(A copyrighted publication of West Virginia Archives and History)

Legal Phases of the Trial of John Brown

By Daniel C. Draper

Volume I, Number 2 (January 1940), pp. 87-103

*This paper took form in a course in historical method at West Virginia University under Dr. F. P. Summers.

The history of the United States up to the Civil War witnessed a struggle between the individual states and the federal government as paramount powers; and the trial of John Brown was the legal crux of this struggle. The divergent interests of a Northern bourgeoisie and a Southern aristocracy could not but conflict; and, as the North endeavored to extend her industrial development by exalting federal power, the South tried to protect her agrarian system, based on slavery, by exalting states' rights. In 1857, Dred Scott V. Sanford gave support to the Southern view; and, on October 27, 1859, the case of Commonwealth v. Brown came before the of Charles Town, Virginia. The crimes for which the accused stood indicted were committed on a federal military reservation; but, even so, the local court assumed jurisdiction; and President Buchanan gracefully acquiesced. Brown was convicted of treason against the State of Virginia, and duly hanged. The precedent was significant; in little more than sixteen months South Carolina by force extended her sovereignty over Fort Sumter; and the Civil War began.

Commentators have neglected the purely legal aspects of this cause celebre. Hermann von Holst and later General Marcus Wright, followed by James Ford Rhodes, discuss its ethical aspects: as an apologist for the abolition of slavery, von Holst allowed his criteria of abstract morality to color his interpretation of fact; and Wright presents as conclusive evidence a declaration by the accused himself that the trial was fair, although Brown was obviously incapable of passing on the legal problems that arose, and seems, furthermore, to have complained frequently of inability to hear the proceedings.

During the trial, sympathizers raised a question that is preliminary to any study of the more involved issues. Brown's counsel received a telegram stating that the defendant's mother was insane; and they therefore entered a plea of insanity. Brown, however, rose in court and overruled his attorneys, who, being merely his agents, withdrew the plea. No convincing evidence has ever been produced to prove Brown's insanity. The mere fact that he believed in the forcible abolition of slavery is certainly no proof; for one may believe in spiritualism, or in the transmigration of souls after death into the bodies of animals; and these opinions are not evidence of insanity, which legally consists of delusion of fact and object, not of belief. Brown's possible delirium as the result of wounds, moreover, and the demented condition of his mother raised no legal presumption of lunacy. After Brown's counsel had withdrawn the plea, the Judge had no authority to investigate: for the Virginia Code states his obligation as follows: ". . . the court of the county or corporation of which such [insane] person is inhabitant, shall, on application of any party interested, examine into his state of mind, and being satisfied that he is insane shall appoint a committee of him."

The recent discovery of official orders of the court greatly illuminates the legal aspects of the case. These papers reveal two points at issue: first, whether residence or merely physical presence was the prerequisite for the charge of treason; and second, to what extent could the State of Virginia exercise jurisdiction over the arsenals of the United States?

Early in life, Brown had been interested in Sheep grazing and in 1840 spent a few weeks in Doddridge and Tyler counties, (West) Virginia with the thought of acquiring a farm and settling there, but, immediately previous to the raid, he was certainly neither a Virginia resident nor a Virginia taxpayer. In fact John Brown was never more than a casual visitor to Virginia at any time prior to his raid on the federal arsenal. He entered the state on that October night in 1859 from Maryland, where the raiders had their rendezvous, and passed almost at once to the federal arsenal, which was under the jurisdiction of the United States. The criminal acts of his raid took place within a few hours after his entrance into the state. On this ground, Brown's counsel took exception to the application of the Virginia law of treason. The presiding judge, Richard Parker, overruled the exception, and in so doing clearly implied that the only essential prerequisite for the commission of the crime was not citizenship or residence but mere presence on the soil.

Authorities agree that only he who owes permanent or temporary allegiance can commit treason. In the first place, is the rendering of this allegiance dependent merely upon presence on the soil; in the second place, if it is not, under what conditions does it become operative, and to what extent does the case of John Brown fit these conditions? Since the Virginia statute is silent upon most of the points in dispute, one must go back to the common law from which this concept of treason arose, and which presumably still remained in force. Treason cases, even after 1859, may be cited in order to reveal the meaning of the original law.

Cases decided in later years have not accepted the doctrine of mere physical presence which Judge Parker laid down. Carlisle v. U. S. held that an Englishman "resident" in the Confederate state of Alabama owes allegiance to the United States, and can commit treason against it. This case significantly does not use "on the soil" but "residence." De Jagar v. Attorney General applies residence in an even stricter sense, and holds that a Boer "resident" in English territory owes allegiance, although the territory be evacuated by British troops and reoccupied by Boers. In Ex Parte Quarrier, the Supreme Court of West Virginia felt that "residence" was too broad a basis for qualification, and so held that citizenship also was necessary. Although cases after the Civil War obviously could not be cited in Judge Parker's court, yet they sprang from the generally recognized common law tradition which in 1859 was available to the Court.

Even more authoritative are a number of rulings that antedate the trial of John Brown. These likewise conflict with Judge Parker's conception. Republica v. Chapman used "residence" when it held that an individual cannot commit treason against Pennsylvania before it became a state because one cannot be resident of a political unit that does not exist. In his official capacity as Secretary of State, Daniel Webster declared that United States citizens who were "resident" in a foreign land owed allegiance to that country and were liable to prosecution for treason "for so long a time as they remained under the dominions of a foreign government"; but he later added that United States citizens owe this allegiance "independent of any domicilation." The Supreme Court, moreover, later distinguished between "residence" and "domicile," and held the former, but not the latter, as a prerequisite for the commission of treason.

Treatises of common law support this view. In 1762, Sir Michael Foster declared: "Local Allegiance is founded in the Protection a Foreigner enjoyeth for his Person, his Family or Effects, during his Residence here; and it ceaseth whenever He withdraweth with his Family and Effects." Lord Hale summed up the theory of "residence" and allegiance when he declared: "And this allegiance is either natural from all that are subjects born within the king's allegiance or local which obligeth all that are resident within the king's dominions."

The most conclusive case is that of the Duke of Norfolk decided in 1571. In this instance, the assembly of Justices, referring apparently to Lord Herise's case, held that the Scottish Lords who raided across the border, in much the same way as John Brown did, were not guilty of treason, apparently because they were not residents; the Court also held that the Duke of Norfolk, who was an English resident and who had instigated the raid, could commit the crime of treason. Hale corroborates this view and declares: "And hence it is if an alien enemy comes into this kingdom hostilely to invade it, if he be taken, he shall be dealt with as an enemy, but not as a traitor. . . ." Hale quotes both East and Coke as authorities. "Residence," therefore, was a vital prerequisite for any prosecution for treason; and a raider, such as Brown, was not a resident.

Judge Parker might have maintained, however, that the indictment of Brown was defensible on the ground that, since the courts, between 1571 and 1859, have consistently extended the scope of "residence" in matters other than treason, this term might further be extended so as to include a raider from across a border. This, however, is not a valid argument; the definition of "residence" even today would not be sufficiently broad for Judge Parker's purposes. Whether Lord Herise's case uses "residence" in the constructive, technical, legal sense, or in the sense of common parlance denoting the personal and actual habitation of all individual, is hard to say. At any rate, although "residence" has no fixed meaning applicable to all cases alike, and is difficult of precise definition, certain minimal requirements distinguish it from mere physical presence: one must have stopped for a period of time; and one must have stopped in some kind of shelter. Although judges in recent years have shortened the time element, and have abandoned both physical presence and the narrower term "domicile" in favor of the more general terms "abode" and "dwelling," yet "residence," even in its narrowest modern sense, denotes at least a temporary lodging for the night. Thus by no conceivable stretch of definition could a person who had merely crossed a bridge into Virginia and proceeded through her territory for less than a half a mile, be called a Virginia resident. Subsequently, Brown may have made a foray deeper into the state; but, even in this case, such a movement could have lasted only a short time. To convict of treason, therefore, the Court must needs make a judicial ruling that clashed with the common law.

From the time of Republica v. Carlisle in 1778, later under Marshall, under Story and under Chase, the American courts, as far as treason is concerned, have regularly mitigated, rather than intensified, the common law. In this case, however, Judge Parker goes beyond even a liberal construction of the law, beyond the definition of treason formulated in the Middle Ages, beyond the law as applied by Judge Jeffries, and beyond the standards set up under Henry VIII and George III.

The Supreme Court of Appeals, moreover, then the highest tribunal in Virginia, rejected Brown's petition for writ of supersedeas. Perhaps it also subscribed to Judge Parker's theory of treason, but more probably the following provision of the Virginia Code was decisive: ". . . when there are several counts in an indictment of information; and a general verdict of guilty is found, [as was so in this case] judgement shall be entered against the accused if any count be good, though the others are faulty." The petition, however, endeavors to overcome this section and holds it modified by the following: "But on the trial the court on the motion of the accused [such motion was presented] may instruct the jury to disregard any count that is faulty." Counsel for the appellant contended: "No argument or citation, though both are abundant, is necessary to prove that where a statute says, a court may do what justice and right require, in the administration more especially of criminal law, there is the duty of the courts so to act, and that if it do not, error is thereby committed." The petition, furthermore, alleges that the indictment in the other counts was unwarrantedly vague as to time, place, and persons involved.

Whether one followed this view or not, another question, wholly ignored in the petition, would appear to cast the remaining counts in doubt. Could Virginia rightfully exercise jurisdiction of the federal arsenal at Harpers Ferry? Although authorities differ as to the number killed, the proslavery but caution Baltimore Sun declared that the raiders shot two persons on federal property and probably several within the state.

In the first place, was Brown involved as a principal in the murders within the state? On leaving Maryland, he directly traversed the few hundred yards to the arsenal, and no accounts refer to any deaths this early in the expedition. Rhodes mentions but a single occasion on which Brown later left the arsenal, and this was to escort a Baltimore and Ohio conductor across the Potomac bridge in order to convince him that it was not mined. In this instance, no one was killed. According to the testimony, moreover, of those captured as hostages by the various parties raiding outside the reservation, Brown took no part in these expeditions, and in every case was in the arsenal when the hostages were brought in. Brown, therefore, was responsible, for these murders in the state only as an accessory.

A provision of the Virginia code declared that "In the case of every felony, every principal in the second degree and every accessory before the fact, shall be punishable as if he were the principal in the first degree. . . ." The indictment charged Brown only as a principal in the first degree, not as an accessory, and the jury rendered the verdict, "Guilty of treason and conspiring with slaves and others in the first degree." According to Virginia law, the indictment must clearly stipulate whether one be charged as a principal or as an accessory, even if one crime be the legal equivalent of the other. The Court, therefore, apparently must have considered murders that occurred on the United States property rather than those committed within the territory of Virginia.

A second issue naturally arises: to what extent could the Virginia court exercise jurisdiction over these crimes committed on a military reservation? Usually in cases of domestic insurrection, involving the use of federal troops, military tribunals supersede the civil courts; but, in this case, President Buchanan, inadvertently or not, neglected to make the requisite proclamation. Since the Constitution, however, provides that arsenals purchased with state permission shall be entities entirely separate and immune from the legal processes of the state, and since Virginia, in the manner deemed necessary by the courts, had authorized the purchase of the Harpers Ferry arsenal, a federal, rather than a state, court should normally have prosecuted Brown.

One might maintain, nevertheless, that the possible death within Virginia of individuals shot on federal property affected the exclusive jurisdiction of the United States courts. The Baltimore Sun, however, declares that Beckham, one of the two men shot on federal property, was killed instantly, and that Private Quinn was removed to a hospital on the arsenal grounds, the apparent place of his death. Even if one doubt the exact location of Quinn's death, the United States courts after the Civil War in U. S. v. Guiteau, sanctioned the predominant common law opinion that jurisdiction rests where the wound is inflicted rather than where the victim dies. A special statute permitted the courts of Virginia to prosecute a murderer whose victim died outside the state, but no such statute authorized the courts to prosecute a murderer who, like Brown, inflicted the fatal blow outside the State, but whose victim died within the State. With only the common law as a guide, the court might well have decided the question as it wished. The federal courts, however, have laid down the general principles governing such situations: "However proper it may be hat the courts of the States where the Common Law exists should treat such questions of jurisdiction from the standpoint of that law, that question must be treated by the courts of the United States, where a fort or a magazine or an arsenal is under the exclusive jurisdiction of the National Government, from the standpoint of Federal authority and with reference to the relation of the crime to the sovereignty of the United States."

John Brown probably would have preferred a trial in a federal court where a change of venue might have been obtained, and Virginia seems to have recognized this possibility. In a letter to Governor Henry A. Wise, Andrew Hunter, Brown's special prosecutor, intimated that John E. Cooke, one of the defendants and a brother-in-law of Ashbel P. Willard, the Democratic Governor of Indiana, might be permitted a federal trial. Governor Wise, although he ostensibly denied any such intention, also suggested the possibility, and desired to oblige "my friend," Governor Willard; but, in order to obviate public criticism of such discrimination, Cooke was later convicted in the Charles Town court and hanged. This byplay between friendly state executives seems to imply that even Virginia felt that Brown might obtain a more favorable hearing in the federal courts. What then occasioned the assumption of jurisdiction by the State?

The Baltimore Sun sheds more light on the problem, and reveals the unusual method by which the jurisdiction was originally obtained. Its first statement, published October 22, 1859, reads as follows: "It appears that the prisoners are amenable to the United States and State authorities to the former for murder, to the latter for treason." The paper added that the federal court would be in session "next Monday," and so apparently expected federal jurisdiction. In the same issue appeared a notation to the effect that Robert Ould, the Federal District Attorney for the Western District of Virginia, was in conference with President Buchanan. Its final comment on jurisdiction was: "The sending of the prisoners to Charles Town is believed to be a concession to the views of Governor Wise who claims to try them by the laws of Virginia." Such "concessions," however, are usually confined to politics rather than to criminal justice.

Thomas Drew, a Northern pamphleteer, suggested that possibly a reservation in the deed of cession of the land on which the arsenal stood made this "concession" possible; but the present writer can find no such reservation in the deed; and, even if such reservation existed, it could hardly take precedence over an express article in the Constitution of the United States. Mr. Thomas C. Green, an eminent member of the Charles Town bar and the son of one of the lawyers for the defense, declares that Brown's counsel filed a general demurrer on the basis of jurisdiction to the indictment; and, according to a pro-Southern account Judge Parker overruled this demurrer, and cited an earlier decision of his own in which he maintained that Virginia had jurisdiction.

In view of the supporting precedent, the failure of Brown's counsel to appeal to the Supreme Court of the United States under Article I, Section 8, is puzzling. Mr. Green suggests, however, that, since no stenographic record of the trial exists, and since a demurrer was apparently entered, the failure to appeal resulted perhaps from a conviction on the part of the other defendants that such appeal would only delay an inevitable execution. The lawyers seem to have followed this policy for all defendants; and Brown appears not to have realized the exact situation. Much confusion, furthermore, was created by his imprudent change of counsel in the midst of the proceedings.

No procedural obstacles, however, deterred the lawyers for defense. At any time before the execution of judgment, they could have appealed; for the defendant's consent, either implicit or explicit, does not confer jurisdiction. Irrespective of any question of appeal to a higher court, the local court erred in not sustaining the original demurrer. As George F. Caskie, a Virginian, declares in a Southern periodical:

When John Brown reached Harper's ferry, his first act was to take possession of United States' property and overpower United States guards found there. When finally captured, it was by United States troops on United States' property after a fight in which one of the United States Marines was killed. Were these occurrences to take place today, it will hardly be doubted that the jurisdiction of the whole matter would be taken by United States Courts.

On the other hand, the Virginia court probably did not have access to the more obscure of these cases, previously cited, and it certainly intended no special discrimination against Brown, for the judge seems to have made a similar error in an earlier case. The prevailing Southern view of states rights, moreover, doubtless prompted both the Charles Town court and the Virginia Court of Appeals to deal this blow to Federal power.

Other aspects of the movement had already gained impetus from the courts. Consequently President Buchanan, following an opinion of his own Attorney General, found that, although the secession of the Southern states was unconstitutional, no authority then remained to restrain them. According to Mr. Edward Corwin so atrophied was the legislative prerogative that Lincoln on his inauguration resorted to "war power." The Circuit Court was apparently swept away by a similar view.

In Commonwealth v. Brown, therefore, the judicial phase of a conflict, fierce and many sided, reached a crisis. Within the framework of the constitution of one nation, two social and economic systems, agricultural and industrial, two English traditions, Cavalier and Puritan, two competing sovereignties, state and federal, struggled for supremacy. The founders envisaged state and federal authorities both paramount and yet harmonious. As Calhoun pointed out, the scheme failed. Under the Confederation, the states prevailed; in the early days of the Constitution, the federal authority prevailed. The combined efforts of Calhoun and Taney resurrected a modified tradition of thirteen jealous colonies; and the trial of John Brown saw this interim of reaction rise to its apogee.

Twenty-five years before, the Federal courts would doubtless have exercised jurisdiction, and after the Civil War, the national government would certainly have claimed it; but the South, as the work of Corwin and Dunning amply attests, was winning in the judiciary the battles that it later lost on the field of actual combat. The Dred Scott decision was merely the harbinger of a greater curtailment of federal authority. The trial of John Brown was not only the unwitting caricature of a refined constitutional conception, not only a strained and curious application of the theory of states rights, but also the Gettysburg, the veritable Pickett's charge, of the judicial side of the conflict.


1 Dred Scott v. Sanford (1856), 19 How. 396.

2 H. von Holst, John Brown, Boston, 1889.

3 Marcus Wright, "Trial of John Brown," Southern Historical Society Papers, IV (1904).

4 James Ford Rhodes, History of the United States from the Compromise of 1850, New York, 1920, II, 361.

5 M. J. Wright, Am. Hist. Assoc. Papers, XVI, 362.

6 J. F. Rhodes, op. cit., II, 360. See also R. P. Warren, John Brown, New York, 1929. 395 passim.

7 Bushrod Washington, "The Trial of John Brown," Green Bag, XI, 171-172.

8 Bushrod Washington, loc. cit.

9 Brown v. Ward (1879), 53 Md. 376; Chafin's Will (1873), 32 Wisc. 557.

10 Bonard's Will (1872), 16 Abb. Pr. N. S. (N. Y.) 128.

11 Middleditch v. Williams (1889) 45 N. J. Eq. 526. Brown v. Ward supra. Reg. v. Burton (1861), 3 F. & F. 772.

12 See Porter v. Porter (1892), 39 Va. 118, 15 S. E. 500. Beverly v Walden (1870), 20 Gratt. 147.

13 South Atlantic Life v. Hurt (1913), 115 Va. 398, 79 S. E. 401.

14 Code of Virginia, Richmond, 1849, p. 393.

15 My italics.

16 MS. In Archives Division of West Virginia University.

17 Lasher v. State (1891), 30 Texas App. 387; Kelly v. U. S. (1885), 27 Fed. 616; U. S. v Ames (1845), 1 Wood and Minot 76; Sinks v. Roese (1869), 19 Ohio 306; Leavenworth v. Lowe (1885), 114 U. S. 525; Ex Parte Siebold (1879), 100 U. S. 371; U. S. v. Cornell (1819), 2 Mason 60; U. S. v. Davis (1829), 5 Mason 356; Commonwealth v. Clacy (1811), 8 Mass. 72. See also Constitution of the United States, Article I, Sec. 8.

18 J. F. Rhodes, op. cit., II, 349 passim.

19 MS. West Virginia Division of Archives.

20 U. S. v. Wiltberger (1818), 5 Wheat. 96, approved by Young v. U. S. (1877), 97 U. S. 62. Followed as to states in Ex Parte Quarrier (1867), 2 W. Va. 572. See also Prize Cases (1862), 2 Black 670 ff. Quoted in Ex Parte Quarrier.

21 The statute enacted in 1776 quoted in 9 Hen. Stat. 168, chap. 3, sect. 1 remained identical through early revisions 1 Shep. Stat. 187, chap. 70, sect. 1: Virginia Laws (1794) p. 282, chap. 136, sect. 1; Revised Code (1803) p. 272, chap. 136, sect. 1; 1 Revised Code (1814), p. 284, chap. 136, sect. 1; 1 Revised Code (1819), p. 590, chap. 162, sect. 1 only to be slightly changed in 1849 Code of Virginia (1849), Part II, p. 722. The law still is based on the common law quoted in 25 Stat. Edw. III, stat. 5, cap. 2. An alteration in the Code, furthermore, is presumed not to have been intended unless such alteration is explicit. Dillard v. Tomlinson (1810), 1 Munf. 200, 207; Commonwealth v. Carver (1827), 5 Rand. 664-665; Myrick v. Hasey (1847), 27 Maine 9; Adams v Field (1849), 21 Vt. 256; Ingrahm v Regon (1851), 23 Miss. 213; Rigg v. Wilton (1851), 13 III. 15; McKenzie v. State (1847), C Engl. (Ark.) 594; Commonwealth v. Hartnett (1855), 3 Gray (Mass.) 450; Duronius v. Harrison (1855), 26 Ala. 326; State v. Swope (1885), 7 ind. 91. The matter is discussed in detail in the petition for writ of supersedeas quoted in the Richmond Daily Enquirer, November 21, 1859. See also Holdsworth, History of English Common Law, 1926, II, 449-50.

22 Carlisle v. U. S. (1872), 16 Wall. 147

23 See also Young v. U. S. supra.

24 De Jagar v. Attorney General (Eng.-Natal) 1907, A. C. 326, or 8 Ann. Cas. 76 and notes.

25 Ex Parte Quarrier, supra.

26 Respublica v. Chapman, (1781), 1 Dall. 33.

27 Quoted in Carlisle v. U. S. supra, or Webster, Works, I, 526. Dominion denoted here actual territorial boundaries. See N. E. D., s. v.

28 See for etymology K. E. Georges, Lateinisch-Deutsches, Leipzig, 1902, s.v.

29 Sir Michael Foster, A report of some proceedings on the commission of Oyer and terminer and gaol delivery for the trial of the rebels in the year 1746, in the county of Surrey; and of other crown cases; to which are added discourses upon a few branches of the crown law, Oxford, 1762, p. 183. See also East, Pleas of the Crown (1803), pp. 77-78.

30 The italics are mine.

31 Sir Matthew Hale, Pleas of the Crown, Philadelphia, 1847, I, 62, Chap. X; Daubigny v. Darellon, 2 Anst. (Eng.) 462.

32 Case of the Duke of Norfolk, MS. Brit. Museum, No. 1471 (1571), 1 Stat. Tr. 1030.

33 Coke, Institutes (1809), Part III, p. 11; Herise's case Co., P. C., Cap. 1, p. 11. 7 Co. Rep. 6a. Perkin de Warbeck's case MS. Brit. Museum, quoted in Hale supra. This rule may not have applied to Ireland. See also petition for writ of supersedeas, Richmond Daily Enquirer, November 21, 1859, for Calvin's Case and other authorities.

34 Hale op. cit., I, Chap. 10, p. 58.

35 Fisher v. First Trust Joint Stock Land Bank (1930), 231 N. W. (Iowa) 671. For school districts, see Baker v. Conway (1926), 214 Ala. 356; Kidd v. Joint School Dist. No. 2 (1927), 194 Wisc. 353, 216 N. W. 499, 501. State v. Smith (1896), 64 Mo. A. 313, 319. Trask v. Karrick (1920), 94 Vt. 70.

36 McLauchla's Petition (1924), 1 Fed. (2d) 5; intent for residence in bankruptcy, In re Garneau (1904), 127 Fed. 677, 579. State v. Smith supra.

37 Fisher v. First Trust Joint Land Bank (1930), 231 N. W. 671.

38 Residence is the equivalent of bodily presence for a time; in re Newcomb (1908), 192 N. Y. 238, 250, or 84 N. E. 950; Flatauer v. Loser (1931), same as above, 156 App. Div. 591, 593, 141 N. Y. S. 951; residence for school purposes, where one lives for the winter, Trenton Board of Education v. Crill (1911), 73 Misc. 472, 133 N. Y. S. 394, 297; Pecos etc. Rail Co. v. Thompson (1914), living in a particular locality, 106 Tex. 456, 167 S. W. 801, 803; and implied strongly by the use of dwelling or domicile in Wilson v. Danley (1924), 165 Ark. 565 People v. Platt (1888), 50 Hun 454, 470, 3 N. Y. S. 367, Hall v. Hall (1870), 25 Wisc. 600, 607; residence includes the idea of staying in the place for the time, Handling v. Standard Oil Co. (1910) 182 Fed. 421, 425; Willingham v. Swift (1908), 165 Fed. 223, 224; distinction between residence and domicile, Lawson v. Adland (1891) 46 Minn. 243; misappropriation of funds, residence where one sleeps and the physician visits, Smith v. Smith (1917), 122 Va. 341; differentiates between domicile and residence, Long v. Ryan (1878), 30 Gratt. (71 Va.) 718; residence differentiated from whereabouts, Krunmenacker v. Andis (1917), 38 N. D. 500.

39 See above cases and Matter of Hawley (1866), 1 Daly (N. Y.), 531, 533; in re Newcomb (1908), 192 N. Y. 238, 250; Morgan v. Nunes (1877), 34 Miss. 308, 310; Watson v. North Carolina (1910), 152 N. C. 215; Mt. Hope School Dist. V. Hendrickson (1924), 197 Iowa, 191. Idea of home, Littlefield v. Clayton (1917) (Tex. Civ. App.), 194 S. W. 194, 198. See also before 1850, residence defined in cases of debt, Frost v. Brisbin (1837), 19 Wend. 11 and Lask v. U. S. (1839), 1 Pin. (Wisc.) 77.

40 Webster v. Minister of Health (Eng.) (1926), 43 T. L. R. 36, 37 D. C. quoted in Eng. And Empire Digest, XLIV, 1315.

41 Respublica v. Carlisle (1778), 1 L. Ed. 35.

42 Soliciting a foreign prince in time of peace to invade one's homeland is not treason; U. S. v. Burr (1807), 25 Fed. Case No. 14,693. But see Lord Mansfield, C. J. in Rex v. Hendy (1758), 6 Stat. Tr. 1341.

43 Fries' Case, 25 Fed. Cas. 165, and Charge to Grand Jury (1861), Fed. Cas. No. 13,273 hold mere assembly and words not treason. But see Rex v. Tongue (1662), 6 State Tr. 226.

44 Young v. U. S. supra held conspiracy beyond the sea not treason. But see 1 State Tr. 1807 Sub nom. Story's Case (1571), 3 Dyer 298b, 300b.

45 Stat. Edw. III, loc. cit.

46 Jeffries, C. J. in Rex. V. Rosewell (1684), 10 State Tr. 147.

47 Virginia Code (1849), chap. 208, sect. 34; Mowbray v. Commonwealth (1841), 11 Leigh 643 overruling Kirk v. Commonwealth (1838), 9 Leigh 627; Clere v. Commonwealth (1846), 3 Gratt., 615. The Court of Appeals certified the trial "plainly right." See George Caskie. "The Trial of John Brown." Virginia State Bar Association Twenty-Second Report, 1909, p. 276.

48 The italics were inserted in the petition. Richmond Daily Enquirer November 21, 1859. See also Rand v. Commonwealth (1852), 9 Gratt. 738.

49 Richmond Daily Enquirer, November 21, 1859. The petition is here printed in full.

50 Commonwealth v. Marks (1833), 4 Leigh 658-660; Hord v. Commonwealth (1833), 4 Leigh 674; Bishop v. Commonwealth (1856), 13 Gratt, 787; Scott v. Commonwealth (1858) 14 Gratt. 687; Baker v. Commonwealth (1817), 2 Virginia Cases 122; Jacobs v. Commonwealth (1830) 2 Leigh 710; Commonwealth v. Peas (1834) 2 Gratt. 629; Marshall's Case (1848), 5 Gratt. 663, Cocke's Case (1885) 13 Gratt. 750. See also for more detail Richmond Daily Enquirer, November 21, 1859.

51 Baltimore Sun, October 22, 1859. All references to the Sun in text are to the number of this date.

52 J. F. Rhodes, cp. cit., p. 350

53 Ibid., p. 350 ff.

54 Senate Reports, 1st Session, 36th Congress, No. 276, pp. 2, 6, 19, 21, 31, 34, 43, passim.

55 Virginia Code, Richmond, 1849. Chap. CXCIX, Sec. 7. p. 750.

56 MSS. West Virginia Division of Archives.

57 J. F. Rhodes, History of United States from the Compromise of 1850, New York, 1906, II, p. 405. The italics are mine.

58 Raesnick v. Commonwealth (1822), 2 Va. Cases 356; Thornton v. Commonwealth (1874), 24 Gratt. 657; Hatchett v. Commonwealth (1882), 75 Va. 925; State v. Lilly (1900), 47 W. Va. 406.

59 Constitution of the United States, supra; State v. Kelly (1885), 76 Me. 331; United States v. Ames, supra; Leavenworth v. Lowe, supra; People v. Godfrey, supra; U. S. v. Cornell, supra; U. S. v. Davis, supra; Commonwealth v. Clacy, supra; Sinks v. Roese, supra.

60 Samuel Shepard, Statutes (New Series) Richmond, 1835, p. 306. See also Annals of Congress, March 21, 1794, p. 72.

61 U. S. v. Guiteau (1882), 1 Mackay 498, 47 Am. Reports, 247.

62 State v. Hall (1896), 115 N. C. 811 following Simpson v. State (1844), 4 Humph. (Tenn.) 461; Green v. State (1880), 66 Ala. 40; Tyler v. People (1860), 8 Mich. 326; Henmaker v. State (1849), 12 Mo. 453; U. S. v. Guiteau, supra. See also Rex v. Coombes (1785), 1 Leach, 388.

63 Code of Virginia, see title Criminal Law. This overrules Commonwealth v. Linton (1820), 2 Va. Cases 205.

64 U. S. v. Guiteau, supra.

65 Virginia Calendar of State Papers, XI, p. 87, passim.

66 Ibid., p. 89.

67 MS. West Virginia Division of Archives.

68 Governor Wise told President Buchanan that when Virginia was done with the culprits, the United States could hold the Remainder. See also Hall MSS. Debates on West Virginia Constitution, Dec. 13, 1861.

69 Thomas Drew, compiler, John Brown, Boston, 1860, p. 60.

70 See MS. Charles Town Court House, deed between United States and Elizabeth and Ferdinand Fairfax. See also MS. Martinsburg Court House.

71 Interview, November 24, 1938.

72 Bushrod Washington, "Trial of John Brown," Green Bag, XI, 173.

73 Ibid., loc. cit.

74 Interview, supra.

75 M. J. Wright, loc. cit.

76 Bostwick v. Perkins (1848), 4 Ga. 47; Hill v. People (1868), 16 Mich. 351; Green v. Creighton (1848), 18 Miss. 159, 10 Smedes and Mason 150; Coffin v. Tracy (1805), 3 Caines (N. Y.) 129; Blin v. Campbell (1817) 14 Johnson (N. Y.) 432; Cuyler v Rochester (1833), 12 Wend. (N. Y.) 165; Dudely v. Mayhew (1849), 3 N. Y. (Comestock) 9; Preston v. Boston (1831), 12 Pick. (Mass.) 7; Chapman v. Morgan (1849), 2 Greene (Iowa) 374; followed in Louisville Trust v. Comingor (1901), 184 U. S. 18.

77 George F. Caskie, op. cit., p. 262.

78 B. Washington, op. cit., p. 173-174.

79 Edward McPherson, History of the United States during the Rebellion etc., Washington, (1882), p. 54.

80 Edward Corwin, The Twilight of the Supreme Court, New Haven, (1934), pp. 13- 14.

81 John Calhoun, "Disquisition on the Constitution and the Government of the United States." Works ed. Croll'e, Columbia, (1851), I., 236 ff.

82 See U. S. v. Cornell (1819), 2 Mason 60; U. S. v. Davis (1829), 5 Mason 356; Commonwealth v. Clacy (1811), 8 Mass. 72; Mitchell v. Tibbets (1835), 17 Pick. 298; 6 Opins. Of Atty. Gen'l. 557 citing People v. Godfrey (1819), 17 Johnson 225.

83 Edward Corwin, loc. cit. William A. Dunning, Essays on the Civil War and the Reconstruction, New York, 1931, pp. 3 passim.

84 Dred Scott v. Sanford (1856), 19 How. 396.

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