 The Arraignment of
John Brown by J. E. Taylor
|
The Trial of John Brown
October 25 to November 2, 1859 From THE LIFE, TRIAL AND EXECUTION OF CAPTAIN JOHN BROWN KNOWN AS "OLD BROWN OF OSSAWATOMIE," WITH A FULL ACCOUNT OF THE ATTEMPTED INSURRECTION AT HARPER'S FERRY. COMPILED FROM OFFICIAL AND AUTHENTIC SOURCES. NEW YORK. ROBERT M. DE WITT, PUBLISHER. Entered according to Act of Congress, in the year 1859, by ROBERT M. DE WITT, In the Clerk's Office of the United States District Court for the Southern District of New York. |
Oct. 25, 1859.
The Circuit Court of Jefferson County, Judge Richard Parker on the bench, assembled at two o'clock. The Grand Jury were called, and the Magistrate's Court reported the result of the examination in the case of Capt. Brown and the other prisoners. The Grand Jury retired with the witnesses for the State. At five o'clock they returned into Court and stated that they had not finished the examination of witnesses, and they were therefore discharged until ten o'clock to-morrow morning. It is rumored that Brown is desirous of making a full statement of his motives and intentions, through the press, but the Court has refused all further access to him by reporters, fearing that be may put forth something calculated to influence the public mind, and to have a bad effect upon slaves, The mother of Cook's wife was in the Court House throughout the examination.
Coffee says that he had a brother in the party, and that Brown had three sons in it. Also that there were two other persons, named Taylor and Hazlitt, engaged, so that, numbering Cook, five have escaped, twelve were killed, and five captured, making twenty-two in all.
Capt. Brown's object in refusing the aid of counsel is, that if he has counsel he will act be allowed to speak himself, and Southern counsel will not be willing to express his views.
The reason given for hurrying the trial, is, that the people of the whole country are kept in a state of excitement, and a large armed force is required to prevent attempts at rescue.
The prisoners, as brought into the Court, presented a pitiable sight--Brown and Stephens being unable to stand without assistance. Brown has three sword-stabs in his body, and one saber-cut over the heart. Stephens has three balls in his head, and had two in his breast and one in his arm. He was also cut on the forehead with a rifle bullet, which glanced off leaving a bad wound.
Oct. 26, 1859.
Brown has made no confession; but, on the contrary, says he has full confidence in the goodness of God, and is confident that he will rescue him from the perils that surround him. He says he has had rifles leveled at him, knives at his throat, and his life in as great peril as it now is, but that God has always been at his side. He knows God is with him, and fears nothing.
Alex. R. Boteler, member elect for Congress of this district, has collected from 50 to 100 letters from the citizens of the neighborhood of Brown's house, who searched it before the arrival of the marines. The letters are in the possession of Andrew Hunter, Esq., who has a large number of letters obtained from Brown's house by the marines and other parties. Among them is a roll of the conspirators, containing forty-seven signatures; an accurately traced map from Chambersburg to Brown's house; copies of letters from Brown, stating that as the arrival of too many men at once would excite suspicion, they should arrive singly; a letter from Merriam, stating that of the twenty thousand wanted, G. S. was good for one-fifth; also a letter from J. E. Cook, stating that the Maryland election was about to come off, the people will become excited, and we will get some of the candidates that will join our side.
The Circuit Court, Judge Parker presiding, met at 10 o'clock. The Grand Jury were called, and retired to resume the examination of witnesses. The Court took a recess awaiting the return of the Grand Jury.
M. Johnson, United States Marshal of Cleveland, Ohio, arrived this morning. He visited the prisoners, and identified Copland as a fugitive from justice in Ohio.
The excitement is unabated, and crowds of persons from the surrounding country are here. The event is regarded as proving the faithfulness of the slaves, and no fears are entertained of them; but a military guard is kept up, fearing an attempt to rescue the prisoners.
Consternation among the slaves is caused by the fear of being seized as Colonel Washington's were, and they firmly believe the object of the prisoners was to carry them South and sell them. Not a single slave has yet been implicated as even sympathizing with the insurrectionists. Those carried off have all been captured and returned to their masters.
Cannon are stationed in front of the Court House, and an armed guard is patrolling around the jail.
Capt. Brown has consented to allow Mr. Botts and his assistant, Mr. Green, to act as his counsel, they assuring him that they will defend him faithfully, and give him the advantage of every privilege that the law will allow.
Stephens declares that he does not desire to be defended by Northern counsel, preferring Southern, and that the Court should name them. There is a decided sympathy for Stephens, not only on account of his sufferings, but that he has shown none of that vindictiveness and hardihood that characterizes Brown. His regret is regarded as caused by the consequences of his folly, and the examination yesterday indicated that the other prisoners have lost their confidence in Brown, and are not disposed to follow him in his defiant course.
At 12 o'clock the Court reassembled.
The Grand Jury reported a true bill against the prisoners, and were discharged.
Charles B. Harding, assisted by Andrew Hunter, represents the Commonwealth; and Lawson Botts and his assistant Mr. Green, are counsel for the prisoners.
A true bill was read against each prisoner:
First: For conspiring with negroes to produce insurrection.
Second: For treason in the Commonwealth; and,
Third: For murder.
The indictment was as follows:
Judicial Circuit of Virginia, Jefferson County, to wit.--The Jurors of the Commonwealth of Virginia, in and for the body of the County of Jefferson, duly impaneled, and attending upon the Circuit Court of said county, upon their oaths do present that John Brown, Aaron C. Stephens, alias Aaron D. Stephens, and Edwin Coppie, white men, and Shields Green and John Copland, free negroes, together with divers other evil-minded and traitorous persons to the Jurors unknown, not having the fear of God before their eyes, but being moved and seduced by the false and malignant counsel of other evil and traitorous persons and the instigations of the devil, did, severally, on the sixteenth, seventeenth, and eighteenth days of the month of October, in the year of our Lord eighteen hundred and fifty-nine, and on divers other days before and after that time, within the Commonwealth of Virginia, and the County of Jefferson aforesaid, and within the jurisdiction of this Court, with other confederates to the Jurors unknown, feloniously and Traitorously make rebellion and levy war against the said Commonwealth of Virginia, and to effect, carry out, and fulfill their said wicked and treasonable ends and purposes did, then and there, as a band of organized soldiers, attack, seize, and hold a certain part and place within the county and State aforesaid, and within the jurisdiction aforesaid, known and called by the name of Harper's Ferry, and then and there did forcibly capture, make prisoners of, and detain divers good and loyal citizens of said Commonwealth, to wit: Lewis W. Washington, John M. Allstadt, Archibald M. Kitzmiller, Benjamin J. Mills. John E. P. Dangerfield, Armstead Ball, John Donoho, and did then and there slay and murder, by shooting with firearms, called Sharpe's rifles, divers good and loyal citizens of said Commonwealth, to wit: Thomas Boerly, George W. Turner, Fontaine Beckham, together with Luke Quinn, a soldier of the United States, and Hayward Sheppard, a free negro, and did then and there, in manner aforesaid, wound divers other good and loyal citizens of said Commonwealth, and did then and there feloniously and traitorously establish and set up, without authority of the Legislature of the Commonwealth of Virginia, a Government, separate from, and hostile to, the existing Government of said Commonwealth; and did then and there hold and exercise divers offices under said usurped Government, to wit: the said John Brown as Commander-in-Chief of the military threes, the said Aaron C. Stephens, alias Aaron D. Stephens, as Captain; the said Edwin Coppie, as Lieutenant, and the said Shields Green and John Copland as soldiers; and did then and there require and compel obedience to said officers; and then there did hold and profess allegiance and fidelity to said usurped Government; and under color of the usurped authority aforesaid, did then and there resist forcibly and with warlike arms, the execution of the laws of the Commonwealth of Virginia, and with firearms did wound and maim divers other good and loyal citizens of said Commonwealth, to the Jurors unknown, when attempting, with lawful authority, to uphold and maintain said Constitution and laws of the Commonwealth of Virginia, and for the purpose, end, and aim of overthrowing and abolishing the Constitution and laws of said Commonwealth, and establishing in the place thereof, another and different government, and constitution and laws hostile thereto, did then and there feloniously and traitorously, and in military array Join in open battle and deadly warfare with the civil officers and soldiers in the lawful service of the said Commonwealth of Virginia. and did then and there show and discharge divers guns and pistols, charged with gunpowder and leaden bullets, against and upon divers parties of the militia and volunteers embodied and acting under the command of Colonel Robert W. Baylor, and of Colonel John Thomas Gibson, and other officers of said Commonwealth, with lawful authority to quell and subdue the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie. Shields Green, and John Copland, and other rebels and traitors assembled, organized, and acting with them, as aforesaid, to the evil example of all others in like case offending, and against the peace and dignity of the Commonwealth.
Second Count.--And the Jurors aforesaid, upon their oaths aforesaid, do further present that the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, severally, on the sixteenth, seventeenth, and eighteenth days of October, in the year of our Lord eighteen hundred and fifty-nine, in the said County of Jefferson, and Commonwealth of Virginia, and within the jurisdiction of this Court, not having the fear of God before their eyes, but moved and seduced by the false and malignant counsels of others, and the instigations of the devil, did each severally, maliciously, and feloniously conspire with each other, and with a certain John E. Cook, John Kagi, Charles Tidd, and others to the jurors unknown, to induce certain slaves, to wit:--Jim, Sam, Mason, and Catesby. . . . . . . . . the slaves, and property of Lewis W. Washington, and Henry, Levi, Ben, Jerry, Phil, George, and Bill, the slaves and property of John H. Allstadt, and other slaves to the Jurors unknown, to rebel and make insurrection against their masters and owners, and against the Government and the Constitution and laws of the Commonwealth of Virginia: and then and there did maliciously and feloniously advise said slaves, and other slaves to the Jurors unknown, to rebel and make insurrection against their masters and owners, and against the Government, the Constitution and laws of the Commonwealth of Virginia to the evil example of all others in like cases offending and against the peace and dignity of the Commonwealth.
Third Count.--And the Jurors aforesaid, upon their oaths aforesaid, further present that the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, severally, on the sixteenth, seventeenth, and eighteenth days of October, in the year of our Lord one thousand eight hundred and fifty-nine, in the county at Jefferson and the Commonwealth of Virginia aforesaid, and within the jurisdiction aforesaid, in and upon the bodies of Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, white persons, and Hayward Sheppard, a free negro, in the peace of the Commonwealth then and there being, feloniously, willfully, and of their malice aforethought, did make an assault, and with firearms called Sharpe's rifles, and other deadly weapons to the Jurors unknown, then and there, charged with gunpowder and leaden bullets, did then and there feloniously, willfully, and of their malice aforethought, shoot and discharge the same against the bodies severally and respectively of the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, and Hayward Sheppard; and that the said John Brown, Aaron C. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, with the leaden bullets aforesaid, out of the firearms called Sharpe's rifles, aforesaid, shot and discharged as aforesaid, and with the other deadly weapons to the jurors unknown, as aforesaid, then and there feloniously, willfully, and of their malice aforethought did strike, penetrate and wound the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, Hayward Sheppard, each severally; to wit: the said Thomas Boerly in and upon the left side; the said George W. Turner in and upon the left shoulder; the said Fontaine Beckham in and upon the right breast; the said Luke Quinn in and upon the abdomen, and the said Hayward Sheppard in and upon the back and side, giving to the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, Hayward Sheppard, then and there with the leaden bullets, so as aforesaid shot and discharged by them, severally and respectively out of the Sharpe's rifles aforesaid. and with the other deadly weapons to the Jurors unknown, as aforesaid, each one mortal wound, of which said mortal wounds they the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, and Hayward Sheppard each died; and so the Jurors aforesaid, upon their oaths aforesaid, do say that the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, then and there, them the said Thomas Boerly, George W. Turner, Fontaine Beckham, Luke Quinn, and Hayward Sheppard, in the manner aforesaid, and by the means aforesaid, feloniously, willfully, and of their, and each of their malice aforethought, did kill and murder, against the peace and dignity of the Commonwealth.
Fourth Count.--And the Jurors aforesaid, upon their oaths aforesaid, further present that the said John, Brown, Aaron C. Stephens, alias Aaron D. Stephens and Edwin Coppie and Shields Green, each severally on the seventeenth day of October, in the year of our Lord eighteen hundred and fifty-nine, in the County of Jefferson and Commonwealth of Virginia aforesaid, and within the jurisdiction of this Court, in and upon time bodies of certain Thomas Boerly, George W. Turner, and Fontaine Beckham, in the peace of the Commonwealth, then and there being feloniously, willfully, and of their malice aforethought, did make an assault, and with guns called Sharpe's rifles, then and there charged with gunpowder and leaden bullets, did then and there feloniously, willfully, and of their, and each of their malice aforethought, shoot and discharge the same against the bodies of the said Thomas Boerly, George W. Turner, and Fontaine Beckham and that the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, and Shields Green, with leaden bullets aforesaid, shot out of the Sharpe's rifles aforesaid, then and there, feloniously, willfully, and of their malice aforethought, did strike, penetrate, and wound the said Thomas Boerly, George W. Turner, and Fontaine Beckham, each severally, viz.: The said Thomas Boerly in and upon the left side; the said George W. Turner, in and upon the left shoulder and breast, and the said Fontaine Beckham in and upon the right breast, giving to the said Thomas Boerly, George W. Turner, and Fontaine Beckham, then and there, with leaden bullets aforesaid, shot by them severally out of Sharpe's rifles aforesaid, each one mortal wound, of which said mortal wounds they the said Thomas Boerly, George W. Turner, and Fontaine Beckham then and there died; and that the said John Copland, then and there, feloniously, willfully, and of his malice aforethought, was present, aiding, helping, abetting, comforting and assisting the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, and Shields Green in the felony and murder aforesaid, in manner aforesaid to commit. And so the Jurors aforesaid, upon their oaths, do say that the said John Brown, Aaron O. Stephens, alias Aaron D. Stephens, Edwin Coppie, Shields Green, and John Copland, then and there them, the said Thomas Boerly, George W. Turner, and Fontaine Beckham, in the manner aforesaid and by the means aforesaid, feloniously, willfully, and of their and each of their malice aforethought, did kill, and murder against the peace and dignity of the Commonwealth of Virginia.
Lewis W. Washington, John H. Allstadt, John E. P. Dangerfield, Alexander Kelly, Emanuel Spangler, Armstead M. Ball, Joseph A. Brua, William Johnson, Lewis P. Starry, Archibald H. Kitzmiller, were sworn in open Court this 26th day of October, 1859, to give evidence to the Grand Jury upon this bill of indictment.
Teste: Robert T. Brown, Clerk.
A true copy of said indictment.
Teste: Robert T. Brown,
Clerk of the Circuit Court of Jefferson County, in the State of Virginia. Which bill of indictment the Grand Jury returned this 26th day of October.
A true bill. Thomas Rutherford, Foreman.
October, 26, 1859.
The prisoners were brought into court, accompanied by a body of armed men. They passed through the streets, and entered the Court House without the slightest demonstration on the part of the people.
Brown looked something better, and his eye was not so much swollen. Stevens had to be supported, and reclined on a mattress on the floor of the court-room, evidently unable to sit. He has the appearance of a dying man, breathing with great difficulty.
Before the reading of the arraignment,
Mr. Hunter called the attention of the Court to the necessity of appointing additional counsel for the prisoners, stating that one of the counsel (Faulkner) appointed by the County Court, considering his duty in that capacity as having ended, had left. The prisoners, therefore, had no other counsel than Mr. Botts. If the Court was about to assign them other counsel, it might be proper to do so now.
The Court stated that it would assign them any members of the bar they might select.
After consulting Capt. Brown, Mr. Botts said that the prisoner retained him, and desired to have Mr. Green, his assistant, to assist him. If the Court would accede to that arrangement, it would be very agreeable to him personally.
The Court requested Mr. Green to act as counsel for the prisoner, and he consented to do so.
Capt. Brown then rose and said: I do not intend to detain the Court, but barely wish to say, as I have been promised a fair trial, that I am not now in circumstances that enable me to attend a trial, owing to the state of my health. I have a severe would in the back, or rather in one kidney, which enfeebles rue very much. But I am doing well, and I only ask for a very short delay of my trial, and I think I may get able to listen to it; and I merely ask this, that, as the saying is, "the devil may have his dues," no more. I wish to say, further, that my hearing is impaired, and rendered indistinct, in consequence of wounds I have about my head. I cannot hear distinctly at all; I could not hear what the Court has said this morning. I would be glad to hear what it said on my trial, and am now doing better than I could expect to be under the circumstances. A very short delay would be all I would ask. I do not presume to ask more than a very short delay, so that I may in some degree recover, and be able at least to listen to my trial, and hear what questions are asked of the citizens, and what their answers are. If that could be allowed me, I should be very much obliged.
Mr. Hunter said that the request was rather premature. The arraignment should be made, and this question could then be considered.
The Court ordered the indictment to be read, so that the prisoners could plead guilty or not guilty, and would then consider Mr. Brown's request.
The prisoners were compelled to stand during the arraignment, but it was with difficulty, Stevens being held upright by two bailiffs.
The reading of the indictment occupied about twenty minutes; each of the prisoners responded to the question, "Not Guilty," and desired to be tried separately.
Mr. Hunter--The State elects to try John Brown first.
Mr. Botts--I am instructed by Brown to say that he is mentally and physically unable to proceed with his trial at this time. He has heard to-day that counsel of his own choice will be here, whom he will, of course, prefer. He only asks for a delay of two or three days. It seems to me but a reasonable request, and I hope the Court will grant it.
Mr. Hunter said he did not think it the duty of the prosecutor for the Commonwealth or for one occupying the position, to oppose anything that justice required, nor to object to anything that involved a simple consideration of humanity, where it could be properly allowed; yet, in regard to this proposition to delay the trial of John Brown two or three days, they deemed it their duty that the Court, before determining matters, should be put in possession of facts and circumstances, judicially, that they were aware of in the line of their duties as prosecutors. His own opinion was, that it was not proper to delay the trial of this prisoner a single day, and that there was no necessity for it. He alluded in general terms to the condition of things that surrounded them. They were such as to render it dangerous to delay, to say nothing of their exceeding pressure upon the physical resources of the community, growing out of circumstances connected with affairs for which the prisoners were to be tried. He said our laws in making provisions for allowing, in the discretion of the Court, briefer time than usual in cases of conviction, for such offenders, between the condemnation and execution, evidently indicates, indirectly, the necessity of acting promptly and decisively, though always justly, in proceedings of this kind. In reference to Brown's physical condition, he asked the Court not to receive the unimportant statements of the prisoner as sufficient ground for delay, but that the Jailer and physician be examined. As to expecting counsel from abroad, he said that no impediment had been thrown in the way of the prisoners' procuring such counsel as they desired. but, on the contrary, every facility had been afforded, able and intelligent counsel had been assigned them here, and he apprehended that there was little redskin to expect the attendance of those gentlemen from the North who had been written for. There was also a public duty resting upon them to avoid, as far as possible, within the forms of law, and with reference to the great and never-to-be-lost-sight-of giving a fair and impartial trial to the prisoners, the introduction of anything likely to weaken our present position. and give strength to our enemies abroad, whether it issues from the Jury in time, or whether it comes from the months of the prisoners or any other source. It was their position that had been imperiled and jeopardized, as they supposed by enemies.
Mr. Harding concurred in the objection of Mr. Hunter, on the ground of danger in delay, and also because Brown was the leader of the insurrection, and his trial ought to be proceeded with on account of the advantage thereby accruing to the trial of the others.
Mr. Green remarked that he had had no opportunity of consulting with the prisoner, or preparing a defense. The letters for Northern counsel had been sent off, but not sufficient time has been afforded to receive answers. Under the circumstances, he thought a short delay desirable.
Mr. Botts added that at present the excitement was so great as perhaps to deter Northern counsel from coming out; but now that it had been promised that the prisoners should have a fair and impartial trial, he presumed that they would come and take part in the case.
The Court stated that if physical inability were shown, a reasonable delay must be granted. As to the expectation of other counsel, that did not constitute a sufficient cause for delay, as there was no certainty about their coming. Under the circumstances in which the prisoners were situated, it was rational that they should seek delay. The brief period remaining before the close of the term of the Court, rendered it necessary to proceed as expeditiously as practicable, and to be cautious about granting delays. He would request the physician who had attended Brown to testify to as his condition.
Dr. Mason thought Brown was able to go on understandingly with the trial. He did not think his wounds were such as to affect his mind of recollection. He had always conversed freely and intelligibly about this affair. He had heard him complain of debility, but not of hardness of hearing.
Mr. Cockerel, one of the guards of the jail, said that Brown had always been ready to converse freely.
The Court refused to postpone the trial and the whole afternoon was occupied in obtaining a jury for the trial of Brown, who was brought into court on a cot.
Afternoon Session, 2 o'clock.
The jailer was ordered to bring Brown into court. He found him in bed, from which he declared himself unable to rise. He was accordingly brought into court on a cot, which was set down within the bar. The prisoner laid most of the time with his eyes closed, and the counterpane drawn up close to his chin. The jury were then called and sworn. The jurors were questioned as to having formed or expressed any opinion that would prevent their deciding the case impartially on the merits of the testimony. The Court excluded those who were present at Harper's Ferry during the insurrection and saw the prisoners perpetrating the act for which they are about to be tried. They were all from distant parts of the country, mostly farmers--some of them owning a few slaves, and others none. The examination was continued until 24 were decided by the Court and counsel to be competent jurors. Out of these 24, the counsel for the prisoner had a right to strike off eight, and then twelve are drawn by ballot out of the remaining sixteen. The following were the questions put to the jurors:
Were you at Harper's Ferry on Monday or Tuesday?
How long did you remain there?
Did you witness any of the proceedings for which this party is to be tried?
Did you form or express any opinion from what you saw there with regard to the guilt of innocence of these people?
Would that opinion disqualify you from giving these men a fair trial?
Did you hear any of the evidence in this case before the Examining Court?
What was your opinion based on?
Was it a decided one, or was it one which worm yield to evidence, if the evidence was different from what you supposed?
Are you sure that yon can try this case impartially from the evidence alone, without reference to anything yon have heard or seen of this transaction?
Have you any conscientious scruples against convicting a party of an offense to which the law assigns the punishment of death, merely because that is the penalty assigned?
The following were finally fixed upon as the twelve Jurors.
Richard Timberlake,
Joseph Myers,
Thomas Watson, jr,
Isaac Dust,
John C. McClure,
William Rightsdale,
Jacob J. Miller,
Thomas Osborne,
George W. Boyer,
John C. Wiltshire
George W. Tapp,
William A. Martin,
The jury were not sworn on the case, but the Judge charged them not to converse upon the cage or to permit others to converse with them. They were dismissed at five o'clock, and the prisoner was then carried over to the jail on his cot, and the Court adjourned till morning.
SECOND DAY.
Thursday, Oct. 27, .
Brown was brought in walking, and laid down on his cot at full length within the bar. He looked considerably better, the swelling having left his eyes.
Senator Mason was present.
Messrs. Harding and Hunter again appeared for the Commonwealth, and Messrs. Botts and Green for the prisoner.
Mr. Botts read the following dispatch, which was received this morning:
"Akron, Ohio, Thursday, Oct. 26, 1851.
"To C. J. Faulkner, and Lawson Botts:
"John Brown, leader of the insurrection at Harper's Ferry, and several of his family have resided in this county many years. Insanity is hereditary in that family. His mother's sister died with it, and a daughter of that sister has been two years in a Lunatic Asylum. A son and daughter of his mother's brother have also been confined in the lunatic asylum, and another son of that brother is now insane and under close restraint These facts can be conclusively proven by witnesses residing here, who wilt doubtless attend the trial if desired.
"A. H. Lewis."
William C. Allen, telegraphic operator at the Akron office, adds to the above dispatch that A. H. Lewis is a resident of that place, and his statements are entitled to implicit credit.
Mr. Botts said that on receiving the above dispatch he went to the jail with his associate, Mr. Green, and read it to Brown, and is desired by the latter to say that in his father's family there has never been any insanity at all. On his mother's side there have been repeated instances of it. He adds that his first wife showed symptoms of it, which were also evident in his first and second sons by that wife. Some portions of the statements in the dispatch he knows to be correct, and of other portions he is ignorant. He does not know whether his mother's sister died in the lunatic asylum, but he does believe that a daughter of that sister has been two years in the asylum. He also believes that s son and daughter of his mother's brother have been confined in an asylum; but be is not apprised of the fact that another son of that brother is now insane and in close confine meat. Drown also desires his counsel to say that he does not put in the plea of insanity, and if he has been at all insane he is totally unconscious of it, yet he adds that those who are most insane generally suppose that they have more reason and sanity than those around them. For himself he disdains to put in that plea, and seeks no immunity of the kind. This movement is made totally without his approbation or concurrence, and was unknown to him, till the receipt of the dispatch above.
Brown then raised himself up?n bed, and said: "I will add, if the Court will allow me, that I look upon it as a miserable artifice and pretext of those who ought to take different course in regard to me, if they took any at all, and I view it with contempt more than otherwise. As I remarked to Mr. Green, insane persons, so far as my experience goes, have but little ability to judge of their own sanity; and, if I am insane, of course I should think I know more than all the rest of the world. But I do not think so. I am perfectly unconscious of insanity, and I reject, so far as I am capable, any attempt to interfere in my behalf on that score."
Mr. Botts stated that he was further instructed by Mr. Brown to say that, rejecting this plea entirely, and seeking no delay for that reason, he does repeat to the Court his request made yesterday, that time be given for the foreign counsel to arrive that he has now reason to expect.
Yesterday afternoon a dispatch was received from Cleveland, Ohio, signed "Dan. Tilden," dated October 26, asking Brown whether it would be of use for counsel to leave last night. To this dispatch answer was returned that the Jury would be sworn this morning, and that Brown desired the counsel to come at once.
The telegraphic operator here stated that this dispatch would be sent off at once, in advance of the dispatches sent by reporters, and he had learned this morning that it was sent before the storm of last night interrupted communication, and that counsel might reach here by 12 or 1 o'clock to-night
The course taken by Brown this morning makes it evident that he sought no postponement for the mere purpose of delay, as he rejects the plea of insanity. Still, in his opinion he could have a fairer trial if the defense were conducted by his own counsel than if he were defended by the counsel at present here.
Mr. Hunter observed that the prisoner's counsel having renewed the motion of yesterday for delay for a specific period, indicated and based upon information received in the form of a telegram, the question now was whether there wan sufficient grounds in this additional information to change the decision announced by the Court yesterday on the same motion. If the Court did not at once deem this circumstance wholly insufficient, before the decision was made the counsel for the Commonwealth deemed it his duty to call attention to two or three matters connected with the affair. Though desirous to avoid forestalling the trial of this case, in regard to the present prisoner at the bar, they were prepared to prove that he had made open, repeated and constant acknowledgment of everything charged against him. He had gloried in it, and we have but an exhibition of the same spirit and the same purpose in his announcement that he would permit no defense of insanity to be put in. What does he mean by wishing delay for the purpose of having a fair trial? In a proper sense, and in the only sense in which it can be regarded by the Court, it is a fair trial according to the laws of Virginia, and the safeguards against wronging the prisoner which these laws throw around him. If the prisoner's idea of a fair trial is to have it so shaped as to produce a fairness in his conception, outside of what the laws recognize, it becomes the duty of the counsel for the Commonwealth, and, as he apprehended, of the Court, to resist any attempt of that kind. Considering the surrounding circumstances, to which it was unnecessary to particularly advert, there could be no right to claim delay, except so far as the prisoner could show in a reliable form that such delay was necessary to do justice in his particular case, according to the laws and policy of the State of Virginia. In regard to the telegram read, we know not who this Mr. Lewis is. We know not whether he is to come here as counsel for the prisoner, or whether he wants to head a band of desperadoes. We have a right to believe the latter as well as the former. There had been time enough since the letter for northern counsel was mailed last Saturday, for it to reach him, and for him to arrive here ere this, if he had designed coming. It was fairly inferable that he did not intend to come, and the telegram did not say he would come. But might it not be an attempt to gain time and learn the latest day when a rescue could be attempted? While commending the earnestness and zeal of the prisoner's counsel, he must ask the Court to reject the motion, and proceed with the trial at once.
Mr. Harding would be reluctant to withhold from a prisoner charged with a crime of the greatest enormity, as in the present case, anything calculated to afford him the amplest opportunity of justice; but he had able and intelligent counsel assigned him, who would that he was fairly and impartially tried, and he therefore fully concurred with the remarks of his colleague in opposing the motion. He referred also to the fact that Brown pretended yesterday afternoon that he was unable to walk, and was brought into Court on a bed, yet he walked back to jail after the close of the trial without difficulty. He thought those were mere pretences for delay, which the Court should overrule.
Mr. Green remarked that one day's delay would be sufficient to ascertain whether the expected counsel would come or not, and no prejudice could result to the Commonwealth from a small delay of that character. In reference to the new matter brought to the consideration of the Court, he did not believe the prisoner had made any acknowledgment upon which he could be convicted. All the acknowledgments, so far as he knew their character, referred to the treason, and those confessions, according to our law, are insufficient to convict a party who may have acknowledged the fact in the plainest manner to one hundred witnesses--for if that is all the evidence upon which the Commonwealth relies, the prisoner cannot be convicted, because our code provides that such confession shall he made in open court, and the prisoner has denied in open court, by putting in s plea of not guilty. As to sufficient time having elapsed for counsel to reach here, it was a reasonable supposition that the persons to whom Brown wrote were absent, and did not immediately receive the letter. The Commonwealth attorney does not know who Lewis is, but he is an ex-member of Congress, and said to be a man of respectability. As to what is called Brown's sham sickness of yesterday, it should be remembered that it was not then, nor is it now, made the ground of application for delay. He did not think this trim should be hurried through, for the reason that a rescue might be apprehended, for such fears were idle.
The Court stated that he must see, in this case as any other, that a proper cause for a delay was made out before granting such an application. In the present case he could not see that the telegram gave any assurance that the additional counsel intended to come. The prisoner is now defended by counsel, who will take care that no improper evidence is adduced against him, and that all proper evidence in his behalf shall be presented. He could not see that a proper cause for delay was made out. The expected counsel might arrive before the case was closed, and could then see all the testimony which had been taken, and thus the prisoner might have the benefit of their advice although the case now proceeds. As to the matter of insanity, it was not presented in a reliable form; instead of mere statements, we should have affidavits, or something of that character. He thought, therefore, that the Jury should be sworn and the trim proceed.
The Jury having been sworn to fairly and impartially try the prisoner, the COURT directed that the prisoner might forego the form of standing while arraigned, if he desired it.
Mr. Botts put the inquiry to the prisoner, and he continued to lie prostrate on his cot while the long indictment, filling seven pages, was read.
First: Insurrection.
Second: Treason.
Third: Murder.
Mr. Harding addressed the Jury. He presented the facts of the case, detailing the scenes of the Armory, the killing of the bridge-keeper, and the subsequent killing of the citizens named in the indictment;the seizure of Lewis Washington and Mr. Allstadt, with their slaves; the forming of a government within the limits of the Commonwealth: the holding of the citizens as prisoners of war, and the subsequent capture. He read the law on treason, levying war against the State, giving comfort to its enemies, or establishing any other government its limits, punishable with death; the law against advising with a slave, punishable with death; and the law on the murder of citizens, punishable with death. All these charges would be distinctly proven, beyond a possibility of a doubt on the minds of the Jury. He would show that the prisoners' whole object was to rob our citizens of their slaves, and carry them off by violence, and he was happy to say against the wills of the slaves, all of them having escaped, and rushed back to their masters at the first opportunity. He concluded by urging the Jury to cast aside all prejudices, and give the prisoners a fair and impartial trial; and not to allow their hatred of Abolitionists to influence them against those who have raised the black flag on the soil of the Commonwealth.
Mr. Green, on the part of the prisoner, after giving the law applicable to the case, said that the Jury must bear in mind that they are judges of the law and the facts, and that if they have any doubt as to law, or the fact of the guilt of this prisoner, they are to give the prisoner the benefit of that doubt. On the first charge of treason, as a specific act of treason must be proven, it must be proven that he attempted to establish a separate and distinct government, and it must also be proven what was purposed of treasonable acts before you can convict him on those charges. If it is intended to rely on his confessions to prove treason, the law distinctly says, "No conviction can be made on confessions, unless made in open Court." There must be sufficient evidence to prove the charge, independent of any confessions out of the Court, and it requires two distinct witnesses to prove each and every act of treason.
Second: Conspiring with slaves to rebel and make insurrection. The Jury must be satisfied that such conspiracy was done within the State of Virginia, and within the jurisdiction of this Court. If it was done in Maryland, this Court could not punish the act. If it was done within the limits of the Armory at Harper's Ferry, it was not done within the limits of this State, the Government of the United States holding exclusive jurisdiction within the said grounds. Attorney-General Cushing had decided this point with regard to the Armory grounds at Harper's Ferry, which opinion was read to the Jury, showing that persons residing within the limits of the Armory cannot even be taxed by Virginia, and that crimes committed within the said limits are punishable by the Federal Courts. Although the Jury may doubt about the law on this subject, they must give the prisoners the benefit of that doubt upon the trial. Over murder, if committed within the limits of the Armory, this Court has no jurisdiction, and in the case of Mr. Beckham, if he was killed on the railroad bridge, it was committed within the State of Maryland, which State claims jurisdiction up to the Armory grounds. Although he may be guilty of murder, it must be proven that it was deliberate and premeditated murder to make it a capital offense; if otherwise, the killing was murder in the second degree, punishable with imprisonment. If you have any doubt on these points you must give that doubt to the prisoners. He was satisfied the Jury will not allow any outside excitement to affect them, and that they will do their duty faithfully and impartially.
Mr. Botts impressively addressed the Jury. The case was an unusual one, and the crime charged in many respects unknown. The Jury trial called for a calm, unimpassioned deliberation, and not the seizure upon loose statements for a conviction. The Jury must be above all prejudices and influences, and deliberate calmly, and free of all resentment, bearing in mind that the mission of the law is not to wreak vengeance, and that the majesty of the law is best maintained when Judges, Counsel and Jury rise above these influences. The burden of proof is on the Commonwealth, and if she fails to substantiate her charges, you are bound to do your duty impartially, and find your verdict on the law and testimony that the Commonwealth may be able to present to you. He then proceeded to go over the same grounds taken by Mr. Green on each of the three points of the indictment--treason, insurrection and murder. It is no difference how much a Jury may be convinced in their own minds of the guilt of the prisoner, it is essential that they must have proof of positive guilt, in a case like this, involving both life and liberty.
Mr. Botts, in reviewing the law bearing on the case, evinced a determination to avail himself of every advantage that the law allows, and to do his duty to the prisoner earnestly and faithfully. It was due to the prisoner to state that he believed himself to be actuated by the highest and noblest feelings that ever coursed through a human breast, and that his instructions were to destroy neither property nor life. They would prove by those gentlemen who were prisoners that they were treated with respect, and that they were kept in positions of safety, and that no violence was offered to them. These facts must be taken into consideration, and have their due weight with the Jury.
Mr. Hunter followed stating his purpose to avoid anything by way of argument or explanation not immediately connected with the particular issue to be tried, and to march straight forward to the attainment, so far as may be in our power, of the ends of justice, by either convicting or acquitting the prisoner at the bar. With a single preliminary remark explanatory of his position here as assistant, a position which had been assigned to him by the Governor of the Commonwealth, as well as his honor the Judge, he passed at once to a review of what was the law in reference to the case, and what he expected to be able to prove to the satisfaction of the Jury. First, as to high treason, this was probably the first case of high treason, or treason against the State, that ever had been tried here by our State Courts, and he fervently hoped that it would be the last that would ever occur; and probably in some degree not only upon our decision, but upon our prompt decision of this case, will that result depend. He thought his friends on the other side were totally mistaken in their view that the law as it now stands on our statute books in reference to overt acts was, either in language, or substantially, that contained in the Constitution of the United States. On the contrary, the phraseology had been varied from that of the Constitution and, as he conceived, for a plain and palpable purpose.
All fire powers vested in the Federal Government were given with great jealousy. This was a historical fact, perfectly familiar, and consequently, wrote treason against the United States consisted only in levying war against them or adhering to their enemies and giving them aid and comfort, there is no provision that no person shall be convicted of treason unless upon the testimony of two witnesses of some overt act or confession in open Court. Yet the State law is more full, and includes within its definition of treason the establishing, without the authority of the Legislature, any Government within its limits, separate from the existing Government, or the holding or executing, under such Government, of any office; professing allegiance or fidelity to it, or resisting the execution of law, under the color of its authority; and it goes on to declare that such treason, if proved by the testimony of two witnesses to the same overt act, or by confession in Court, shall be punished with death. Any one of these acts constitutes treason against this Commonwealth, and he believed that the prisoner had been guilty of each and all these acts, which would be proven in the clearest manner, not by two, but by a dozen witnesses, unless limited by the lack of time. The prisoner had attempted to break down the existing Government of the Commonwealth, and establish on its ruins anew Government: he had usurped the office of Commander-in-Chief of this new government, and, together with his whole band, professed allegiance and fidelity to it; be represented not only the civil authorities of state, but our own military; he is doubly, trebly and quadruply guilty of treason. Mr. Hunter proceeded again to the question of jurisdiction over the Armory grounds, and examined the authority cited on the other side, of Attorney-General Cushing; the latter was an able man, but he came from a region of country, where opinions are very different from ours in relation to the power of the Federal Government as affecting State rights. Our Courts are decidedly adverse to Mr. Cushing's views. In all time past, the jurisdiction of this County of Jefferson in criminal offences committed at Harper's Ferry, has been uninterrupted and unchallenged whether they were committed on the Government property or not. He cited an instance, twenty-nine years ago, where an atrocious murder was committed between the very shops in front of which these men fought their battles, and the criminal was tried here, convicted, and executed under our laws. There was a broad difference between the cession of jurisdiction by Virginia to the Federal Government and mere assent of the State that the Federal Government should become a land-holder within its limits. The law of Virginia, by virtue of which the grounds at Harper's Ferry were purchased by the Federal Government, ceded no jurisdiction. Brown was also guilty, on his own notorious confession, in advising conspiracy. In regard to the charge of murder, the proof will be that this man was not only actually engaged i n murdering our citizens, but that he was the chief director of the whole movement. No matter whether he was present on the spot or a mile off, he is equally guilty. In conclusion, Mr. Hunter said that he hoped the case would be considered with fairness and impartiality, and without fear, favor or affection; and he only asked that the penalty might be visited on the prisoner which law denounces, which reason denounces, which our safety requires, and which the laws of God and man approve.
The afternoon session assembled at 3 1/2 o'clock.
WITNESSES CALLED.
Dr. Starry, on Sunday, night, heard a shot fired at the Ferry; heard a cry, looked out and saw two men passing from toward the Armory gate, and a tall man came from the Armory gate, and two men from the cars hallooed, "There he goes now!" the man stopped, raising his rifle; they followed him to the Armory gate, and exchanged shots with him; Conductor Phelps was one of those men; afterward found the black man Hayward dying in the railroad office; he said he was commanded to stop by the men on the bridge, and refusing, they fired upon him; saw several men patrolling during the night, and go into the bridge; did not know what to make of it, and went to inquire of the Armory watchman what is meant; met a man who levelled his rifle at him; asked him where the watchman was, and was answered that he was not there, but that there were "a few of us here;" afterward, in the morning, saw a wagon with three armed men following it; then went to Mr. Kitzmiller and Mr. Ball, and told them that an armed body of men had possession of the Armory, and not to go near it; also gave information to the other persons employed in the Armory; saw also three of them at Hall's works, did not see more than thirty; recognized them by a peculiar hat they wore; rode to Charlestown to give the alarm and get assistance; returned about 11 o'clock, and resisted in bearing orders and in guiding the armed forces to the heat place of attack; did not see or recognize Brown there at all.
Cross-examined by Mr. Green--As I rode post the Armory, armed men were at the gate; they did not attempt to stop me; I was determined not to be stopped.
Conductor Phelps, sworn--On Sunday night, the 15th, my train arrived at 1.25, bound east; saw no watchman at the bridge; thought it strange, as his business waste be there; was talking to the engineer, and was in the act of starting ahead, when the watchman came up to me, much excited, to state that he had been attacked in the bridge by men carrying rifles; Mr. Horsey was there with my light before starting the train; the baggage-master and a passenger accompanied him, and when they entered the bridge some one said, "stand and deliver;" had previously told the engineer to follow him slowly, but immediately saw the muzzles of four rifles resting on a railing, and pointed at us; told the engineer to "back"--something was wrong on the bridge--which he did; as I got on the tresseling, I heard the report of a gun, and Hayward, the colored man, came running to me, and said, "Captain, I am shot;" the ball had entered the back, and came oat under the left nipple; carried him to the railroad office, and started for the doctor, and saw one man come out of the bridge, and go toward the Armory gate; remarked, "There he goes now," and Throgmorton, clerk at the Wager House, fired at him; the shot was returned by two men at the Armory gate; I was close behind Throgmorton, who exchanged several shots with them; this was ten minutes after Hayward was shot; heard the men loading their rifles again; the reports were very loud, and I wondered why the people were not aroused; walked back to the railroad office, and one of the party on the bridge came out; he said, "You can come over the bridge with your train;" replied, "I would rather not, after these proceedings," and asked, "What do you want?" he replied, "We want liberty, and we intend to have it;" I then asked, "What do you mean?" he replied, "You will find out in a day or two;" I then felt alarmed for the safety of myself and passengers, and concluded to wait till daylight; men were passing back and forward from the bridge to the gate of the Armory; each appeared to be in blankets; the passengers were much excited, and wanted to know what it meant; went to the back of the train, and saw from twenty to thirty men about the engine-house; at about 4 o'clock saw a wagon driven in the yard, and nearly a dozen men jumped out of it, also a carriage, but did not see any one get out of it; saw men go backward and forward, who seemed to be putting something in the wagon; they were also going up and down the street leading from the Armory, and all seemed busy at something; this continued until nearly daylight, when the wagon left the yard and passed over the bridge to the Maryland side; about 3 o'clock, before the wagon left, an old gentleman came to me and said, "The parties who have arrested me allowed me to come out on condition that I would tell you that you might cross the bridge with your train;" afterward learned that this was Mr. Koise, a citizen of the town; replied that "I would not cross the bridge until daylight, that I might see whether it was safe;" afterward saw a man coming down Shenandoah street, with a lantern, and an armed man arrested him; afterward saw a short, stout negro walking with a staff with one of these men; could not see what was in the wagon; afterward a black boy brought a note to the clerk of the Wager House, ordering breakfast for forty-seven men; determined to go out and ascertain what it meant; met a man whom he now recognized as Coppie, and asked what they meant; he replied, "We don't want to injure you or detain your train; you could have gone at 3 o'clock; all we want is to free the negroes;" then asked if his train could now start, and went to the guard of the gate, who said, "There is Capt. Smith--he can tell you what you want to know;" went to the engine-house, and the guard called Capt. Smith, that somebody wanted to see him; the prisoner at the bar came out, and I asked him if he was captain of these --; he replied he was; asked him if I could cross the bridge, and he peremptorily responded, "No, Sir;" then asked him what he meant by stopping my train; he replied, "Are you the conductor on that train?" told him I was, and he said, "Why, I sent you word at 3 o'clock that you could pass;" told him that, after being stopped by armed men on the bridge, I would not pass with my train; he replied, "My head for it, you will not be hurt," said he was very sorry, it was not his intention that any blood should be spilled; that it was bad management on the part of the men in charge of the bridge; I then asked him what security I would have that my train would pass safely, and asked him if he would walk over the bridge ahead of my train with me? he called a large, stout man to accompany him, and one of my passengers, Mr. McByrne, asked to accompany me, but Brown ordered him to get into the train, or be would take them all prisoners in five minutes; Brown accompanied me; both had rifles; as we crossed the bridge, the three armed men were still in their places; when we got across, Brown said to me, "You doubtless wonder that a man of my age should be here with a band of armed men, but if you knew my past history you would not wonder at it as much; my train was then through the bridge, and I bid him good morning, j umped of my train, and left him; witness returned to Harper's Ferry on Tuesday, and went in with Governor Wise and others to see Brown, who was a prisoner; beard his conversation with Wise and Hunter; Mr. Wise said he "was sorry to see a man of his age in that position;" Brown replied that he "asked no sympathy, and bad no apologies to make;" he knew exactly what he was about; the Governor asked him if he did not think he was doing wrong in running off with other people's property; Brown said, "No, he didn't;" he stated that he never had but twenty-two men of his party, but expected large reinforcements from Maryland, Virginia, North and South Carolina, and, I think, some of the New England States, and New York. He said that arms were sent to them from Massachusetts; think he spoke of Sharpe's rifles, revolvers, and spears; said he could arm from 1,500 to 2,000 men, said he had Harper's Ferry in his eye as the place for his operations; that he had rented a farm four miles off, from Dr. Kennedy, and had paid the rent up to March, and that all his arms were sent to him there from Chambersburg, Pa.; said those who brought the arms there did not know what they were, as he had taken the precaution to place them in double boxes; they were addressed to J. Smith & Sons. Brown told Gov. Wise that he had books in his trunk that would explain to him his whole proceedings, and what the purpose of his business was; Col. Lee said he had one, and handed it to Gov. Wise; Brown asked him to read two of its first preambles and four of the last sections, which he did, and Brown said that was a correct copy; in reply to a question of Gov. Wise, he said he was Commander-in-Chief of the forces under the Provisional Government, and that he then held that position; he said the constitution was adopted in a place called Chatham, in Canada; Brown said there was a Secretary of War, Secretary of State, Judge of the Supreme Court, and all the officers for s General Government; he said there was a House of Representatives, and that there was an intelligent colored man elected as one of the members of the House [sensation]; Gov. Wise asked Brown if he had taken the oath of allegiance provided for in the 48th article; he replied be had; asked if all the white men of his band had taken the oath; he replied that they had: he said that there were appointed and commissioned officers; that Stephens, Leeman, and one of Brown's sons were captains, and Coppie was a lieutenant; he said something about a battle in Kansas, and leaving one of his sons shot; I think he said Cook held a captain's commission; Gov. Wise asked Brown if he thought he had been betrayed to the Secretary of War; said he thought he had been betrayed, but had practised the ruse to prevent suspicion; the Governor asked him what that ruse was, but he refused to answer; said he knew exactly the position he had placed himself in, and if his life was forfeited he was prepared to suffer.
Mr. Green, counsel for the prisoner, interrupted the witness, and said to the Court that he had just received a dispatch from Cleveland, announcing that counsel was coming, and would almost certainly be here to-night. As this was a very important witness, and as it was late in the evening, he would ask the Court to adjourn until morning, in order that counsel might have an opportunity to cross-question the witness. He did not intend to conduct the case longer than the arrival of counsel selected by the prisoner. As only scraps of a conversation of two hours with Gov. Wise had been picked out and given to the Jury, he desired that the witness should be questioned as to the other parts of the conversation.
Mr. Hunter replied that there were several other witnesses to be called of the same character, to whom such questions could be put by new counsel to-morrow. If the cases were not pushed on, the whole balance of the term would not be sufficient to try these men. He thought there was no reason for delay, especially as it was uncertain whether the counsel could get here before to-morrow.
The Court decided that the witness should proceed.
Cross-examination by Mr. Green--In conversation, Brown said it was not his intention to harm anybody or anything; was sorry men had been killed; it was not by his orders or with his approbation, and would not occur again, provided the people were peaceable and quiet; when Brown spoke of taking them all prisoners if they did not get into the cars, he appeared to want the train to go on as soon as possible; it was advice more than in the form of a threat; did not recognize Brown till I talked with him in the Armory yard; don't think Brown was with the party the bridge or in the wagon, for if he had been I think I would have recognized him from his peculiar beard.
By Mr. Hunter--When Brown was parleying with us at the bridge, the three armed men remained on the bridge; saw what seemed to be a man dressed in woman's clothing nasa, followed by a boy with a box or bundle.
Col. Lewis W. Washington sworn--[He detailed the circumstances as previously stated.]
Cross-examined by Mr. Green--Cannot say whether the marines fired after they broke into the engine-house; the noise was great, and several shouted from the inside that some one had surrendered the prisoners; we were kept in the rear engine-house, and allowed to keep a safe position, so that there was no effort to endanger us; Brown's conduct was not rude or insulting toward us.
By Mr. Hunter--was present at the conversation with Gov. Wise on Tuesday; Gov. Wise asked Brown if he had not selected Harper's Ferry as a border place between Maryland and Virginia for the establishment of his Provisional Government, and he answered "Certainly;" he avowed that his object was to free the Southern slaves, and said that his party consisted of twenty-two men, nineteen of whom came over with him; he said be had 200 Sharpe's rifles, 200 revolvers, and witness does not remember how many spears; Brown said he had enough to arm about 1,500 men; the Governor asked if he expected that number; he said no doubt that number, and five thousand if he wonted them; he detailed the conversation respecting the Provisional Government substantially as the last witness.
By Mr. Botts--At the time of the attack on the engine-house, the prisoners remained in the rear at the suggestion of Brown and his party; heard Brown direct his party not to fire on any unarmed man; he gave that order more than once.
By Mr. Hunter--Cook said Brown had been studying this subject twenty or thirty years. Had reconnoitered Harper's Ferry repeatedly.
By Mr. Botts--The prisoners were allowed to go out, and assure their families of their safety; some went out several times; told his men not to return from his dwelling-house; there were numerous shots toward the tank where Beckham was killed; Brown assured witness that he should be treated well, and his property should not be destroyed.
By Mr. Hunter--while a prisoner in the engine-house, overheard a conversation between Stephens and another party, not known to witness, about slave-holding. Stephens asked the man if he was in favor of slavery? He said "Yes, although not a slaveholder." Stephens said, "You are the first man I would hang."
By Mr. Harding--one of the three negroes taken with the witnesses was kept in the Armory yard; another escaped, and went home; saw no conversation in particular between the party and the negroes who were taken there; all the negroes were armed with spears while in the Armory yard; they walked about the Armory grounds, and one came and warmed himself; no negro from this neighborhood appeared to take up arms voluntarily; saw no wounded men dragged into the engine-house.
At 7 o'clock the Court adjourned till morning.
THIRD DAY.
Oct. 28, 1859.
Capt. Cook arrived here at 1 o'clock this morning. He says that if Brown had taken his advice in relation to mounting, a thousand men could not have taken them. There is great rejoicing at his arrest. He says that Fred Douglass acted the coward, having promised to be there in person.
George H. Hoyt, of Boston, counsel for Brown, arrived tins morning. He is quite a youth.
The Court met at 11 o'clock. Brown was led from the jail, walking very feebly. He lay down upon his cot.
Senator Mason entered the Court with Mr. Hoyt, the Boston counsel of Brown; he remarked that the testimony of Col. Washington and Mr. Phelps yesterday was strictly truthful.
The Jury were called, and answered to their names
Mr. Botts announced the arrival of Mr. Hoyt, who had come here to assist the counsel for the prisoner. At present, however, he did not feel disposed to take part in the case Whenever he should feel disposed, he would do so.
Mr. Hunter suggested that he had better be qualified as a member of the bar by producing proof from the Boston bar.
Mr. Hoyt had not brought his credentials of admission.
The Court said that that was not required in order to be strictly legal; to that fact any citizen's evidence would answer.
Mr. Green said his partner had read letters from fellow-students or Mr. Hoyt, alluding to him as a member of the bar.
Mr. Hoyt then took the customary oath.
TESTIMONY RENEWED.
By Mr. Botts--Conductor Phelps recalled--The question put to him was prepared by Brown. The firing was commenced by those men on the bridge who shot Hayward; the next firing was by Throgmorton; does not know whether the firing at Hayward was intentional; there was no attack on Brown's men until after Hayward was shot; he was shot by armed men in the Winchester span of the bridge.
By Mr. Botts--Col. Lewis W. Washington recalled--Negotiations were opening with Brown for the release of prisoners before the general firing commenced on Monday; does not know whether all the prisoners signed the proposition for a suspension of firing; in the opening negotiations, Brown frequently suggested that the prisoners should cross the bridge with him to the second canal, and the lock was not to be fired upon until they reached that point; none of the prisoners made any objection to the proposition; Brown said he was too old a soldier to yield the advantage he possessed in holding hostages; during the day Brown's son was wounded in the breast, the ball passing around to the side, but he took his weapon again, and fired frequently before his sufferings compelled him to retire; heard Capt. Brown frequently complain of bad faith of people on a flag of truce; heard him make no threat, nor utter any vindictiveness against the people; Mr. Brewer went out and brought in a promise that the people would not fire while negotiations were pending; cannot say that all the firing of Capt. Brown or his men was in self-defense; heard Brown give frequent orders not to fire on unarmed citizens; the first firing was against the engine-house; Brown said the people appeared to pay but little regard to the lives of the citizens, and we must take the chances with them; after the first attack on the engine-house by the marines, there was not a general cry of "surrender;" one cried surrender, but the others fought on; Brown had a rifle in his hand when he was struck clown by the marines, and received a cut over the head with a sword of Lieutenant Green.
Mr. Hunter laid before the jury the printed Constitution and ordinance of the Provisional Government, reading the two first clauses of the preamble, the 7th, 45th, and 48th articles, and briefly summing up other portions of the Constitution. Sheriff Camp bell knows the handwriting of the prisoner; has copied a letter for him.
Brown said he would himself identify any of his handwriting, and rave all that trouble. He was ready to face the music.
Mr. Hunter would prefer proving them by Mr. Campbell.
Brown--Either way, as you please.
A large bundle of letters was produced. Each was identified by Campbell and handed to Brown, who, at the first glance, replied to each in a loud voice, "Yes, that is mine." The papers and letters were about fifty in number.
On receiving a list of members of the Convention, Mr. Hunter read it. It is headed, William Charles Morris, President of the Convention; and H. Kagi, Secretary of the Convention. On handing the list to Brown, he exclaimed, with a groan, "That's my signature.?"
In reference to another paper, he said, "I have nothing to say about that."
Mr. Hunter read a letter from J. R. Giddings, acknowledging the receipt of a letter from Brown, and that he would be pleased to see him at his house during the summer.
Mr. Hunter then read the letter from Gerrit Smith about the "Kansas work," which has already been published. It has June, B, 1859, indorsed on the back, in Brown's writing.
Mr. Botts here insisted on the right of examining the letters before their being read.
Armstead Ball, master machinist at the Armory, testified that early in the morning he was aroused by Benjamin Hobbs announcing that persons were at the Armory, carrying off government property; reached the gate, was accosted by two armed men, and seized as a prisoner; refused to make any explanation until within the Armory yard, Stephens was sentry at the gate; was conducted to Capt. Brown, who told me his object was to free the slaves, and not the making of war on the people; that my person and private property would be safe; that his war was against the accursed system of slavery; that he had power to do it and would carry it out; it was no child's play he had undertaken; he then gave me permission to return to my family, to assure them of my safety and get my breakfast; started back home, and was accompanied by two armed men, who stopped at the door; breakfast not being ready, went back, and was allowed to return home again, under escort, at a later hour; on returning again, Capt. Brown said it was his determination to seize the arms and munitions of the government, to arm the blacks to defend themselves against their masters; Brown also made a proposition to witness and other officers of the Armory to deliver into his possession the munitions of war belonging to the Government; he replied that they were already in his possession, as we were; Brown frequently told us our safety depended on the good conduct of our citizens; when the firing commenced all fell; we were in danger, and almost any proposition that was made was accepted to secure our safety; Brown said if the citizens were willing to risk their lives and those of the prisoners, to capture him, they must abide by it; Brown made but one proposition to go to the canal lock, give up their prisoners, and fight it out with the military; at daylight, on Tuesday morning, witness appealed to Brown on the ground of humanity to the prisoners, as well as to the men who appeared so bound to him, not to persist in spilling more blood; Brown replied that he was well aware of what he was about, and knew the consequences; that he was already proclaimed an outlaw', and $3,500 was on his head; with regard to the killing of Beckham, one of Brown's party had fired in that direction several times; remonstrated with him when levelling his rifle at an old man named Guess, that he was not a combatant, and he desisted; afterward heard him fire, and heard him say, "Dropped him;" when we heard that Beckham was dead, the man who fired asked who it was; we told him he was an old and respectable citizen, and mayor of the town, and the man who fired expressed himself very sorry; this man was afterward killed at the charge of the marines? Capt. Brown made preparations for resisting the marines; he was always in arms, but I do not think I saw him fire. [The other portions of Mr. Ball's testimony were merely in corroboration of Mr. Washington's.]
By Mr. Green--We, as prisoners, agreed to such terms of capitulation as our citizens were willing to accept. The proposal was written by Mr. Dangerfield, and dictated by Brown. Do not know whether Brown's son and Stephens were wounded while they accompanied the citizens with a flag of truce. Did not know that any of them were Brown's sons, until I heard Brown say to Capt. Simms, "there lies one of my sons dead, and here is another dying." Brown frequently remarked that the citizens were acting indiscreetly in persisting in firing on their own citizens; he maintained a different position all the time. Brown repeatedly said he would injure no one but in self-defense; Coppie frequently urged us to seek places of safety, but Brown did not; he appeared to desire us to take care of ourselves, and at the time of the charge of the marines, told us we must equally occupy the post of danger with themselves. There were three or four slaves in the engine-house; they had spears, but all seemed badly scared; Washington Phil was ordered by Brown to cut a port-hole through the brick wall; he continued until a brisk fire commenced outside, when he said, "this is getting too hot for Phil," and he squatted. Brown then took up the tools and finished the hole.
John Allstadt, sworn--On Monday morning, about three, was awakened from sleep asked who was at the door; the reply was, "Get up quick, or we will burn you up;" asked what they intended to do; they said, "Free the country of Slavery;" told me they were going to take me to Harper's Ferry; dressed myself, and when I got to the door they had all my blacks, seven in number; we were all put into a wagon; the negroes were then all armed with pikes; all the men who took us up were armed; we went to the Armory-yard, where I was put in charge of one of Brown's party; afterward we were ordered into the watch-house; saw Col. Washington there; Brown came and spoke to us about our getting two negroes to take our places, and then he would release us; nothing further was said about that; Brown's rifle was cocked all the time; the negroes were placed in the watch-house with spears in their hands; the slaves showed no disposition to use them witness was afterward transferred to the engine-house; several negroes were there saw Phil making port-holes by Brown's order; the other negroes were doing nothing, and had dropped their spears; some of them were asleep nearly all the time [laughter]; when the marines made the assault, Brown's party took position behind the engine and aimed at the door; Brown was in front, squatting; he fired at the marines, and my opinion is, that he killed that marine.
By Mr. Green--did not see any Others shoot; cannot state certainly by what shot the marine was killed; he might have been killed by shots fired before the door was broken open; was much confused and excited at the time; heard regrets expressed at Beckham's being killed.
Alexander Kelly, sworn--Described the manner of Thomas Boerley's being killed on Monday. Brown's party fired at witness, and witness returned the fire. Boerley was with witness, and was armed with a gun. Saw him soon after he was shot. The shot came from the direction of Shenandoah street.
Not cross-examined.
Albert Grist, sworn--Sunday night had been to meeting with my son; coming home across the Shenandoah bridge, was seized by two men with rifles; when we got to the end of the bridge, were stopped by a man with a spear; asked what was the matter; was the town under martial law; he told me I should not be hurt, and asked me whether there were many slaveholders about Harper's Ferry; I told him no: Brown came up, and observed, "You have got some prisoners;" they took us to the Armory; found some citizens' there; being tired, we laid down; Brown said his object was to free the slaves; told him there were not many there; he replied, "The good book says we are all free and equal," and if we were peaceable we should not be hurt; there was some firing about that time; afterward, about three o'clock, witness was sent to tell the conductor that the train might pass unmolested; saw Mr. Beckham, and delivered the message; Brown then dismissed me; did not go home, being afraid some of Brown's men, not knowing this, might shoot me; saw Hayward brought in, wounded.
Mr. Kelly, recalled--Saw Geo. W. Turner killed on High street; he was shot while in the act of levelling his gun; the shots came from the corner of Shenandoah and High streets; the men who fired had rifles; one had a shawl on.
Afternoon Session, 3 o'clock.
Henry Hunter, sworn--Went to the Ferry with the Charlestown Guard; staid in the bridge, leaving the company; went off fighting on my own hook; saw Beckham fall when shot; heard the whistling of the ball; undertook to go to his assistance, but was withheld by a friend; soon after, another person went to remove the body, saying he "would help the Squire;" heard the whistling of another ball; think that Beckham had a pistol in his coat pocket, judging from the weight and shape of the pocket; did not see it, and don't think the people from the Armory yard saw it; the shot that killed Beckham came from the engine-house; numerous shots were fired from the engine-house at the tank
The cross examination of this witness elicited nothing new,
Col. Gibson, sworn--Helped a portion of the militia of Jefferson County to suppress the insurrection; the Jefferson Guards and other detachments were in the action; they were called out by authority of law; three insurgents were killed at the rifle factory, and Copland captured.
Cross-examined--There was firing by outside citizens, and the three killed were not under my command; don't think the insurgents fired a gun at the rifle factory, but endeavored to make their escape across the river.
Benjamin T. Bell, sworn--Went to Harper's Ferry armed; did net join the military; was stationed in the Gait House, in Capt. Botts' company; in the evening walked out on the platform; saw Beckham shot; went as near to him as was safe, but perceived no breathing; there was firing from the engine-house toward the railroad; Mr. Young, a member of the Jefferson Guards, was wounded while making a charge against the insurgents; saw others shot; there were probably thirty shots fired from the engine-house toward the tank, and in other directions.
Cross-examined--There was general firing in almost every direction; McCabe was about firing when he was shot; there were twenty or thirty men firing at the engine-house when Young and McCabe were wounded
Lewis Starry examined--He testified respecting the killing of Turner.
The prosecution rested here
THE 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.
FOURTH DAY.
Saturday, Oct. 29, 1859.
The Court met at 10 o'clock.
The Judge announced that he had received a note from the now counsel of the prisoner, requesting a delay for a few minutes, to enable them to have an interview with the prisoner. He would accordingly wait a short time.
Soon afterward, Brown was brought in, and took his usual recumbent position in bed.
Samuel, Chilton, of Washington City, appeared as additional counsel for the prisoner, and was qualified.
Henry Griswold, of Cleveland, Ohio, was introduced to the Court as counsel for the prisoner, and qualified.
Mr. Chilton thought it due to himself to make an explanatory statement before the trial proceeded. Yesterday he was very unexpectedly called oven to come here, and aid in the defense of the prisoner. Knowing from the newspapers that the trial was in progress, he took time to consider and consult his friends as to the propriety of accepting the proposition. He would have had no hesitation if he had been spoken to in time, but his friends advised him to come, and he did so with the expectation of merely assisting the gentlemen already conducting the defense. Upon reaching here, he found that they had withdrawn from the case, and he then hesitated about undertaking it; but upon consultation with the prisoner and his friends here, they insisted he should do so, and he would do the best he could, not feeling at liberty, under the circumstances, to refuse. These circumstances, however, would render it impossible for him to discharge the full duty of counsel, not having had time to read the indictment or examination already given. He made no motion for delay; this was a matter entirely within the discretion of the Court, and if the judge thought proper to refuse to grant any postponement, he knew it would be done under a sense of duty. Those extraordinary circumstances would also render it impossible for his associate, Mr. Griswold, to discharge his full duty as counsel A short delay of a few hours, if the Court thought proper to grant it, would enable them to make some preparation.
The Court stated that the trial must go on. Counsel had been assigned to the prisoner here, of his own selection, who had labored zealously in his behalf, and had withdrawn because the prisoner had yesterday evening declared in open Court that he had no confidence in them. No obstacle had at any time been thrown in the way of the prisoner's having an ample defense. If this was the only case of the kind before the Court, he would at once grant the request, but several similar cases remain to be disposed of. This term will very soon end, and it was his duty to endeavor to get through with all the cases if possible, in justice to the prisoners, and in justice to the State. The trial must, therefore, proceed.
Mr. Hoyt remarked that yesterday various papers in Court, which were identified, for what purpose he knew not, but presumed he should be informed, some as being in Capt. Brown's handwriting, and some as bearing his indorsement. He had hastily examined those papers, and wished to object to some of them. The learned gentlemen associated with him in the trial had not examined them, but he supposed the Court would not regard that as material under the present ruling.
Mr. Hunter, interrupting--There is no need of argument about the matter. Designate those you wish to object to.
Mr. Hoyt--I desire to know the object of the counsel in introducing those papers.
Mr. Hunter--The papers will speak for themselves. If you will designate which of them you object to, we will go on at once.
Mr. Hoyt--I object to the autobiography of Capt. Brown, as having no bearing on thin case.
Mr. Hunter--I withdraw it.
Mr. Hoyt--I object to the letter of Gerrit Smith.
Mr. Hunter--I withdraw that, too.
Mr. Hoyt--I handed to the clerk, last night, a list of names we wished summoned as witnesses--Samuel Strider, Henry Ault, Benjamin Mills, John E. P. Dangerfield, and Capt. Simms. I got a despatch just now, informing me that Capt. Simms had gone to Frederick, and would return in the first train this morning, and come on to Charlestown this afternoon. I should like to inquire whether the process had reached Capt. Simms at Harper's Ferry?
Sheriff Campbell replied that the officer stated that Capt. Simms had gone to Frederick.
Mr. Hunter--He was here yesterday. I hope we will proceed with some other witnesses.
John P. Dangerfield was called, and testified that he was an officer of the Armory. He was a prisoner in the hands of Captain Brown, at the engine-house. Negotiations were going on for the release of all the prisoners before the firing commenced. About a dozen black men were there, armed With pieces which they carried most awkwardly and unwillingly. During the firing, they were lying about asleep, some of them having crawled under the engines. Witness was free to say, that from the treatment of Captain Brown, he had no personal fear of him or his men during his confinement. Saw one of the men shot in the engine-house. He fell back, exclaiming, "It's all up with me," and died in a few moment. This man, he learned, was one of Capt. Brown's sons. Saw another young man, who came in wounded, and commenced to vomit blood. He was also a son of Captain Brown, and was wounded while out with Mr. Kitzmiller. Prisoner frequently complained that his men were shot down while carrying a flag of truce.
Mr. Hunter complained that they were going over again the same facts that were elicited; and all this was freely admitted by the defense.
Mr. Hoyt said that he regarded it as the only feasible line of defense to prove these facts, it was the duty of counsel to show, if possible, that Capt. Brown was not guilty of treason, murder, or insurrection, according to the terms of this indictment. We hope to prove the absence of malicious intention.
Mr. Hunter was frank to admit that he could not but regard this course as merely calculated to waste time.
Mr. Hoyt would remind the Court that the course being pursued was not only in accordance with their conviction of duty, but in accordance with the express commands of their client.
The Court remarked that the counsel was responsible to the Court to conduct the case according to the rules of practice.
Mr. Hoyt thought the language of the prosecution was calculated to impugn the honor of the counsel for the prisoner.
Mr. Hunter--Nothing of the kind was intended. It is presumed the gentlemen will conduct the case in accordance with their duty as counsel, and their responsibility to the Court.
Mr. Dangerfield, resumed--Heard some conversation by Captain Brown as to having it in his power to lay the town in ashes and carrying off the women and children, but that he had refrained from so doing: heard him make no threats that he would do so; the only threat I heard from him was at the commencement of the storming of the engine. house; he then said that we must all take equal shares with him, that we could no longer monopolize, the places of safety; he, however, made no attempt, to deprive us of the places we had taken; Brown promised safety to all descriptions of property, except slave property; at the time of the assault by the marines, one of the men cried out for quarter; he had heard the same man, in a conversation with Brown during the night, ask him if he was committing no treason against his country in resisting the marines, to which Brown replied that he was: the man then said, "I'll fight no longer"--that he thought lie was merely fighting to liberate the slaves; after the attack was made on the engine-house, two of Brown's men cried for quarter, and laid down their arms, but after the marines burst open the door, they picked them up again and renewed the fight; after the first attack, Capt. Brown cried out to surrender, but he was not heard; did not see him fire afterward; saw Coppie attempt to fire twice; but the caps exploded; witness saw Brown wounded on the hip by a thrust from a sabre, and several sabre cuts on his head; when the latter wounds were given, Capt. Brown appeared to be shielding himself, with his head down, but making no resistance; the parties outside appeared to be firing as they pleased.
Mayor Mills. master armorer, sworn--Witness was one of the hostages of Capt. Brown, confined in the engine-house; before the general firing commenced, negotiations were pending for the release of the prisoners; a paper was drawn up, embracing certain terms, and borne by Mr. Brua to the citizens outside; the terms were not agreed to; the last time Mr. Brua was out, there was severe firing, which, I suppose, prevented his return; Brown's son went out with a flag of truce, and was shot; he came back wounded; the prisoner attended him, and gave him water; heard Brown frequently complain that the citizens had acted in a barbarous manner; he did not appear to have any malicious feeling; be undoubtedly seemed to expect reinforcements; said it would soon be night, and he would have more assistance; his intentions were to shoot nobody unless they were carrying or using arms; if they do, let them have it; this was while the firing was going on.
Capt. Brown here asked the witness whether he saw any firing on his part which was not purely defensive.
Witness--It might be considered in that light, perhaps; the balls came into the engine-house pretty thick.
Question by Counsel--Did you not frequently go to the door of the engine-house?
No, indeed. [laughter.]
A general colloquy ensued between the prisoner, lying on his cot, and the witness, as to the part taken by the prisoner in not unnecessarily exposing his hostages to danger. No objection was made to Brown's asking these questions in his own way, and interposing verbal explanations relative to his conduct. The witness generally corroborated his own version of the circumstances attending the attack on the engine-house, but could not testify to all the incidents that he enumerated. He did not hear him say that he surrendered. Witness's wife and daughter were permitted to visit him unmolested, and free verbal communication was allowed with those outside. We were treated kindly, but were compelled to stay where we didn't want to be. Brown appeared anxious to effect a compromise.
Samuel Snider sworn. This witness proceeded to detail the whole circumstances of the two days, with what he saw, what he thought, and what he heard. Nothing new was elicited. He confirmed the statement of the other witnesses, that Brown endeavored to protect his hostages, and constantly said that he wished to make terms more for their safety than his own.
Mr. Hoyt, at half-past one o'clock, complained of indisposition from the heat of the room, and asked that the usual recess for dinner be taken.
The Court then adjourned for one hour.
At 2 o'clock the Court reassembled, and Mr. Griswold, taking his seat by the side of the prisoner, prepared to question the witnesses, and to receive from him such suggestions in the course of the examination as he had to make.
Capt. Simms, commander of a volunteer company of Frederick, Md., was sworn--The report came to Frederick that 750 blacks and abolitionists combined had seized Harper's Ferry: witness started for the Ferry with the volunteers under command of Col. Shriver, and was glad to find their numbers were exaggerated after he reached there on Monday afternoon; the door of the engine-house was partially open, and witness was hailed from there; two shots had been fired from there; witness was hailed and went in; he met Mr. Dangerfield and others there; Capt. Brown said to witness that had a proposition to make, to which he listened; he wanted to be allowed to go over the bridge unmolested, and we then might take him if we could; he had fought Uncle Sam before, and was willing to do it again; Brown complained that his men had been shot down like dogs, while bearing a flag of truce. Told him they must expect to be shot down like dogs if they took up arms in that way. Brown said he knew what he had to undergo before he came there--he had weighed the responsibility and should not shrink from it; he said he had full possession of the town and could have massacred all the inhabitants had he thought proper to do so, but as he had not, he considered himself entitled to some terms; Brown said he had shot no one who had not carried arms; I told him that Mayor Beckham had been killed, and that I knew he was altogether unarmed; he seemed sorry to hear of his death, and said, "I fight only those who fight me;" witness then told the prisoner that he did not think any compromise could be effected; Brown said he kept the hostages for his own safety; they did not appear to fear any injury from him or his men, but only from attacks from the outside; every man had a gun, and four-fifths of them were under no command; the military had ceased firing, but men who were intoxicated were firing their guns in the air, and others at the engine-house; Brown or any of his men could not have ventured outside the doors of the engine-house that night without being shot; saw Stephens in the hotel after he had been wounded, and shamed some young men who were endeavoring to shoot him as he lay in his bed, apparently dying; told them that if the man could stand on his feet with a pistol in his hand, they would all jump out of the window. Capt. Simms' testimony was at great length, but little new was elicited.
On the conclusion of his testimony, Capt. Simms stated that he had returned here at the summons of the prisoner to testify in his behalf, with as great alacrity as he had come to testify against him. He had no sympathy for the acts of the prisoner; for his movement, on the contrary, he would be one of the first to bring him to punishment. But he regarded Capt. Brown as a brave man, and being informed that he wanted him here as a witness, he returned with pleasure. As a southern man, he came to state the facts about the case, so that northern men would have no opportunity of saying that southern men were unwilling to appear as witnesses in behalf of one whose principles they abhorred.
Israel Russell, sworn--Was the bearer of a flag of truce from Brown's party to the citizens of the Ferry. His testimony was merely in corroboration of the facts stated by previous witness.
Terence Burns, sworn--Was taken prisoner by Capt. Cook and two others; was one of the ten hostages confined in the engine-house; Brown had five or six of his men there; he did not give any reason to us why we were put there, except that it was for his own safety; he said he did not think any attack would be made upon the engine-house while the hostages were there.
Here the defense closed their testimony. None of the witnesses for the defense were cross-examined by the State.
Mr. Chilton, for the prisoner, rose and submitted a motion that the prosecution in this case be compelled to elect one count of the indictment and abandon the others. The indictment consists of four counts, and is indorsed thus: "An indictment for treason, and advising and conspiring with slaves and others to rebel;" the charge of treason is in the first, and the second count alleges a charge different from that which is indorsed on the back of the indictment, and which is upon record. The second count is under the following statute: "If a free person advise or conspire with a slave to rebel or make an insurrection, he shall be punished with death, whether such rebellion or insurrection be made or not.
But the second count of the indictment is that these parties, who are charged by the indictment, "conspired together, with other persons, to induce certain slaves, the property of Messrs. Allstadt and Washington, to make rebellion and insurrection. There is a broad distinction between advising and conspiring with slaves to rebel, and conspiring with others to induce slaves to rebel. Whether he was to avail himself of their irregularity by instruction from the Court to the Jury to disregard this second count entirely, or whether it would be proper to wait until the conclusion of the trial and then move an arrest of judgment, he left his Honor to decide. He proceeded to argue the motion that the prosecution be compelled to elect one renal and abandon the others, quoting Archibald's criminal pleading in support of his view. lie further alluded to the hardship which rests upon the prisoner to meet various and distinct charges in the same trial. From the authority he read, it would be seen that in a case of treason, different descriptions of treason could not be united in the stone indictment: high-treason could not be associated with other treason. If an inferior grade of the same character could not be included in separate court, still less can offences of higher grade. Treason in this country is high treason. Treason against the State of Virginia is treason against her sovereignty. We have no other description of treason, because treason can only be committed against sovereignty, whether that of the United States, or of a sovereign State.
Mr. Harding could not see the force of the objection made by the learned counsel on the other side. In regard to separate offences being charged, these were but different parts of the same transaction. Treason against the Government is properly made the subject of one of the counts. But we also have a co