CHAPTER FOURTH. shal to enforce the confinement in some other county jail within this District. Mr. Marshal, you will take the prisoner into custody." This sentence was received with quietness by the prisoner and his friends. CLEVELAND, WEDNESDAY, May 11, 1859. Court convened at 9 o'clock. The fact that sentence was to be passed upon Bushnell, and probably Langston, caused the court room to be densely crowded with eager listeners and watchers of the proceedings. A large proportion of the audience was composed of ladies. Judge SPALDING announced that he had a motion to make before the Court, that the next case of those indicted, that of John Watson, be immediately taken up and proceeded with. The COURT inquired if the District-Attorney This matter was, however, deferred until after was ready in that case. No, he replied, he sentence should have been passed upon Bush-was not ready. He had learned that the Sheriff nell. Mr. Bushnell, who, with his wife and child, occupied seats near the bench, was told to stand up. The COURT asked the prisoner if he had any thing to say why sentence should not be pronounced. Mr. Bushnell intimated that he had not. The COURT then asked if he had any regrets to express for the offence of which he stood convicted. Receiving another negative, it proceeded to pronounce sentence from manuscript, as follows: "It is at all times a disagreeable and painful duty for the Court to pronounce the sentence and impose the penalty which the law demands for its violation. The discharge of this duty is peculiarly painful in dealing with the class of offenders to which you belong, who deem it a praiseworthy virtue to violate the law, and then seek its penalties with exultation and defi ance. The COURT then asked for any farther motion. Mr. RIDDLE moved to proceed with the case of John Watson. of Lorain County had that morning arrested Jennings, Lowe, and Mitchell, on a charge of kidnapping, and that they were now in the custody of that officer. He believed, and could say he knew, that all this machinery of arresting these men and confining them on that charge, thereby delaying and hindering the business of the Court, was the work of the defendants who thus endeavored to put a stop to farther proceedings against the indicted. He had also taken notice that a writ of habeas corpus in the case of Bushnell would be applied for, which would perhaps interrupt the proceedings of the Court. He also stated that he had been appointed by the Government to defend these witnesses in the Lorain County Court in his official capacity. Under these circumstances it would be impossible for him to proceed at present with the case of Watson. Judge SPALDING replied that the DistrictAttorney knew, as well as the Court and every lawyer at the bar, that if the Court needed these witnesses, a writ of habeas corpus ad testificandum would bring them at any moment from any jail in the State, and keep them at the convenience of the Court. The plea that they were carried off was a mere sham, as any "A man of your intelligence must know, that the enjoyment of a rational liberty ceases the moment the laws are allowed to be broken with impunity, and thereby fail to afford any protection to society, that if the standard of right is placed above and against the laws of the land, those who act up to it are any thing else than good citizens or good Christians. You must know that when a man acts upon any sys-body could see. tem of morals or theology which teaches him The next case upon the list, John Watson, to disregard and violate the laws of the Government that protects him in life and property, his conduct is as criminal as his example is dangerous. had a right to an immediate trial, and the convenience of no District-Attorney in the land was to be consulted. If the prosecution wanted the case postponed he asked that the motion be submitted in writing and sworn to. "Nor your blackguardism." "The good order and well-being of society demand an exemplary penalty in your case. Judge BELDEN remarked that his official char You have broken the law, you express no re-acter would give power enough to the bare mogret for the act done, but are exultant in the tion to postpone. wrong. It is therefore the sentence of the Judge S. "Your official character can add Court, that you pay a fine of six hundred dol- nothing to the statement." lars, and be imprisoned in the county jail of Cuyahoga County for sixty days from date, and pay the costs of this prosecution. It is made the duty of the marshal to see this sentence executed; and in case any casualty should interfere with the security of your confinement in the jail named, it is made the duty of the mar "And your private character still less." The District-Attorney then moved to the Court that the bail of the prisoners be reduced to $500. Considering that this has been the amount of secured bail which has been required from the first, the magnanimity of the offer can be properly appreciated. He also stated that | second day thereof; and the facts on which such he had been told that Mr. Plumb on Tuesday motions are founded, shall be verified by oath, night abused the Sheriff of Lorain county for or statement of counsel, unless they appear of not having before executed his writ. This record; and such motions shall be submitted Mr. Plumb denied in toto, Marshal Johnson also without argument. showing that it was not true. A recess was at length taken until 2 o'clock for the preparing of affidavits on both sides. AFTEROON SESSION. Court convened at 2 o'clock. "RULE 51. On such motion, the affidavit or official statement will be taken as true; and no contradictory, supplemental, or amended. affidavit or statement will be permitted." It consented to receive, however, an independent motion from the counsel for the defence, In accordance with notice given in the morn-which was presented by Judge TILDEN, and ing, Judge BELDEN presented to the Court a reads as follows:motion for continuing the rest of the cases of those indicted, the motion being in substance as follows: 2d. That the next term of the Lorain county Court of Common Pleas would commence on Tuesday next, and that the District-Attorney had been appointed by the Government for their defence. U. States District Court. United States of America, V. John Watson. The defendant, John Watson, moves the Court that he may be put on his trial to the Jury, on the plea of "not guilty," without further delay. :: In support of said motion the said John Watson upon his oath says: 1st. That he was arraigned before this tribunal on the 8th of December, A. D. 1858, and plead "not guilty," to said indictment, and demanded an immediate trial. At the instance of the U. S. District-Attorney the trial was at that 3d. That the offence charged against these time postponed, and this defendant entered into men was based solely upon the facts that these a recognizance in the sum of one thousand doldefendants were engaged in seizing and arrest-lars for his appearance in this Court on the 2nd ing, by virtue of the laws of the United States, the very fugitive from service, mentioned in the indictment for rescue; and that the indictments for kidnapping were found on testimony of some of the rescuers, or on testimony procured by them. 4th. That Lowe was arrested on his way here and compelled to enter into recognizance with surety for his appearance in the Lorain county Court, on Tuesday next, which recognizance would be forfeited unless he appeared, and if he appeared, he might be detained two or three weeks. 5th. Cochran and Bacon were absent without the consent of the District-Attorney, and their testimony was indispensable. 6th. That writs of habeas corpus would be applied for in the Bushnell and Langston cases, which would require the immediate attention of the District-Attorney. 7th. That no trial could be had in any of the remaining cases, in all probability, without a most unreasonable delay, which would be caused by the action of the defendants, or their confederates, or by advice of their counsel. The Court read the 50th and 51st Rules, and under them adjudged itself bound to allow the motion of the District-Attorney. The Rules are the same as obtain in the State Courts. "RULE 50. Motions for continuance for reasons known to the party at the commencement of the term, shall be filed on or before the Tuesday in March, 1859. Before that day arrived, however, at the instance of the U. S. District-Attorney, and for his special accommodation, a further postponement of the trial of defendant was had, by consent of defendant's Counsel, until the 5th day of April, 1859, when defendant duly appeared in Court, and thereafter regularly appeared from day to day until the 15th day of April, 1859, when, on motion of the U. S. District-Attorney, he was ordered into the custody of the U. S. Marshal for said Northern District of Ohio, and was on the same day last mentioned, by him committed to close confinement in the county Jail of the county of Cuyahoga, in the State of Ohio, where he has ever since been, and is now, restrained of his liberty, and awaiting his trial, upon no other charge than that contained in said indictment of rescuing a fugitive from service. 2d. This affiant says it is not true that, anterior to the time when he was placed in close confinement in the jail of Cuyahoga county as aforesaid, he had ever contemplated a breach of his recognizance, voluntarily entered into as aforesaid, and it is not true that he, at any time, surrendered himself in discharge of his said recognizance; nor yet is it true that his counsel proposed to surrender him in discharge of his recognizance; on the contrary, this affiant says that he should, undoubtedly, at this moment be at large upon his said recognizance, if he had not been ordered into custody as aforesaid on the 15th day of April aforesaid, upon the motion of the U. S. District-Attorney as aforesaid. 3d. This affiant further says, that the journal entry of this Court, made on the 15th day of April, aforesaid, so far as the same purports to show that this defendant, in connection with other individuals resting under similar charge, surrendered himself in discharge of his recognizance, was made under a mistaken conception of the facts as they transpired, and, so long as said journal entry is permitted to stand in force, this defendant will be unable, consistently with the preservation of his own self-respect, to renew his individual recognizance, or to give bail for his appearance at a subsequent term of this Court. He must, therefore, continue to lie in jail unless he can have the benefit of a speedy trial. or probable guilt through the medium of the trial just closed. They are at present in the custody of the jailer under an order of this Court. I think your Honor must be satisfied that that order was made and embodied in the Journal under a misapprehension of the facts. They are simply these. These parties were in attendance upon this Court regularly and constantly, in obedience to the order of the Court, bound by their own recognizances in the sum of one thousand dollars each; and were in faithful observance of all the conditions of those recognizances. Now I need not stop here to discuss the rights of these defendants on the one side, and the rights of the government upon the other. Ordinarily a recognizance is ample protection against custody or arrest, so long as its conditions are not infracted. But I do not say no lawyer will attempt to sustain when persons at large upon their recognizances are here at the bar of the Court in its presence on actual trial, it is not competent for the Court to order them into custody, when it becomes absolutely necessary to retain their persons beyond the possibility of escape. But I do undertake to say here, in deference to the decision of the Court and to the profound learning of the that 4th. This affiant says further, that in addition to the injury likely to be sustained by defendant in his bodily health, by a long-continued imprisonment in warm weather, he has reason to believe that a farther postponement of his trial will lose him the benefit of a very material witness in the person of William D. Scrimgeour, who is fast wasting away by means of a consumption, and is by his friends expected to live but a short time. Said W. D. Scrimgeour re-gentleman who appears in behalf of the Govsides at Oberlin, in the county of Lorain, and can be brought into Court, as this affiant is advised, during any day of the present or the next coming week. He has hitherto, since the commencement of this class of trials, been too unwell to be brought so far from his home. J. WATSON. The counsel upon both sides endeavored to make some remarks upon these two motions, but the Court remarked that no explanation or comment was necessary, as the first motion, filed by the District-Attorney was sufficient, and would, for the reasons set forth, be granted. The Court announced that the remainder of the cases, John Watson's included, would be continued. Mr. RIDDLE then arose and remarked: Mr. RIDDLE. With the indulgence of the Court I will call its attention to a matter to which I have already incidentally referred, and that is in reference to the circumstances under which these defendants are in the custody of the jailer. Now, it makes no matter who these parties are, no sort of difference what the offence with which they stand charged, nor where they reside of course nor how much or how little may be known to your Honor of their possible we ernment, that never before, anywhere was a mo- Now it is said on the part of the Government that these parties surrendered their recognizances, and hence were taken into custody. I wish to avoid any question of veracity, comparative or unqualified. But that these parties did not either intend to surrender their recognizances, or as a matter of fact did not surrender them, whatever may have been the understanding of the Government officials in the hurry and perhaps the excitement of the occasion, I take it, your Honor, must be true. And what followed? Why, after they were taken into custody, that was followed by an order of the Court to remit these parties back on their own personal recognizances to the very position which they occupied before; which would seem to imply that in the judicial mind, after ordering them into custody the question had been raised whether after all refined and sensitive tastes, nor have they there was any good reason for such an order, any morbid relish for self-inflicted martyrdom. and it had been decided negatively:-for if But they do value their self-respect; they do there were such a reason it must have been a dis-prize the dignity of manhood, and they call covery of some infraction of the conditions of upon your Honor as a man, as well as a Court, the bond, or an insufficiency in the amount or to judicially correct a judicial misapprehension in its sureties. And in deciding that these par- which has subjected them to this gross injustice, ties be remitted to their former standing, it and not require them to regain their freedom would seem that the Court became satisfied that at the price of their manhood. Am I asking there neither was an infraction of the conditions too much then when I ask, as I now do, that of the recognizance, nor a deficiency in the the Court will direct a correction of the Journal, amount of the sureties. And now, your Honor, so that it will appear that as these parties were these defendants, knowing perfectly well the placed in custody by a mistake, that miscircumstances under which they were ordered take is corrected, and they can go forth honorinto custody; I say knowing perfectly well, and ably. It seems to me that I am not asking too beyond the possibility of a mistake, all the cir- much. It seems to me that the Court will not cumstances under which they were ordered into hesitate to grant such a request. That it will custody, that it was done without any show gladly direct such a correction of the Journal, of cause or pretext, they cannot with self to be made, that it may no longer prevent the respect comply with that order of the Court truth and work gross injustice. This is not discharging them on their own recognizances; asking any action on the part of the Court that for that is a conclusive admission that they were will reflect upon the veracity or dignity of any in the wrong an admission they cannot make, officer of the Court, and least of all upon the and it is an outrage to attempt thus to force Court itself. It is asking simply the correcthem to make it. tion of a judicial misapprehension by judicial direction. It is asking on behalf of these defendants what the Court will always grant to every one else, that if a misapprehension has inadvertently crept into the record, it may be set right to their advantage, and to the advantage of truth and justice, objects that Courts have generally pretended to have in view. Judge BELDEN replied. A question now arises upon the propriety of their course; and I do not now refer to any outside discussions; we have nothing to do with opinions or occurrences outside the Court Room-I refer to this question and its bearings upon the position these parties occupy before this Court. And now we ask, will your Honor, while always remembering, as We always will, that you are a Court, also re- I wish to say a very few words with refermember that you are a man! That this pre-ence to the extraordinary request the gentlesumption of the law, that these parties must be man has just preferred. presumed to be innocent until they are proven to be guilty, is not a mere idle worthless formula? . What can these parties do? They are perfectly unconscious of having at any time entertained any intention to infract the conditions of their recognizances or the orders of the Court, and no less perfectly unconscious of having ever voluntarily surrendered their recognizances. Much more than that: they KNOW that they never did so surrender them; and they KNOw that they did ask to have them cancelled after they had been taken into custody. Now, is it not plain, looking at this matter fairly, that these parties cannot come forward into Court, and enter into recognizance again without tacitly conceding, not only to the compromising of their own self-respect, but in the face of the universal world, that they were wrong, when they know as this Court must now know that they are right; I now speak of course with reference to the manner in which they came into custody. And now certainly your Honor cannot fail to see the precise position in which they are placed, and wholly through the misunderstanding of the officers of the Court. They most assuredly have never coveted imprisonment. There is nothing in such a mode of life to gratify their He professes to have asked nothing that would, if granted, compromise the dignity of the Court, and yet in the same breath we have the declaration that his clients stand and have stood for three weeks upon the merest technicality, upon which they are at issue with the Court. Why, where else do your clients stand? Where else have they stood ever since they have been in prison? if what you say is said sincerely. Now here are two or three things about which my friend on the other side will not differ with me. And I refer now to the. circumstances preceding the commitment of these individuals. He knows, I know, your Honor knows, and he admits now, that when the motion was made to change the relative position of these parties to this Court, it was the very motion which he says here would be appropriate, and that was, that individuals, who, by unparalleled leniency on the part of your Honor, had been permitted to go at large upon their own personal recognizances for so many months after they were indicted for crime, that these individuals, thus long and largely privileged, when a stage in the trial" had been reached, by the conviction of one of their number, after a full and impartial hearing of testimony and argument, in which it became my duty to look more particularly after the cer : tainty of their presence; and when they had already surrendered themselves into custody by surrendering their recognizances, that I made the motion that the security be raised from recognizances to bail with sureties. And this is the very motion which the gentleman has just admitted to be a proper one. But the gentleman was not satisfied with this, but wished to go two or three steps in the rear. He states that upon my application the cases were delayed [Mr. RIDDLE corrected the gentleman; the statements of which this last was the first were made in the affidavit just read by Judge Tilden.1 that the cases were delayed till the 7th of March. I say this was not so. Not to impugn him; I charge nothing beyond a mistake. I wished to take up the cases as soon as ten or twelve days from the time of their appearance. The Grand Jury had adjourned some two weeks before the bills were properly returned, without my being three minutes in the Grand Jury Room while the testimony was being given before them, and I could not keep the witnesses here at the expense of the Government. was willing and anxious to take up the cases so soon as I could send for witnesses, which would not be longer than ten or twelve days; it would have been much more convenient for me to have gone on then, but the learned counsel who then appeared for the defence, suggested the 8th of March, to which the Court acceded. The postponement from the 8th of March to the 5th of April was made by my request, and greatly to my own accommodation, for which kindness and indulgence on the part of the counsel for the defence I desire to express my sincere thanks. own motion into the custody of the Marshal, and then notified the Court that they themselves would back out, your Honor, that they'd have nothing farther to do with the defence of these men. And when this excitement had passed away and the Court was about adjourning, I did think that in the discharge of my duty as counsel for the Government, it might be proper for me to make a motion, that by giving some reasonable security they might be released from custody again. Again, your Honor overruled me, and said they could go out as before upon their personal recognizances. And again, I submitted without com plaint. But I do say that when these gentlemen, beseeching a favor, stand here and put the question of grace upon the ground that your Honor is wrong, that the Clerk is wrong, and that I am always wrong and they're always right, that they do not exactly occupy the suppliant and respectful attitude which they claim to your Honor that they do. And I do think that it is my duty and my right to object, to protest, and to claim that these men now occupy Ia position where they ought to be required to give security, and I think the amount I stated was a reasonable amount. I have no disposition to ask your Honor to demand of them unreasonable bail; but I do feel it my imperious duty to ask and to demand that these persons occupy the position of other persons indicted for crime, and a portion of them already convicted upon fair and impartial trial. And I do this in no bad spirit. Much as I have been abused and charged with all manner of unworthy motives, I have not taken any one step which I thought in my own mind would even look like unkindness, severity, or unfairness; and if any word or look or tone or manner of mine has conveyed to any of you a different impression, I beg that I may be excused here, by these Gentlemen, and by your Honor. Now I do hope that these gentlemen will not, here, without a motion, ask your Honor that these defendants may go upon their own recognizances. And whether the record be true or false, no harm is done by it to the defendants. Mr. RIDDLE. I do not wish to press my motion, your Honor, but I wish to set myself right on a point raised by the gentleman. But now to the other matter. When Bushnell was convicted it became my duty, in behalf of the United States, which I represent, to put him in custody. And when the verdict of the jury was brought in there was a good deal of confusion, and here our difference of understanding occurred. The confusion arose out of the question whether the jury could sit on the second case. I simply objected to the challenge of the array. I never intimated but that the jury could be challenged for cause. I believed they would nearly all excuse themselves. Your Honor overruled me. I thought I was right, and think so still, but submitted to the ruling without a complaint or a murmur. In the midst of this confusion and excitement the learned counsel for these defendants had their clients called and surrendered into custody. Mr. RIDDLE. — That's false, utterly false. Judge SPALDING. That's a lie. Judge BELDEN. Well, Gentlemen, I cannot believe you mean to seriously insult me; but if you do, I have only to retort upon you. I say it is true as I have stated it. They had their clients called and surrendered of their The COURT. Mr. Riddle, there is no motion before the Court, and further remarks are quite unnecessary. Mr. RIDDLE. May I not correct the error of the gentleman, by which I am placed in a false position? The COURT.There is no motion before the Court, Mr. Riddle; further remarks are unnecessary. Mr. RIDDLE. I understand your Honor, then, to deny me the privilege of making an explanation. The COURT. Further remarks are quite unnecessary, sir. |