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.
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 Upon reaching here, he found that they had withdrawn from the case, and he then hesitated about undertaking it; but upon consultation with the prisoner and his friends here, they insisted he should do so, and he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Counsel had been assigned to the prisoner here, of his own selection, who had labored zealously in his behalf, and had withdrawn because the prisoner had yesterday evening declared in open Court that he had no confidence in them.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.
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.