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.