Book Review: The Charge Was Treason — The Trial of John Brown

John Brown’s Trial by Brian McGinty.  Harvard University Press, 2009.  384 pp. $27.85

That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.

§ 8 The Bill of Rights, Constitution of the Commonwealth of Virginia, June 12, 1776

Now when many believe it is weakness to treat as criminals those who attacked us on September 11, 2001 Brian McGinty’s John Brown’s Trial is a timely arrival.  His compelling narrative shows Virginia thought it had something to prove by both the swiftness and the propriety of the trial and prosecution that began eight days after the anti-slavery warrior’s capture and ended forty seven days later with Brown’s death by public hanging on December 2, 1859.  Yet Virginia afforded a trial by jury, and Brown was represented by appointed lawyers, slaveholders who diligently advocated for the leader of a cause they deplored.

The modern narrative is of the Bill of Rights imposed clause-by-clause on the states by the  Supreme Court. But we see in McGinty’s account that Virginia did not need the Sixth Amendment.  The 1787 Federal Convention’s omission of a bill of rights was not oversight but reliance on the States which, like Virginia in 1776, had adopted bills of rights.

On October 16, 1859 `Captain’ John Brown and a company of twenty one  overwhelmed the lightly defended United States Arsenal at Harpers Ferry.   Like Khalid Sheikh Mohammed John Brown was seized on the battlefield. Yet no one pressed for a court martial.   Virginia Governor Henry Alexander Wise embraced trial in state court.  No one denounced a civilian jury trial as a plan to “wrap our enemies in our Bill of Rights” as former federal prosecutor Andrew McCarthy said of the plan to try 9/11 planners in federal court in New York.

An `unlawful combatant’ and enemy of the slave state, Brown’s raided Harper’s Ferry as part of a plan to free the slaves.  His men pledged allegiance to Brown as Commander in Chief.  His anti-slavery “Provisional Constitution and Ordinances of the People of the United States” included a new constitutional office – Commander in Chief.  Since Article II of the 1787 Constitution designates the President “commander in chief of the Army and Navy of the United States” there could be little doubt of Brown’s seditious intent despite his protestations after capture.

The trial which McGinty recounts in unprecedented detail shows that the adversary system and vigorous loyal advocacy by counsel, were embedded in the law and legal culture of Virginia.   § 8 of Virginia’s Bill of Rights laid out the rights of the accused, notice of the charges, speedy trial, conviction only by a unanimous jury, compulsory process, and confrontation of witnesses.  § 9 barred “excessive bail” and “cruel and unusual punishments”.  The 1776 Virginia Bill of Rights was the template for the federal Sixth Amendment.

Virginia had four choices when it captured `Captain’ John Brown  and the survivors of his band of irregulars: the lynch mob, military summary justice, deferral to the federal government whose Arsenal had been the principal target, or public trial by jury with the full panoply of rights afforded by § 8 of the Virginia Bill of Rights.   Brown’s history as a guerilla and perpetrator of the `Pottawattomie Massacre’ of pro-slavery Kansas settlers three years earlier could well have been cited to paint him as a terrorist who should not be protected by the niceties of Virginia’s Bill of Rights.  Yet Brown was afforded the rights of a Virginia citizen – at a public trial, accounts of which spread by telegraph across the country.

Brown’s vision and Virginia’s account of his criminality and disloyalty vied in the public sphere.  When  the end came the country had been galvanized and more deeply divided by the raid, the trial, and Brown’s own prescient words as he went to the gallows: “I John Brown am now quite certain that the crimes of this guilty land will never be purged away but with Blood. I had as I now think: vainly flattered myself that without very much bloodshed it might be done.”

Brown’s prediction became the fervent conviction of the people of the north who suffered and inflicted terrible punishment in the war that slavery brought.  Abraham Lincoln, in his 1865 second inaugural address, exhibited not only the compassion for which it is justly famous, but also the fierce temper, which he shared with John Brown, of the leader of a bloody but righteous war:

Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

Virginia’s § 8 called for a “by an impartial jury of twelve men of his vicinage”. Justice Antonin Scalia has called juries the “spinal column” of democracy [Neder v. United States, 527 U.S. 1, 30 (1999)].  Virginia’s were all white, all male, and all freeholders.  New Yorkers, in all their diversity, are as loyal to the nation’s cause as Virginia’s jurors were to the slavocracy.  Trial by jury brings the judgment of the community. That, Wise understood, a court martial cannot accomplish.  Even if we adhered to the Uniform Code of Military Justice, every participant – judge, jury, prosecutor, and defender – would be in the military chain of command.

Assault and Capture

After a company of Marines – the only capable force available – retook the Arsenal a crowd surrounded the Jefferson County jail where Brown lay, recovering from sabre and bayonet cuts.  The mob could have overtaken the jail’s defenders.  Governor Henry Alexander Wise could have asked the United States to take its prisoner, freeing Virginia of the burden of protecting the rebel.  But Wise wanted jurisdiction. President James Buchanan, a fellow Democrat, acquiesced.

The Charges:  Murder and Treason

The townsmen shot by Brown’s men certainly were Virginia’s call.   But Brown and his men were not citizens of Virginia and owed it no loyalty.  They had entered Virginia only the morning of the assault, and proceeded the short distance to the federal reservation.

Governor Wise,  a lawyer, questioned Brown, warning him,“You are in the hands of the State and I have questions to ask which you can answer or not as you choose.”   The rebel, laying on his cot in the County Jail responded:

Governor, I have, from all appearances, not more than fifteen or twenty years the start of you in the journey to that eternity of which you kindly warn me…The difference between your tenure and mine is trifling, and I therefore tell you to be prepared.  I am prepared.  You all have a heavy responsibility, and it behooves you to prepare more than it does me.

The course of the trial of John Brown was scripted by Virginia’s Bill of Rights. Virginia was the homeland of both liberty and slavery.  Its slaveholding sons embraced the common law and the republican and enlightenment values of the Declaration of Independence.  Virginia had long lived with that profound contradiction.  On October 25, eight days after his capture, Brown’s case was presented to a Jefferson County grand jury –  eight justices of the peace, each a slaveholder.  Circuit Judge Richard Parker instructed them that one accused of crime is “innocent until he shall be proved guilty by an honest, an independent, and an impartial jury of his countrymen.”  They leveled charges of capital murder and treason against the Commonwealth of Virginia.

A Fiery Trial

“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 said, I do not care anything about counsel – it is unnecessary to trouble any gentleman with that duty” said Brown.  Brown’s jailer dispatched telegrams to three prominent northern lawyers.  But eight days after his capture Brown had at his side only local court-appointed counsel.

Charles Faulkner, a four-term Congressman and slaveholder was about to be dispatched as Ambassador to France when appointed.  He protested that his feelings about Brown would “utterly disqualify” him from serving as a juror.  He could “scarcely” be Brown’s zealous advocate.  Brown would rightly see representation by a man such as himself  as “a mockery”.  But Faulkner served.

Lawson Botts was a slaveholder and commander of a local militia that had aided the Marines.  He had participated in the negotiations with Brown during the three days of the stand-off.   Botts declared that he was “prepared to do his best to defend the prisoners”  Botts enlisted as assistant counsel another slaveholder – the Mayor of Charlestown, Thomas Green.

The three – who served through most of the 5 day trial – conducted a credible defense.  Focusing on the presentation of mitigating factors, they did not challenge vigorously on two points where Brown could have benefited – time to prepare and demanding Federal jurisdiction.

Trial by Jury and the Effective Assistance of Counsel

The jury was of expectable composition – freeholders, between twenty-one and sixty years of age, male, and white.  Most were slave holders.  Each was required by Virginia law to affirm that his opinions would not “prevent his convicting any one of an offense punishable by death”.  This “death qualified” jury was assembled and sworn to impartiality in three hours.

Brown gave his lawyers a list of subpoenas to issue and witnesses to call.  His defense was a plain statement of motives and mitigating circumstances: he sought only to liberate slaves, he had ordered that no unarmed man be shot, he wasted no property, and had treated his prisoners well – even allowing some to leave to visit their families.

Before opening statements a critical legal matter had to be resolved.  The Akron, Ohio telegraph operator had transmitted an account of the history of madness in Brown’s family.   Virginia law recognized insanity as a defense.  Though Brown would have none of it, Botts felt obligated to present the message to the court.  Brown lifted himself from the cot on which he lay to repudiate the defense, saying “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, or attempt to interfere in my behalf on that score.”   Citing a lack of “affidavits, or something of that character” Judge Parker ordered the trial to proceed.

Mayor Thomas Green rose on Brown’s behalf, reminding the jury that under Virginia law they were the supreme judges “of both the facts and of the law” and that it was their duty to give the prisoner the benefit of “any doubt as to law, or the fact of guilt”.  Brown’s reported confessions were dismissed as incompetent.  Under Virginia law only an admission of treason in open court was admissible.  (At the time confessions, deemed self-serving, were generally inadmissible under American law.  See George C. Thomas, III, Miranda Warnings in 1829 – The Surprising World of Confessions Law 1736-1848 (forthcoming)).   The Virginia court lacked jurisdiction Green argued: the crime was planned in Maryland which claimed sovereignty up to the armory grounds.  And the acts committed at the Arsenal were in federal territory over which Virginia lacked sovereignty.  And Brown had to be proven beyond a reasonable doubt to have pre-meditated a killing for it to be first degree capital murder.

Lawson Botts followed on Brown’s behalf.  In an address newspapers called “impressive” he presented Brown’s own view.  Brown believed that he was “actuated by the highest and noblest feelings that ever coursed through a human breast”, had instructed his men to “destroy neither property nor life”, to treat prisoners “with respect” and in positions of safety.

Fact witnesses were competently cross-examined.  Brown’s indulgence of his hostages (even allowing one to leave and return), his courtesy, his regret for the death of a freeman – the baggage master at the railroad station, his safeguarding of his hostages, witnesses’ lack of opportunity to observe what they claimed to have seen, the confusion always present in accounts of combat were competently developed by the appointed defense counsel – all prominent local lawyers.

New Counsel

As the hour grew late on Friday not all of the witnesses Brown had demanded be produced had appeared.    Brown rose from his cot in the courtroom saying

May it please the Court: I discover that, notwithstanding all the assurances that I have received a fair trial, nothing like a fair trial is to be given me, as it would seem.

Brown asked that the trial be carried to the next morning – Saturday – so the subpoenaed witnesses could be produced.  Brown said “I have no counsel, as I have stated before, in whom I feel that I can rely”.   George Hoyt, a 21 year old Massachusetts abolitionist and lawyer had been in court since Tuesday.  With 75 silver dollars in his pocket, his objective had been rescue, not advocacy.  Hoyt had introduced himself to the court on Tuesday, but, citing his lack of experience and lack of opportunity to prepare, had declined to take on the defense.  But now Hoyt rose from the gallery “I would add my voice to the appeal that the further hearing of the case may be postponed until morning.  Though the appointed lawyers had acted in  “honorable and dignified manner in all respects”, the 7 PM ferry would carry “Judge Tilden of Ohio”.   Parker denied the request.

Botts rose to say “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.”  Botts suggested that the young Bostonian Hoyt take over the defense:

My notes, my office, and my services shall be at his command.  I shall stay 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 meantime, the sheriff can be directed to have the other witnesses here tomorrow.

The judge relented.  He adjourned until the following morning. Hoyt became Brown’s attorney of record.  The evening ferry from Maryland bore no lawyers but the morning train carried Samuel Chilton from Washington – a prominent lawyer hired by Boston supporters for the astounding fee of $1,000.  Also aboard was Hiram Griswold, who had been asked to stand in by Judge Tilden.  Now, with testimony nearly concluded, a new team was present to take over the defense.  The new arrivals had neither read the long indictment nor spoken to a witness, nor to their client.

Hoyt worked through the night with Botts but at 10 AM when court resumed Chilton and Griswold had not yet met Brown.  Judge Parker allowed them  an hour.  At 11 AM Hoyt called the first witness of his career.  John Dangerfield acknowledged that Brown’s men had been shot down while carrying truce flags.  Hunter objected but Hoyt persisted, establishing through Dangerfield that Brown had “made no attempt to deprive us (prisoners) of the positions (of safety) we had taken.  (And) Brown promised safety to all descriptions of property”.

Hoyt called several  witnesses who had been in the engine house – where Brown’s prisoners were held, the place of his last stand against Capt. Robert E. Lee’s marine company’s assault.  The rebel’s demeanor and commitment to “fight only those who fight me” was established. The final subpoenaed witness, Frederick Simms the local militia captain said he regarded Brown as “a brave man”.

After a recess for the Sabbath  Griswold rose to address the jury.  “No sentiment in the north”, he told the twelve southern men, “approved of the kind of offenses charged.”  A fair trial had been promised to Brown.  Not mere “forms that are but the pathway to the scaffold”, but the requirement “that every principle of law and justice shall be made available and every particle of evidence introduced  shall get its fair weight and consideration in [Brown’s] his behalf”.

Jurisdiction had not been proved – the offenses were on federal property.  Brown could not be guilty of treason against Virginia because Brown was “not bound by any allegiance to this State, and could not therefore be guilty of rebellion against it.”  He sought to minimize the threat Brown posed:

“He is a man of indomitable will, of sleepless energy of purpose…Can it be supposed gentlemen, for a moment, that there is fear to be apprehended from such a man who, in the zenith of his power, when he had a name in history, and when something might be hoped for the cause in which he was engaged, could only, through the whole country, raise twenty-one men?”

Samuel Chilton, once a Member of Congress, and a prominent Virginian began with a declaration of loyalty.  A fair trial was necessary so that there “not be a stain upon the fair name of the State..that it shall not be said he was denied a full, fair and impartial trial or convicted contrary to law.”

Chilton turned to the facts – the charge of premeditated capital murder.  He pointed to the witnesses inability to say who had shot whom in the maelstrom of the final assault, and to the evidence that “there was no proof whatever that (Brown) entertained a desire to commit murder”.  It was in fact Brown and his men’s hope to free the slaves “without bloodshed.”

Chilton concluded by addressing the great stakes if the laws governing guilt and innocence were not “upheld in integrity and truth and independence”, then we can say “Farewell to all the blessings of a free government, and soon will follow that which is so much dreaded – the dissolution of the Union; soon will follow a revolution of all the practices, all of the precedents, of all the conservatism which binds us together”.

Andrew Hunter rose for the Commonwealth.  Governor Wise  might have declared “martial law” and administered “drum-head justice”, but instead the Governor  took the “high conservative ground” of which Virginians were “justly proud”, Hunter argued.

The Verdict and Allocution

Foreman John C. Wiltshire announced the verdict: “Guilty.  Guilty of treason and conspiring and advising with slaves and others to rebel and murder in the first degree”.  The Clerk ordered Brown to stand and “say why sentence should not be pronounced upon him”.  John Brown rose:

This court acknowledges, as I suppose, the validity of the law of God. I see a book kissed here which I suppose to be the Bible, or at least the New Testament. That teaches me that all things whatsoever I would that men should do to me, I should do even so to them. It teaches me, further, to “remember them that are in bonds, as bound with them.” I endeavored to act up to that instruction. I say I am yet too young to understand that God is any respecter of persons. I believe that to have interfered as I have done–as I have always freely admitted I have done–in behalf of His despised poor was not wrong, but right. Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments–I submit; so let it be done!

Ironically Brown’s brilliant allocution could serve as the template for  those who demand military justice today.  Brown’s elevation to martyrdom  could be cited as reason for why we should not afford our enemies today the same rights that slaveholders afforded their mortal enemies as our national fiery trial approached.

Justice was shockingly swift, the outcome a virtual certainty.   Brown – the implacable enemy of slavery – had slave holders appointed as his counsel.  Yet they had performed diligently, loyally,  and competently, following their client’s instructions.  Their diligence extended to their independence – raising issues to which their client objected – such as that of sanity. Although Hoyt and Griswold did not face opprobrium in the increasingly sympathetic north, Samuel Chilton, a lawyer working for a fee – did.  His defense of the enemy of all who sought to defend Virginia’s republican slavocracy certainly risked local opprobrium, even as it merited the historian’s commendation.

Whoever today represents Khalid Sheikh Mohammed and his cohorts (whether civilian or officer in the chain of command in the Judge Advocate General Corps) could do far worse than to follow the example of Thomas Green, Lawson Botts, Charles Faulkner, George Hoyt, Hiram Griswold and Samuel Chilton.

George W. Conk is an Adjunct Professor of Law and Senior Fellow at Stein Center for Law & Ethics, Fordham Law School.

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