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John Brown's Trial - Day 3 - The Defense

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THE DEFENSE.

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.

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