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.
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:
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.