by H. W. Brands
“I did not think it was my duty or interest to do so,” Brown replied. “We assured the prisoners that we did not wish to harm them, and they should be set at liberty. I exercised my best judgment, not believing the people would wantonly sacrifice their own fellow-citizens, when we offered to let them go on condition of being allowed to change our position about a quarter of a mile. The prisoners agreed by vote among themselves to pass across the bridge with us. We wanted them only as a sort of guaranty of our own safety; that we should not be fired into. We took them in the first place as hostages and to keep them from doing any harm. We did kill some men in defending ourselves, but I saw no one fire except directly in self-defense. Our orders were strict not to harm anyone not in arms against us.”
A townsman in the room asked, “Brown, suppose you had every nigger in the United States, what would you do with them?”
“Set them free.”
“To set them free would sacrifice the life of every man in this community.”
“I do not think so,” Brown said.
“I know it. I think you are fanatical.”
“And I think you are fanatical,” Brown rejoined. “Whom the gods would destroy they first make mad—and you are mad.”
33
JOHN BROWN’S TRIAL began quickly but not without controversy. Virginia law mandated that if the appropriate court was in session, a trial had to begin. The court for Harpers Ferry, in nearby Charles Town, was soon to end its session; to fit John Brown’s trial in, the proceedings had to commence within days.
This suited the Virginia authorities. Despite what they had heard from John Brown, they couldn’t be sure his conspiracy wasn’t larger than he had let on. In fact, they were fairly certain it was larger. On Brown’s person and at the Kennedy farm they found letters and other documents linking Brown to his benefactors in the North. It wasn’t unreasonable to suppose that if the abolitionist network could produce one John Brown, it might produce others.
Moreover, Governor Wise and other Virginia authorities caught wind that Northerners who supported Brown’s cause, without perhaps any previous connection, were planning to break him out of jail. Some of Brown’s free-state friends in Kansas were said to be coming to Virginia. The longer Brown lingered in custody, the more time the rescuers would have to organize.
Yet there were arguments for delay. The first was that the wounded Brown was in no position to stand trial. Indeed, he couldn’t stand at all. He had been transported from Harpers Ferry to Charles Town lying in a wagon; similarly recumbent he passed the time in his jail cell. Brown’s supporters sent letters to Wise saying the prisoner must be allowed to recover; Wise himself recognized the difficulty the prosecution might encounter convincing a jury—or the wider world—that the old man lying weak and bandaged on a cot in the courtroom had really presented a danger to the great Commonwealth of Virginia.
Weighing everything, Wise reckoned that the hazards of delay were larger than those of promptness. The proceedings commenced a week after the storming of the engine house. Brown and the four others captured with him, including Aaron Stevens, also wounded, and Shields Green, were brought before the court of Judge Richard Parker. Security was heavy. Several dozen deputies and militiamen surrounded the courthouse, with rifles and bayonets at the ready. Cannons placed in front of the courthouse threatened to blast anyone who tried to disturb the proceedings. The prisoners were manacled. “Brown seemed weak and haggard, with eyes swollen from wounds on the head,” the reporter for the New York Herald observed.
The sheriff read the preliminary charges against the five: treason against Virginia and murder of the five townsmen killed in the raid. Judge Parker asked the prisoners if they had counsel.
Brown responded by protesting the legitimacy of the trial. “I did not ask for any quarter at the time I was taken,” he said. “I did not ask to have my life spared. The governor of the state of Virginia tendered me his assurance that I should have a fair trial; and under no circumstances whatever will I be able to have a fair trial. If you seek my blood, you can have it at any moment, without this mockery of a trial. I have had no counsel. I have not been able to advise with any one. I know nothing about the feelings of my fellow-prisoners, and am utterly unable to attend in any way to my own defense. My memory don’t serve me. My health is insufficient, although improving. There are mitigating circumstances that I would urge in our favor, if a fair trial is to be allowed us. But if we are to be forced with a mere form—a trial for execution—you might spare yourselves that trouble. I am ready for my fate. I do not ask a trial. I beg for no mockery of a trial—no insult—nothing but that which conscience gives, or cowardice would drive you to practice. I again ask to be excused from the mockery of a trial. I do not even know what the special design of this examination is. I do not know what is to be the benefit of it to the Commonwealth. I have now little further to ask, other than that I may not be foolishly insulted, only as cowardly barbarians insult those who fall into their power.”
Judge Parker declined to respond to Brown’s tirade, except to assign two local lawyers as counsel for the defense. One of the two, Charles Faulkner, immediately attempted to decline the appointment, but his objection was overruled. The other, Lawson Botts, accepted the appointment without complaint and said he would do his best for the defense.
Brown was asked if he accepted the appointment. He didn’t. “I have sent for counsel,” he said. “I did apply, through the advice of some persons here, to some persons whose names I do not now recollect, to act as counsel for me, and I have sent for other counsel, who have had no possible opportunity to see me. I wish for counsel if I am to have a trial; but if I am to have nothing but the mockery of a trial, as I have said, I do not care anything about counsel. It is unnecessary to trouble any gentleman with that duty.”
The attorney for the county responded, “You are to have a fair trial.”
Brown didn’t trust him. “I am a stranger here,” he said. “I do not know the disposition or character of the gentlemen named. I have applied for counsel of my own, and doubtless could have them, if I am not, as I said before, to be hurried to execution before they can reach me. But if that is the disposition that is to be made of me, all this trouble and expense can be saved.”
“The question is, do you desire the aid of Messrs. Faulkner and Botts as your counsel?” the county attorney insisted. “Please answer yes or no.”
“They should exercise their own pleasure,” Brown said. “I feel as if it were a matter of very little account to me.”
* * *
—
A GRAND JURY WAS summoned to hear the evidence against the prisoners. The jury produced an indictment: for conspiring with slaves to produce an insurrection, for treason against the Commonwealth of Virginia, and for murder.
The defendants were asked how they pleaded. All said, “Not guilty.” They asked to be tried individually. The court accepted the request and chose to try John Brown first.
Lawson Botts, for Brown, immediately asked for a delay. “I am instructed by Mr. Brown to say that he is mentally and physically unable to proceed with his trial at this time,” Botts said. “He has heard today 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.”
Judge Parker answered that waiting for counsel was no cause for delay, but physical disability in the defendant might be. He summoned the doctor who had been tending to Brown in jail. The doctor said Brown’s injuries were not such as to impair his thinking or his hearing. The doctor saw no reason the trial shouldn’t proceed. One of the guards at the jail volunteered that Brown talked quite freely and capably at the jail. Judge Parker denied postponement.
Selection of a jury occupied an afternoon. Brown attended on a cot. He lay with his eyes closed and a quilt drawn up t
o his chin, apparently oblivious to the proceedings. The potential jurors were asked whether they had already formed opinions about the guilt or innocence of the defendant, and whether they had moral scruples that would prevent their convicting a man on a charge that carried the death penalty. Twelve who satisfied the judge that they had not and did not were impaneled.
* * *
—
THE TRIAL PROPER began on Thursday morning, October 27. John Brown managed to walk across the street from the jail to the courthouse, but once in the courtroom he took to his cot and covered up. Observers noted that the swelling around his eyes had diminished.
Lawson Botts surprised the court by submitting a statement sent from one A. H. Lewis, a longtime resident of Akron, Ohio. “John Brown, leader of the insurrection at Harper’s Ferry, and several of his family have resided in this county many years,” Lewis’s statement attested. “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 will doubtless attend the trial if desired.”
Botts said he had shown the statement to his client, who responded that in his father’s family there was no insanity at all. Things were different among his mother’s kin. “On his mother’s side there have been repeated instances of it,” Botts said Brown had told him. “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; he is not apprised of the fact that another son of that brother is now insane and in close confinement. He 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.”
At this point Brown demanded to speak for himself. Rising on his elbow, he said of the insanity plea, “I look upon it as a miserable artifice and pretext of those who ought to take a different course in regard to me, and I view it with contempt more than otherwise. As I remarked to Mr. Green”—an assistant to Botts—“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.”
Lawson Botts let his client speak, then said that though the defense was not making an insanity plea, which might have required a delay in the proceedings to confirm the statement from Ohio, the defense was renewing its request for a delay, to allow additional lawyers to appear. A recent telegram revealed that at least one lawyer, a man named Lewis, was en route from the North, and the reluctant Botts, only too happy to step aside from his court-imposed duty, asked the court to give the man time to arrive. He repeated that his client was not making an insanity plea, but he was asking for a fair trial. He believed his trial would be fairer if he had the lawyers he liked.
Andrew Hunter, for the prosecution, resented the aspersions cast on the court by the suggestion that the trial wasn’t fair in its present form. “What does he mean by wishing delay for the purpose of having a fair trial?” he demanded. “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 of the court, to resist any attempt of that kind.” Hunter was skeptical of the information just sprung on the court. “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 telegraph 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?”
Charles Harding, also of the prosecution, offered a broader warning against tricks by the defense. He noted that the prisoner had professed to be unable to walk and insisted on being carried into court on a bed the previous day, yet at the end of the session had stood up and walked back to the jail unaided.
Judge Parker ordered that the trial move forward. If new counsel arrived, he or they could join the defense team then.
* * *
—
CHARLES HARDING OPENED for the prosecution by recounting in detail the deaths of the five men slain by the raiders. He told of the premeditated kidnapping of Lewis Washington and John Allstadt and their slaves. He cited Brown’s provisional constitution to show that he had intended to create a government within the borders of the Commonwealth of Virginia. He read the Virginia laws on treason, on encouraging slaves to flee, and on murder, each punishable by death. He promised to prove beyond reasonable doubt all the charges against the prisoner.
The defense countered by focusing on the specifics of the laws the prisoner was charged with breaking. Virginia’s treason law required proof that the accused intended to establish a separate and distinct government. Confessions to treason had to be given in open court to be admissible. Other evidence had to be supported by the testimony of two witnesses to the criminal act. On the matter of instigating the flight of slaves, the law said such instigation must have taken place in Virginia. Actions taken in Maryland didn’t qualify, nor did actions taken on the federal property of the armory. The same considerations applied to the murder charges. Capital murder, moreover—for which death was the penalty—required premeditation. Members of the jury, the defense said, must bear all these facts in mind in considering the case before them. The burden of proof lay with the prosecution.
The prosecution began calling its witnesses. John Starry, the doctor, told of being awakened by the shot that proved fatal to porter Shephard Hayward. Conductor A. J. Phelps related the same events from his perspective.
On cross-examination, Phelps told of meeting John Brown, who had apologized for the killing of Hayward. “He 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.” There would be no more killings if the people were peaceable. Brown added, “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 so much.”
The prosecution called Lewis Washington, who related his version of the events in question. On cross-examination, he explained that Brown had taken good care of the hostages. “We were kept in the rear engine house, and allowed to keep a safe position,” he said. “There was no effort to endanger us; Brown’s conduct was not rude or insulting toward us.”
Witness testimony filled the rest of the day; the next morning the prosecution produced Brown’s provisional constitution and a bundle of some fifty letters and papers. The sheriff, who had seen Brown’s handwriting, was called to identify the papers as coming from the same source.
Brown interrupted to say he would spare the court the trouble. “I will face the music,” he said. The documents were his.
Prosecutor Hunter wanted a more dramatic effect. He insisted on displaying the documents one by one. At each Brown said, “Yes, that is mine.”
The prosecution summoned several more witnesses, who corrobor
ated most of the facts asserted by the prosecutors but who nonetheless, under cross-examination, made Brown seem a decent fellow for a gun-toting abolitionist. One of the hostages, a worker at the armory, said, “Captain Brown 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.” This man had been seized on coming to work on Monday morning. Brown didn’t want the man’s family to worry, so he allowed him to return to his home, with an escort, and to eat a hot breakfast while there. This witness didn’t take the slave uprising very seriously. “There were three or four slaves in the engine-house; they had spears, but all seemed badly scared.”
* * *
—
WHEN THE DEFENSE had its turn, the witnesses said much the same thing about Brown the man. One after the other noted Brown’s patience under duress and his refusal to inflict gratuitous violence. Prosecutor Hunter found the testimony tedious and beside the point; Brown’s forbearance, he said, had “no more to do with this case than the dead languages.”
Brown lay on his cot through all this, occasionally joining in the defense team’s questioning. Then, after several witnesses for the defense were called but didn’t appear, and the court made no attempt to find them, he got to his feet to register a protest. “May it please the court,” he said, “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 the 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 tomorrow morning; for I have no counsel, as I before stated, in whom I feel that I can rely, but 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 tomorrow morning to have something done, if anything is designed; if not, I am ready for anything that may come up.”