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CHAPTER IX. 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[Pg 56] 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[Pg 57] 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.


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[Pg 58] 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.    20. Collister Wilson.
2. Joseph Scarlet.    21. John Jackson.
3. Elijah Lewis.    22. William Brown.
4. James Jackson.    23. Isaiah Clarkson.
5. George Williams.    24. Henry Simms.
6. Jacob Moore.    25. Charles Hunter.
7. George Reed.    26. Lewis Gates.
8. Benjamin Johnson.    27. Peter Woods.
9. Daniel Caulsberry.    28. Lewis Clarkson.
10. Alson Pernsley.    29. Nelson Carter.
11. William Brown, 2nd.    30. William Parker.
12. Henry Green.    31. John Berry.[Pg 59]
13. Elijah Clark.    32. William Berry.
14. John Holliday.    33. Samuel Williams.
15. William Williams.    34. Josh Hammond.
16. Benjamin Pindergast.       35. Henry Curtis.
17. John Morgan.    36. Washington Williams.
18. Ezekiel Thompson.    37. William Thomas.
19. Thomas Butler.    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’[Pg 60] 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.


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