At 2 o'clock the preliminary court of examination reported its findings, and the presiding judge, Hon. Richard Parker, of the circuit court, at once submitted the case to the grand jury in an able and dispassionate address. At noon the next day, the 26th, a true bill was returned against each of the prisoners on the following counts: For "Treason to the commonwealth"; for "conspiring with slaves to commit treason"; and for "murder." After the noon hour the defendants were brought into court to plead to the indictments. Brown, refusing to appear voluntarily, was carried into the court room on a cot. He then made a plea for delay.
Mr. Hunter objected to consideration of Brown's plea until after the arraignment had been made. The Court held that the indictment should first be read, so that the prisoners could plead guilty or not guilty; after that he would consider Brown's request. Each prisoner pleaded not guilty and having demanded separate trials, the State chose to try Brown first.
The Court did not take the question of Brown's guilt or innocence seriously. The trial was simply to be a dignified conformance with the laws of the Commonwealth relating to the subject. Except as to respect for this formality, it was not considered important whether Brown had any counsel at all. On the 22d of October, Mr. Hunter, in a letter to Governor Wise said:
The Judge is for observing all the judicial decencies; so am I, but in double quick time.... Stephens will hardly be fit for trial. He will probably die of his wounds if we don't hang him promptly.[450]
Immediately upon the announcement by the Court that Brown should have a fair trial, arrangements were made to provide friendly counsel for his defense. First, Mr. J. W. Le Barnes, of Boston, at his personal expense, employed Mr. George H. Hoyt, a young lawyer of Athol, Massachusetts, to go to Charlestown and represent Brown in the dual capacity of counsel and spy. His instructions were, "first, to watch and be able to report proceedings, to see and talk with Brown, and be able to communicate with his friends anything Brown might want to say; and second, to send me (Le Barnes) an accurate and detailed account of the military situation at Charlestown, the number and the distribution of the troops, the location and defences of the jail; the opportunities for a sudden attack and the means of retreat, with the location and situation of the room in which Brown is confined," etc.[451]
Hoyt arrived at Charlestown on Thursday night, and on Friday morning, October 28th, reported to the Court and asked to be made additional counsel. His youth and his evident inefficiency, aroused a suspicion, on the part of Mr. Hunter, that he came as a spy rather than as counsel.[452] He accordingly asked that Hoyt be excluded from participating in the trial. In this he was overruled. The same day he reported to Governor Wise that a "beardless boy came in last night as Brown's counsel." And that he thought "he is a spy."[453] October 21st, Brown wrote letters, similar in character, to Judge Daniel Tilden, of Cleveland, Ohio, and to Hon. Thomas Russell, of Boston, asking them to appear for him as counsel, saying:
"I am here a prisoner, with several sabre-cuts on my head and bayonet stabs in my body."[454] In response to his request, Judge Tilden secured the services of Mr. Hiram Griswold, of Cleveland, to appear in his stead. The latter arrived at Charlestown, Saturday morning, October 29th. At the same time Mr. Samuel Chilton, of Washington, D. C., also arrived, and upon reporting to the Court, these two distinguished lawyers were assigned as counsel to Brown's staff. Mr. Chilton came upon the solicitation of Mr. John A. Andrew, of Boston.[455] Judge Russell did not arrive until November 2d.
On Thursday morning, October 27th, the trial was begun with a surprise for the prosecution—Mr. Botts reading a telegram, which stated that insanity was hereditary in Brown's family; that his mother's sister had died while insane, and that a daughter of that sister had been two years in a lunatic asylum, and citing other instances of insanity in the family.[456]
Mr. Botts then stated, "That upon receiving the above dispatch he went to the jail, with his associate, Mr. Green, and read it to Brown, and was desired by him 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.... Brown also desires his counsel to say that he does not put in a plea of insanity."[457]
His counsel again moved for a continuance, and, doubtless, pleaded the insanity phase of the question in support of the motion. Upon the conclusion of Mr. Botts's remarks, Brown raised up on his couch and said: