The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-11-07

am sure the manner OF the performance OF that duty
viii meet with no exhibition OF feeling the part Of this
ment exists natural; but while II does exist
feel that there determination on the part of large
majority Of teis community not to allow that feeling 70 In
terrup the iair progress OF this trial feel that there
Ii settled determination TO permit a stain TO rest
upon the lair name Of the State That il shall not bs said
that any man, matter what his crime may have bocn
VINO mas been akea into the courts Of law OF this State
and protected under that awhat shall not be said he
was denied ful, fair and impartial trial. convicted
contrary 70 law Gentlemen when you entered that box
you were Intercepted whether you had formed any
opinion OF the guilt innocence or the prisoner and
wnener you entertained feeiags preiudacia 70 fair con
sideraton OF the case. The usual question pro-
ponnded 10 YOU whether there any prejudice
IN your minds adverse to the prisoner a. the bar,
and you answered, none. You were sworn truly
TO examine the testimony that would be laid before
you, faithfully To discharge the obligations of the
oa.n you nave taken to try the case upon the
according as that evidence might dictate. no matter
what the public feeling might DO what might tend
WIN argue the case upon the assumption that this Is the
STATE o. your mnds, aud that you do sit there ready
satisfied that the law and the testimony
convNuoh o. ths man--ho matter, Repeat, what the
public feeling may beno what excitement exists
that you Will honestly aud uniinchiugy discharge your
OATH, by rendering conscientious verdict be the result
what y may could have hoped tina, the prosecution
wouu nave oeen opened differently Saturday evening
by The Commonwealth Attorney. l confess i did not
understand from the opening very distinctly upon
ground the various charges in the indictment
we're sought 10 Dc -u-lnejupon what principle OF law
or fact the prosecuting attorney INDUCED in that strain Of
aouse OF the prisoner al the bar Saturday evening He
stated great many things III relation him. In fact ne
(hr Hardihg pronounced verdict of condemnation upon
the prisoner He did wait verdict of the Jury
but seemed 70 that he usurpcd the place of Judge
and Jury when he pronounced that sweeping maedction
upon b--when he said that for all his crimes degrade
ton and inamy were now hanging the head of
prisoner NJ the oar and his postery to tho latest genera
ton. Now, differ altogether from the prosecuting
attorney IN my estimate Of this matter. | do not think
that the law or the decisions Of the law look the pos
tery OF this unfortunate man at all but the contrary
that II is upon himself and himself alone IT, IN the opinion
Of the jury he guilty Of the crimes imputed him. that
the law looks. and nat upon himself alone will fall the
punishment and not upon his posterity any generation
AS my time is limited must be brief In me arguments
upon the various points the case presents. Gentlemen
my colleague stated to YOU and you are already
aware there are in particular three distinct charges laid
against the prisoner at the bar. The first is tue charge
Of treason. Treason gentlemen, offence al common
law ana It's definition Is TO be found in common law, with
the exception that the Legislature Of Virginia. in defining
what acts constitute the crime OF treason, has added
some that were not Known IN the definition Of treason
recognized by the constitution of the United States Now
the word treason is derived from French word signify
ing betrayal Il means the betrayal of trust II
the betraying confidence in violation OF relation
that relation IN this the allegiance and fidelity due
to the Commonwealth from its citizens Now gentle
men, il is a well known proposition in law that treason
cannot be committed by an individual against State
less he be citizen Of that State. The definition Of trea
son Is found in book upon law Of the highest authority
The word treason is derived from the French word
hdhon, which signifies TO betray. then defines what
offence is breach of the allegiance which subjects n
Great Britain owe to the Crown But mark this gentle
man: II Is expressly laid down that alien who
into the Kingdom In hostile manner is thereby guilty
OF treason, because he allegiance he is bound by
no tic of fidelity TO the King Now statute has de
fined what acts constitute the crime of treason The
mon law defines what treason is; does it define what
murder is. Murder is not defined by statute though at
common law It has distinct and we'll defined meaning
and whenever want TO ascertain what the meaning OF
murder is do TO the statute but the common
law Fl ON which all laws are derived and tho prn-
cpes of which lie at the very foundation of all our laws
And here We go TO know what the word mur der MEANS
and what the word treason means There is no statute
Law In Virginia which defines treason though lays down
punishment for those who may commit it, Hsays that levy
ing war shall be treason; setting up government shall
be treason, when Set up in opposition to the existing
government OF the state acting under tho authority Of
set shall be treason but leaves the
question open as to what constitutes these crimes and in
what manner party may be adjudged guilty
OF them. And here therefore, must 60 to the common
law the expressed common law, and what it SAYS II
says that in England any alien foreigner coming into
the State in hostile manner, matter with what force
shall not thereby commit treason, whyp Because
gentlcmen-and wish you 10 mark this-because he
owed no allegiance 70 the Crown OF England and treason
Is prcacn OF that Therefore, the alien and foreigner
OWING no allegiance and fidelity to England commits
no breach oil these relations, and consequently no offence
is committed Now, gentlemen / argue upon the prin.
cipes OF common law, 1t 10 true, but is my duty to call
your attention 10 it, and now come TO a point that may
be subject OF instruction TO you by his Homer AS
not yet been before you, merely refer H. and you
will hear what the other side shall have to say upon IT,
and If any difficulty afterwards arises upon il his Honor
viii solve the difficulty by explaining the law bearing
upon It, And II / am right in it, say you cannot find
tie prisoner guilty upon the first in the Indictment
because you have no proof to show that the was
citizen Of the State and Commonwealth Of Virginia And
this question must not be left in doubt The prosecution
must first this you before they give you the issue
TO try matter what may be averred in the Indictment
that be citizen OF the State. The prisoner and
those associated with him charged with having COM
ntted an act or acts not OF which the declares
shall constitute the crime Of treason and for the crime
OF treason they are araigned and the prisoner now
upon his trial. They are charged with lcvying war
Now do not propose TO add any arguments Of my own
TO those already advanced by my learned associate
show that what these parties have really done was no
levyng OF war against the State They proved to have
seized by force public buildings at Harpcrs Ferry
and to have occupied them. They are proved to have
sailed forth from their position and seized certain slaves
and their masters and brought them to their stronghold
and there detained them as prisoners. It has been
proved that they resisted any authority of the
State, because l have nowhere any evidence
that demand was made upon them to surrender
nor was any process issued against
them by any constituted authority as violators Of
the peace There is no evidence at all of these
should try him each Of these counts though YOU
were sworn TO try that count Alone and for nothing else
Now with reference TO the murder. That is charged in
the third count but is also made the subject of fourth
count and WILL therefore, treat both the In one
count all the parties charged with perpetratng muir
der In the fourth count four only of tho party are
with aiding and abeng the others; that in the eyes
OF the law they are all equally guilty according to the
Now, gentlemen, you all that four
men killed at Harpers Ferry-this is the "murder
referred to in the Indictment But the the ndct
ment is invalid. II charges five men each with murder
ing four understand Alright it states that John
Brown, the prisoner at the bar, with four other per-
sons named, did on a certain day each muir
der A, B, c and D, four This form Of
may be all according TO law that is matter
however, which the Court must decide. But say il is
impossible for prisoner to make defence to such a
cbarge-that he, the prisoner with four Others each
murdered four men, Now, they might have been charged
with jointly numbering them, but that they separately
murdered them deny; II is impossible Three men may
murder another If they all shoot at him at the same mo-
ment and that their bullets all take effect upon him; but
il man kills another, by shooting or otherwise and
two others are present. aiding and abeng then all three
lf fha Thati