Today in History:

John Brown's Trial - Day 2

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 in 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.