, were sworn in open Court this 26th day of October, 1859, to give evidence to the Grand Jury upon this bill of indictment.
Teste: Robert T. Brown, Clerk.
A true copy of said indictment.
Teste: Robert T. Brown,
Clerk of the Circuit Court of Jefferson County, in the State of Virginia. Which bill of indictment the Grand Jury returned this 26th day of October.
A true bill. Thomas Rutherford, Foreman.
October, 26, 1859.
The prisoners were brought into court, accompanied by a body of armed men. They passed through the streets, and entered the Court House without the slightest demonstration on the part of the people.
Brown looked something better, and his eye was not so much swollen. Stevens had to be supported, and reclined on a mattress on the floor of the court-room, evidently unable to sit. He has the appearance of a dying man, breathing with great difficulty.
Before the reading of the arraignment,
Mr. Hunter called the attention of the Court to the necessity of appointing additional counsel for the prisoners, stating that one of the counsel (Faulkner) appointed by the County Court, considering his duty in that capacity as having ended, had left. The prisoners, therefore, had no other counsel than Mr. Botts. If the Court was about to assign them other counsel, it might be proper to do so now.
The Court stated that it would assign them any members of the bar they might select.
After consulting Capt. Brown, Mr. Botts said that the prisoner retained him, and desired to have Mr. Green, his assistant, to assist him. If the Court would accede to that arrangement, it would be very agreeable to him personally.
The Court requested Mr. Green to act as counsel for the prisoner, and he consented to do so.
Capt. Brown then rose and said: I do not intend to detain the Court, but barely wish to say, as I have been promised a fair trial, that I am not now in circumstances that enable me to attend a trial, owing to the state of my health. I have a severe would in the back, or rather in one kidney, which enfeebles rue very much. But I am doing well, and I only ask for a very short delay of my trial, and I think I may get able to listen to it; and I merely ask this, that, as the saying is, "the devil may have his dues," no more. I wish to say, further, that my hearing is impaired, and rendered indistinct, in consequence of wounds I have about my head. I cannot hear distinctly at all; I could not hear what the Court has said this morning. I would be glad to hear what it said on my trial, and am now doing better than I could expect to be under the circumstances. A very short delay would be all I would ask. I do not presume to ask more than a very short delay, so that I may in some degree recover, and be able at least to listen to my trial, and hear what questions are asked of the citizens, and what their answers are. If that could be allowed me, I should be very much obliged.
Mr. Hunter said that the request was rather premature. The arraignment should be made, and this question could then be considered.
The Court ordered the indictment to be read, so that the prisoners could plead guilty or not guilty, and would then consider Mr. Brown's request.
The prisoners were compelled to stand during the arraignment, but it was with difficulty, Stevens being held upright by two bailiffs.
The reading of the indictment occupied about twenty minutes; each of the prisoners responded to the question, "Not Guilty," and desired to be tried separately.
Mr. Hunter--The State elects to try John Brown first.
Mr. Botts--I am instructed by Brown to say that he is mentally and physically unable to proceed with his trial at this time. He has heard to-day that counsel of his own choice will be here, whom he will, of course, prefer. He only asks for a delay of two or three days. It seems to me but a reasonable request, and I hope the Court will grant it.
Mr. Hunter said he did not think it the duty of the prosecutor for the Commonwealth or for one occupying the position, to oppose anything that justice required, nor to object to anything that involved a simple consideration of humanity, where it could be properly allowed; yet, in regard to this proposition to delay the trial of John Brown two or three days, they deemed it their duty that the Court, before determining matters, should be put in possession of facts and circumstances, judicially, that they were aware of in the line of their duties as prosecutors. His own opinion was, that it was not proper to delay the trial of this prisoner a single day, and that there was no necessity for it. He alluded in general terms to the condition of things that surrounded them. They were such as to render it dangerous to delay, to say nothing of their exceeding pressure upon the physical resources of the community, growing out of circumstances connected with affairs for which the prisoners were to be tried. He said our laws in making provisions for allowing, in the discretion of the Court, briefer time than usual in cases of conviction, for such offenders, between the condemnation and execution, evidently indicates, indirectly, the necessity of acting promptly and decisively, though always justly, in proceedings of this kind. In reference to Brown's physical condition, he asked the Court not to receive the unimportant statements of the prisoner as sufficient ground for delay, but that the Jailer and physician be examined. As to expecting counsel from abroad, he said that no impediment had been thrown in the way of the prisoners' procuring such counsel as they desired. but, on the contrary, every facility had been afforded, able and intelligent counsel had been assigned them here, and he apprehended that there was little redskin to expect the attendance of those gentlemen from the North who had been written for. There was also a public duty resting upon them to avoid, as far as possible, within the forms of law, and with reference to the great and never-to-be-lost-sight-of giving a fair and impartial trial to the prisoners, the introduction of anything likely to weaken our present position. and give strength to our enemies abroad, whether it issues from the Jury in time, or whether it comes from the months of the prisoners or any other source. It was their position that had been imperiled and jeopardized, as they supposed by enemies.
Mr. Harding concurred in the objection of Mr. Hunter, on the ground of danger in delay, and also because Brown was the leader of the insurrection, and his trial ought to be proceeded with on account of the advantage thereby accruing to the trial of the others.
Mr. Green remarked that he had had no opportunity of consulting with the prisoner, or preparing a defense. The letters for Northern counsel had been sent off, but not sufficient time has been afforded to receive answers. Under the circumstances, he thought a short delay desirable.
Mr. Botts added that at present the excitement was so great as perhaps to deter Northern counsel from coming out; but now that it had been promised that the prisoners should have a fair and impartial trial, he presumed that they would come and take part in the case.
The Court stated that if physical inability were shown, a reasonable delay must be granted. As to the expectation of other counsel, that did not constitute a sufficient cause for delay, as there was no certainty about their coming. Under the circumstances in which the prisoners were situated, it was rational that they should seek delay. The brief period remaining before the close of the term of the Court, rendered it necessary to proceed as expeditiously as practicable, and to be cautious about granting delays. He would request the physician who had attended Brown to testify to as his condition.
Dr. Mason thought Brown was able to go on understandingly with the trial. He did not think his wounds were such as to affect his mind of recollection. He had always conversed freely and intelligibly about this affair. He had heard him complain of debility, but not of hardness of hearing.
Mr. Cockerel, one of the guards of the jail, said that Brown had always been ready to converse freely.
The Court refused to postpone the trial and the whole afternoon was occupied in obtaining a jury for the trial of Brown, who was brought into court on a cot.
Afternoon Session, 2 o'clock.
The jailer was ordered to bring Brown into court. He found him in bed, from which he declared himself unable to rise. He was accordingly brought into court on a cot, which was set down within the bar. The prisoner laid most of the time with his eyes closed, and the counterpane drawn up close to his chin. The jury were then called and sworn. The jurors were questioned as to having formed or expressed any opinion that would prevent their deciding the case impartially on the merits of the testimony. The Court excluded those who were present at Harper's Ferry during the insurrection and saw the prisoners perpetrating the act for which they are about to be tried. They were all from distant parts of the country, mostly farmers--some of them owning a few slaves, and others none. The examination was continued until 24 were decided by the Court and counsel to be competent jurors. Out of these 24, the counsel for the prisoner had a right to strike off eight, and then twelve are drawn by ballot out of the remaining sixteen. The following were the questions put to the jurors:
Were you at Harper's Ferry on Monday or Tuesday?
How long did you remain there?
Did you witness any of the proceedings for which this party is to be tried?
Did you form or express any opinion from what you saw there with regard to the guilt of innocence of these people?
Would that opinion disqualify you from giving these men a fair trial?
Did you hear any of the evidence in this case before the Examining Court?
What was your opinion based on?
Was it a decided one, or was it one which worm yield to evidence, if the evidence was different from what you supposed?
Are you sure that yon can try this case impartially from the evidence alone, without reference to anything yon have heard or seen of this transaction?
Have you any conscientious scruples against convicting a party of an offense to which the law assigns the punishment of death, merely because that is the penalty assigned?
The following were finally fixed upon as the twelve Jurors.
Thomas Watson, jr,
John C. McClure,
Jacob J. Miller,
George W. Boyer,
John C. Wiltshire
George W. Tapp,
William A. Martin,
The jury were not sworn on the case, but the Judge charged them not to converse upon the cage or to permit others to converse with them. They were dismissed at five o'clock, and the prisoner was then carried over to the jail on his cot, and the Court adjourned till morning.
Thursday, Oct. 27, .
Brown was brought in walking, and laid down on his cot at full length within the bar. He looked considerably better, the swelling having left his eyes.
Senator Mason was present.
Messrs. Harding and Hunter again appeared for the Commonwealth, and Messrs. Botts and Green for the prisoner.
Mr. Botts read the following dispatch, which was received this morning:
"Akron, Ohio, Thursday, Oct. 26, 1851.
"To C. J. Faulkner, and Lawson Botts:
"John Brown, leader of the insurrection at Harper's Ferry, and several of his family have resided in this county many years. Insanity is hereditary in that family. His mother's sister died with it, and a daughter of that sister has been two years in a Lunatic Asylum. A son and daughter of his mother's brother have also been confined in the lunatic asylum, and another son of that brother is now insane and under close restraint These facts can be conclusively proven by witnesses residing here, who wilt doubtless attend the trial if desired.
"A. H. Lewis."
William C. Allen, telegraphic operator at the Akron office, adds to the above dispatch that A. H. Lewis is a resident of that place, and his statements are entitled to implicit credit.
Mr. Botts said that on receiving the above dispatch he went to the jail with his associate, Mr. Green, and read it to Brown, and is desired by the latter to say that in his father's family there has never been any insanity at all. On his mother's side there have been repeated instances of it. He adds that his first wife showed symptoms of it, which were also evident in his first and second sons by that wife. Some portions of the statements in the dispatch he knows to be correct, and of other portions he is ignorant. He does not know whether his mother's sister died in the lunatic asylum, but he does believe that a daughter of that sister has been two years in the asylum. He also believes that s son and daughter of his mother's brother have been confined in an asylum; but be is not apprised of the fact that another son of that brother is now insane and in close confine meat. Drown also desires his counsel to say that he does not put in the plea of insanity, and if he has been at all insane he is totally unconscious of it, yet he adds that those who are most insane generally suppose that they have more reason and sanity than those around them. For himself he disdains to put in that plea, and seeks no immunity of the kind. This movement is made totally without his approbation or concurrence, and was unknown to him, till the receipt of the dispatch above.
Brown then raised himself up?n bed, and said: "I will add, if the Court will allow me, that I look upon it as a miserable artifice and pretext of those who ought to take different course in regard to me, if they took any at all, and I view it with contempt more than otherwise. As I remarked to Mr. Green, insane persons, so far as my experience goes, have but little ability to judge of their own sanity; and, if I am insane, of course I should think I know more than all the rest of the world. But I do not think so. I am perfectly unconscious of insanity, and I reject, so far as I am capable, any attempt to interfere in my behalf on that score."
Mr. Botts stated that he was further instructed by Mr. Brown to say that, rejecting this plea entirely, and seeking no delay for that reason, he does repeat to the Court his request made yesterday, that time be given for the foreign counsel to arrive that he has now reason to expect.
Yesterday afternoon a dispatch was received from Cleveland, Ohio, signed "Dan. Tilden," dated October 26, asking Brown whether it would be of use for counsel to leave last night. To this dispatch answer was returned that the Jury would be sworn this morning, and that Brown desired the counsel to come at once.
The telegraphic operator here stated that this dispatch would be sent off at once, in advance of the dispatches sent by reporters, and he had learned this morning that it was sent before the storm of last night interrupted communication, and that counsel might reach here by 12 or 1 o'clock to-night
The course taken by Brown this morning makes it evident that he sought no postponement for the mere purpose of delay, as he rejects the plea of insanity. Still, in his opinion he could have a fairer trial if the defense were conducted by his own counsel than if he were defended by the counsel at present here.
Mr. Hunter observed that the prisoner's counsel having renewed the motion of yesterday for delay for a specific period, indicated and based upon information received in the form of a telegram, the question now was whether there wan sufficient grounds in this additional information to change the decision announced by the Court yesterday on the same motion. If the Court did not at once deem this circumstance wholly insufficient, before the decision was made the counsel for the Commonwealth deemed it his duty to call attention to two or three matters connected with the affair. Though desirous to avoid forestalling the trial of this case, in regard to the present prisoner at the bar, they were prepared to prove that he had made open, repeated and constant acknowledgment of everything charged against him. He had gloried in it, and we have but an exhibition of the same spirit and the same purpose in his announcement that he would permit no defense of insanity to be put in. What does he mean by wishing delay for the purpose of having a fair trial? In a proper sense, and in the only sense in which it can be regarded by the Court, it is a fair trial according to the laws of Virginia, and the safeguards against wronging the prisoner which these laws throw around him. If the prisoner's idea of a fair trial is to have it so shaped as to produce a fairness in his conception, outside of what the laws recognize, it becomes the duty of the counsel for the Commonwealth, and, as he apprehended, of the Court, to resist any attempt of that kind. Considering the surrounding circumstances, to which it was unnecessary to particularly advert, there could be no right to claim delay, except so far as the prisoner could show in a reliable form that such delay was necessary to do justice in his particular case, according to the laws and policy of the State of Virginia. In regard to the telegram read, we know not who this Mr. Lewis is. We know not whether he is to come here as counsel for the prisoner, or whether he wants to head a band of desperadoes. We have a right to believe the latter as well as the former. There had been time enough since the letter for northern counsel was mailed last Saturday, for it to reach him, and for him to arrive here ere this, if he had designed coming. It was fairly inferable that he did not intend to come, and the telegram did not say he would come. But might it not be an attempt to gain time and learn the latest day when a rescue could be attempted? While commending the earnestness and zeal of the prisoner's counsel, he must ask the Court to reject the motion, and proceed with the trial at once.
Mr. Harding would be reluctant to withhold from a prisoner charged with a crime of the greatest enormity, as in the present case, anything calculated to afford him the amplest opportunity of justice; but he had able and intelligent counsel assigned him, who would that he was fairly and impartially tried, and he therefore fully concurred with the remarks of his colleague in opposing the motion. He referred also to the fact that Brown pretended yesterday afternoon that he was unable to walk, and was brought into Court on a bed, yet he walked back to jail after the close of the trial without difficulty. He thought those were mere pretences for delay, which the Court should overrule.
Mr. Green remarked that one day's delay would be sufficient to ascertain whether the expected counsel would come or not, and no prejudice could result to the Commonwealth from a small delay of that character. In reference to the new matter brought to the consideration of the Court, he did not believe the prisoner had made any acknowledgment upon which he could be convicted. All the acknowledgments, so far as he knew their character, referred to the treason, and those confessions, according to our law, are insufficient to convict a party who may have acknowledged the fact in the plainest manner to one hundred witnesses--for if that is all the evidence upon which the Commonwealth relies, the prisoner cannot be convicted, because our code provides that such confession shall he made in open court, and the prisoner has denied in open court, by putting in s plea of not guilty. As to sufficient time having elapsed for counsel to reach here, it was a reasonable supposition that the persons to whom Brown wrote were absent, and did not immediately receive the letter. The Commonwealth attorney does not know who Lewis is, but he is an ex-member of Congress, and said to be a man of respectability. As to what is called Brown's sham sickness of yesterday, it should be remembered that it was not then, nor is it now, made the ground of application for delay. He did not think this trim should be hurried through, for the reason that a rescue might be apprehended, for such fears were idle.
The Court stated that he must see, in this case as any other, that a proper cause for a delay was made out before granting such an application. In the present case he could not see that the telegram gave any assurance that the additional counsel intended to come. The prisoner is now defended by counsel, who will take care that no improper evidence is adduced against him, and that all proper evidence in his behalf shall be presented. He could not see that a proper cause for delay was made out. The expected counsel might arrive before the case was closed, and could then see all the testimony which had been taken, and thus the prisoner might have the benefit of their advice although the case now proceeds. As to the matter of insanity, it was not presented in a reliable form; instead of mere statements, we should have affidavits, or something of that character. He thought, therefore, that the Jury should be sworn and the trim proceed.
The Jury having been sworn to fairly and impartially try the prisoner, the COURT directed that the prisoner might forego the form of standing while arraigned, if he desired it.
Mr. Botts put the inquiry to the prisoner, and he continued to lie prostrate on his cot while the long indictment, filling seven pages, was read.
Mr. Harding addressed the Jury. He presented the facts of the case, detailing the scenes of the Armory, the killing of the bridge-keeper, and the subsequent killing of the citizens named in the indictment;the seizure of Lewis Washington and Mr. Allstadt, with their slaves; the forming of a government within the limits of the Commonwealth: the holding of the citizens as prisoners of war, and the subsequent capture. He read the law on treason, levying war against the State, giving comfort to its enemies, or establishing any other government its limits, punishable with death; the law against advising with a slave, punishable with death; and the law on the murder of citizens, punishable with death. All these charges would be distinctly proven, beyond a possibility of a doubt on the minds of the Jury. He would show that the prisoners' whole object was to rob our citizens of their slaves, and carry them off by violence, and he was happy to say against the wills of the slaves, all of them having escaped, and rushed back to their masters at the first opportunity. He concluded by urging the Jury to cast aside all prejudices, and give the prisoners a fair and impartial trial; and not to allow their hatred of Abolitionists to influence them against those who have raised the black flag on the soil of the Commonwealth.
Mr. Green, on the part of the prisoner, after giving the law applicable to the case, said that the Jury must bear in mind that they are judges of the law and the facts, and that if they have any doubt as to law, or the fact of the guilt of this prisoner, they are to give the prisoner the benefit of that doubt. On the first charge of treason, as a specific act of treason must be proven, it must be proven that he attempted to establish a separate and distinct government, and it must also be proven what was purposed of treasonable acts before you can convict him on those charges. If it is intended to rely on his confessions to prove treason, the law distinctly says, "No conviction can be made on confessions, unless made in open Court." There must be sufficient evidence to prove the charge, independent of any confessions out of the Court, and it requires two distinct witnesses to prove each and every act of treason.
Second: Conspiring with slaves to rebel and make insurrection. The Jury must be satisfied that such conspiracy was done within the State of Virginia, and within the jurisdiction of this Court. If it was done in Maryland, this Court could not punish the act. If it was done within the limits of the Armory at Harper's Ferry, it was not done within the limits of this State, the Government of the United States holding exclusive jurisdiction within the said grounds. Attorney-General Cushing had decided this point with regard to the Armory grounds at Harper's Ferry, which opinion was read to the Jury, showing that persons residing within the limits of the Armory cannot even be taxed by Virginia, and that crimes committed within the said limits are punishable by the Federal Courts. Although the Jury may doubt about the law on this subject, they must give the prisoners the benefit of that doubt upon the trial. Over murder, if committed within the limits of the Armory, this Court has no jurisdiction, and in the case of Mr. Beckham, if he was killed on the railroad bridge, it was committed within the State of Maryland, which State claims jurisdiction up to the Armory grounds. Although he may be guilty of murder, it must be proven that it was deliberate and premeditated murder to make it a capital offense; if otherwise, the killing was murder in the second degree, punishable with imprisonment. If you have any doubt on these points you must give that doubt to the prisoners. He was satisfied the Jury will not allow any outside excitement to affect them, and that they will do their duty faithfully and impartially.
Mr. Botts impressively addressed the Jury. The case was an unusual one, and the crime charged in many respects unknown. The Jury trial called for a calm, unimpassioned deliberation, and not the seizure upon loose statements for a conviction. The Jury must be above all prejudices and influences, and deliberate calmly, and free of all resentment, bearing in mind that the mission of the law is not to wreak vengeance, and that the majesty of the law is best maintained when Judges, Counsel and Jury rise above these influences. The burden of proof is on the Commonwealth, and if she fails to substantiate her charges, you are bound to do your duty impartially, and find your verdict on the law and testimony that the Commonwealth may be able to present to you. He then proceeded to go over the same grounds taken by Mr. Green on each of the three points of the indictment--treason, insurrection and murder. It is no difference how much a Jury may be convinced in their own minds of the guilt of the prisoner, it is essential that they must have proof of positive guilt, in a case like this, involving both life and liberty.
Mr. Botts, in reviewing the law bearing on the case, evinced a determination to avail himself of every advantage that the law allows, and to do his duty to the prisoner earnestly and faithfully. It was due to the prisoner to state that he believed himself to be actuated by the highest and noblest feelings that ever coursed through a human breast, and that his instructions were to destroy neither property nor life. They would prove by those gentlemen who were prisoners that they were treated with respect, and that they were kept in positions of safety, and that no violence was offered to them. These facts must be taken into consideration, and have their due weight with the Jury.
Mr. Hunter followed stating his purpose to avoid anything by way of argument or explanation not immediately connected with the particular issue to be tried, and to march straight forward to the attainment, so far as may be in our power, of the ends of justice, by either convicting or acquitting the prisoner at the bar. With a single preliminary remark explanatory of his position here as assistant, a position which had been assigned to him by the Governor of the Commonwealth, as well as his honor the Judge, he passed at once to a review of what was the law in reference to the case, and what he expected to be able to prove to the satisfaction of the Jury. First, as to high treason, this was probably the first case of high treason, or treason against the State, that ever had been tried here by our State Courts, and he fervently hoped that it would be the last that would ever occur; and probably in some degree not only upon our decision, but upon our prompt decision of this case, will that result depend. He thought his friends on the other side were totally mistaken in their view that the law as it now stands on our statute books in reference to overt acts was, either in language, or substantially, that contained in the Constitution of the United States. On the contrary, the phraseology had been varied from that of the Constitution and, as he conceived, for a plain and palpable purpose.
All fire powers vested in the Federal Government were given with great jealousy. This was a historical fact, perfectly familiar, and consequently, wrote treason against the United States consisted only in levying war against them or adhering to their enemies and giving them aid and comfort, there is no provision that no person shall be convicted of treason unless upon the testimony of two witnesses of some overt act or confession in open Court. Yet the State law is more full, and includes within its definition of treason the establishing, without the authority of the Legislature, any Government within its limits, separate from the existing Government, or the holding or executing, under such Government, of any office; professing allegiance or fidelity to it, or resisting the execution of law, under the color of its authority; and it goes on to declare that such treason, if proved by the testimony of two witnesses to the same overt act, or by confession in Court, shall be punished with death. Any one of these acts constitutes treason against this Commonwealth, and he believed that the prisoner had been guilty of each and all these acts, which would be proven in the clearest manner, not by two, but by a dozen witnesses, unless limited by the lack of time. The prisoner had attempted to break down the existing Government of the Commonwealth, and establish on its ruins anew Government: he had usurped the office of Commander-in-Chief of this new government, and, together with his whole band, professed allegiance and fidelity to it; be represented not only the civil authorities of state, but our own military; he is doubly, trebly and quadruply guilty of treason. Mr. Hunter proceeded again to the question of jurisdiction over the Armory grounds, and examined the authority cited on the other side, of Attorney-General Cushing; the latter was an able man, but he came from a region of country, where opinions are very different from ours in relation to the power of the Federal Government as affecting State rights. Our Courts are decidedly adverse to Mr. Cushing's views. In all time past, the jurisdiction of this County of Jefferson in criminal offences committed at Harper's Ferry, has been uninterrupted and unchallenged whether they were committed on the Government property or not. He cited an instance, twenty-nine years ago, where an atrocious murder was committed between the very shops in front of which these men fought their battles, and the criminal was tried here, convicted, and executed under our laws. There was a broad difference between the cession of jurisdiction by Virginia to the Federal Government and mere assent of the State that the Federal Government should become a land-holder within its limits. The law of Virginia, by virtue of which the grounds at Harper's Ferry were purchased by the Federal Government, ceded no jurisdiction. Brown was also guilty, on his own notorious confession, in advising conspiracy. In regard to the charge of murder, the proof will be that this man was not only actually engaged i n murdering our citizens, but that he was the chief director of the whole movement. No matter whether he was present on the spot or a mile off, he is equally guilty. In conclusion, Mr. Hunter said that he hoped the case would be considered with fairness and impartiality, and without fear, favor or affection; and he only asked that the penalty might be visited on the prisoner which law denounces, which reason denounces, which our safety requires, and which the laws of God and man approve.
The afternoon session assembled at 3 1/2 o'clock.
Dr. Starry, on Sunday, night, heard a shot fired at the Ferry; heard a cry, looked out and saw two men passing from toward the Armory gate, and a tall man came from the Armory gate, and two men from the cars hallooed, "There he goes now!" the man stopped, raising his rifle; they followed him to the Armory gate, and exchanged shots with him; Conductor Phelps was one of those men; afterward found the black man Hayward dying in the railroad office; he said he was commanded to stop by the men on the bridge, and refusing, they fired upon him; saw several men patrolling during the night, and go into the bridge; did not know what to make of it, and went to inquire of the Armory watchman what is meant; met a man who levelled his rifle at him; asked him where the watchman was, and was answered that he was not there, but that there were "a few of us here;" afterward, in the morning, saw a wagon with three armed men following it; then went to Mr. Kitzmiller and Mr. Ball, and told them that an armed body of men had possession of the Armory, and not to go near it; also gave information to the other persons employed in the Armory; saw also three of them at Hall's works, did not see more than thirty; recognized them by a peculiar hat they wore; rode to Charlestown to give the alarm and get assistance; returned about 11 o'clock, and resisted in bearing orders and in guiding the armed forces to the heat place of attack; did not see or recognize Brown there at all.
Cross-examined by Mr. Green--As I rode post the Armory, armed men were at the gate; they did not attempt to stop me; I was determined not to be stopped.
Conductor Phelps, sworn--On Sunday night, the 15th, my train arrived at 1.25, bound east; saw no watchman at the bridge; thought it strange, as his business waste be there; was talking to the engineer, and was in the act of starting ahead, when the watchman came up to me, much excited, to state that he had been attacked in the bridge by men carrying rifles; Mr. Horsey was there with my light before starting the train; the baggage-master and a passenger accompanied him, and when they entered the bridge some one said, "stand and deliver;" had previously told the engineer to follow him slowly, but immediately saw the muzzles of four rifles resting on a railing, and pointed at us; told the engineer to "back"--something was wrong on the bridge--which he did; as I got on the tresseling, I heard the report of a gun, and Hayward, the colored man, came running to me, and said, "Captain, I am shot;" the ball had entered the back, and came oat under the left nipple; carried him to the railroad office, and started for the doctor, and saw one man come out of the bridge, and go toward the Armory gate; remarked, "There he goes now," and Throgmorton, clerk at the Wager House, fired at him; the shot was returned by two men at the Armory gate; I was close behind Throgmorton, who exchanged several shots with them; this was ten minutes after Hayward was shot; heard the men loading their rifles again; the reports were very loud, and I wondered why the people were not aroused; walked back to the railroad office, and one of the party on the bridge came out; he said, "You can come over the bridge with your train;" replied, "I would rather not, after these proceedings," and asked, "What do you want?" he replied, "We want liberty, and we intend to have it;" I then asked, "What do you mean?" he replied, "You will find out in a day or two;" I then felt alarmed for the safety of myself and passengers, and concluded to wait till daylight; men were passing back and forward from the bridge to the gate of the Armory; each appeared to be in blankets; the passengers were much excited, and wanted to know what it meant; went to the back of the train, and saw from twenty to thirty men about the engine-house; at about 4 o'clock saw a wagon driven in the yard, and nearly a dozen men jumped out of it, also a carriage, but did not see any one get out of it; saw men go backward and forward, who seemed to be putting something in the wagon; they were also going up and down the street leading from the Armory, and all seemed busy at something; this continued until nearly daylight, when the wagon left the yard and passed over the bridge to the Maryland side; about 3 o'clock, before the wagon left, an old gentleman came to me and said, "The parties who have arrested me allowed me to come out on condition that I would tell you that you might cross the bridge with your train;" afterward learned that this was Mr. Koise, a citizen of the town; replied that "I would not cross the bridge until daylight, that I might see whether it was safe;" afterward saw a man coming down Shenandoah street, with a lantern, and an armed man arrested him; afterward saw a short, stout negro walking with a staff with one of these men; could not see what was in the wagon; afterward a black boy brought a note to the clerk of the Wager House, ordering breakfast for forty-seven men; determined to go out and ascertain what it meant; met a man whom he now recognized as Coppie, and asked what they meant; he replied, "We don't want to injure you or detain your train; you could have gone at 3 o'clock; all we want is to free the negroes;" then asked if his train could now start, and went to the guard of the gate, who said, "There is Capt. Smith--he can tell you what you want to know;" went to the engine-house, and the guard called Capt. Smith, that somebody wanted to see him; the prisoner at the bar came out, and I asked him if he was captain of these --; he replied he was; asked him if I could cross the bridge, and he peremptorily responded, "No, Sir;" then asked him what he meant by stopping my train; he replied, "Are you the conductor on that train?" told him I was, and he said, "Why, I sent you word at 3 o'clock that you could pass;" told him that, after being stopped by armed men on the bridge, I would not pass with my train; he replied, "My head for it, you will not be hurt," said he was very sorry, it was not his intention that any blood should be spilled; that it was bad management on the part of the men in charge of the bridge; I then asked him what security I would have that my train would pass safely, and asked him if he would walk over the bridge ahead of my train with me? he called a large, stout man to accompany him, and one of my passengers, Mr. McByrne, asked to accompany me, but Brown ordered him to get into the train, or be would take them all prisoners in five minutes; Brown accompanied me; both had rifles; as we crossed the bridge, the three armed men were still in their places; when we got across, Brown said to me, "You doubtless wonder that a man of my age should be here with a band of armed men, but if you knew my past history you would not wonder at it as much; my train was then through the bridge, and I bid him good morning, j umped of my train, and left him; witness returned to Harper's Ferry on Tuesday, and went in with Governor Wise and others to see Brown, who was a prisoner; beard his conversation with Wise and Hunter; Mr. Wise said he "was sorry to see a man of his age in that position;" Brown replied that he "asked no sympathy, and bad no apologies to make;" he knew exactly what he was about; the Governor asked him if he did not think he was doing wrong in running off with other people's property; Brown said, "No, he didn't;" he stated that he never had but twenty-two men of his party, but expected large reinforcements from Maryland, Virginia, North and South Carolina, and, I think, some of the New England States, and New York. He said that arms were sent to them from Massachusetts; think he spoke of Sharpe's rifles, revolvers, and spears; said he could arm from 1,500 to 2,000 men, said he had Harper's Ferry in his eye as the place for his operations; that he had rented a farm four miles off, from Dr. Kennedy, and had paid the rent up to March, and that all his arms were sent to him there from Chambersburg, Pa.; said those who brought the arms there did not know what they were, as he had taken the precaution to place them in double boxes; they were addressed to J. Smith & Sons. Brown told Gov. Wise that he had books in his trunk that would explain to him his whole proceedings, and what the purpose of his business was; Col. Lee said he had one, and handed it to Gov. Wise; Brown asked him to read two of its first preambles and four of the last sections, which he did, and Brown said that was a correct copy; in reply to a question of Gov. Wise, he said he was Commander-in-Chief of the forces under the Provisional Government, and that he then held that position; he said the constitution was adopted in a place called Chatham, in Canada; Brown said there was a Secretary of War, Secretary of State, Judge of the Supreme Court, and all the officers for s General Government; he said there was a House of Representatives, and that there was an intelligent colored man elected as one of the members of the House [sensation]; Gov. Wise asked Brown if he had taken the oath of allegiance provided for in the 48th article; he replied be had; asked if all the white men of his band had taken the oath; he replied that they had: he said that there were appointed and commissioned officers; that Stephens, Leeman, and one of Brown's sons were captains, and Coppie was a lieutenant; he said something about a battle in Kansas, and leaving one of his sons shot; I think he said Cook held a captain's commission; Gov. Wise asked Brown if he thought he had been betrayed to the Secretary of War; said he thought he had been betrayed, but had practised the ruse to prevent suspicion; the Governor asked him what that ruse was, but he refused to answer; said he knew exactly the position he had placed himself in, and if his life was forfeited he was prepared to suffer.
Mr. Green, counsel for the prisoner, interrupted the witness, and said to the Court that he had just received a dispatch from Cleveland, announcing that counsel was coming, and would almost certainly be here to-night. As this was a very important witness, and as it was late in the evening, he would ask the Court to adjourn until morning, in order that counsel might have an opportunity to cross-question the witness. He did not intend to conduct the case longer than the arrival of counsel selected by the prisoner. As only scraps of a conversation of two hours with Gov. Wise had been picked out and given to the Jury, he desired that the witness should be questioned as to the other parts of the conversation.
Mr. Hunter replied that there were several other witnesses to be called of the same character, to whom such questions could be put by new counsel to-morrow. If the cases were not pushed on, the whole balance of the term would not be sufficient to try these men. He thought there was no reason for delay, especially as it was uncertain whether the counsel could get here before to-morrow.
The Court decided that the witness should proceed.
Cross-examination by Mr. Green--In conversation, Brown said it was not his intention to harm anybody or anything; was sorry men had been killed; it was not by his orders or with his approbation, and would not occur again, provided the people were peaceable and quiet; when Brown spoke of taking them all prisoners if they did not get into the cars, he appeared to want the train to go on as soon as possible; it was advice more than in the form of a threat; did not recognize Brown till I talked with him in the Armory yard; don't think Brown was with the party the bridge or in the wagon, for if he had been I think I would have recognized him from his peculiar beard.
By Mr. Hunter--When Brown was parleying with us at the bridge, the three armed men remained on the bridge; saw what seemed to be a man dressed in woman's clothing nasa, followed by a boy with a box or bundle.
Col. Lewis W. Washington sworn--[He detailed the circumstances as previously stated.]
Cross-examined by Mr. Green--Cannot say whether the marines fired after they broke into the engine-house; the noise was great, and several shouted from the inside that some one had surrendered the prisoners; we were kept in the rear engine-house, and allowed to keep a safe position, so that there was no effort to endanger us; Brown's conduct was not rude or insulting toward us.
By Mr. Hunter--was present at the conversation with Gov. Wise on Tuesday; Gov. Wise asked Brown if he had not selected Harper's Ferry as a border place between Maryland and Virginia for the establishment of his Provisional Government, and he answered "Certainly;" he avowed that his object was to free the Southern slaves, and said that his party consisted of twenty-two men, nineteen of whom came over with him; he said be had 200 Sharpe's rifles, 200 revolvers, and witness does not remember how many spears; Brown said he had enough to arm about 1,500 men; the Governor asked if he expected that number; he said no doubt that number, and five thousand if he wonted them; he detailed the conversation respecting the Provisional Government substantially as the last witness.
By Mr. Botts--At the time of the attack on the engine-house, the prisoners remained in the rear at the suggestion of Brown and his party; heard Brown direct his party not to fire on any unarmed man; he gave that order more than once.
By Mr. Hunter--Cook said Brown had been studying this subject twenty or thirty years. Had reconnoitered Harper's Ferry repeatedly.
By Mr. Botts--The prisoners were allowed to go out, and assure their families of their safety; some went out several times; told his men not to return from his dwelling-house; there were numerous shots toward the tank where Beckham was killed; Brown assured witness that he should be treated well, and his property should not be destroyed.
By Mr. Hunter--while a prisoner in the engine-house, overheard a conversation between Stephens and another party, not known to witness, about slave-holding. Stephens asked the man if he was in favor of slavery? He said "Yes, although not a slaveholder." Stephens said, "You are the first man I would hang."
By Mr. Harding--one of the three negroes taken with the witnesses was kept in the Armory yard; another escaped, and went home; saw no conversation in particular between the party and the negroes who were taken there; all the negroes were armed with spears while in the Armory yard; they walked about the Armory grounds, and one came and warmed himself; no negro from this neighborhood appeared to take up arms voluntarily; saw no wounded men dragged into the engine-house.
At 7 o'clock the Court adjourned till morning.
Oct. 28, 1859.
Capt. Cook arrived here at 1 o'clock this morning. He says that if Brown had taken his advice in relation to mounting, a thousand men could not have taken them. There is great rejoicing at his arrest. He says that Fred Douglass acted the coward, having promised to be there in person.
George H. Hoyt, of Boston, counsel for Brown, arrived tins morning. He is quite a youth.
The Court met at 11 o'clock. Brown was led from the jail, walking very feebly. He lay down upon his cot.
Senator Mason entered the Court with Mr. Hoyt, the Boston counsel of Brown; he remarked that the testimony of Col. Washington and Mr. Phelps yesterday was strictly truthful.
The Jury were called, and answered to their names
Mr. Botts announced the arrival of Mr. Hoyt, who had come here to assist the counsel for the prisoner. At present, however, he did not feel disposed to take part in the case Whenever he should feel disposed, he would do so.
Mr. Hunter suggested that he had better be qualified as a member of the bar by producing proof from the Boston bar.
Mr. Hoyt had not brought his credentials of admission.
The Court said that that was not required in order to be strictly legal; to that fact any citizen's evidence would answer.
Mr. Green said his partner had read letters from fellow-students or Mr. Hoyt, alluding to him as a member of the bar.
Mr. Hoyt then took the customary oath.
By Mr. Botts--Conductor Phelps recalled--The question put to him was prepared by Brown. The firing was commenced by those men on the bridge who shot Hayward; the next firing was by Throgmorton; does not know whether the firing at Hayward was intentional; there was no attack on Brown's men until after Hayward was shot; he was shot by armed men in the Winchester span of the bridge.
By Mr. Botts--Col. Lewis W. Washington recalled--Negotiations were opening with Brown for the release of prisoners before the general firing commenced on Monday; does not know whether all the prisoners signed the proposition for a suspension of firing; in the opening negotiations, Brown frequently suggested that the prisoners should cross the bridge with him to the second canal, and the lock was not to be fired upon until they reached that point; none of the prisoners made any objection to the proposition; Brown said he was too old a soldier to yield the advantage he possessed in holding hostages; during the day Brown's son was wounded in the breast, the ball passing around to the side, but he took his weapon again, and fired frequently before his sufferings compelled him to retire; heard Capt. Brown frequently complain of bad faith of people on a flag of truce; heard him make no threat, nor utter any vindictiveness against the people; Mr. Brewer went out and brought in a promise that the people would not fire while negotiations were pending; cannot say that all the firing of Capt. Brown or his men was in self-defense; heard Brown give frequent orders not to fire on unarmed citizens; the first firing was against the engine-house; Brown said the people appeared to pay but little regard to the lives of the citizens, and we must take the chances with them; after the first attack on the engine-house by the marines, there was not a general cry of "surrender;" one cried surrender, but the others fought on; Brown had a rifle in his hand when he was struck clown by the marines, and received a cut over the head with a sword of Lieutenant Green.
Mr. Hunter laid before the jury the printed Constitution and ordinance of the Provisional Government, reading the two first clauses of the preamble, the 7th, 45th, and 48th articles, and briefly summing up other portions of the Constitution. Sheriff Camp bell knows the handwriting of the prisoner; has copied a letter for him.
Brown said he would himself identify any of his handwriting, and rave all that trouble. He was ready to face the music.
Mr. Hunter would prefer proving them by Mr. Campbell.
Brown--Either way, as you please.
A large bundle of letters was produced. Each was identified by Campbell and handed to Brown, who, at the first glance, replied to each in a loud voice, "Yes, that is mine." The papers and letters were about fifty in number.
On receiving a list of members of the Convention, Mr. Hunter read it. It is headed, William Charles Morris, President of the Convention; and H. Kagi, Secretary of the Convention. On handing the list to Brown, he exclaimed, with a groan, "That's my signature.?"
In reference to another paper, he said, "I have nothing to say about that."
Mr. Hunter read a letter from J. R. Giddings, acknowledging the receipt of a letter from Brown, and that he would be pleased to see him at his house during the summer.
Mr. Hunter then read the letter from Gerrit Smith about the "Kansas work," which has already been published. It has June, B, 1859, indorsed on the back, in Brown's writing.
Mr. Botts here insisted on the right of examining the letters before their being read.
Armstead Ball, master machinist at the Armory, testified that early in the morning he was aroused by Benjamin Hobbs announcing that persons were at the Armory, carrying off government property; reached the gate, was accosted by two armed men, and seized as a prisoner; refused to make any explanation until within the Armory yard, Stephens was sentry at the gate; was conducted to Capt. Brown, who told me his object was to free the slaves, and not the making of war on the people; that my person and private property would be safe; that his war was against the accursed system of slavery; that he had power to do it and would carry it out; it was no child's play he had undertaken; he then gave me permission to return to my family, to assure them of my safety and get my breakfast; started back home, and was accompanied by two armed men, who stopped at the door; breakfast not being ready, went back, and was allowed to return home again, under escort, at a later hour; on returning again, Capt. Brown said it was his determination to seize the arms and munitions of the government, to arm the blacks to defend themselves against their masters; Brown also made a proposition to witness and other officers of the Armory to deliver into his possession the munitions of war belonging to the Government; he replied that they were already in his possession, as we were; Brown frequently told us our safety depended on the good conduct of our citizens; when the firing commenced all fell; we were in danger, and almost any proposition that was made was accepted to secure our safety; Brown said if the citizens were willing to risk their lives and those of the prisoners, to capture him, they must abide by it; Brown made but one proposition to go to the canal lock, give up their prisoners, and fight it out with the military; at daylight, on Tuesday morning, witness appealed to Brown on the ground of humanity to the prisoners, as well as to the men who appeared so bound to him, not to persist in spilling more blood; Brown replied that he was well aware of what he was about, and knew the consequences; that he was already proclaimed an outlaw', and $3,500 was on his head; with regard to the killing of Beckham, one of Brown's party had fired in that direction several times; remonstrated with him when levelling his rifle at an old man named Guess, that he was not a combatant, and he desisted; afterward heard him fire, and heard him say, "Dropped him;" when we heard that Beckham was dead, the man who fired asked who it was; we told him he was an old and respectable citizen, and mayor of the town, and the man who fired expressed himself very sorry; this man was afterward killed at the charge of the marines? Capt. Brown made preparations for resisting the marines; he was always in arms, but I do not think I saw him fire. [The other portions of Mr. Ball's testimony were merely in corroboration of Mr. Washington's.]
By Mr. Green--We, as prisoners, agreed to such terms of capitulation as our citizens were willing to accept. The proposal was written by Mr. Dangerfield, and dictated by Brown. Do not know whether Brown's son and Stephens were wounded while they accompanied the citizens with a flag of truce. Did not know that any of them were Brown's sons, until I heard Brown say to Capt. Simms, "there lies one of my sons dead, and here is another dying." Brown frequently remarked that the citizens were acting indiscreetly in persisting in firing on their own citizens; he maintained a different position all the time. Brown repeatedly said he would injure no one but in self-defense; Coppie frequently urged us to seek places of safety, but Brown did not; he appeared to desire us to take care of ourselves, and at the time of the charge of the marines, told us we must equally occupy the post of danger with themselves. There were three or four slaves in the engine-house; they had spears, but all seemed badly scared; Washington Phil was ordered by Brown to cut a port-hole through the brick wall; he continued until a brisk fire commenced outside, when he said, "this is getting too hot for Phil," and he squatted. Brown then took up the tools and finished the hole.
John Allstadt, sworn--On Monday morning, about three, was awakened from sleep asked who was at the door; the reply was, "Get up quick, or we will burn you up;" asked what they intended to do; they said, "Free the country of Slavery;" told me they were going to take me to Harper's Ferry; dressed myself, and when I got to the door they had all my blacks, seven in number; we were all put into a wagon; the negroes were then all armed with pikes; all the men who took us up were armed; we went to the Armory-yard, where I was put in charge of one of Brown's party; afterward we were ordered into the watch-house; saw Col. Washington there; Brown came and spoke to us about our getting two negroes to take our places, and then he would release us; nothing further was said about that; Brown's rifle was cocked all the time; the negroes were placed in the watch-house with spears in their hands; the slaves showed no disposition to use them witness was afterward transferred to the engine-house; several negroes were there saw Phil making port-holes by Brown's order; the other negroes were doing nothing, and had dropped their spears; some of them were asleep nearly all the time [laughter]; when the marines made the assault, Brown's party took position behind the engine and aimed at the door; Brown was in front, squatting; he fired at the marines, and my opinion is, that he killed that marine.
By Mr. Green--did not see any Others shoot; cannot state certainly by what shot the marine was killed; he might have been killed by shots fired before the door was broken open; was much confused and excited at the time; heard regrets expressed at Beckham's being killed.
Alexander Kelly, sworn--Described the manner of Thomas Boerley's being killed on Monday. Brown's party fired at witness, and witness returned the fire. Boerley was with witness, and was armed with a gun. Saw him soon after he was shot. The shot came from the direction of Shenandoah street.
Albert Grist, sworn--Sunday night had been to meeting with my son; coming home across the Shenandoah bridge, was seized by two men with rifles; when we got to the end of the bridge, were stopped by a man with a spear; asked what was the matter; was the town under martial law; he told me I should not be hurt, and asked me whether there were many slaveholders about Harper's Ferry; I told him no: Brown came up, and observed, "You have got some prisoners;" they took us to the Armory; found some citizens' there; being tired, we laid down; Brown said his object was to free the slaves; told him there were not many there; he replied, "The good book says we are all free and equal," and if we were peaceable we should not be hurt; there was some firing about that time; afterward, about three o'clock, witness was sent to tell the conductor that the train might pass unmolested; saw Mr. Beckham, and delivered the message; Brown then dismissed me; did not go home, being afraid some of Brown's men, not knowing this, might shoot me; saw Hayward brought in, wounded.
Mr. Kelly, recalled--Saw Geo. W. Turner killed on High street; he was shot while in the act of levelling his gun; the shots came from the corner of Shenandoah and High streets; the men who fired had rifles; one had a shawl on.
Afternoon Session, 3 o'clock.
Henry Hunter, sworn--Went to the Ferry with the Charlestown Guard; staid in the bridge, leaving the company; went off fighting on my own hook; saw Beckham fall when shot; heard the whistling of the ball; undertook to go to his assistance, but was withheld by a friend; soon after, another person went to remove the body, saying he "would help the Squire;" heard the whistling of another ball; think that Beckham had a pistol in his coat pocket, judging from the weight and shape of the pocket; did not see it, and don't think the people from the Armory yard saw it; the shot that killed Beckham came from the engine-house; numerous shots were fired from the engine-house at the tank
The cross examination of this witness elicited nothing new,
Col. Gibson, sworn--Helped a portion of the militia of Jefferson County to suppress the insurrection; the Jefferson Guards and other detachments were in the action; they were called out by authority of law; three insurgents were killed at the rifle factory, and Copland captured.
Cross-examined--There was firing by outside citizens, and the three killed were not under my command; don't think the insurgents fired a gun at the rifle factory, but endeavored to make their escape across the river.
Benjamin T. Bell, sworn--Went to Harper's Ferry armed; did net join the military; was stationed in the Gait House, in Capt. Botts' company; in the evening walked out on the platform; saw Beckham shot; went as near to him as was safe, but perceived no breathing; there was firing from the engine-house toward the railroad; Mr. Young, a member of the Jefferson Guards, was wounded while making a charge against the insurgents; saw others shot; there were probably thirty shots fired from the engine-house toward the tank, and in other directions.
Cross-examined--There was general firing in almost every direction; McCabe was about firing when he was shot; there were twenty or thirty men firing at the engine-house when Young and McCabe were wounded
Lewis Starry examined--He testified respecting the killing of Turner.
The prosecution rested here
The Counsel for the Defence called Joseph A. Brewer, who testified that he was one of the prisoners in the engine-house with Washington and others; Brown remarked that the prisoners should share their danger; they were allowed to shelter themselves as they could; Cross went out with a flag of truce; another went out and came back wounded; Stephens and Kitzmiller went out, and Stephens was shot; after that it commenced raining very hard; supposed Stephens was dead; he lay near the corner of the depot; heard groaning, and saw Stephens moving; asked Brown to send a man to the relief of Stephens; Brown refused to send any one, because he would be shot; witness was allowed to go and assist Stephens into the hotel; he returned to the engine-house according to his pledge; was sent several times by Brown to request the citizens not to shoot, as the lives of the prisoners were endangered; negotiations were going on between Brown and the prisoners before the general firing commenced; Brown proposed that he should retain possession of what he held, including the Armory and negroes, and Col. Washington and the others seemed to acquiesce in this arrangement; Cross was sent out to confer with Beckham and others on the subject; a guard went with him, who were fired upon; after that Stephens wanted to shoot, but Kitzmiller appealed to him and they went out together to stop the firing; when they did not return, Brown seemed to show temper, and there was a change in the arrangements; after that Brown said he had it in his power to destroy that place in half an hour, but would not do it, unless resisted; think a shot from the water-tank struck Coppie; he then returned the fire, and some one said, "that man's down;" the special object of witness in going out was to see the firing from the tank, which was annoying to those in the guard-house.
A. M. Kitzmiller, sworn--Made repeated efforts to accommodate matters with Brown; he said his object there was to free the slaves from bondage, and if necessary fight the pro-slavery men for that purpose; I was first surprised, then indignant, and finally disgusted with Brown; he said to me, "there is a company of riflemen on the bridge; get them to go in company with Stephens;" Mr. Hunter told them he was sorry they did not leave their guns; Stephens remarked, that would not do; I had no flag, and did not consider myself the bearer of a flag of truce; as to the rifle company on the bridge, I saw they were our own men, waved my handkerchief, and told the other man to remain; soon heard firing very close; Stephens fired in reply to a shot which struck him from the house by the Winchester railroad depot; Stephens swore and the other man returned; I think it was Brown's son; Stephens was shot before he fired back; Thompson, of Brown's men, was a prisoner on the bridge.
[Brown here cried over the circumstances connected with the death of Thompson.]
Witness--I was not there, and did not see the last; the last I saw of Thompson he was a prisoner with the Ferry people on the bridge; Moore, Burkhardt, Anderson, and twenty or thirty others were there; Mr. Beckham was killed at or about the time Thompson was taken; did not return to the engine-house; witness's object was to prevent unnecessary shedding of blood; went out at the request of Brown to use his influence for that purpose.
James Beller, sworn--Was at the Galt House with Chambers on Monday morning; Chambers fired, and I saw the man whom he shot lying there; did not know the man; supposed it was Stephens; did not see any one with him when shot; Stephens was shot before Capt. Botts' company reached the Galt House.
Mr. Green stated to the Court that he desired to bring out testimony relative to the shooting of Thompson, one of the insurgents on the bridge; but the State objected to it unless Brown had a knowledge of that shooting.
Mr. Hunter said there was a deal of testimony about Brown's forbearance and not shooting citizens, that had no more to do with this case than the dead languages. If he understood the offer, it was to show that cue of those men, named Thompson, a prisoner, was dispatched after Beckham's death. The circumstances of the deed might be such as he himself might not at all approve. He did not know how that might be, but he desired to avoid any investigation that might be used. Not that it was so designed by the respectable counsel employed in the case, but because he thought the object of the prisoner In getting at it was for out-door effect and influence. He therefore said if the defense could show that this prisoner was aware of these circumstances, and the manner in which that party was killed, and still exerted forbearance, he would not object. But unless the
knowledge of it could be brought home to the prisoner and his after conduct, he could not see its relevancy.
Mr. Botts observed that they had already proved that for hours after that, communications were held between the parties
The Court thought these facts admissible as evidence.
Mr. Hunter (the witness) was recalled--After Mr. Beckham, who was my grand-uncle, was shot, I was much exasperated, and started with Mr. Chambers to the room where the second Thompson was confined, with the purpose of shooting him. We found several persons in the room, and had levelled our guns at him, when Mrs. Foulke's sister threw herself before him, and begged us to leave him to the laws. We then caught hold of him, and dragged him out by the throat, he saying: "Though you may take my life, 80,000,000,000 will rise up to avenge me, and carry out my purpose of giving liberty to the slaves." We carried him out to the bridge, and two of us, levelling our guns in this moment of wild exasperation, fired, and before he fell, a dozen or more balls were buried in him; we then threw his body off the tressel work, and returned to the bridge to bring out the prisoner, Stephens, and serve him in the same way; we found him suffering from his wounds, and probably dying; we concluded to spare him, and start after others, and shoot all we could find; I had just seen my loved uncle and best friend I ever had, shot down by those villainous Abolitionists, and felt justified in shooting any that I could find; I felt it my duty, and I have no regrets.
Wm. M. Williams, the watchman on the bridge, stated the particulars of his arrest and confinement in the watch-house; Brown told the prisoners to hide themselves, or they would be shot by the people outside; he said he would not hurt any of them; Brown told Mr. Grist to tell the people to cease firing, or he would burn the town; but if they didn't molest him, he wouldn't molest them; heard two shots on the bridge about the time the express train arrived; did not see Hayward killed.
Brown--State what was said by myself, and not about his being shot.
Williams--I think you said that if he had taken care of himself, he would not have suffered.
Reason Cross sworn--I prepared a proposition that Brown should retain the possession of the Armory, that he should release us, and that the firing should stop.
Brown--Were there two written propositions drawn up while you were prisoner?
Cross--Yes, there was another paper prepared by Kitzmiller. and some others; I went out to stop the firing; a man went with me, and they took him prisoner and tied him; this was Thompson, who was afterward taken out and shot; Brown's treatment of me was kind and respectful; heard him talk roughly to some men who were going in to where the blacks were confined.
Several witnesses for the prisoner were here called, and did not answer the subpoenas. They had not been returned.
Brown arose from his mattress, evidently excited, and standing on his feet, addressed the Court, as follows:
May it Please the Court: I discover that, notwithstanding all the assurances I have received of a fair trial, nothing like a fair trial is to be given me, as it would seem. I gave the names as soon as I could get at them, of the persons I wished to have called as witnesses, and was assured that they would be subpoenaed. I wrote down a memorandum to that effect, saying where those parties were; but it appears that they have not been subpoenaed as far as I can learn; and now I ask if I am to have anything at all deserving the name and shadow of a fair trial, that this proceeding be deferred until to-morrow morning; for I have no counsel, as I before stated, in whom I feel that I can rely, bat I am in hopes counsel may arrive who will attend to seeing that I get the witnesses who are necessary for my defense. I am myself unable to attend to it. I have given all the attention I possibly could to it, but am unable to see or know about them, and can't even find out their names; and I have nobody to do any errand, for my money was all taken when I was sacked and stabbed, and I have not a dime. I had two hundred and fifty or sixty dollars in gold and silver taken from my pocket, and now I have no possible means of getting anybody to go my errands for me, and I have not had all the witnesses subpoenaed. They are not within reach, and are not here. I ask at least until to-morrow morning to have something done, if anything is designed if I am ready for anything that may come up.
Brown then lay down again, drew has blanket over him, and closed his eyes and appeared to sink in tranquil slumber.
Mr Hoyt, of Boston, who had been sitting quietly all day at the side of Mr. Botts, arose amid great sensation, and addressed the Court as follows:
May it please the Court: I would add my voice to the appeal of Mr. Brown, although I have had no consultation with him, that the further hearing of the case may be postponed until morning. I would state the reason of this request. It was that I was informed, and had reason to believe, that Judge Tilden of Ohio was on his way to Charlestown, and would undoubtedly arrive at Harper's Ferry at 7 o'clock to-night. I have taken measures to insure that gentleman's arrival in this place to-night, if be reaches the Ferry. For myself, I have come from Boston, travelling night and day, to volunteer my services in defense of Brown. I could not undertake the responsibility of his defense, as I am now situated. The gentlemen who have defended Brown acted in an honorable and dignified manner in all respects, so far as I know, but I cannot assume the responsibility of defending him myself for many reasons. First it would be ridiculous in me to do it, because I have not read the indictment through--have not, except so far as I have listened to the case and heard counsel this morning, got any idea of the line of the defense proposed, and have no knowledge of the criminal code of Virginia, and no time to read it. I had no time to examine the questions arising in this defense, some of which are of considerable importance, especially that relative to the jurisdiction over the Armory grounds. For all these reunions, I ask the continuation of the case till to-morrow morning.
Mr. Botts--in justice to myself I must state that, on being first assigned as counsel to Mr. Brown, I conferred with him, and at his instance took down a list of the witnesses he desired subpoenaed in his behalf. Though it was late at night, I called up the sheriff, and informed him that I wished subpoenas to be issued early in the morning. This was done, and there are here Messrs. Phelps, Williams and Grist, and they have been examined.
Sheriff Campbell stated that the subpoenas were placed in the hands of an officer, with the request to serve them at once. He must have served them, as some of the witnesses are here. The process has not been returned, and may have been sent by private hands and failed to arrive.
Mr. Botts thought they had shown, and he was confident he spoke the public sentiment of the whole community, when he said they wished Mr. Brown to have a fair trial.
Mr. Hunter--I do not rise for the purpose of protracting the argument, or interposing the slightest impediment in any way to a fair trial. This is fair. Whether it was promised to Brown or not, it is guaranteed by our laws to every prisoner; and, so far as I am concerned, I have studiously avoided suggesting anything to the Court which would in the slightest degree interfere with it. I beg leave to say, in reference to this application, that I suppose the Court, even under these circumstances, will have to be satisfied in some way, through counsel or otherwise, that this testimony is material testimony. So far as any witness has been examined, the evidence relates to the conduct of Captain Brown in the treating his prisoners with leniency, respect and courtesy, and this additional matter, that his flags of truce--if you choose to regard them so--were not respected by the citizens, and that some of his men were shot. If the defense choose to take that course, we are perfectly willing to admit these facts in any form they desire. Unless the Court shall be satisfied that this testimony (which, I have no doubt, is every particle of it here), which could be got, is really material to the defense, I submit that the application for delay on that score should not be granted. Some of these witnesses have been here, and might have been asked to remain. A host of witnesses have been here, and have gone away without being called on to testify. I simply suggest that it is due, to justice to the Commonwealth, which has some right, as well as the prisoner, that information be given to the Court, showing that additional testimony is relevant to the issue. The simple statement of counsel I do not think would be sufficient.
Mr. Green arose and said, Mr. Botts and myself will now withdraw from the case, as we can no longer act in behalf of the prisoner, he having got up now and declared here that he has no confidence in the counsel who have been assigned him. Feeling confident that I have done my whole duty, so far as I have been able, after this statement of his, I should feel myself an intruder upon this case were I to act for him from this time forward. (had not a disposition to undertake the defense, but accepted the duty imposed on me, and I do not think, under these circumstances, when I feel compelled to withdraw from the case, that the court could insist that I should remain in melt an unwelcome position.
Mr. Harding--We have been delayed from time to time by similar applications, in the expectation of the arrival of counsel, until we have now reached the point of time when we are ready to submit the case to the Jury upon the evidence and the law, when another application arises for a continuance. The very witness that they now consider material, Mr. Dangerfield, came here, summoned by ourselves, but deeming that we had testimony enough, we did not examine him.
The Court--The idea of waiting for counsel to study our code through, could not be admitted; as to the other ground, I do not know whether the process has been executed or not as no return has been made.
Mr. Botts--I have endeavored to do my duty in this matter, but I cannot see how, consistently with my own feelings, I can remain any longer in this case, when the accused whom I have been laboring to defend, declares in open court that he has no confidence in his counsel. I make this suggestion, that as I now retire from this case, the more especially since there is now here a gentleman from Boston, who has come on to volunteer his services for the prisoner, that the Court allow him this night for preparation. My notes, my office, and my services shall be at his command. I will sit up with him all night to put him in possession of all the law and facts in relation to this case. I cannot do more; and in the mean time, the sheriff can be directed to have the other witnesses here to-morrow.
The Court would not compel the gentleman to remain on the case, and accordingly granted the desired postponement, and adjourned at 6 o'clock.
Saturday, Oct. 29, 1859.
The Court met at 10 o'clock.
The Judge announced that he had received a note from the now counsel of the prisoner, requesting a delay for a few minutes, to enable them to have an interview with the prisoner. He would accordingly wait a short time.
Soon afterward, Brown was brought in, and took his usual recumbent position in bed.
Samuel, Chilton, of Washington City, appeared as additional counsel for the prisoner, and was qualified.
Henry Griswold, of Cleveland, Ohio, was introduced to the Court as counsel for the prisoner, and qualified.
Mr. Chilton thought it due to himself to make an explanatory statement before the trial proceeded. Yesterday he was very unexpectedly called oven to come here, and aid in the defense of the prisoner. Knowing from the newspapers that the trial was in progress, he took time to consider and consult his friends as to the propriety of accepting the proposition. He would have had no hesitation if he had been spoken to in time, but his friends advised him to come, and he did so with the expectation of merely assisting the gentlemen already conducting the defense. Upon reaching here, he found that they had withdrawn from the case, and he then hesitated about undertaking it; but upon consultation with the prisoner and his friends here, they insisted he should do so, and he would do the best he could, not feeling at liberty, under the circumstances, to refuse. These circumstances, however, would render it impossible for him to discharge the full duty of counsel, not having had time to read the indictment or examination already given. He made no motion for delay; this was a matter entirely within the discretion of the Court, and if the judge thought proper to refuse to grant any postponement, he knew it would be done under a sense of duty. Those extraordinary circumstances would also render it impossible for his associate, Mr. Griswold, to discharge his full duty as counsel A short delay of a few hours, if the Court thought proper to grant it, would enable them to make some preparation.
The Court stated that the trial must go on. Counsel had been assigned to the prisoner here, of his own selection, who had labored zealously in his behalf, and had withdrawn because the prisoner had yesterday evening declared in open Court that he had no confidence in them. No obstacle had at any time been thrown in the way of the prisoner's having an ample defense. If this was the only case of the kind before the Court, he would at once grant the request, but several similar cases remain to be disposed of. This term will very soon end, and it was his duty to endeavor to get through with all the cases if possible, in justice to the prisoners, and in justice to the State. The trial must, therefore, proceed.
Mr. Hoyt remarked that yesterday various papers in Court, which were identified, for what purpose he knew not, but presumed he should be informed, some as being in Capt. Brown's handwriting, and some as bearing his indorsement. He had hastily examined those papers, and wished to object to some of them. The learned gentlemen associated with him in the trial had not examined them, but he supposed the Court would not regard that as material under the present ruling.
Mr. Hunter, interrupting--There is no need of argument about the matter. Designate those you wish to object to.
Mr. Hoyt--I desire to know the object of the counsel in introducing those papers.
Mr. Hunter--The papers will speak for themselves. If you will designate which of them you object to, we will go on at once.
Mr. Hoyt--I object to the autobiography of Capt. Brown, as having no bearing on thin case.
Mr. Hunter--I withdraw it.
Mr. Hoyt--I object to the letter of Gerrit Smith.
Mr. Hunter--I withdraw that, too.
Mr. Hoyt--I handed to the clerk, last night, a list of names we wished summoned as witnesses--Samuel Strider, Henry Ault, Benjamin Mills, John E. P. Dangerfield, and Capt. Simms. I got a despatch just now, informing me that Capt. Simms had gone to Frederick, and would return in the first train this morning, and come on to Charlestown this afternoon. I should like to inquire whether the process had reached Capt. Simms at Harper's Ferry?
Sheriff Campbell replied that the officer stated that Capt. Simms had gone to Frederick.
Mr. Hunter--He was here yesterday. I hope we will proceed with some other witnesses.
John P. Dangerfield was called, and testified that he was an officer of the Armory. He was a prisoner in the hands of Captain Brown, at the engine-house. Negotiations were going on for the release of all the prisoners before the firing commenced. About a dozen black men were there, armed With pieces which they carried most awkwardly and unwillingly. During the firing, they were lying about asleep, some of them having crawled under the engines. Witness was free to say, that from the treatment of Captain Brown, he had no personal fear of him or his men during his confinement. Saw one of the men shot in the engine-house. He fell back, exclaiming, "It's all up with me," and died in a few moment. This man, he learned, was one of Capt. Brown's sons. Saw another young man, who came in wounded, and commenced to vomit blood. He was also a son of Captain Brown, and was wounded while out with Mr. Kitzmiller. Prisoner frequently complained that his men were shot down while carrying a flag of truce.
Mr. Hunter complained that they were going over again the same facts that were elicited; and all this was freely admitted by the defense.
Mr. Hoyt said that he regarded it as the only feasible line of defense to prove these facts, it was the duty of counsel to show, if possible, that Capt. Brown was not guilty of treason, murder, or insurrection, according to the terms of this indictment. We hope to prove the absence of malicious intention.
Mr. Hunter was frank to admit that he could not but regard this course as merely calculated to waste time.
Mr. Hoyt would remind the Court that the course being pursued was not only in accordance with their conviction of duty, but in accordance with the express commands of their client.
The Court remarked that the counsel was responsible to the Court to conduct the case according to the rules of practice.
Mr. Hoyt thought the language of the prosecution was calculated to impugn the honor of the counsel for the prisoner.
Mr. Hunter--Nothing of the kind was intended. It is presumed the gentlemen will conduct the case in accordance with their duty as counsel, and their responsibility to the Court.
Mr. Dangerfield, resumed--Heard some conversation by Captain Brown as to having it in his power to lay the town in ashes and carrying off the women and children, but that he had refrained from so doing: heard him make no threats that he would do so; the only threat I heard from him was at the commencement of the storming of the engine. house; he then said that we must all take equal shares with him, that we could no longer monopolize, the places of safety; he, however, made no attempt, to deprive us of the places we had taken; Brown promised safety to all descriptions of property, except slave property; at the time of the assault by the marines, one of the men cried out for quarter; he had heard the same man, in a conversation with Brown during the night, ask him if he was committing no treason against his country in resisting the marines, to which Brown replied that he was: the man then said, "I'll fight no longer"--that he thought lie was merely fighting to liberate the slaves; after the attack was made on the engine-house, two of Brown's men cried for quarter, and laid down their arms, but after the marines burst open the door, they picked them up again and renewed the fight; after the first attack, Capt. Brown cried out to surrender, but he was not heard; did not see him fire afterward; saw Coppie attempt to fire twice; but the caps exploded; witness saw Brown wounded on the hip by a thrust from a sabre, and several sabre cuts on his head; when the latter wounds were given, Capt. Brown appeared to be shielding himself, with his head down, but making no resistance; the parties outside appeared to be firing as they pleased.
Mayor Mills. master armorer, sworn--Witness was one of the hostages of Capt. Brown, confined in the engine-house; before the general firing commenced, negotiations were pending for the release of the prisoners; a paper was drawn up, embracing certain terms, and borne by Mr. Brua to the citizens outside; the terms were not agreed to; the last time Mr. Brua was out, there was severe firing, which, I suppose, prevented his return; Brown's son went out with a flag of truce, and was shot; he came back wounded; the prisoner attended him, and gave him water; heard Brown frequently complain that the citizens had acted in a barbarous manner; he did not appear to have any malicious feeling; be undoubtedly seemed to expect reinforcements; said it would soon be night, and he would have more assistance; his intentions were to shoot nobody unless they were carrying or using arms; if they do, let them have it; this was while the firing was going on.
Capt. Brown here asked the witness whether he saw any firing on his part which was not purely defensive.
Witness--It might be considered in that light, perhaps; the balls came into the engine-house pretty thick.
Question by Counsel--Did you not frequently go to the door of the engine-house?
No, indeed. [laughter.]
A general colloquy ensued between the prisoner, lying on his cot, and the witness, as to the part taken by the prisoner in not unnecessarily exposing his hostages to danger. No objection was made to Brown's asking these questions in his own way, and interposing verbal explanations relative to his conduct. The witness generally corroborated his own version of the circumstances attending the attack on the engine-house, but could not testify to all the incidents that he enumerated. He did not hear him say that he surrendered. Witness's wife and daughter were permitted to visit him unmolested, and free verbal communication was allowed with those outside. We were treated kindly, but were compelled to stay where we didn't want to be. Brown appeared anxious to effect a compromise.
Samuel Snider sworn. This witness proceeded to detail the whole circumstances of the two days, with what he saw, what he thought, and what he heard. Nothing new was elicited. He confirmed the statement of the other witnesses, that Brown endeavored to protect his hostages, and constantly said that he wished to make terms more for their safety than his own.
Mr. Hoyt, at half-past one o'clock, complained of indisposition from the heat of the room, and asked that the usual recess for dinner be taken.
The Court then adjourned for one hour.
At 2 o'clock the Court reassembled, and Mr. Griswold, taking his seat by the side of the prisoner, prepared to question the witnesses, and to receive from him such suggestions in the course of the examination as he had to make.
Capt. Simms, commander of a volunteer company of Frederick, Md., was sworn--The report came to Frederick that 750 blacks and abolitionists combined had seized Harper's Ferry: witness started for the Ferry with the volunteers under command of Col. Shriver, and was glad to find their numbers were exaggerated after he reached there on Monday afternoon; the door of the engine-house was partially open, and witness was hailed from there; two shots had been fired from there; witness was hailed and went in; he met Mr. Dangerfield and others there; Capt. Brown said to witness that had a proposition to make, to which he listened; he wanted to be allowed to go over the bridge unmolested, and we then might take him if we could; he had fought Uncle Sam before, and was willing to do it again; Brown complained that his men had been shot down like dogs, while bearing a flag of truce. Told him they must expect to be shot down like dogs if they took up arms in that way. Brown said he knew what he had to undergo before he came there--he had weighed the responsibility and should not shrink from it; he said he had full possession of the town and could have massacred all the inhabitants had he thought proper to do so, but as he had not, he considered himself entitled to some terms; Brown said he had shot no one who had not carried arms; I told him that Mayor Beckham had been killed, and that I knew he was altogether unarmed; he seemed sorry to hear of his death, and said, "I fight only those who fight me;" witness then told the prisoner that he did not think any compromise could be effected; Brown said he kept the hostages for his own safety; they did not appear to fear any injury from him or his men, but only from attacks from the outside; every man had a gun, and four-fifths of them were under no command; the military had ceased firing, but men who were intoxicated were firing their guns in the air, and others at the engine-house; Brown or any of his men could not have ventured outside the doors of the engine-house that night without being shot; saw Stephens in the hotel after he had been wounded, and shamed some young men who were endeavoring to shoot him as he lay in his bed, apparently dying; told them that if the man could stand on his feet with a pistol in his hand, they would all jump out of the window. Capt. Simms' testimony was at great length, but little new was elicited.
On the conclusion of his testimony, Capt. Simms stated that he had returned here at the summons of the prisoner to testify in his behalf, with as great alacrity as he had come to testify against him. He had no sympathy for the acts of the prisoner; for his movement, on the contrary, he would be one of the first to bring him to punishment. But he regarded Capt. Brown as a brave man, and being informed that he wanted him here as a witness, he returned with pleasure. As a southern man, he came to state the facts about the case, so that northern men would have no opportunity of saying that southern men were unwilling to appear as witnesses in behalf of one whose principles they abhorred.
Israel Russell, sworn--Was the bearer of a flag of truce from Brown's party to the citizens of the Ferry. His testimony was merely in corroboration of the facts stated by previous witness.
Terence Burns, sworn--Was taken prisoner by Capt. Cook and two others; was one of the ten hostages confined in the engine-house; Brown had five or six of his men there; he did not give any reason to us why we were put there, except that it was for his own safety; he said he did not think any attack would be made upon the engine-house while the hostages were there.
Here the defense closed their testimony. None of the witnesses for the defense were cross-examined by the State.
Mr. Chilton, for the prisoner, rose and submitted a motion that the prosecution in this case be compelled to elect one count of the indictment and abandon the others. The indictment consists of four counts, and is indorsed thus: "An indictment for treason, and advising and conspiring with slaves and others to rebel;" the charge of treason is in the first, and the second count alleges a charge different from that which is indorsed on the back of the indictment, and which is upon record. The second count is under the following statute: "If a free person advise or conspire with a slave to rebel or make an insurrection, he shall be punished with death, whether such rebellion or insurrection be made or not.
But the second count of the indictment is that these parties, who are charged by the indictment, "conspired together, with other persons, to induce certain slaves, the property of Messrs. Allstadt and Washington, to make rebellion and insurrection. There is a broad distinction between advising and conspiring with slaves to rebel, and conspiring with others to induce slaves to rebel. Whether he was to avail himself of their irregularity by instruction from the Court to the Jury to disregard this second count entirely, or whether it would be proper to wait until the conclusion of the trial and then move an arrest of judgment, he left his Honor to decide. He proceeded to argue the motion that the prosecution be compelled to elect one renal and abandon the others, quoting Archibald's criminal pleading in support of his view. lie further alluded to the hardship which rests upon the prisoner to meet various and distinct charges in the same trial. From the authority he read, it would be seen that in a case of treason, different descriptions of treason could not be united in the stone indictment: high-treason could not be associated with other treason. If an inferior grade of the same character could not be included in separate court, still less can offences of higher grade. Treason in this country is high treason. Treason against the State of Virginia is treason against her sovereignty. We have no other description of treason, because treason can only be committed against sovereignty, whether that of the United States, or of a sovereign State.
Mr. Harding could not see the force of the objection made by the learned counsel on the other side. In regard to separate offences being charged, these were but different parts of the same transaction. Treason against the Government is properly made the subject of one of the counts. But we also have a count of murder, for it can hardly be supposed that treason can exist without being followed or accompanied by murder. Murder arose out of this treason, and was the natural result of this bloody conspiracy; yet, after all the evidence has been given on all these points, the objection is made that we must confine ourselves to a single one of them. He hoped that no such motion would be granted.
Mr. Hunter followed on the other side. He replied to the argument of Mr. Chilton, saying that the discretion of the Court compelling the prosecution to elect on one count in the indictment, is only exercised where great embarrassment would otherwise result to the prisoner. As applied to this particular case, it involved this point, that notwithstanding the transaction, as has been disclosed by the evidence, be one transaction, a continued, closely connected series of acts, which, according to our apprehension of the law of the land, involves the three great offences of treason, conspiring with and advising slaves to make insurrection, and the perpetration of murder; whether, in a case of this character, it is right and proper for the Court to put the prosecution upon their election, as to one of the three, and bar us from investigation of the two others, although they relate to facts involved in one grand fact. Notwithstanding the multiplicity of duties devolving upon the prosecutor and assistant prosecutors, yet we have found time to be guarded and careful in regard to the mode of framing the indictment. It is my work, and I propose to defend it as right and proper. He then proceeded to quote Chitty's Criminal Law and Robinson's Practice to prove that the discretion of the Court there spoken of in reference to the furthering of the great object in view was the attainment of justice.
Where the prisoner is not embarrassed in making his defense, this discretion is not to be exercised by the Court, and no case can be shown where the whole ground of the indictment referred to one and the same transaction. This very case in point would show the absurdity of the principle, if it were as broad as contended for by his learned friend. As to the other point of objection, it was too refined and subtle for his poor intellect.
Mr. Chilton responded. In order to ascertain what a party is tried for, we must go to the finding of the Grand Jury. If the Grand Jury return an indictment charging the party with murder, finding a true bill for that, and he should be indicted for manslaughter or any other offense, the Court would not have jurisdiction to try him on that count in the indictment. And the whole question turns on the construction of the section of the statute which has been read viz.: whether or not advising or conspiring with slaves to rebel is a separate and distinct offense from conspiring with other persons to induce it.
The Court said that the difference might perhaps be taken advantage of to move an arrest of judgment; but the Jury had been charged and had been sworn to try the prisoners on the indictment as drawn. The trial must go on, and counsel could afterward move an arrest of judgment. As to the other objection, the Court made this answer; "The very fact that the offense can be charged in different counts varying the language and circumstances, is based upon the idea that distinct offences may be charged in the same indictment. The prisoners are to be tried on the various counts as if they were various circumstances. There is no legal objection against charging various crimes in the same indictment. The practice has been to put a party upon election where the prisoner would be embarrassed in his defense; but that is not the law.
In this case, these offences charged are all part of the same transaction, and no case in made out for the Court to interfere and put the parties upon an election.
Mr. Chilton said he would reserve the motion as a basis for a motion in arrest of judgment.
Mr. Griswold remarked that the position of all the present counsel of the prisoner was one of very great embarrassment. They had no disposition to interfere with the course of practice, but it was the desire of the defendant that the case should be argued. He supposed that counsel could obtain sufficient knowledge of the evidence previously taken by reading notes of it. But it was now nearly dark. If it was to be argued at all, he supposed the argument for the Commonwealth would probably occupy the attention of the Court until the usual time for adjournment, unless it was the intention to continue with a late evening session. From what had heretofore transpired he felt a delicacy in making any request of the Court, but knowing that the case was now ended except for mere argument, he did not know that it would be asking too much for the Court to adjourn after the opening argument on behalf of the prosecution.
Mr. Hunter would cheerfully bear testimony to the unexceptionable manner in which the counsel who had just taken his seat had conducted the examination of witnesses today. It would afford him very great pleasure in all ordinary cases to agree to the indulgence of such a request as the gentleman, had just made, and which was entirely natural. But he was bound to remember, and respectfully remind the Court, that this state of things, which places counsel in a somewhat embarrassing position in conducting the defense, is purely and entirely the act of the prisoner. His counsel will not be responsible for it; the Court is not responsible for it, but the unfortunate prisoner is responsible for his own act in dismissing his faithful, skillful, able and zealous counsel on yesterday afternoon. He would simply say that not only were the jurors kept away from their families by their delays, but there could not be a female in this county who, whether with the good cause or not, was not trembling with anxiety and apprehension. While their courtesy to the counsel and humanity to the prisoner should have due weight, yet the commonwealth has its rights, the community has its rights, the Jury have their rights, and it was for his Honor to weigh these in opposite scales, and determine whether we should not go on and bring this case to a close to-night. We had until twelve o'clock to do it in.
Mr. Chilton said their client desired that they should argue his case. It was impossible for him to do so now, and he could not allow himself to make at attempt an argument on a case about which he knew so little. If be were to get up at all, it would be for the unworthy purpose of wasting time. He had no such design; but having undertaken this man's cause, he very much desired to comply with his wishes. He would be the last man in the world to subject the jurors to inconvenience unnecessarily, but although the prisoner may have been to blame, may have acted foolishly, and may have had an improper purpose in so doing, still he could not see that he should therefore be forced to have his case submitted without argument. In a trial for life and death, we should not be too precipitate.
The Court here consulted with the jurors, who expressed themselves very anxious to get home.
His Honor said he was desirous of trying this case precisely as he would try another, without any reference at all to outside feeling.
Mr. Hoyt remarked that he was physically incapable of speaking to-night, even if fully prepared. He had worked very hard last night to get the law points; until he fell unconscious from exhaustion and fatigue. For the last five days and nights he had only slept ten hours, and it seemed to him that justice to the person demanded the allowance of a little time in a case so extraordinary in all its respects as this.
The Court suggested that we might have the opening argument for the prosecution to-night at any rate.
Mr. Harding would not like to open the argument now, unless the case was to be finished to-night. He was willing, however, to submit the case to the Jury without a angle word, believing they would do the prisoner justice. The prosecution had been met not only on the threshold, but at every step with obstructions to the progress of the case. If the cash was not to be closed to-night, he would like to ask the same indulgence given to the other side, that he might collate the notes of the evidence he had taken.
The Court inquired what length of time the defense would require for argument or Monday morning. He could then decide whether to grant the request or not.
After consultation, Mr. Chilton stated that there would be only two speeches by himself and Mr. Griswold, not occupying more than two hours and a half in all.
Mr. Hunter again entered an earnest protest against delay.
The Court replied, "Then you can go on yourselves."
Mr. Harding then commenced the opening argument for the Commonwealth, and spoke only for about forty minutes. He reviewed the testimony as elicited during the examination, and dwelt for some time on the absurdity of the claim or expectation of the prisoner--that he should have been treated according to the rules of honorable warfare. He seemed to have lost sight of the fact that he was in command of a band of murderers and thieves, and had forfeited all title to protection of any kind.
The Court then adjourned at 5 o'clock, to meet again at nine o'clock Monday morning when Mr. Griswold will deliver his opening speech for the prisoner.
Monday, Oct. 30, 1859.
The Court met at nine o'clock.
The prisoner was brought in, and the trial proceeded without delay.
Brown looks better than heretofore, and his health is evidently improving. He was laid on a bed, as usual.
The Court House and its approaches were densely crowded.
Mr. Griswold, on behalf of the defense, said:--May it please your Honor and Gentlemen of the Jury--Since the adjournment of the Court on Saturday evening, I have paid such attention to the case as I reasonably could, and such as will enable me to condense my remarks within the shortest possible space, in accordance with the arrangements mutually entered into. I feel as though an hour was, however, a very limited time to discuss the many questions that are intimately connected with the consideration of this important case. At the same time I feel perfectly satisfied that I can do more justice to it, with the opportunity afforded to me by the delay that was kindly granted by the Court, than I could possibly have done when I was so unprepared for it. Gentlemen, the prisoner at the bar is charged with four offences, or rather I may say there are four counts charged against him, three of which are for distinct offences, one of which is charged in two different counts. Counsel for the State did not specify particularly the grounds upon which he did this. First, however, the defendant is charged with treason, and is so charged in nearly all the forms of treason required by law. In the second count he is charged with conspiring, and is thus indicted with certain other persons for conspiring to induce slaves to rebel and make insurrection. In the same count he is charged with aiding and advising slaves to rebel and make insurrection, etc. In the third count he is charged with murder--with willful and deliberate murder. In the fourth count he stands charged, with four other persons, three of whom are charged with murder, and the fifth with aiding and abetting, and that therefore they were all guilty of the crime of murder. There is one crime preferred here against the prisoner to which I will briefly advert, in a manner personal to myself. I do not know, although I am a stranger, that it is necessary for me to say that I have no sympathy whatever with any man who could be guilty of such an offense as is charged here. I would not say this but for the fact that I am an utter stranger here; and having made that remark, perhaps it may be proper for me to make one more. Allusion was made by witnesses to the state of the public feeling prevailing in the North upon this subject. A similar allusion was made by the Commonwealth's attorney in his remarks, which he submitted to you the other day. It is therefore not out of place for me to say, that so far as I know the state of the public sentiment in the North, and I think I know something of it, for my business and calling bring me into association with all classes of people--it is, therefore, I say, not inappropriate for me to say that there is no sentiment in the North in accordance with that of the defendant, or anybody else who may be guilty of the offences charged in that indictment. There may be those, here and there, who feel that similar scenes to those which lately occurred, may from time to time be brought about; but whether the result of interference from abroad, or the spontaneous outgushing from within the southern States themselves, it is a subject of deep regret that there should be any fear or danger of such things. And while they believe that such things may happen, they believe it with regret; and it is their anxious hope that these feelings which they deem to exist may be removed peaceably and effectually. But, gentleman, stand here to defend this man as I would any other man charged with offences against this State, when called upon to do so. I ask you, gentlemen, to take the testimony in view of the law as given you by the Court, and to weigh it carefully and deliberately. I say to you, not in the language of the prosecuting attorney, to glide over it, but to investigate it clearly, and say whether the offences charged against the prisoner have been committed by him or not, and whether they are sustained by the evidence. I feel considerable embarrassment in coming before a jury to defend a prisoner against charges of this kind under circumstances which are patent to you all. I know that you have been selected for the high duty as men competent to try the issue, and as men of sufficient integrity and honesty of purpose to rise above the prejudices, the passions and the feelings of every description which surround you. But yet, you are in the midst of a community which, I am informed since I took part in this trial, is greatly excited; and even since I came into this court that fact has been brought to your mind. Counsel for the prosecution told you, the other day, that anxious faces were hanging around the courthouse invoking a verdict of condemnation upon the prisoner. His distinguished associate told you that not a lady in the county felt herself safe while things were in the condition they were now in. If this be so, then I say to you that the greater caution is required at your hands in giving this question a fair and impartial consideration. I was rejoiced to hear that the universal sentiment throughout the county is that the unfortunate man should have a fair trial. I was rejoiced to see that sentiment echoed throughout the whole State, through your Governor, that he should have a fair trial I have no doubt that it is the firm intention of every member of the Jury to give him a fair and impartial trial. But, gentlemen, what is meant by a fair trial? It is not that the mere forms of law should be invoked, because that, it is well known, no matter what the evidence may be--because, I say, it is well known that these forms are but the pathway to the scaffold. I do not mean that the mere forms of a fair trial should be observed. Why? Because they may be used merely to conceal, for the time being, the gallows that looms behind. I do mean that he shall have not only the forms of a fair trial, but that every principle of law and justice shall be made available, and every particle of evidence introduced by himself or by the State shall get its fair weight and consideration in his behalf. A man charged with the grave offences alleged against the prisoner, must be convicted only by the clearest and the most satisfactory and conclusive evidence, such as cannot leave a reasonable doubt on the mind of any one juror. I propose, therefore, gentlemen, briefly, to consider the evidence as it applies to the law, which I hold should be applicable in this case. In doing so, I cannot go into details, but can advert only to the evidence generally, asking you, when you retire to your room, to inquire whether this, that, or the other circumstance has been proved, which is essential to convict the prisoner. My first remark has relation to all the offences charged in the indictment; and it is set forth upon the record that all those offences were committed within the jurisdiction of this Court, and within the county of Jefferson, in this State. Now, gentlemen this is a matter to be proved. I have read the notes of the evidence, and I can find no proofs whatever upon this point. There has been proof that the offences said to have been committed took place at Harper's Ferry, or in the neighborhood of Harper's Ferry. But where is Harper's Ferry? The Court takes judicial notice of something which it says occurred in a certain place within its jurisdiction. But this must be proved, and I maintain it has not been proved. Therefore I say, that the Jury impannelled to try the matter set forth in rids indictment must have every fact submitted to them proved beyond a doubt. They cannot take, and ought not to take, anything on trust. They know nothing, except that which is detailed in evidence. Not that every fact essential must be proved, but those facts must be proved from which inferences may legitimately be drawn. I say, therefore, gentlemen, you have no right, from any knowledge you may have obtained elsewhere, to say that these offences, as alleged, have been committed within the limits of the county of Jefferson: and I ask that the Court will so direct you. In my State, the form is to ask the Court to charge the Jury; here, I believe, the requisition is to instruct the Jury. We demand, on behalf of toe prisoner, that the jurisdiction be proven. We maintain that it is as necessary to do so, as to prove the firing of a gun, the seizing of a slave, or the commission of any of the acts laid in the indictment. If any of the offences are committed elsewhere than within the jurisdiction of this Court, then the charges set forth have no existence, upon which this prisoner is sought to be convicted. Therefore, I say again that this assumed jurisdiction must be proven. Having stated thus much, I will proceed to other points. The first offense charged is treason.
Here I again raise a point without designing to argue it. I state it that it may be understood that both myself and the learned counsel with whom I am associated agree entirely in our views upon that point, leaving it to be discussed at length by him. I allude to it now merely to afford the learned counsel, who will close the arguments for the State, ample time to reflect upon and consider it. The charge laid in the first count is Treason. Now, my point is that no man is guilty of treason, unless he be a citizen of the State or Government against which the treason so alleged has been committed. I state the point, and T say to you, gentlemen, if the Court rules, as we claim it is bound to do, that this man is not a citizen, that consequently he cannot be guilty of treason against the State. Rebellion means the throwing off allegiance to some constituted authority. But we maintain that this prisoner was not bound by any allegiance to this State, and could not, therefore, be guilty of rebellion against it. But I will pass from this part of the subject. Now, with regard to treason, several things are said reconstitute treason, one of which is levying war against the State; and that is one of the charges laid in the indictment, But, gentlemen, there is a great difference between levying war and resisting authority, and this is a matter I particularly wish you to bear in mind. A man may resist authority with ever so much violence, and bloodshed may ensue from such resistance, but that is not treason. It may happen, and it does happen, where men congregate together for the purpose of perpetrating a crime. They associate for that purpose, and they have their rules and regulations, and all the elements of an organization, and yet if assailed in the commission of crime, and they defend themselves to the utmost, and with great sacrifice to the lives of themselves and their fellow-citizens whom they resist, that is resistance, but that is not levying war. And how is it here? These men, it appears, assembled at a certain place, as the defendant himself indeed admits they did, and from that admission he does not shrink, for the purpose of running away with slaves. That is a crime, and for that crime he is amenable to the laws of your State, and for which you can punish him to the extent of that law. The facts, then, are these: For the purpose of carrying out his illegal design--the carrying away of slaves from the State--he takes temporary possession of the Arsenal and public buildings at Harper's Ferry, and while there attempts were made by the citizens, for which I do not blame them, to attack them and drive them off. It was then, and resisting these attempts on the part of the citizens, that this man and those associated with him had recourse to arms, and in the conflict which ensued, blood was shed and lives were taken. But that is not levying war against the Commonwealth of Virginia, although it was resisting with arms that which was claimed to be the lawful authority of Virginia seeking to arrest these men assembled in violation of law. But such things have happened frequently. You have heard of the jails of the country being broken open by armed bards, and persons confined therein, under the shelter and protection of the law, dragged from them and executed in defiance of the law. There have been instances where men acquitted by a Jury of the country of the crimes alleged against them, have been thus executed, the jail broken open and the authority of the sheriff trampled under foot; but this was not a levying war. Resisting with arms the constituted authority of the State is not levying war, although murder may arise out of it, though not at first contemplated. In violent acts of this kind death may ensue in commission of the crime even when bloodshed was not necessarily contemplated by the offenders. In many States of the Union we have, as well as here, cases of kidnapping, and we have instances of resistance to the authority of the law seeking to arrest the person charged, and bloodshed has ensued; but this is not levying war--it is simply resisting the authority of the law.
Now let us inquire whether the offences charged in this indictment are a levying of war, or simply resisting with a high hand the constituted authorities of the land. It is said that there was an organized government, and that charge is sought to be sustained by evidence, particularly by a pamphlet that has been produced, and which was taken from the person of the prisoner. But. gentlemen, it would not necessarily follow that overthrowing the Commonwealth of Virginia was contemplated by anything which appears is that pamphlet. How many harmless organizations have existed in the world at caracas times, surrounded with nil the outside forms and machinery of government! aye, even as harmless things as debating societies have been so organized, congresses created, resolutions and laws discussed, and any one reading the bulletins and reports issued from time to time from these associations would say, why here is a miniature government within the very limits of our State. No matter what name they may take, no matter under what form of organization they are bound together, no matter what offices they may create, it be not a proof of crime against the State. These men named in the indictment have been characterized by the attorney as a marauding, thieving, murderous clan; and surely it is not such people that could subvert a government and raise another upon its ruins. Such associations as I have alluded to, you are well aware, have their laws and regulations, and even they prescribe death for violations of their taws. But that does not contemplate the overthrow of any existing legitimate government, but only an association for governing, controlling and directing themselves in their dealings with one another, but having no purpose or idea whatever of overthrowing, usurping or destroying the legitimate government. But I will remark further, with reference to this matter, that you cannot find this man guilty of treason except you have it proved incontestably before you that he was associated with others for the purpose and with the object of overthrowing and of organizing a government, and to subvert the Commonwealth of Virginia. Now, I say with reference to that hook so much relied upon by the prosecution, that if it prows anything it proves that the attempt, if any such was designed, was to establish a government in opposition in the Government of the United States, and not to subvert the Commonwealth of Virginia. All the terms used, all the officers to be appointed, have reference to a government like the United States. The pamphlet does not say what territory this association, or government, is to exercise jurisdiction over. Its proposed empire is not defined. It has fixed no territorial limits, and, therefore, if it means anything at all, it alludes to the government of the whole United States in general, and not to this State or any other in particular. But as this book or code of laws has been put in evidence, I tell you, gentlemen, that you must not select any particular part of it--you must take it all as evidence, every part of it must be taken, one part as much as another, except the prosecution produce evidence satisfactorily contradicting any portion of it. From the contents of that book it is clear that these men did not contemplate the overthrow of the State government, but simply an amendment or repeal of obnoxious laws, or what they deemed to be such. I speak of this matter because you are compelled to find that the prisoner was guilty of all those matters contained in the several counts. But they haw failed in establishing any one of these charges. The prosecution say that he is guilty of giving aid and comfort to the enemies of the Commonwealth, and that is the only specific charge they have made on fact. And how do they attempt to support it! Did not the prisoner, they say, actually send to the tavern and procure provisions and feed the enemies of the Commonwealth? Did he not feed the slaves, and are they not enemies of the State? Was not that act, therefore, furnishing aid and comfort to the enemy? I was surprised to hear this part of the subject commented upon. I was surprised that in that connection, by an association of ideas no doubt very ingenious and felicitous if they could be traced out, he burst forth into that sublime apostrophe to freedom which the prosecuting attorney delivered the other evening in tones and action and language of such surpassing eloquence that none who heard him might be told that he had received his inspiration in the State which urns the ashes of Patrick Henry. And when I remember the cause we are here trying, and the circumstances which surround it, I remember also the appeal that that gentleman made to you, presenting a daguerreotype to your view of the anxious faces which hung around the court, invoking a verdict on the prisoner. But that style of appeal was not confined to the prosecuting attorney alone. His distinguished associate, gentlemen, presented to you a touching picture of dishevelled tresses of frightened beauty, enough to excite the feelings and shatter the nerves of any one. I can but rejoice, gentlemen, that his stirring tones were not echoed from hill top to hill top, from mountain to mountain, to excite and spread alarm from one end of the State to the other, but that, on the contrary, they died away within these walls. Gentlemen of the Jury, the prisoner is charged with having given aid and comfort to the enemies of the State, and, in despair, they are driven to rely upon this charge, for it is the only one specifically made. But I will leave this part of the case, and proceed.
The prisoner is charged with conspiring with slaves to rebel and make insurrection. Here, again, we are bound to make the same distinction in regard to treason. There is a manifest distinction between the effort made to run away with slaves, or inducing them to run away, and attempt to excite them to rebellion and insurrection. Now, what is meant by insurrection and rebellion? It means a rising up of slaves against the authority of their masters--not a running away, although freedom may be the ultimate object. But it means a rising up against the masters, against the whites, against the State. Insurrection contemplates riot, robbery, murder, arson, and all the crimes which follow an insurrection, more especially a servile insurrection. Now, what are the facts of the case? I cannot discuss them; but I will ask you, as men disposed to do justice to the State, to sit down and inquire among yourselves if any one Witness has entitled of aught showing that Brown or his associates said or did anything to any one slave to induce him to rise in rebellion? What was it that was really done in this matter? Slaves were taken possession of, and for a temporary purpose placed in the Arsenal or some of the public buildings at Harper's Ferry. But what was the evidence of Colonel Washington himself, who testified more or, this subject than any other person? He says that not a slave seemed to have a heart in the matter. The slaves themselves did nothing. They were taken there, and there they quietly remained. The only slave that lifted his hand was old Phil, Mr. Allstadt's servant, who, according to my recollection, and at the suggestion of Brown, the prisoner, drilled some port-holes in the wall. And let me here remark, that the law as regards rebellion is the same regards treason. A man may be engaged in an illegal act; any body of men, any body of slaves may be so engaged, and they may resist the lawful authorities sent against them, even to the shedding of blood, and yet it is not rebellion nor treason. Let us suppose that a body of slaves are seeking to escape; they are aided in that attempt by a body of white men; their escape may be effected by white men--they are pursued by the authority of the State, their capture is attempted--they resist, and defend themselves even to the loss of life, yet that does not constitute rebellion--they are amenable to punishment, but not to the penalty of rebellion. This is all I need to say upon this subject. The next crime charged against the prisoner is murder. Now, there are nine specifications of murder in the first degree. Five of these come under the head of murder in the first degree as premeditated murder, which is punishable with death; four others, where death happens without it being the original intention of the party to commit murder, but which, however, come under the head of first degree, if the party was at the time in the commission of some other offense--such as rape, arson, robbery or burglary. If a party is engaged in the commission of any of these crimes, and death, though not designed, ensues, then the offender is liable to the penalty of death. Now, as regards the death of the citizens at Harper's Ferry, when they took place the prisoner and his men were not engaged in the commission of any of these offences--such as arson, rape, robbery or burglary. If they were there in resistance to the authority of the laws of Virginia--if, while resisting that authority these deaths ensued, was there that premeditated malice aforethought which the law requires to make a man guilty of murder? There was one death ensued in the early part of the first night at Harper's Ferry, but how it happened no one knows--whether it was accidental or not. Nor can it be known, whether he was accidentally shot by one of Brown's party or by one of the citizens themselves. The night was dark, and his death might have been accidental or otherwise; but now none can tell. I can only say as my client says to me on this subject: "Why should we shout a negro?--that was not our object." And so I say. Gentlemen, you cannot believe for one moment--you do not believe; the evidence will not allow you to believe; the law will not allow yon to believe--that there was any malice or deliberate intention to shoot that negro, if he was shot by Brown's party at all; and, therefore, gentlemen, I shall pass that charge by without further comment.
Should I be asked why this man should not be brought within the jurisdiction of the Commonwealth of Virginia so as to punish him--was he to go unquit by justice for his offences?--my answer would at once be: No, gentlemen, not for one moment. All I ask of you is that he be charged and convicted according to your own laws. This Commonwealth of Virginia has made laws to protect her citizens--has made laws which hedge them round and protect them on every side. She has within the borders of her population made such laws as she deems all-sufficient for the protection of that species of property which some, perhaps, would wish to deprive her citizens of. But whatever may be done hereafter; whatever may be considered necessary for the protection of life and property in time to come, it is the boast of our institutions that no man can be punished beyond what the law allows. If the punishment is not severe enough; if it is not ample enough, broad enough, will the law rest until it is properly remedied? The law can be made and altered from time to time, so as to meet every emergency of the State. If, then, your rights, your interests, your property, your lives are not sufficiently protected, there is a power is this grand old Commonwealth sufficient to protect them at all tinges We, however, have no post facto law We punish no man but by virtue of the law as it exists at the time the alleged offense was committed. The prisoner at the bar is amenable to your laws. None can deny that. Frame your indictment against him to-day, charging him with enticing away your slaves, with interfering with that species of property, and his confessions are as thick as the leaves upon your forest trees that he was among you for that purpose. Frame your indictment, and the moment it is read he will plead guilty to it and submit to the penalty of his crime without a murmur. But contemplating nothing more, dreaming of nothing more, he asks that the aegis of your laws may be thrown around him; not that he flinches from his fate, whatever that may be, but that he may not be stigmatized with guilt of crimes which he never contemplated, and which he believes in his heart he never committed. Of course as the law has been violated it must be vindicated--that I understand, and so does he. It is not true that public feeling and sentiment demand his immolation. It is not true that the public safety requires that he should be punished contrary to law. I speak thus in vindication of your own laws. I desire to preserve them unsullied and unstained, and that they be not perverted or distorted w suit this case, and to do a wrong instead of being applied to the punishment of what is wrong, I cannot shut my eyes to the fact that the statute and the law will not justify this man's conviction on the charges laid down in the Indictment. And why should this wrong be attempted? It is not true that there is any danger from the popular feeling. It is not true that there is danger to the State, either from within or without. Think of it, gentlemen, calmly and dispassionately. Here stands a man of whom you know something. He is a man of indomitable will, of sleepless energy of purpose, possessed of a spirit of perseverance that turns back from no difficulty, and endowed with a constitution that will endure and overcome everything. He, with all these qualities fitting him for snob an enterprise, was engaged for months and months prosecuting it, and how did he succeed? Despite of all his efforts, despite these energies of mind and body which he threw into the work, and that unbending will of his which never faltered nor slept, he was able throughout the length and breadth of the United States to gather round his standard some twenty-one men both black and white. Can it be supposed, gentlemen, for a moment, that there is fear to be apprehended from such a man, who, in the zenith of his power, when he had a name in history, and when something might be hoped for the cause in which he was engaged, could only, throughout the whole country, raise twenty-one men? Is it to be supposed for a moment, I ask, now, when he is struck down to the earth, his few followers scattered or destroyed--now, when the fact is known that the South is alarmed and armed in every direction ready to repel any enterprise of this kind, is anything to be feared? No, gentlemen, there is not the remotest danger of your ever again witnessing in your State anything akin to that which lately occurred. I do not know whether it is necessary for me to make these remarks. I know it is the duty of the Jury to be blind to everything that bears not upon the case. Justice is represented as blind, seeing nothing, but dealing only with the facts which relate to the case. I believe you will take this ease and deal with it fairly, and dispose of it under the ruling of the Court. We heard, during the progress of this investigation, reference made to the conduct of some parties who took an active part in the late events at Harper's Ferry. But, gentlemen, the courage spoken of was physical courage, that courage which would induce men, whenever necessary, to face danger, no matter from what quarter it might come or in whatever form it might present itself This courage commends itself to your highest regard. This is physical courage. But there is another sort of courage which soars far above that which is mere physical. It is moral courage. It is a courage which will enable the true man, who is blessed with it, to raise himself above the influence of prejudice, self-interest, or popular excitement. It is a courage that withstands all temptations, and fearlessly rises above the petty considerations which influence more ignoble minds. It stands unflinchingly to meet the seething waves of popular excitement of commotion, and will not be turned aside from that which is humane and truthful. Now, gentlemen, if there be anything of this kind in your hearts--if yon suppose there is anything more required than simple justice to be meted out to this unfortunate man--you have this day an opportunity of exhibiting that true moral courage of which I have spoken; and through the longest day you have to live you will value nothing more precious than the remembrance of the fact that you acted rightly, and justly, and mercifully in the day of danger. You, gentlemen, have this day a great opportunity of evincing true moral courage by dealing with this case as I have feebly pointed out, if you can do so justly and preserving your oaths intact. Whatever you do, preserve your honor untarnished, preserve also the integrity and reputation of the Commonwealth, so long renowned for her justice, for truth and for chivalry unstained. I feel, gentlemen, that I have not done justice to the case; but I have said what I desired to say, situated as I am, closing simply with these remarks, which I make on behalf of my client, and at his request, that he has not a particle of exception to take to the testimony of the witnesses examined during the trial. He deems it only a wonder amid the excitement of these scenes, that the truth, as he declares it tube, should be so fully developed. He believed that the desire of one and all of the witnesses was to do him ample justice; that whenever they could speak in commendation of his Brown's, humanity, in the means he had taken to spare the effusion of blood, and to preserve from harm his prisoners, they came cheerfully forward to do it. He desires, also, as the least he can do, to express his grateful thanks to Captain Simms, who voluntarily came forward from another State, because, as he said, he wished to see justice done to a brave old man. Gentlemen, with these remarks I submit the case, as far as I am concerned, into your hands.
Mr. Chilton spoke of the embarrassment with which he undertook the case. He intended to do his duty faithfully, and had come to deal with the prisoner not as Captain Brown, leader of this foray, but simply as a prisoner under the charge of violating the law. If that law did not warrant a conviction, he should endeavor to make that appear to the Jury. Still he would say that he had no sympathy with the prisoner. His birth and residence, until within a few years, had been in Virginia, in connection with the institution of slavery. Although now a resident of the District of Columbia, he had returned to his native State to spend the remainder of his days, and mingle his dust with her soil. No other motive operated on him than a disinterested one to do his duty faithfully. He regretted the excitement respecting the case, but was glad to hear the Judge say on Saturday that he desired to try this case precisely like others. He desired, and the whole State, and the whole South desired, that the trial should be fair, and it had been fair. Circumstances had interrupted its progress. Counsel were here without proper preparation, but indulgence had been granted, and they made no complaint. They should do the best they could under the circumstances, and could not complain of the excitement. It was natural. He hoped it would not interfere with the course of justice, or east a stain upon the bar of the State. The Jury had sworn they were unbiased, and he presumed they would firmly discharge their oaths in bringing in a verdict. He could not understand, from the opening of the prosecution, on what grounds these charges against the prisoner were attempted to be sustained. The Commonwealth Attorney indulged in a strain of abuse of the prisoner, and pronounced sentence on him without waiting the verdict of the Jury, thus usurping the place of the Judge. There were three distinct charges. The first was of treason. This was an offense at common law. The word is derived from a French word, signifying betrayal. Treason means betrayal of trust or confidence, the violation of fidelity or allegiance to the Commonwealth. He maintained that treason could not be committed against a Commonwealth except by a citizen thereof. In the present case the whole proof shows that this prisoner is not a citizen of Virginia, and he therefore cannot be found guilty of treason. The indictment charges the prisoners with committing every act composing treason. They are charged with levying war against the State, and exciting slaves to insurrection; but there was no proof that they committed these acts charged--no proof that they resisted any process issued against them as violators of authority of the Commonwealth. They were rather guilty of resisting Colonel Lee, which was resistance to the Federal Government, and not to the Commonwealth. He had read carefully the prepared Provisional Constitution, and regarded it as ridiculous nonsense--a wild, chimerical production. It could only be produced by men of unsound minds. It defines no territory over which it is intended to operate, and says that we, that is the signers of the document, not all citizens of the United States, do establishment the following Provisional Government. What is it? It is an association or copartnership; they are to own property in common and regulate its tenures; it did act contemplate a Government, but merely a voluntary association to abolish Slavery; did not even undertake to levy taxes, which is essential to any Government. It does not appear that this association was to be established in Virginia, or where it was to go into effect. This was not treason. Is it the adoption of a Constitution or establishment of a Government? By no means. Those parties had a mere imaginary Government to govern themselves, and nobody else, just like governing a military company or debating society. Even if they intended to set up a government over the other, they did not do it. There was a principle that every piece of evidence was to be construed most favorably to the accused, who should have the benefit of every doubt. In considering the evidence they must consider the whole of it--they must take the declarations of the prisoner in his own favor as well as against himself. Now look at the 46th Article of this Provisional Constitution, which expressly declares that the foregoing articles shall not be construed to encourage the overthrow of any State Government or General Government, and lead to a dissolution of the Union, but simply as amendment and repeal. This was on evidence before the Jury, being submitted by the prosecution. Again, the prisoner is charged with conspiring with slaves to make an insurrection. No proofs show that the slaves entered into a conspiracy, and unless that was the case there was no conspiracy.
One party cannot conspire alone. Each charge is to be considered alone by the Jury. If they believe the evidence, it does not warrant the conviction of treason, and they must consider the charge of conspiracy just as if no charge of treason had been made. One count in the indictment was not to be brought in to aid another. He considered the prisoner had a right to be tried on one charge st a time, and entirely disconnected with any other. The Court had, however, overruled the motion on Saturday, and hence the importance of making this point clear to the Jury, so that they might not confuse the various offences, and the evidence relating to each. Next, as to murder. It was a very angular way of doing an indictment. Five prisoners are charged with the murder of tour men. That they might have jointly done it he could understand, but that they could severally have done it, he declared it was almost impossible for the prisoner to make a defense against such a charge. It was too loose and vague. By the laws of Virginia there was but one specific murder punishable as capital, and that was deliberate, premeditated murder. The prosecution charged the prisoner with murder in the first degree, but he argued that evidence in this ease did not sustain the charge. The prisoner's conduct in the engine-house showed no malice, according to the testimony of Col. Washington and Mr. Allstadt. However ridiculous his project, which it would seem could never have entered the mind of a sane man, he might still have believed he could carry out that project without bloodshed. At any rate, no sane man could suppose he expected, with a mere handful of men, to accomplish his object by force, and it is but fair to take his declarations, especially when compared with his acts, that he intended to shed no blood, except in self-defense, unless you should believe, beyond the slightest doubt, that those declarations were untrue, and that the prisoner was actuated by malice in taking the lives of those who never did him harm, and against whom no cause for malice existed. As to Hayward, there was no proof as to how he met his death, or who killed him, or for what cause, and, as his colleague had remarked, the prisoner had no motive to kill negroes. The subsequent contest resulted in loss of life, but the prisoner endeavored to avoid that conflict for the purpose of saving life, and therefore could not have been actuated by malice, which is necessary to constitute murder in the first degree. Even if the prisoner were guilty of murder in the second degree, or manslaughter, yet neither was a capital crime, and not the crime charged in the indictment. He did not know bat that Brown was justified in returning the fire when fired upon under the circumstances. It was a sort of self-defense, and very probably, had a little more time been allowed, those men could have been taken into custody without loss of life. He charged the jury to look on this case, as far as the law would allow, with an eye favorable to the prisoner, and when their verdict should be returned, he trusted that every man in the community would acquiesce in it. Unless the majesty of the law were supported, dissolution of the Union must soon ensue, with all the evils which must necessarily follow in its train.
Mr. Hunter closed the argument for the prosecution. He said he proposed to argue this case precisely like any other. He had hoped the counsel for the defense would have omitted to interpolate any outside matters, and, to a great extent, he had been gratified. One remark be would allude to in the opening speech of the defense this morning, where he had been represented as having drawn the picture of the dishevelled locks of an alarmed beauty. His friend had done him some injustice, in attributing to him a design of exciting alarm, or disturbing the minds of the people unnecessarily. He had endeavored to march straight forward, with the sole purpose of discharging his duty, in procuring the attainment of justice in respect to the prisoners. He would commend to Mr. Griswold the testimony he had borne at the opening of the Court, that not only have the forms of a fair trial been extended to the prisoner, but the substance also; that, in the midst of ell temptations to the contrary, in the midst of all the solid reasons that have been urged why a different course--I do not mean an irregular course--a different legal and constitutional course by the Governor of Virginia, might have been pursued of declaring martial law and administering drum-head justice. That the Chief Magistrate has taken high conservative ground, we, as Virginians, are justly proud of, and that we did not force this thing beyond what prudence requires of us, and that in regard to the power and patriotism of the Commonwealth of Virginia we are sufficient for it, come when it may, and in whatever form. He proceeded to remove the objections founded on the idea that might have been made as to the power of this Court to try a case where the offense was committed. It was hardly necessary to show that it was within the county of Jefferson, and within the jurisdiction of this Court. There was a law in Virginia making the Potomac River the boundary between Maryland and Virginia, and giving either State power, by a solemn compact, to execute a criminal process to the further bank. These matters which are contained,I in the Code of Virginia, it was unnecessary to prove by witnesses. The Jury could read the Code for themselves. Another law defined the limits of Jefferson County, showing that it embraced the locality where these events occurred, and giving jurisdiction to this Court. It was hinted in a preliminary stage of the proceedings, and an attempt was made to argue, that the United States held an exclusive jurisdiction over the Armory grounds, but no stress was now laid on that point, because not one murder out of the four lives taken was committed on the Armory grounds. Mr. Hunter then took up the argument of treason, which he understood to be that none but an attaché of the Commonwealth can commit treason against it. It is limited to no parties--it does not require that the offender should boa citizen according to our system of government, and the complicated machinery of Federal and State governments, under which we live. In some respects, we are unfortunately bound to recognize as citizens of Virginia those who have proven themselves within our borders, as in this case, and without them, as in others, our deadliest enemies. The Constitution of the United States provides that citizens of each State shall be entitled to all the immunities of citizens of the several States. Brown came here with the immunities given by the Constitution. He did not come divested of the responsibilities belonging to those immunities. Let the word treason mean breach of trust, and did he not betray that trust with which, as a citizen, he is invested when within our borders? By the Federal Constitution, he was a citizen when he was here, and did that bond of Union--which may ultimately prove a bad bond to us in the South--allow him to come into the bosom of the Commonwealth, with the deadly purpose of applying the torch to our buildings and shedding the blood of our citizens. Again, our Code defines who are citizens of Virginia, as all those white persons born in any other State of this Union who may become residents here. The evidence in this case shows, without a shadow of a question, that when this man came to Virginia and planted his feet on Harper's Ferry, he came there to reside and hold the place permanently. It is true that he occupied a farm four or five miles off, in Maryland, short t me since but not for the legitimate purpose of establishing his domicil there. It was for the nefarious purpose of rallying forces into this Commonwealth, and establishing himself at Harper's Ferry as a starting point for a new Government. Whatever it was, whether tragical, or farcical and ridiculous, as his counsel has presented it, his conduct showed, if his declarations were insufficient, that it was not alone for the purpose of carrying off slaves that he came there. His Provisional Government was a real thing, and no debating society, as his counsel would have us believe, and in holding office under it, and exercising its functions, he was clearly guilty of treason. The 46th section has been referred to, as showing it was not treasonable, but he supposed that that meant that the new government was to be a union of separate States like the present, with the difference that all were to be free States. The whole document must be taken together. The property of slaveholders was to be confiscated all over the South, and any man found in arms was to be shot down. Their conduct at Harper's Ferry looked like insanity, but there was too much method in Brown's madness. His purposes were too welt matured, and he and his party declared there were thousands in the North ready to join them. While the Jury are to take the whole declaration, the law books expressly declare they may reject, if they see good cause to do so, that which would extenuate the guilt of the prisoner. They are bound to consider it; that is all. As to conspiracy with the slaves to rebel, the law says the prisoners are equally guilty, whether insurrection is made or not. Advice may be given by actions as well as words. When you put pikes in the hands of the slaves, and have their masters captive, that is advice to slaves to rebel, and punishable with death. The law does not require positive evidence, but only enough to remove every reasonable doubt as to the guilt of the party. Sometimes circumstantial evidence is the strongest kind, for witnesses may perjure themselves or be mistaken. The defense say we don't know who killed the negro Hayward; that Brown did not do it because there was no object, but that it was dark, and the supposition is that Haywood was killed by mistake. They say Brown shot no unarmed men, but Beckham was killed when unarmed, and, therefore, he thought the whole case had been proved by the mass of argument. With regard to malice, the law was, that if the party perpetrating a felony, undesignedly takes life, it is a conclusive proof of malice. If Brown was only intending to steal negroes, and in doing so took life, it was murder with malice prepense. So the law expressly lays down, that killing committed in resisting officers attempting to quell a riot, or arrest the perpetrator of a criminal offense, is murder in the first degree. Then what need all this delay--the proof that Brown treated all his prisoners with lenity, and did not want to shed blood?
Brown was not a madman to shed blood when he knew the penalty for so doing was his own life. In the opening he had sense enough to know better than that, but wanted the citizens of Virginia calmly to hold arms and let him usurp the government, manumit our slaves, confiscate the property of slaveholders, and without drawing a trigger or shedding blood, permit him to take possession of the Commonwealth and make it another Hayti. Such an idea is too abhorrent to pursue. So too, the ides that Brown shed blood only in self-defense was too absurd to require argument. He glories in coming here to violate our laws, and says, he had counted the cost, knew what he was about, and was ready to abide the consequences, That proves malice. Thus, admitting everything charged, he knew his life was forfeited if he failed. Then, is not the case made out beyond all reasonable doubt, even beyond any unreasonable doubt indulged in by the wildest fanatic? We therefore, ask his conviction to vindicate the majesty of the law. While we have patiently borne delays, as well here as outside in the community, in preservation of the character of Virginia, that plumes itself on its moral character, as well as physical, and on its loyalty, and its devotion to truth and right, we ask you to discard everything else, and render your verdict as you are sworn to do. As the administrators of civil jurisdiction, we ask no more than it is your duty to do--no less. Justice is the centre upon which the Deity sits. There is another column which represents its mercy. You have nothing to do with that. It stands firmly on the column of justice. Administer it according to your law--acquit the prisoner if you can--but if justice requires you by your verdict to take his life, stand by that column uprightly, but strongly, and let retributive justice, if he is guilty, send him before that Maker who will settle the question forever and ever.
Mr. Hunter closed at 1 1/2 o'clock.
During most of the arguments to-day, Brown lay on his back, with his eyes closed.
Mr. Chilton asked the Court to instruct the Jury, if they believed the prisoner was not a citizen of Virginia, but of another State, they cannot convict on a count of treason.
The Court declined, saying the Constitution did not give rights and immunities alone, but also imposed responsibilities.
Mr. Chilton asked another instruction, to the effect that the Jury must be satisfied that the place where the offense was committed was within the boundaries of Jefferson County, which the Court granted.
When Mr. Hunter closed his peroration to the Jury, without further remark, at an intimation from the judge, they immediately withdrew to consider their verdict. After an absence of three-quarters of an hour (during which the Court took a recess) they returned into court with a verdict. At this moment the crowd filled all the space from the couch inside the bar, around the prisoner, beyond the railing in the body of the court, out through the wide hall and beyond the doors. There stood the anxious but perfectly silent and attentive populace, stretching head and neck to witness the closing scene of Old Brown's trial. It was terrible to look upon such a crowd of human faces, moved and agitated with but one dreadful expectancy--to let the eyes rest for a moment upon the only calm and unruffled countenance there, and to think that he alone of all present was the doomed one, above whose head hung the sword of fate. But there he stood, a man of indomitable will and iron nerve, all collected and unmoved, even while the verdict that consigned him to an ignominious doom was pronounced upon him.
After recapitulating his offences set forth in the indictment, the Clerk of the Court said:
Gentlemen of the Jury, what say you, is the prisoner at the bar, John Brown, guilty or not guilty?
Clerk--Guilty of treason, and conspiring and advising with slaves and others to rebel and murder in the first degree?
Not the the slightest sound Was heard in the vast crowd as this verdict was thus returned and read. Not the slightest expression of elation or triumph was uttered from the hundreds present, who, a moment before, outside the court, joined in heaping threats and imprecations on his head; nor was this strange silence interrupted during the whole of the time occupied by the forms of the Court. Old Brown himself said not even a word, but, as on any previous day, turned to adjust his pallet, and then composedly stretched himself upon it.
Mr. Chilton, moved an arrest of judgment, both on account of errors in the indictment and errors in the verdict. The objection in regard to the indictment has already been stated. The prisoner has been tried for an offense not appearing on the record of the Grand Jury--the verdict was not on each count separately, but was a general verdict on the whole indictment.
Counsel on both sides being too much exhausted to go on, the motion was ordered to stand over till to-morrow, and Brown was again removed unsentenced to prison.
Wednesday, Nov. 2, 1859.
Brown was then brought in and the Court House was immediately thronged.
SPEECH AND SENTENCE OF BROWN.
The Court gave his decision on the motion for an arrest of judgment, overruling the objections made. In the objection that treason cannot be committed against a State, he ruled that wherever allegiance is due, treason may be committed. Most of the States have passed laws against treason. The objections as to the form of the verdict rendered, the Court also regarded as insufficient.
The Clerk then asked Mr. Brown whether he had anything to say why sentence should not be pronounced upon him.
Mr. Brown immediately rose, and in a clear, distinct voice, said:
"I have, may it please the Court, a few words to say. In the first place, I deny everything but what I have all along admitted, of a design on my part to free slaves. I intended certainly to have made a clean thing of that matter, as I did last winter when I went into Missouri, and there took slaves without the snapping of a gun on either side, moving them through the country, and finally leaving them in Canada. I designed to have done the same thing again on a larger scale. That was all I intended to do. I never did intend murder or treason, or the destruction of property, or to excite or incite the slaves to rebellion, or to make insurrection. I have another objection, and that is that it is unjust that I should suffer such a penalty. Had I interfered in the manner which I admit, and which I admit has been fairly proved--for I admire the truthfulness and candor of the greater portion of the witnesses who have testified in this case--had I so interfered in behalf of the rich, the powerful, the intelligent, the so-called great, or in behalf of any of their friends, either father, mother, brother, sister, wife, or children, or any of that class, and suffered and sacrificed what I have in this interference, it would have been all right, and every man in this Court would have deemed it an act worthy of reward rather than punishment. This Court acknowledges, too, as I suppose, the validity of the law of God. I see a book kissed, which I suppose to be the Bible, or at least the New Testament, which teaches me that all things whatsoever I would that men should do to me, I should do even so to them. It teaches me further to remember them that are in bonds as bound with them. I endeavored to act up to that instruction. I any I am yet too young to understand that God is any respecter of persons. I believe that to have interfered as I have done, as I have always freely admitted I have done in behalf of His despised poor, is no wrong, but right. Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood farther with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I say let it be done. Let me say one word further. I feel entirely satisfied with the treatment I have received on my trial. Considering all the circumstances, it has been more generous than I expected. But I feel no consciousness of guilt. I have stated from the first what was my intention, and what was not. I never had any design against the liberty of any person, nor any disposition to commit treason or excite slaves to rebel or make any general insurrection. I never encouraged any man to do so, but always discouraged any idea of that kind. Let me say also in regard to the statements made by some of those who were connected with me, I fear it has been stated by some of them that I have induced them to join me, but the contrary is true. I do not say this to injure them, but as regretting their weakness. Not one but Joined me of his own accord, and the greater part at their own expense. A number of them I never saw, and never had a word of conversation with till the day they came to me, and that was for the purpose I have stated. Now, I am done."
While Mr. Brown was speaking, perfect quiet prevailed, and when he had finished the Judge proceeded to pronounce sentence upon him. After a few primary remarks, he said, that no reasonable doubt could exist of the guilt of the prisoner, and sentenced him to be hung in public, on Friday, the 2d of December next.
Mr. Brown received his sentence with composure.
The only demonstration made was by the clapping of the hands of one man in the crowd, who is not a resident of Jefferson County. This was promptly suppressed, and much regret is expressed by the citizens at its occurrence.
After being out an hour the Jury came in with a verdict that Coppie was guilty on all the counts in the indictment. His counsel gave notice of a motion for arrest of judgment, as in Mr. Brown's case.
The Court then adjourned.