Part 8

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 States from 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 raging in 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 defendant _whisper_ to 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 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.