James Redpath, The Public Life of Captain John Brown

Chapter 2: Judicial alacrity.

The Preliminary Court reported the result of their examination, and the Grand Jury at once retired with the witnesses. At five o'clock they returned, and asked to be discharged for the day. They reassembled at ten o'clock on the following forenoon, Wednesday, and, at twelve o'clock, reported “a true bill” against each of the prisoners: First, For conspiring with negroes to produce insurrection; second, For treason in the Commonwealth, and, third, For murder. The Grand Jury was then discharged.

This is the indictment of the Grand Jury:

Before the indictment was read, as Mr. Faulkner had gone home, the Court requested a Mr. Green, a Virginian, to act as assistant counsel for the defendants. It was understood that all the prisoners were willing that this arrangement should be made.

Appeal for a decent delay.

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 [301] enable me to attend a trial, owing to the state of my health. I have a severe wound in the back, or rather in one kidney, which enfeebles me 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 due” -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 is 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 prisoner could plead guilty or not guilty, and it would then consider Mr. Brown's request.

The indictment was now read, and each of the prisoners pleaded Not Guilty, and demanded to have separate trials. One incident of this scene is so revolting, that I must record it in the language of the enemies of the prisoners:

The prisoners were brought into court, accompanied by a body of armed men. Cannon were stationed in front of the court house, and an armed guard were patrolling round the jail. 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 notable to sit. He has the appearance of a dying man, breathing with great difficulty. The prisoners were compelled to stand during the indictment, but it was with difficulty, Stevens being held upright by two bailiffs.

As soon as the prisoners had responded to the arraignment, Mr. Hunter rose and said, “The State [302] elects to try John Brown first.” A discussion and decision, fit accompaniments to the scene above described, then ensued; which are thus reported by the partisans of the State:

Mr. Botts said, 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 be 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 any thing that justice required, nor to object to any thing 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 rendered it dangerous to delay, to say nothing of the 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 prisoners as sufficient ground for delay, but that the jailer and physicians 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 reason 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 principle of giving of a fair and impartial trial to the prisoners, the [303] introduction of any thing 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 mouths of the prisoners, or any other source. It was their position that had been imperilled 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 in the trial of the others.

Mr. Green remarked that he had had no opportunity of consulting with the prisoner, or preparing a defence. The letters for Northern counsel had been sent off, but not sufficient time had 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 as to his condition.

Were ever before, in any civilized State, such reasons given for refusing the delay of a few days only to a wounded prisoner, charged with a capital offence, whose sole request was, that time might be allowed for honest counsel, whom he knew, to arrive and defend him? Even had the old man been unwounded, surrounded as he was by excited enemies, in a county and Common wealth where a verdict of acquittal was an impossible event, it would have been a very grave judicial outrage to have tried him until he could obtain proper counsel, or before considering a demand for a change of venue. Because the expense of a trial was great; because the [304] offences charged on the prisoner were declared to be grave ones — by the unjust Virginia code ; because the arrival of Northern counsel might elicit facts unfavorable to the reputation of the State, but that might tend to exculpate the defendant — for this is what Mr. Hunter's last orphic sentence meant; because there might be danger, if the request was granted, of a second conquest of Virginia by the friends of her first antislavery invader; and because — how and why is not yet explained — a speedy trial of the leaders would result in a benefit to his followers in jail: these were the reasons, as extraordinary as inhuman, advanced by the prosecution why a wounded man's request should be refused by a Court of Justice; not one of them, by all the rules of law, either pertinent or just, and one of them the strongest argument why the case should b3 protracted. The graver the crime, the more lenient the law should be in granting opportunities of defence to the accused. The Judge's reply ignores this salutary rule, and assumes that it was necessary to try the prisoners at that particular term of the Court! With every faculty undimmed, with every legal facility around him, with able lawyers and a Pardoning Power unpledged against the exercise of his highest prerogatives, the prisoner had a right to demand a postponement of the trial until the prejudices of the people were less excited against him.

The physician was called, and swore, of course, that the old man was able to go on with the trial, and did not think that his wounds were such as to affect his mind and recollection. [305]

The Court, accordingly, refused to postpone the trial.

Impanelling a jury.

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 lay 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 Court excluded those who were present at Harper's Ferry during the insurrection and saw the prisoners perpetrating the act for which they were 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 twenty-four were decided by the Court and counsel to be competent jurors. Out of these twenty-four, 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 or 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 would yield to evidence, if the evidence was different from what you supposed? Are you sure that you can try this case impartially from the evidence alone, without reference to any thing you have heard or seen of this transaction? Have you any conscientious scruples against convicting a party of an offence to which the law assigns the punishment of death, merely because that is the penalty assigned?

But these statements give no just notion of the manner of impanelling the juries in the trials of the Liberators. As they were all similarly conducted, it will be proper here to quote, from the graphic sketches of an eye witness, a description of the impanelling of the jury who tried Edwin Coppie.

Let me endeavor to represent to you how some of the jurors in these cases are qualified.

A stolid and heavy man stands up before the judge to answer the necessary questions. His countenance is lighted only by the hope of getting a chance to give his voice against the wounded man upon the ground. You can see this as plainly as if he told you.

Judge. Were you at Harper's Ferry, sir, during these proceedings?

Juror. No, sir.

Judge. You are a freeholder of this county?

Juror. Yes, sir.

Judge. Have you heard the evidence in the other cases?

Juror. (Eagerly.) Yes, sir.

Judge. I mean, if you have heard the evidence, and are likely to be influenced by it, you are disqualified here. Have you heard much of the evidence?

Juror. No, sir.

Judge. Have you expressed any opinion as to the guilt of these parties?

Juror. Yes, sir, (eagerly again.)

Judge. Are you, then, capable of judging this case according to the evidence, without reference to what you have before heard said?

Juror. Yes, sir.

Judge. Have you any conscientious scruples, which will prevent you finding this man guilty, because the death penalty may be his punishment?

Juror. Yes, sir, (promptly.)

Judge. I think you do not understand my question. I ask you if you would hesitate to find this man guilty, because he would be hung if you did?

Juror looks around puzzled, overcome by the abstract nature of the proposition?

Judge. This man will be hung if you find him guilty. Will that certainty of his being hung prevent you from finding him guilty, if the evidence convinces you he is so? [307]

Juror. (Catching the idea.) No, sir — no, sir.

Judge. Very well, sir; you can take your seat as a juror.

Mr. Botts, who had solemnly promised to John Brown to defend him faithfully, did not fulfil this moral and professional obligation, for a jury was obtained without delay and without any objection on his part. The names of these unfortunate men² were announced, but they were not sworn till the following day.

At five o'clock, the prisoner was carried over to jail on his cot, and the Court adjourned till morning.