Part 7

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 legal authority 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 the same 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 such as 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 was _not_ within 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 the _sight_ of 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 pamphlet implies 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, by _innuendo_ and 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 exhibiting himself 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, yet _she_ would not know it or _believe_ it, 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 Slave Law, 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.