Thompson Loughead was then examined as to the occurrences of the morning; Samuel H. Laughlin as to conversations with Kline; Isaac Rogers, who lived within a few hundred yards of Parker’s house, as to the occurrences of the morning; and John C. Dickinson in relation to conversations with Dr. T. G. Pierce, after the transaction. Dr. Patterson and J. G. Henderson also testified to statements made by Dr. Pierce in relation to the occurrences of the morning.
Hon. W. D. Kelly, one of the Associate Judges of the Court of Common Pleas, for the City and County of Philadelphia, Francis Jobson, (collector of water rents,) Wm. D. Francke, Daniel Evans, (fire-proof chest maker,) Isaiah G. Stratton, Wm. Stroud, (officer in the Custom House,) Jacob Walker, John Hinkle, Norman Ackley, (constable,) Anthony Hoover, Aaron B. Fithian, Geo. K. Wise, John Mackey, Andrew Redheffer, John McEwen, Thomas Liston, William Hopkins, James Smith, William Nutt, John Manderson, Jacob Glassmire, John Dittus, Joseph Parker, Charles H. Roberts,[B]testified that they knew Henry H. Kline. They were citizens of Philadelphia, and some of them had been acquainted with him for twelve or fourteen years. When asked the question prescribed by law, “What is his general character for truth and veracity?” the answer uniformly was, “It is bad,” or words to that effect. Some, and among these Judge Kelly, when asked, “Would you believe him on his oath?” answered,“That would depend on circumstances;” some answered positively “no,” and others so qualified their answers as to show their belief that his testimony should be received cautiously.
John Carr, a blacksmith, who lived four or five miles from Parker’s, testified that on the night of the 10th of September, between eight and nine o’clock, he followed Harvey Scott (one of the colored men whom Kline swore he saw at Parker’s) up stairs to bed, in the garret of his house, and buttoned the door after him; the next morning (the 11th) he unbuttoned the same door, called him down, saw him immediately go about his daily employment, and had him employed that day in his shop. John S. Cochran, who also lived with John Carr, testified to substantially the same facts.
Lewis Cooper was examined as to the transactions of the morning of the 11th, after the riot. He carried from the ground, in his dearborn, the wounded Dickinson Gorsuch, and the body of Edward Gorsuch. He testified to some conversations with several witnesses, and that he was one of the neighbors who accompanied the corpse to Maryland.
John Houston was called, and testified that about the time of the riot there was a party of men at work on the railroad near Christiana, who were called to work in the morning by a bugle; and to some other immaterial matters.
Enoch Harlan, Joseph M. Thompson, George Mitchell, Levi Wayne Thompson, Andrew Mitchell, Wharton Pennock, Samuel Pennock, John Bernard, Calvin Russell, Isaac Walton, James Coates, Ellis P. Irvin, Geo. W. Irwin, testified that they knew the defendant Hanway, some of them having known him from boyhood. They all represented him as an “orderly, quiet, well-disposed and peaceable citizen.”
With this the testimony on the part of the defendant closed. They had proven all they promised—the notoriously bad character of Kline for truth and veracity, the good character of Hanway, the acts of kidnapping, and such other circumstances as repelled the presumption of combination; but most important of all, the fact that Hanway went suddenly to Parker’s house, upon information that there were kidnappers around it, to prevent if possible the recurrence of such scenes as had more than once appalled the neighborhood; that when shown the legalauthority of the officer, he was going away, and only delayed his departure from the ground to use his exertions in preventing bloodshed.
The prosecution, in turn, offered rebutting testimony. Mr. G. L. Ashmead, in his opening remarks, offered to sustain the character of Kline, which, it seems, was thought to have been somewhat damaged by the attack made upon it; to prove (if the attendance of witnesses could be procured) that the seizure from the house of Chamberlain was not a case of kidnapping; that in September, 1850, armed bands of negroes paraded the “streets of Lancaster” (city) in search of slave-hunters; that in April, 1851, a Mr. Samuel Worthington had been prevented from making arrest of an alleged fugitive from labor, in the vicinity of Christiana; to contradict some witnesses who had related conversations with Kline; to prove that Harvey Scott was at Parker’s house, by the testimony of Scott himself; to prove that after the riot Kline had acted as a good officer; and that sundry meetings had been held in Lancaster county in favor of the “higher law.”
E. G. Wood, (police officer,) James Buckley, (Lieutenant of city police,) John Hence, Samuel Goldy, Peter Keller, (an ex-police officer,) Charles Worrell, (innkeeper,) William McDaniels, (tax collector,) Wm. B. Rankin, (attorney,) Alderman Brazier, Thomas Stainroop, John S. Keyser, (marshal of police,) Jacob Weightman, (bar-tender,) John Gamble, (police officer,) John Millward, W. W. Weeks, Andrew Flick, (constable,) F. M. Adams, (attorney,) C. B. F. O’Neill, (do.,) Aaron Green, James Barber, (constable,) James Brown, Sr., (innkeeper,) John H. Moore, (police officer,) Daniel Weyman, Thomas Connell, John Martin, Robert L. Curry, E. J. Charnley, (clerk,) D. A. Davis, (interpreter,) D. L. Wilson, (carriage driver,) Jacob Dulther, John McElroy, (clerk,) J. W. Stanroop, Egbert Summerdyke, Nathan Lucans, Lafayette Stainroop, Thomas Downing, W. D. Haylett, D. D. Emerick, D. W. Rickafus, James Pidgeon, Albert G. Stevens, James Brown, Jr., David Vicely, W. L. Gray, John Selets, Henry Cornish, Samuel Babb, Thomas Wallace, John C. Lamb, Wm. Ray, (innkeeper,) Joseph A. Nunes, (attorney,) Joseph Abrams, (attorney,) Michael Barr, (innkeeper,) W. W. Hankinson, Charles H. Lex, Thomas E. Connell, Jr., J. L.Thomas, (attorney,) William Connell, (gas-fitter,) Joseph S. Brewster, (attorney,) E. E. Pettit, (do.,) Wm. E. Lehman, (do.,) Dr. Vondersmith, Alderman White, Charles P. Buckingham, Phillip Winnemore, J. C. Smith, George Carter, J. P. Loughead, (attorney,) were called to support Kline’s character. Many of them said, they had heard his character called in question, but that they would believe him on his oath.
William Noble was next called, to prove that “in the month of September, 1851, the county of Lancaster, and particularly the neighborhood of Christiana, was patrolled by armed bodies of negroes, after a report that slaveholders had come up there for slaves. That these armed bands of negroes went from house to house, in that neighborhood, searching for the slaveholders, swearing vengeance against them, and expressing a determination to kill them.”
The object of this was to sustain the allegation of combination—the gist of the entire case, in the proof of which the prosecution had so signally failed.
To this extraordinary offer, Mr. Read, on behalf of the defence, objected on several grounds. The evidence was in chief, and not rebutting testimony. It was the bounden duty of the prosecution, as well by the rules of evidence as in mercy to the defendants, to have offered it before the close of their case. Besides this, the Act of Congress requires that the United States shall furnish, three days before a trial for treason, the names of those witnesses whom they intend to examine touching the charges against the prisoner.
Mr. G. L. Ashmead and Mr. Brent both replied, asserting that the existence of this testimony was not known to them at the commencement of the trial; and arguing that this was rebutting testimony; they could find no part of the defendant’s case which it could be considered as rebutting, except the opening remarks of counsel.
Both members of the Court decided the evidence offered to be in chief, and sustained the objections of Mr. Read.
Samuel Worthington was next offered, to prove that some time in 1851, he and a party of men went to the neighborhood of Christiana, in search of a fugitive slave, and stopped at the house of a man by the name of Haines; that “immediately thesame signals were given at that house as at Parker’s;” and to show by this that “the motive which actuated Hanway and others was not of a lawful and legal character, but of a treasonable and criminal kind.”
The same objections were made as before to Noble’s testimony, and the defence again expressed their disapprobation of giving evidence to rebut lawyers’ speeches.
The Court overruled the offer, on the same grounds as had rejected Noble’s testimony, and the witness was withdrawn.
Cist Cockney was next examined, to contradict Jacob Whitson, who had testified in regard to conversations of Kline. John Bacon testified to a difficulty between Kline and some officers at Christiana.
Harvey Scott was called “to prove that the testimony given by Carr and others—the alibi—is not correct; that he was on the ground, and to explain how he got out of the room and proceeded to the scene of action.” After some conversation the question was asked, “Were you at the battle on the morning of the 11th September last?”
Answer.I gave my evidence that I was there, once. I was frightened at the time I was taken up, and I said I was there, but I was not.
Question.Were you there on the morning of the 11th September last?
Answer.I was proved to be there, but I was not there.
Question.On the morning of the 11th September last?
Answer.No sir. Kline swore I was there, and at the time I was taken up I told the man I was not there; and they took me to Christiana, and I was frightened, and I didn’t know what to say, and I said what they told me.
The witness was not cross-examined, but, after a threat to prosecute for perjury, was discharged.
The next morning (Dec. 2) an informal conversation took place in regard to the evidence of Scott. In answer to all the imputations of tampering, made by the prosecution and others, it is sufficient to say, that from the time of his arrest till the examination on the first of December, he was confined in the debtors’ apartment of the Moyamensing Prison, in custody of the U. S. officers, and beyond the reach of any person, except suchas went there on behalf of the prosecution. Like all liars, when left to himself and his own reflections, he concluded it was best to tell the whole truth, especially when this exculpated him from the difficulty into which his own folly and weakness had plunged him. It had been proved, beyond a doubt, that Scott wasnotwithin three miles of Parker’s house on the morning of the 11th, and his declarations made that morning to witnesses who were examined, proved that he was capable of telling the truth, when uninfluenced by fear. As soon as arrested, he was threatened with imprisonment and death; but at first he told a consistent story. Soon the coward’s hope induced him to make false statements. Ignorant, and not gifted with the ordinary intelligence belonging to persons of his condition in life, he knew not the nature and obligation of an oath, and swore as he believed would be acceptable to those whom he supposed to have power over his liberty, and perhaps his life. From the time of the preliminary examinations until brought upon the stand, he was in the care and keeping of the agents of the prosecution; and, as appears by the statements made at the time of his examination, he had been visited in his cell, after the testimony for the prosecution had closed, by some of the counsel for the prosecution, and there told the story which they believed he would repeat under oath. They had their manifest reasons for not calling upon him to give evidence in chief, since they did not dare to do so, even in rebuttal, till he had been visited in prison, and the probable nature of his testimony ascertained!
It was also said, that the day before his examination “he was conversed with by several negroes, in the Marshal’s office, who had to be sent away from him.” This may account for his finally telling the truth. It is certain, that in such a place no one had an opportunity of quite so full a conversation with him as could have been held in his cell at Moyamensing prison. But thesightof his former comrades was sufficient to compel him to exercise even the small amount of conscience which nature had bestowed upon him. But if it were granted, for the sake of argument, that “some negroes” had a conversation with him, by what rule of right or principle of law, could they be condemned for entreating the unhappy man not to degrade himself by committing the loathsome crime of perjury? Mr. Brent’s pamphletimplies the existence of such a code of morals; but if it exist at all, its influence must be confined to the borders of the State he represented.
Dr. Pierce was recalled, to refute the charges of cowardice, which it was said he had, in conversation, made against Kline; and Dickinson Gorsuch, to testify that he saw two of his father’s slaves at Parker’s house.
With this the examination of witnesses closed. Nothing was wanting to complete the trial but the arguments of counsel, the charge of the Judge and the verdict. Those who had attentively watched the testimony, plainly saw that the attempt to sustain the charge of Treason was a failure. The counsel for the prosecution, if rumor is to be depended upon, had for several days abandoned all hopes of a conviction. There were many persons, however, who believed the jury would not be able to agree upon a verdict. Public excitement had subsided, and towards the close of the examination of witnesses, the court room comfortably seated all who chose to assemble to hear the proceedings. The desire to hear the speeches again drew a crowd, and expectation was raised to the highest pitch in regard to one of the counsel, who, when his turn came, considered that it was not necessary for the interest of his client to occupy the time of the Court.
After some preliminary arrangements, Mr. Ludlow began his remarks to the jury and occupied the remainder of the day. He commenced by hastily repeating the part Hanway had taken in the transactions of the morning of the 11th of September. Then citing the 3d Section of Article III of the Constitution of the United States, and the decisions of all courts upon it, argued that the acts committed came within the provisions of the Law. He said that “taking the whole transaction together, this man Hanway, if guilty at all, is guilty by virtue of his presence upon the ground and joining with the conspirators, the whole transaction being the overt act.” His conduct, Mr. L., thought, was not that of an innocent man; but that it confirmed the hypothesis of guilty intent before going to Parker’s. The conflict of testimony to this point, must, he thought, be decided in favor of the Government’s witnesses. Elijah Lewis’s evidence, he told the Jury, must be weighed with the utmost caution. Without attributing perjury to him, it was suggested “that he would shape his course,so as to swear his friend who was the leader, he being the lieutenant, out of the difficulty, and his friend would come and swear him out in turn.”
The alleged case of kidnapping, he said, was committed by a party of imprudent Southerners, who, under the decision of the Supreme Court in Prigg’s case, had taken the law in their own hands and carried their slave away without process. He argued, too, that Hanway’s good character could not avail him in such a prosecution. The testimony in regard to Kline’s bad character was, he thought, the result of opposition to the Fugitive Slave Law, and was more than met by the witnesses who had been produced in rebuttal. He then defended Kline from the imputation of cowardice, which it appeared rested upon him, from his conduct at Parker’s house, and contended he had acted as a good officer and brave man. Mr. L. then pointed out and attempted to reconcile to the Jury some discrepancies in the evidence, and concluded by some eloquent remarks upon the value and importance of the Union.
The next morning, (Saturday December 6th,) before the argument was resumed, Mr. Brent called the attention of the court to an article in a paper called the Pennsylvania Freeman. It contained an account of the serving up of a dinner for the prisoners on Thanksgiving day, and stated that the Marshal had participated with them. After some rather severe remarks from the Bench upon the character of the paper, the Marshal made an explanation of the matter with which Mr. Brent expressed himself perfectly satisfied.
Whatever may have been the object of presenting the subject to the Court at that time, whether to “give a public officer an opportunity of offering a public explanation,” or for any other purpose, it certainly had the effect of casting odium upon the prisoner at the bar. It was extraneous matter and as such should have been withheld till the conclusion of the trial. But when offered, the defence did not choose to exercise their right to object, not wishing to prejudice the defendant by any act which, on the part of illiberal counsel, might be called a disposition to stifle a full and fair investigation, of what (had not its folly and absurdity been made public) might, byinnuendoand such other tricks, have been handled before the Jury in a manner prejudicial to the defendant.
Mr. Lewis then began his remarks in behalf of the defence. He deprecated, in strong terms, the whole prosecution, and alleged it had been commenced in a moment of excitement and public phrenzy. Had a little time been allowed for reflection, for inquiry into the facts, to ascertain Castner Hanway’s character, this issue would never have been presented to this jury. He suggested that the whole proceeding had taken this course at the instigation of the authorities of a neighboring State. The people of Pennsylvania did not deserve such treatment. They had always been loyal, and no better evidence of this is needed than the course and character of their legislation. Mr. Lewis then hastily rehearsed the different acts of Assembly upon the subject, mentioning the objects and purposes of each, and in some cases their private history. From these it appeared that the State of Pennsylvania had ever attempted to establish two points: “To provide a means for the recovery of fugitives within her borders, and to protect her own free black population. The first she did from comity, the last from duty.” The course of Maryland, had, he remarked, been uniformly the opposite of this. She had treated the free black subjects of Pennsylvania with habitual harshness and severity. After further comments upon the relative course of the two States, and asserting the right of every citizen of Pennsylvania, to interpose his influence when injury to her people or violence to her laws is threatened, he repeated the remark made by one of his colleagues that no one deprecated the unfortunate occurrences on the morning of the 11th more than Castner Hanway, and that neither he nor his counsel came there to justify, excuse, or palliate them. In their management of the defence they had desired to obtain not only justice to the living, but to observe a due respect to the memory of the dead, and a regard for the lacerated feelings of those who were bound by near ties to the unfortunate murdered man. The Messrs. Gorsuch had not been asked a question in cross examination, but were permitted to tell their story as witnesses in their own way.
He then referred to the case of alleged kidnapping at Chamberlain’s, and the feeling in the neighborhood which grew out of it. While this feeling existed, Kline, after having spent a day and two nights in the neighborhood, hanging about taverns and exhibitinghimself abroad at unusual hours, made his descent upon the family of Parker under cover of the night. The whole affair had a kidnapping aspect. “The persons that saw this company of armed men surrounding this house of a negro supposed to be free, and held at bay by those within, might well suspect them to be kidnappers.” He reviewed carefully the whole evidence, and by the circumstances proven, argued the absence of combination, which must be sustained by two witnesses. Every act of Hanway’s could be explained and was explained by attributing to him humane and philanthropic motives. Any other construction was forced and unsupported by testimony. “Instead of being guilty of treason, there is no reasonable ground for imputing even impropriety to him. Never indeed was such a prosecution founded upon evidence so meagre, or such a charge seriously made, that would be so foolish if it were not that the subject is so serious.” Mr. L. then commented upon the law of treason, and in a masterly argument occupying seven pages of the printed report, fully elucidated to the jury the legal theory on the subject.
Mr. Brent followed Mr. Lewis. He began his remarks by reference to the oft-mooted question of counsel for the prosecution. He and Mr. Cooper were there by authority of the general Government, and he complained of the statements which had been made in the public prints and elsewhere of the difficulties which had arisen in their own camp. He said “there was an unfortunate question of etiquette between the learned gentleman (Mr. J. W. Ashmead,) and myself (Mr. Brent,) which upon my arrival in the city was fairly and honorably adjusted between us.”
The State of Maryland could not take the reports of the trials from the public newspapers. This man might be acquitted honorably, yetshewould not know it orbelieveit, and his duty was to inform the citizens of Maryland officially of what had taken place. They did not, as had been stated, thirst for blood; and he complained at length of the insults that had been offered him and his State, by those counsel for the defence, who had animadverted upon the extraordinary array of counsel for the prosecution. He then, “before discussing the legal merits of the question at issue, attempted to depict the condition of the South,” and went into an elaborate history of the Fugitive SlaveLaw, with an enumeration of the rights and privileges guarantied by its provisions to slaveholders. After this, he spoke of the Union, and the duties of each citizen towards his Government.
He then passed to what he called, “the powerful combination of crushing testimony (corroborating Kline in every particular,)” and promised to prove from it that Hanway “did then and there connect himself with an organized band, which had been formed for treason.” He argued that “there was overwhelming circumstantial evidence to demonstrate Hanway’s implication in the previous conspiracy.” There was no direct proof, nor was it expected this could be brought “from a region the whole of which is infected, and where every white man in that immediate neighborhood, (with the exception of Miller Nott)is leagued with the traitors.” From Hanway’s presence, his silence, and all he was proved to have done, Mr. B. added it “was passing human credulity to say that you cannot infer in all this, a feeling of hostility to the law, and an intention to resist it.”[C]
The hour for adjournment having arrived, Mr. Brent suspended his remarks.
On Monday morning (Dec. 8th,) at the usual hour, he resumed by answering the comments Mr. Lewis had made upon the laws of Maryland, in relation to free colored persons coming into that State; and spoke of the evils that would result from a dissolution of the Union, and the execration in which those persons should be held who preached treason in the streets and from the pulpits.
He expressed surprise that Hanway’s wife had been permitted to remain by his side during the trial, and warned the Jury not to be moved by her tears. “There are other strange things,” he continued, “that have occurred in the progress of this trial,” and he mentioned the escape of prisoners, and the refusal of Harvey Scott to commit perjury a third time. The conduct of Elijah Lewis, Joseph Scarlet, Hanway, Dr. Kane and Lewis Cooper, on the day of the attack on Parker’s house, was next reviewed, in the severest terms; and then, after speaking of the evidence, he justified the conduct of Kline. He defended the Southern Statesfrom the charge of cruelty towards slaves, and enumerated some of the laws upon the subject.
The law of Treason was next considered, and he presented his views at length to the Jury. In conclusion, he repeated that the “State of Maryland did not thirst for innocent blood. She thirsted only for the pure undefiled fountains of Justice. She stood there for her rights, and stood undaunted.”
Mr. Read, the senior counsel for the defence, followed in an elaborate and searching argument. No part of the case was left untouched. The only report of his remarks to which we have access, is very meagre, not as full as that of the latter part of Mr. Brent’s speech. He alluded in opening to the monstrous doctrine that the Constitution allowed a master the right of seizing his slave wherever found, without even offering to establish his identity, as had been alleged to be the Law by those who had commented upon the case of kidnapping from Chamberlain’s house. Prosecutions and abuse for not sanctioning such outrages as these, were equivalent to saying, “if you do not turn negro catcher, we will indict you for treason.”
He continued with a rapid and striking sketch of English history, throughout the period from which the cases relied upon by the prosecution had been selected,—reviewing it reign by reign, showing with great force the barbarous and tyrannical character of the times, whose principles it was attempted to write into the Constitution of America in the nineteenth century. Having laid this general foundation, he proceeded to discuss at length each particular case that had been cited; and not confining himself to the mere face of the report, he searched out the facts from an array of collateral authorities, such as was probably never before submitted to any Court in any State trial, exhibiting the state of parties, the influences at work upon the Bench and the Juries, the character of the Judges, and the real value which ought to be attached to their decisions. Coming down to the later periods of English Jurisprudence, he insisted that even their Courts had abandoned these principles, and would not now listen to the authorities which the prosecution had attempted to enforce in Republican America; and showed conclusively that at the present day in England, no man could be convicted of treason in levying war, unless an open insurrection or rebellion were actually ragingin the land, and aiming at the change or destruction of the Government. Passing next to the American decisions, he argued, that stripped of the improper phraseology in which some of them had been clothed, they established the same doctrine, and that when this phraseology appeared to cover wider grounds, it had been derived from earlier English cases, which at the time of making the decisions were supposed by our Judges to be the actually existing law of England, our lawyers then not having the means of exposing their utter worthlessness.
Having established the general rule above stated as the result of the decisions now in force, Mr. Read passed to an analysis of the facts of the case; showing in the first place how utterly preposterous was the attempt to dignify this miserable riot with the name of insurrection and rebellion, and that looking at it in its true light, Hanway was not and could not have been a participator. The only overt act he committed, consisted in giving insolent replies to Kline, and the evidence of this was wholly uncorroborated, depending entirely on Kline’s credibility. “A man morally and physically deaf, comes here and says he heard the defendantwhisperto the colored men the words, ‘shoot at them.’ A perjured man who don’t hear and can’t hear, is brought into this court to convict an innocent man, whose hands are white—not red with the blood of his fellow man.”
From the contradictions in Kline’s own testimony, and the opposing evidence, both of the government and the defence, he showed beyond a doubt the perjury of this essential witness; that he was not and could not have been near the bars at the time of the firing, but almost half a mile away in the woods. As this single point was absolutely fatal to the case of the prosecution, he thought it useless to expend time on minor and immaterial details.
After reviewing the testimony of the prosecution, he passed to that of the defence, and showed wherein it supplied the defects of the Government’s case. He commented upon the conduct of Harvey Scott, “who had been tutored to tell a story, and who was frightened into it by Marshal Kline.”
The unfortunate termination of the attempt to arrest the slaves of Mr. Gorsuch, was owing to the imbecile and foolish conduct of Kline. “He had prowled up and down a peaceful country,drinking and carousing, and blustering about horse thieves, until all the slaves had notice of his coming. Had the Chief Marshal of this Court been sent, instead of this prating villain, all the slaves within reach might have been arrested without loss of blood.”
The conclusion of his remarks, was an interesting summary of the laws enacted in the Southern States for the government of the slaves, exhibiting at length their real position, and the real relations existing between them and their masters.
The object of this concluding part of his argument, was to show that a riot, which in a free State was a mere temporary ebullition, might in the South be a matter of much more serious moment, intimately affecting the lives and property of the masters; but that we could not be required to transplant Southern notions, resulting from a peculiar institution, into Northern law and Northern Courts.
We have never seen a miscellaneous audience listen with such earnest attention to a purely legal argument, as did the concourse that thronged the Court room, to the strictly technical part of Mr. Read’s speech.
After Mr. Read had concluded, according to the arrangements agreed upon, Mr. Stevens was to speak. Many persons had assembled to hear his remarks, and public expectation had been excited to an unusual degree. The disappointment was general, when he announced that he thought the case had been so fully and ably argued, on the part of the defence, that his duty to the defendant did not require him to add anything to what had already been said.
Mr. Cooper closed the case for the Government.[D]In the portion of it reported, he reviews the testimony of both sides, and presented his interpretation of the contested points to the jury, answering some of the arguments made by gentlemen for the defence. The time at which his remarks were made compelled him to go over much ground a second time. He concluded by giving his views of the law of treason.
The abstract of the remarks of the different gentlemen engagedin the cause, is necessarily very crude and imperfect. No attempt has been made to give anything more than a hasty analysis of those parts of each speech that pertained to the case.
His Honor Judge Grier charged the jury, at length, upon the law which should govern them in coming to a verdict.
The consideration of the case, he said, had occupied much time, but not more than the importance of the issue, both as respects the interests of the public, and duty to the prisoner necessarily required. The Court had given ample time and opportunity for the investigation of the law and the facts bearing on the case,—not only because it is the first of a numerous list of cases, of the same description, which involve the issue of life and death to the parties immediately concerned, but because we know the public eye is fixed upon us, and demands the unprejudiced and impartial performance of the solemn duties we are called upon to execute. The public and the prisoner have a right to demand of you a firm, a fearless, and an unflinching performance of your duty, and that the verdict you shall render shall be atrueverdict, according to the evidence which you have heard, and the law as explained to you by the Court.
After some general remarks, not material to the point at issue, he read the important parts of the indictment, the truth of whose allegations the jury had been sworn to try.
The learned Judge then called attention to the facts in the case that were undisputed. After these he added, “Two questions present themselves for your inquiry:
“1. Was the defendant, Castner Hanway, a participant in the offences proved to have been committed? Did he aid, abet, or assist the negroes in this transaction, without regard to the grade or description of the offence committed?
“2. And secondly, if he did, was the offence treason against the United States, as alleged in the bill of indictment?
“The first of these questions is one wholly of fact, and for your decision alone. The last is a mixed question of law and fact. On the law you have a right to look to the Court for a correct definition of what constitutes treason, but whether the defendant has committed an offence which comes within that category, is, of course, a matter of fact for your decision.”
“In the present case the defendant was present, as proved by several witnesses, and not denied. Did he come to aid, abet, andcountenance or encourage the rioters? If so, he was guilty of every act committed by any individual engaged in the riot—whether it amounts to felony or treason. There is no evidence of any previous connexion of the prisoner with this party, before the time the offence was committed; that he counselled, advised, or exhorted the negroes to come together with arms, and resist the officer of the law, or murder his assistants. His acts, his declarations, and his conduct are fair subjects for your careful examination, in order to judge of his intentions or his guilty complicity with those whose hands perpetrated the offence. If he came there without any knowledge of what was about to take place, and took no part, by encouraging, countenancing or aiding the perpetrators of the offence,—if he merely stood neutral, through fear of bodily harm, or because he was conscientiously scrupulous about assisting to arrest a fugitive from labor, and therefore merely refused to interfere, while he did not aid or encourage the offenders, he may not have acted the part of a good citizen, he may be liable to punishment for such neutrality, by fine and imprisonment, but he cannot be said to be liable as a principal in the riot, murder and treason committed by the others—and much more so if his only interference was to preserve the lives of the officer and his assistants.”
If you should find that the defendant didnotaid, abet or assist in the perpetration of the offence, you will return a verdict of not guilty, without regard to the grade of the offence, whether riot, murder or treason.
But if you should find that he has so aided and abetted, so as thereby to become a principal according to the rules of law, you will next have to inquire whether the offence, as proved, amounts to “Treason against the United States.”
This is defined by the Constitution itself. Congress has no power to enlarge, restrain, construe, or define the offence. By this instrument it is declared, “Treason against the U. S. shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
What constitutes “levying war against the Government” is a question which has been a subject of much discussion.
“The term ‘levying war,’” says Chief Justice Marshall, “is not for the first time applied to treason by the Constitution ofthe U. S. It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our Constitution, in the sense which has been affixed to it by those from whom we borrowed it.”
Since the adoption of the Constitution, but few cases of indictment for treason have occurred, and most of those not many years afterwards. Many of the English casesthenconsidered good law and quoted by the best text writers as authorities, have since been discredited, if not overruled in that country. The better opinion then seems to be, that the term “levying war,” should be confined to insurrections and rebellions, for the purpose of overturning the government by force and arms. Many of the cases of constructive treason quoted by Foster, Hale, and other writers, would perhaps now be treated merely as aggravated riots or felonies.
But for the purposes of the present case, it is not necessary to look beyond the cases decided in our own country.
After quoting several American authorities, he continued. “The resistance to the execution of a law of the United States, accompanied with any degree of force, if for aprivate purpose, is not treason. To constitute that offence, the object of the resistance must be of a public and general nature.”
In the application of these principles to the case before us, the Jury will observe that the “levying of war” against the United States is not necessarily to be judged of alone, by the number or array of troops. But there must be a conspiracy to resist by force, and an actual resistance by force of arms, or intimidation by numbers. This conspiracy and the insurrection connected with it, must be to effect something of apublic nature, to overthrow the government, or to nullify some law of the United States, and totally to hinder its execution or compel its repeal.
Without desiring to invade the prerogatives of the Jury in judging of the facts of this case, the Court feel bound to say that they do not think the transaction with which the prisoner is charged with being connected, rises to the dignity of treason, or a levying of war. Not because the numbers or force was insufficient, but
1st. For want of any proof of previous conspiracy to make ageneralandpublic resistance to any lawof the United States.
2d. There is no evidence that any person connected in the transaction, knew there were such acts of Congress, as those which they are charged with conspiring to resist by force and arms, or had any other intention than to protect one another from what they termed kidnappers.
The testimony of theprosecutionshows that notice had been given that certain fugitives were pursued; and that the riot, insurrection, tumult, or whatever you may call it, was but a sudden “conclamatio,” or running together to prevent the capture of certain of their friends, or conspirators, or to rescue them if arrested.
He concluded by some general remarks upon the enormity of the offence committed against the State government, and the part which had been taken in the whole transaction; by the States of Maryland and Pennsylvania, and the General Government.[E]
The Jury having heard the charge, retired to deliberate. They returned in aboutten minutes, and rendered a verdict ofNOT GUILTY.
After the verdict had been rendered and the Jury discharged, the District Attorney said, that the prisoner was charged on four other bills of indictment for misdemeanor. On these he proposed to move for anolle prosequi, and said that if the State of Pennsylvania did not hold him to answer any other charges, he would move for his discharge.
Judge Grier said that, on motion of the District Attorney, the defendant was discharged, and Hanway left the Court room a free man—after an imprisonment of four months wanting a day.The next day, (Friday Dec. 12th,) after a long conversation, Elijah Lewis and Samuel Williams were admitted to bail in the sum of $2000 each, and several bills against some of the prisoners werenol pros’d, on the motion of the District Attorney.
On the following Wednesday, (Dec. 17th,) the Court met again for the purpose of taking some action in reference to the remainder of the prisoners, who were charged with treason. The District Attorney said that inasmuch as the charge of Judge Grier to the jury in the case Hanway, clearly convinced him that, upon the evidence, the charge of treason could not be sustained, he had determined to enter anolle prosequiupon the remainder of the bills. He thought, however, that a clear case of murder and riot had been made out, for which the prisoners were amenable to the State authorities, and he had communicated with the authorities at Lancaster upon the subject. In reply, the District Attorney of Lancaster county had informed him, that detainers had been lodged at the Moyamensing prison by virtue of which they would be carried to Lancaster, by the U. S. authorities. He therefore moved that the U. S. Marshal be directed to remove the prisoners to Lancaster at his leisure, there to await the action of a Grand and Petit Jury of that county. Mr. Ashmead further said, that he would lodge detainers against the prisoners with the authorities of Lancaster, in order that they might be tried in the U. S. Courts in Philadelphia for misdemeanor, should they by any possibility escape punishment in Lancaster. He was determined to do his whole duty in the case, and if these men were to go unpunished, it should not be through neglect on his part.
The Court then made the order as required, and Judge Kane discharged the jurors from further attendance.
Mr. Read then asked for an order from the Court for the payment of the defendant’s witnesses, and cited the case of Aaron Burr in support of the request. The District Attorney asked that a time be fixed for argument upon the matter, and the Court named Friday as the day on which they would consider the motion. The argument was heard as appointed, and the Court refused to make the order.
Those in authority had determined, as has been seen, to abandon the prosecution for treason. To avoid the imputationof imbecility, it was resolved to attempt a conviction upon the charge of misdemeanor under the Fugitive Slave Law of 1850. So much noise had been made about the grade of crime committed at Christiana, that it was not expedient to permit the matter to leave the U. S. Courts after the verdict of “not guilty” in Hanway’s case.
Accordingly, Samuel Williams was detained for trial in Philadelphia, while his partners in crime were removed to Lancaster to await the action of the State authorities. His principal offence was not such as made him amenable to the State of Pennsylvania, it not being charged that he was ever at Parker’s house.
Sufficient breathing time having elapsed after the trial of Hanway, William’s case was called on Monday, January 5, 1852, in the District Court, before Judge Kane. All parties not being ready for trial, a postponement of one week was ordered.
On Monday, the 12th of January, the prisoner was arraigned on two bills, one charging him with interfering to prevent the arrest of Noah Buley, the other with interfering to prevent the arrest of Joshua Hammond. To both of these charges he plead not guilty.
On the part of the prosecution G. L. Ashmead, Esq., James R. Ludlow, Esq., and John W. Ashmead, U. S. District Attorney, appeared; and R. P. Kane, Esq., W. S. Pierce, Esq., and D. P. Brown, Esq., appeared in behalf of the defendant.
After some delay the following jury was empannelled: Pratt Roberts, Chester Co.; Thomas Vaughn, Philadelphia County; Henry McMahen, Philadelphia city; Patrick McBride, Philadelphia Co.; Michael Keenan, do.; Frederick Boley, Sr., do.; Joseph Dowden, Chester Co.; Samuel Culp, Germantown; Minshall Painter, Delaware Co.; Joseph Thornton, Philadelphia Co.; Francis Parke, Chester Co.; and Peter M’Conomy, Lancaster.
Mr. G. L. Ashmead opened the case to the jury by stating what evidence would be presented to them, and his view of the law of the case. In this, as in the trial for treason, Kline was the principal witness against the defendant, and the mostof the evidence offered was a repetition of that in Hanway’s case.
After several postponements on account of the illness of the presiding Judge, the case was resumed on Monday, February 2d. The defence relied upon, was the deficiencies in the evidence for the Government, and the uniform good character of the defendant. After able argument, the case was given to the jury on Wednesday, February 4th. On Thursday they returned a verdict of “not guilty.”
In the meantime the State authorities had been proceeding in the matter. On Monday Jan. 12, 1852, the Lancaster County Court of Oyer and Terminer and Quarter Sessions, met at Lancaster city. On Thursday the 15th, the District Attorney of Lancaster sent up to the Grand Jury a number of bills charging Castner Hanway, E. Lewis, J. Scarlett, and the other defendants in the treason cases, (some of whom were in prison, not having been able to procure the bail required,) with riot and the murder of Edward Gorsuch. The next day, about one P. M. the bills were returned to Court, allIGNORED. That afternoon those “Traitors” in prison were released, and the bonds of those on bail were cancelled.
Thus ended the prosecutions growing out of the Christiana riot. The great mistake made in the whole proceeding, from first to last, was, that those men who might perhaps have been indicted with some show of justice, for riot, though not for treason,were never arrested. The outrage was committed on the 11th of September, before five o’clock A. M. The oath of Kline before Joseph D. Pownall, upon which the warrants were issued for the arrest of the guilty parties, was not made until more than twenty-eight hours afterwards. From that time the most unrelenting vigilance was observed, and the neighborhood virtually placed under martial law. But measures were taken too late. Only those men remained within the reach of tardy justice whofeltandknewthey were guilty of no crime. The rest preferred flight to dangerous delay.
When time and opportunity permit, guilty menwillavoid the penalty imposed by law, whether the crime be treason, murder, riot or larceny; and active, energetic officers usually pursuebefore the modern facilities for travelling have carried a criminal beyond their reach.
Those in authority are often compelled to rely upon the representations of their subordinates, and in this case the rumors which at first started the public and the braggadocio telegraphic dispatches,probablyled the higher officers of justice to suppose that the guilty had been secured. The array of soldiery, the special police force detailed from Philadelphia, and the levy of extemporaneous troops from the neighborhood,certainlyinduced the uninitiated public to believe that the net had been properly cast. But when drawn ashore it was found to contain a few persons who had been led to the scene of action from the best and most philanthropic motives, some of whom, instead of “levying war against their native country,” or “aiding and abetting in the murder of Edward Gorsuch,” had bravely interposed between the infuriated blacks and their assailants, and by their conduct saved the lives of the remaining companions of this unfortunate stranger;—men who, instead of a felon’s cell, shattered health, and the total wreck of their worldly prospects, merited the thanks of all who would spare the shedding of innocent blood.
Before the first flourish of the first trumpets had died away, those whose positions afterwards required them to conduct the prosecutions had gone too far to retract. The false and distorted statements which had found their way into the public prints, before the real truth had been ascertained, were republished and believed throughout the country; and the Quixottic expedition of U. S. troops and their impromptu associates in Lancaster county were thought by many, as well in the State of Pennsylvania as at a distance, to have been undertaken against a dangerous and resolute host of genuine traitors. The affair happening upon the eve of a popular election in our own State, and at a time when the “fire eating” party in the South was exerting its utmost to disseminate discord and dissatisfaction, furnished ambitious and unprincipled men with fuel for the flames they were striving to kindle. What wonder then if the timid and uninformed at first foresaw in this first alarm a conflagration that was to devastate the whole country?
To allay public excitement it was necessary to provepubliclythat these exaggerated reports of traitorous combinations weremerely the result of vain boasting and a desire for notoriety on the part of a few silly men, who had not wit enough to foresee the lamentable consequences of abusing the authority with which they had been imprudently entrusted. Whether the course pursued to gain this end was the most judicious, is somewhat questionable, though it seems to have been sanctioned by the veryhighestauthority in the country. The parties implicated by the miserable management of those who took the initiative measures, had rights, and, though the prerogatives of office gave thepower, it is doubtful whether a due regard to the public welfare justified the Federal authorities in imprisoning for months innocent men, subjecting them and their friends to the inconvenience and expense of such investigations.
To prove to the nation that its bungling agents had arrested the wrong men, cost the Government nearly Fifty Thousand Dollars. It excited between the authorities of neighboring States bitter animosities and unjust recriminations, where before had existed the best feeling and undisturbed harmony. It, for a time at least, inflamed sectional prejudices and caused renewed agitation of a question whose difficulties the greatest men of the nation had for years been striving to adjust peaceably. It cost the parties who were to be subjected to this ordeal, their liberty for months, the total abandonment, and, in some cases, the utter ruin of their business; to a few the loss of health, to all the entire privation, until the trial, of those comforts and sources of enjoyment upon which we are all so much dependent for happiness, and an expenditure of money in preparing for their defence that some were totally unable to meet, and that robbed a few of the entire earnings of industry and frugality. It cost their families many bitter tears and hours of anguish, depriving them for a protracted and severe winter of their natural protectors, upon whose exertions many of them were dependant for daily sustenance.
To compensate for this enormous public and private expenditure of money—for the fearful, but, to public sympathy, the disregarded days of agony which took the place of happy and peaceful hours—and for this useless agitation throughout the nation, there resulted not the slightest benefit, immediate or remote, toany individual, save to a few of those who were engaged professionally in these cases.
There rests somewhere a fearful responsibility. This ill-timed attempt to punish with public hatred and infamy, or with fine and imprisonment, perhaps death, the innocent instead of the guilty, was the result either of a pitiable desire for unenviable notoriety, or of a culpable and unpardonable negligence on the part of those who were the sources of the movement. For either cause, no excuse can be offered before any tribunal.