John Brown, Soldier of Fortune: A Critique

by Hill Peebles Wilson

We committed no destruction or waste of property. Prove that.

The defense began Friday afternoon. Mr. Villard states that Messrs. Botts and Green, following John Brown's suggestion, "essayed to prove, the kindness with which Brown treated his prisoners," which drew from Mr. Hunter the "caustic and truthful comment that testimony as to Brown's forbearance in not shooting other citizens had no more to do with the case than had the dead languages."

Mr. Hunter's objections being overruled, a number of Brown's witnesses were examined to show that he had not only not killed his prisoners and everybody else who came within the range of his rifles, but that he had treated all courteously, notwithstanding the fact that his enemies had fired upon his flag of truce, and had killed one of his men, William Thompson, while he was a prisoner in their hands.

A scene was precipitated at the trial when the names of some of his witnesses were called and it was found that they were not present; Brown thereupon arose and, denouncing his counsel, demanded that the proceedings be deferred until the next morning. A Herald correspondent stated:[462]

When Brown rose and denounced his counsel, declaring that he had no confidence in them, the indignation of the citizens scarcely knew bounds. He was stigmatized as an ungrateful villain, and some declared he deserved hanging for that act alone. His counsel, Messrs. Botts and Green, had certainly performed the unpleasant task imposed upon them by the Court in an able, faithful and conscientious manner; and only the evening before Brown had told Mr. Botts that he was doing even more for him than he had promised.

Mr. Hoyt, of Brown's counsel, added to the interest of the scene by asking that the case be postponed. Anticipating that his colleagues would withdraw from the case as a result of Brown's speech, he said that he was utterly unable to go on with the case alone and that Judge Tilden, of Ohio, was coming to assist the defense, and would arrive during the night. Counsel Botts and Green, after asserting that they had done everything possible for their client, announced, that since the prisoner had no confidence in them they could no longer act in his behalf. Judge Parker thereupon released them, as counsel, and adjourned the trial until the next day at 10 o'clock.[463]

When court convened Saturday morning, Mr. Griswold and Mr. Chilton appeared for Brown, and asked for delay—a few hours only—in which to make some preparation for the defense, which was refused. "This term will end very soon," the Judge said, "and it is my duty to endeavor to get through with all the cases if possible, in justice to the prisoners and to the State."

With the examination of a few additional witnesses, the testimony for the defense closed and the battle of wits began with a motion by Mr. Chilton, that the State be compelled to elect one count in the indictment and abandon the others. That Brown was charged with treason, and with conspiracy and advising with slaves and others to rebel, and with murder in the first degree. He contended, and cited authorities to sustain his contention, that in a case of treason, different descriptions of treason could not be united in the same indictment; high treason could not be associated with other treason. If an inferior grade of the same character could not be included in separate counts, still less could offense of higher grade, etc., etc., etc. Mr. Harding, associate counsel for the prosecution, of course, could not see the force of the objection made by the learned counsel on the other side. The separate offenses charged were but different parts of the same transactions. "Murder arose out of the treason as the natural result of the bloody conspiracy." Mr. Hunter said the discretion of the Court on one count in the indictment is only exercised where great embarrassment would otherwise result to the prisoner. The Court held that the point might be taken advantage of to move an arrest of judgment; but since the jury had been charged, and had been sworn to try the prisoners on the indictment as drawn, the trial must go on.... The very fact that the defense can be charged in different counts, varying the language and circumstances, is based upon the idea that distinct offenses may be charged in the same indictment. The prisoners are to be tried on the various counts as if they were various circumstances, etc. Mr. Chilton then said he would reserve the motion as a basis for a motion in arrest of judgment.[464]

Mr. Griswold then stated that the prisoner desired that the case be argued, and that while he had not been present at the trial, counsel could obtain sufficient knowledge of the evidence by reading the notes; and since it was nearly dark, he supposed argument for the Commonwealth would engage the attention of the Court until the usual hour of adjournment; and asked that the Court adjourn after the opening argument by the prosecution. Mr. Hunter opposed opening the argument "unless the case was to be finished to-night," and protested against any further delay. The Court ordered the trial to proceed, but at the close of Mr. Hunter's speech, of forty minutes' duration, adjournment was had until Monday. Brown sought by all the means in his power on Saturday, to delay the trial, and when court convened after noon he sent word from the jail that he was sick; whereupon the jail physician. Dr. Mason, was summoned in the case. He reported that Brown was feigning illness. The Court then directed that he be brought into court on a cot. Mr. Hunter states that after the adjournment was procured, the "crafty old fiend was well enough to walk."

On Monday, at 1:30 p. m., the argument was completed. Mr. Chilton asked the Court to instruct the jury that if they believed the prisoner was not a citizen of Virginia, but of another State, they could not convict on a count of treason. The Court declined, saying the Constitution did not give rights and immunities alone, but also imposed responsibilities.