BEFORE THE TRIAL.
Popular Discussion Precedes the Arraignment--Legal Questions
Raised by Eminent Lawyers--Judge Kane takes High Ground Against
Treason--The Selection of the Jury--A Representative Panel.
Pending the arraignment of the prisoners in the United States Court
for treason, the affair was made the subject of extended popular
discussion. Fiery Southern journals and orators reflected the views
that had been early expressed by Governor Lowe to President Fillmore,
for his own State of Maryland, that if slave owners could not without
incurring the risk of death pursue their property North and reclaim
it, Secession and Disunion were inevitable. Quite as fierce and fiery
champions of Abolitionism retorted with equal fervor and contempt for a
league with iniquity and a covenant with slavery, and for a “flaunting
lie” that flung the banner of freedom over a human race in chains. The
great mass of conservative citizens stood for both law and liberty;
and heard with sympathetic ears Webster’s great and eloquent pleas for
“Liberty and Union--one and inseparable.”
Joshua R. Giddings, in a speech at Worcester, in the early part of
November, before the trial, publicly rejoiced in the killing of Gorsuch
and that the fugitives “stood up manfully in defense of their God-given
rights and shot down the miscreants, who had come with the desperate
purpose of taking them again to the land of slavery.”
It is a notable coincidence that just at this time the _National Era_,
an Abolition paper in Washington, D. C., edited by Gamaliel Bailey,
was beginning to publish as a weekly serial the first and copyrighted
edition of “Uncle Tom’s Cabin.” Neither the authoress nor the general
reading public then appreciated the power and interest of the work,
nor until it appeared later in book form.
The rashness of the Gorsuches in incurring danger and inviting death
by venturing into an unfriendly country for an unpopular cause, was
cited in mitigation of the indictment against a whole community for
lawlessness. The blunders of the Deputy Marshal in giving his official
errand the aspect of a warlike incursion was urged as a reasonable
explanation for what was charged as popular indifference in the
locality toward a dark crime.
Withal lawyers and laymen found subject for protracted discussion in
the vexed question as to whether it was “treason”; and what degree of
opposition or what extent of resistance to law constituted this high
crime of such infrequent occurrence.
The cases of the Whiskey Insurrectionists in western Pennsylvania, and
Aaron Burr’s trial at Richmond, Virginia, had almost faded from popular
memory. But there were those in eastern Pennsylvania who recalled some
of the echoes of the Fries treason case; and its analogies with the
impending trial of nearly forty Lancaster County people were curiously
scanned by legal pundits on the Court House benches and by local sages
on the country store boxes.
The case of United States _vs_. John Fries arose out of the opposition
of the Pennsylvania Germans in Bucks, Northampton and Berks Counties
to the collection of a direct Federal tax known as “The House Tax.”
Assessors had to measure houses to levy the tax. Hostile public
meetings were held at which John Fries threatened and encouraged
armed resistance to the tax. Armed and with martial music he and his
followers paraded the public highways, intimidating tax officials,
denouncing Congress and the government as “damned rogues,” etc. Fries
had two trials, in both of which he was found guilty of treason and
sentenced to be hanged. He was subsequently pardoned by President
John Adams. He was originally tried and convicted before Judges
Iredell and Peters, in 1799; and his case is reported in 3 Dallas (Fed.
Court Rep.), 515.
[Illustration: THADDEUS STEVENS.
IN THE DAYS OF HIS CONGRESSIONAL LEADERSHIP.]
As early as November 18, 1850, Hon. John K. Kane, United States
District Judge at Philadelphia, had charged the Grand Jury at some
length--and not without considerable personal feeling in relation to
the State of Pennsylvania statutes--on the subject of the Fugitive
Slave Law. Judge Kane had been District Attorney and he was Attorney
General of Pennsylvania under Governor Shunk from Jan. 21, 1845, to
June 23, 1846. His appointment as Attorney General was offensive to Mr.
Buchanan.
Notwithstanding the Supreme Court of the United States in the Prigg
case had intimated that legislation of this character was for the
Federal Government and not for the State, Judge Kane severely
reprehended the Pennsylvania Act of 1847, which repealed the Acts of
1826 and 1827, delegating to State authorities the right to issue
warrants for fugitives; he declared the new Fugitive Slave Law of
Congress to be little different from the Pennsylvania statute of 1826,
and he depicted the results of the Pennsylvania law in these rather
lurid terms: “Fanatics of civil discord have, meanwhile, exulted in the
fresh powers of harm with which this state of things invested them; and
the country has been convulsed in its length and breadth, as if about
to be rent asunder, and tossed in fragments, by the outbursting of a
volcano.”
He went on to say that the new Federal law must be obeyed, and the
penalties for violating it were to be enforced without fear, favor
or affection. He referred to his district as a community which
had suffered in reputation and repose “from crimes of excitement,
turbulence and force,” and inveighed against disobedience to a statute,
obstructing officers of the law and deeds of violent resistance against
them.
The language of this charge, and his well-known views on the legal and
political aspects of the question, did not afford a very encouraging
outlook for those who were to be tried before him or in his court.
These very natural apprehensions were increased, when his charge to
the grand jury followed on September 29, 1851. He briefly reviewed the
reported facts of the Christiana affair, and though he avowed entire
freedom from any impressions of the guilt or innocence of the accused,
he pointed to the charges made against them as sufficient to establish
the crime of treason if they were duly proved. He also pointed out
that as the offence of treason was not triable in his Court, and
though the grand jury then empanelled could not take cognizance of the
indictments, his learned brother of the Supreme Court, the Hon. Robert
C. Grier, who presided in this circuit, would sit on the trial of the
cause. Justice Grier was a Pennsylvanian, appointed by President Tyler
in 1844, to succeed Henry R. Baldwin, deceased.
The result of the submission to the Grand Inquest for the United States
inquiring for the Eastern District of Pennsylvania to the August Term,
1851, was that they found true bills for treason against the following
persons, which indictments were, on October 6, 1851, remitted from the
District Court to the Circuit Court:
1. Castner Hanway.
2. Joseph Scarlet.
3. Elijah Lewis.
4. James Jackson.
5. George Williams.
6. Jacob Moore.
7. George Reed.
8. Benjamin Johnson.
9. Daniel Caulsberry.
10. Alson Pernsley.
11. William Brown, 2nd.
12. Henry Green.
13. Elijah Clark.
14. John Holliday.
15. William Williams.
16. Benjamin Pindergast.
17. John Morgan.
18. Ezekiel Thompson.
19. Thomas Butler.
20. Collister Wilson.
21. John Jackson.
22. William Brown.
23. Isaiah Clarkson.
24. Henry Simms.
25. Charles Hunter.
26. Lewis Gates.
27. Peter Woods.
28. Lewis Clarkson.
29. Nelson Carter.
30. William Parker.
31. John Berry.
32. William Berry.
33. Samuel Williams.
34. Josh Hammond.
35. Henry Curtis.
36. Washington Williams.
37. William Thomas.
38. Nelson Ford.
The District Attorney then moved for a venire to issue to the marshal,
who was commanded to return 108 jurors, of whom 12 were to be summoned
and returned from Lancaster County, where the offenses charged were
perpetrated.
The selection of jurors for this trial, under all the conditions we
have tried to sketch impartially, was a delicate and difficult task
for Marshal Roberts--in view of his well-known political opinions
and of his personal and partisan affiliations with Thaddeus Stevens,
chief counsel for the defense from start to finish. The character
and associations of the members of the panel may be gathered to some
extent even now from the attitude assumed toward them by counsel on
either side. In a subsequent chapter will be briefly epitomized the
disposition made of those whose names were called. Keeping it in mind,
the author, from a large historical acquaintance with the leading men
of that period in the counties of the State from which this panel was
chosen, does not hesitate to say that it was high above the average
in intelligence and all other requisites for important jury service;
that it was eminently representative and an altogether fit and fair
enrollment. This opinion is not only now justified, but it is fairly
demanded by reason of the criticism Attorney General Brent made in
his report to Maryland’s Governor upon the disadvantage to which the
prosecution was subjected in the personnel of the venire.
During their stay in Moyamensing the prisoners suffered for a time
from lack of heat and ventilation until conditions were remedied.
Some of them were confined in the Debtors’ Apartments. Witnesses
deemed necessary to hold were detained by the Government under pay of
$1.25 per day to them. Peter Woods relates that Ezekiel Thompson and
Henry Simms engaged so frequently in loud prayer that outsiders were
attracted to the prison walls to listen to them from the adjoining
sidewalks. By November 15th it transpired that two witnesses, Peter
Washington and John Clark, detained in the Debtors’ Apartments, had
escaped. David Paul Brown said one of them was important for his client
Joseph Scarlet, while the United States was insistent that it needed
them also. Mr. Brent finds cause for suspicion and complaint in the
allegation that they got out without breaking a lock through inside
treachery, of which he “cheerfully” acquits Marshal Roberts; but
neither throughout nor after the trial does Mr. Brent present himself
as an altogether cheerful person.