How and Why I Wrote “John Brown’s Trial”

As the 150th anniversary of the execution of the famous abolitionist John Brown approached, I became more interested in the story of Brown’s life and the trial that preceded his hanging––on December 2, 1859––in Charles Town, Virginia (now a part of West Virginia). Brown is one of the most controversial figures in American history—celebrated by those who condemn slavery (as he did), revered by those who sought to abolish it (as he also did), and hated by those who believe he was a provocateur and one of the principal causes of the terrible Civil War that soon followed.


My legal background, including my completion of the neglected story of Abraham Lincoln and the Supreme Court, prompted me to look into the story of Brown’s trial. After some careful digging, I discovered that the true story of the trial had been largely neglected by historians and twisted and misrepresented by popular writers.


My research revealed that a reliable record of the trial was available in long-neglected archives that had almost never been consulted, and that those archives reveal events that took place leading up to the trial, the conduct of the trial itself, the names and characters of the attorneys who prosecuted Brown and those who defended him, the men who served on the jury, the judge who presided, and the ultimate outcome of the trial.


Plumbing the archives and other reliable sources, I was able to write a full-length book about the trial in time to visit Charles Town before the anniversary. There I met the affable Judge David Sanders, who was presiding over the court in Charles Town and who was leading a small tour of the Jefferson County Courthouse. Judge Sanders was very knowledgeable about the history of the courthouse and the trial, but he wanted to learn more. He asked about my book, which was already under contract for publication by Harvard University Press. I told him much of what I had discovered, and he asked if I would be willing to return to Charles Town to speak to those who were to assemble on the sesquicentennial anniversary. I said that I was.


I returned to the Jefferson County Courthouse on Thursday, October 15, 2009 and was cordially greeted by Judge Sanders, who introduced me to the audience that filled his courtroom to hear me speak. The event was sponsored by the West Virginia Humanities Council and covered by a filming crew for C-Span.


I told the audience that the trial had taken place in that very courthouse, but not in that courtroom. In 1859, the year of Brown’s trial, the courtroom was on the first floor of the courthouse and the chamber above it was a hall used for meetings and other events. During the Civil War, the courthouse was used to house soldiers from both North and South. Because it was badly damaged during the war, the courtroom was moved from the ground floor to the second floor. I reminded the listeners, as many already knew, that Jefferson County was separated from Virginia during the war when part of the old Commonwealth of Virginia was separated to form the new state of West Virginia. That, of course, was a controversial step that still stirs the emotions of many people, largely because most of the people in Jefferson County then sympathized with the Confederacy.


I began by telling the audience that I considered the trial of John Brown to be one of the most important trials—perhaps the single most important trial––in the history of the United States. That was a strong statement, but I believed—and still believe––it can be substantiated.


It was the first trial in the history of the United States to receive massive attention from national media. It was the first trial in which a defendant was executed for treason against a state, as contrasted with treason against the United States. It was the first trial in which an accused defendant appealed to a “higher law” to justify violent crimes. It was a trial that involved more than just the determination of a particular defendant’s guilt or innocence according to laws laid down in statute books and case reports. It pitted two starkly different moral visions against each other. One of these visions defended the institution of chattel slavery as traditional, necessary, just, and worthy of protection from “outside interference”—most particularly from the “outside interference” of Northern abolitionists like John Brown. The other condemned slavery as an affront to human rights, a violation of God’s law, and an embarrassment to a nation that claimed to be founded on the “self-evident” truth that “all men are created equal.”


As the trial proceeded, Brown did not argue that he was innocent of violating the laws of Virginia—laws that prohibited inciting slaves to insurrection and committing treason against the Commonwealth. Instead, he argued that the laws of Virginia that supported and protected slavery, the laws that condemned hundreds of thousands of men, women, and children to lives of perpetual oppression and suffering solely because of their racial status, were unjust. The trial gave Brown a unique opportunity to express his views on the subject, and he did so in a manner that inspired Americans all over the country––some even in Virginia––with the realization that he was a man of courage, principle, and conviction. However much they disagreed with him––however deeply they condemned his resort to violence in Harper’s Ferry––his trial revealed that he was not a mere thug or cutthroat, as many (both North and South) had at first believed him.


Brown’s raid on Harper’s Ferry shocked the nation. It outraged Virginians. It aroused in slaveholders throughout the South a contempt for Northern abolitionists. At the same time, it convinced Southerners that Northern attacks on slavery were deeply grounded and would not soon go away. The South had to defend itself against the views represented by Brown, and many Southerners concluded that the only way to do this was to cut the ties that bound them to the North. This conclusion did not arise from the raid on Harper’s Ferry, but in large part from the trial that was conducted in the Jefferson County Courthouse in 1859.


The question has often been asked whether Brown’s trial in Charles Town was “fair.” It is a legitimate question, but a difficult one to answer.


Certainly the fact that Brown was surrounded on all sides by slaveholders was a factor that militated against the fairness of his trial. Another factor that militated against fairness was the shortness of the trial, and the repeated requests for modest delays that were denied by the presiding judge, Richard Parker. Parker was a good judge, the heir of a distinguished line of Virginia jurists. But he was determined to try Brown and his co-defendants before November 10, 1859, and he did all in his power to achieve that result.


There is little doubt that Brown was guilty of the charges brought against him. He was not an innocent man—at least not if guilt or innocence is governed by the laws of Virginia. But even guilty men are entitled to fair trials in the American system.


I consider the question of the fairness of Brown’s trial at some length in my book. I quote the historians and lawyers who have, over the years, expressed opinions on that question. I also quote the statements that Judge Parker and the chief prosecutor, Andrew Hunter, made when, as old men, they were asked to give their recollections of the trial. Not surprisingly, both thought the trial was fair in all respects. I think their arguments were good, but not conclusive.


But whether Brown’s trial was fair is not really the right question to ask about this extraordinary judicial event. There was never any real question that Brown would be convicted in Charles Town, and that he would be hanged. But that’s not what made his trial so important to history.


Brown did not take the witness stand during his trial. He did, however, find opportunities to speak during the trial. And when he spoke, he did so in strong and earnest words. “I deny everything,” he said, “but what I have all along admitted, of a design on my part to free slaves.” Had he come there, he said, “in behalf of the rich, the powerful, the intelligent, the so-called great, or in behalf of any of their friends, . . . it would have been all right; every man in this court would have deemed it an act worthy of reward rather than punishment. . . . I see a book kissed, which I suppose to be the Bible, or at least the New Testament, which teaches me that all things whatsoever I would that men should do to me, I should do even so to them. It teaches me, further, to remember them that are in bonds as bound with them. I endeavored to act up to that instruction. I am yet too young to understand that God is any respecter of persons. I believe that to have interfered as I have done, as I have always freely admitted I have done, in behalf of His despised poor, is no wrong, but right. Now if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country, whose rights are disregarded by wicked, cruel, and unjust enactments, I say let it be done.”


The way Brown spoke during the trial, the way he conducted himself during, before, and after the proceedings, won the grudging admiration of even the most fervent slaveholders. The words he spoke inspired listeners both North and South with their sincerity and raw courage. Emerson later ranked Brown’s “last statement” with Lincoln’s Gettysburg Address as one of “the two best specimens of eloquence we have had in this country.” Virginia’s Governor Henry Wise (a firm defender of slavery and opponent of Brown) was so impressed with Brown that he proclaimed him “a man of clear head, of courage, fortitude and simple ingenuousness.” And he said that Brown inspired him “with his integrity, as a man of truth.”

Why do I consider Brown’s trial the “most important” trial in American history? It is quite simply because of its consequences, because of what happened after it was concluded, because of the causal effect it had on the great Civil War that followed it so quickly, and because of the blow it struck against the institution of chattel slavery.

My book was favorably received. Louis A. DeCaro, Jr., a close student of Brown and an avid defender of his memory, wrote that it was “masterful.” I was invited to speak about the book in the National Archives in Washington, D.C., and in Torrington, Connecticut, where Brown was born. Audiences in both places showed real interest in Brown and enthusiasm for the story told in my book. Northwestern University professor and prolific legal author Steven Lubet called it “an important book on an important subject” and wrote that it “sheds much new light on a crucial––and previously underappreciated––event in American legal history.” Frank J. Williams, former Chief Justice of the Rhode Island Supreme Court and founding chair of the Lincoln Forum wrote that “there have been many books about John Brown, but none provides as comprehensive an account of the famous trial as does McGinty's. His well-written narrative is compelling and lucid. I especially appreciated his analysis of whether Brown received a fair trial. Here is another winner from the author of Lincoln and the Court.”


And Publisher’s Weekly wrote: “You'd think little new could be said about one of the most famous trials in American history. But McGinty comes to his work as attorney as well as historian. The result is a fresh perspective on the trial of John Brown, a work that adds appreciably to our understanding of the coming of the Civil War. Brown's trial, after his 1859 attack on the federal arsenal in Harper's Ferry, Va., caused a sensation for its bold challenge to slavery...The author's legal knowledge illuminates the proceedings' intricacies and shortcomings, and reveals how Brown's brief closing statement, considered among the most eloquent words in the nation's history, had a more lasting impact than his armed raid.”