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 engaged in 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 a _true_
verdict, 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, and countenance
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 did _not_ aid, 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 of the 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 cases _then_ considered 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 a _private 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 a _public 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 a _general_
and _public resistance to any law_ of 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 the _prosecution_ shows 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 about _ten minutes_, and rendered a verdict of NOT 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
a _nolle 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 were _nol 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 a _nolle
prosequi_ upon 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 imputation of 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 most of 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, all IGNORED. 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 who _felt_ and _knew_
they were guilty of no crime. The rest preferred flight to dangerous
delay.
When time and opportunity permit, guilty men _will_ avoid the penalty
imposed by law, whether the crime be treason, murder, riot or larceny;
and active, energetic officers usually pursue before 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,
_probably_ led 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, _certainly_ induced 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 prove _publicly_ that
these exaggerated reports of traitorous combinations were merely
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 very _highest_ authority 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 the _power_, 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, to any 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.
FOOTNOTES:
[A] How, when, or by whom these men were arrested, does not appear
on the transcripts of the docketts of the U. S. Commissioner or of
Alderman Reigart. There are several omissions of this kind. The first
mention made of several is upon the records of the prison.
[B] The occupation of these witnesses is mentioned when given in the
report of the trial.
[C] Here the printed report ends. The remainder has not yet been
published. The conclusion of Mr. Brent’s speech, Mr. Read’s, Mr.
Cooper’s, and Judge Grier’s charge, are taken from memory and from the
daily papers published at the time.
[D] The report of this gentleman’s remarks is very meagre. The
conclusion of his argument is totally omitted in the papers, to give
place to Judge Grier’s charge.
[E] It is to a review of this able charge that Mr. Brent devotes
more than half his pamphlet. He attempts to controvert many of the
positions, and argues at length that many of them are not sound
law. The character of the learned Judge for ability, and a profound
knowledge of the law, is too firmly established to render a defence of
his reasonings anything but a work of supererogation. It is enough to
know that the charge was thought a _sound_ one by many legal gentlemen
of Philadelphia, who took no other than a professional view of it. Mr.
Brent’s differences may have resulted from a foregone conclusion.
TRANSCRIBER’S NOTES:
Text in italics is surrounded by underscores: _italics_.
Obvious typographical errors have been corrected.
The name of Dr. Thomas Pierce is misspelled in the original as Peirce
and Pearce. Research indicates that the correct spelling is Pierce,
and all misspellings have been corrected.