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Retrying John Brown: Was Virginia Justice "Fair"?

From: Reviews in American History
Volume 39, Number 2, June 2011
pp. 292-298 | 10.1353/rah.2011.0058

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Brian McGinty's lucid narrative of the 1859 trial of John Brown in Virginia for crimes he purportedly committed during the Harpers Ferry raid illuminates hitherto neglected issues of law and fairness. Exploiting a wealth of primary sources, including court documents, the Virginia Code, and legal commentaries, McGinty walks the reader through the legal process that led to Brown's conviction and hanging.

Brown's trial, McGinty shows, was in several respects unprecedented, raising as it did knotty questions about jurisdiction, treason, legal representation and procedure, and, ultimately, fairness. Brown's was the first criminal trial extensively reported in the national press, and, given its aftermath, McGinty claims boldly, it was "arguably the most important criminal trial in the history of the United States, for it was intimately related to the war that followed so quickly, and it was in large measure responsible for the fact that slavery died during the war" (p. 18). More than Brown's astonishing raid, McGinty says, his trial determined the fate of the Union. The "Brown of history" was thus born not in Kansas or with the raid on the Harpers Ferry arsenal, but in his trial. Indeed, had Brown died before his trial, he would have been "condemned as a madman and relegated to a footnote of history" (p. 10).

A lawyer and author most recently of Lincoln and the Courts (2008), McGinty stakes out his historical turf by asserting that "many" historians are "unaware of the truly remarkable history that can be made in a courtroom" and that "few know much about the dynamics of the adversary system" (p. 1). Whether or not those disparaging claims have any merit, McGinty's legal training is the basis for much of the originality and significance of his study—as well as for his exaggerated claims of the importance of Brown's trial.

In two introductory chapters McGinty summarizes Brown's life and career before Harpers Ferry. He is less surefooted and critical of his sources here than in subsequent chapters. For example, he accepts unquestioningly the stories in the "autobiography" of his early life that Brown wrote at age fifty-seven for the son of one of his wealthy patrons. He also says that Brown "witnessed and approved" the clandestine butchering of five proslavery settlers on Pottawatomie Creek on the Kansas frontier (p. 39). Actually, Brown directed those remorseless slayings.

McGinty claims that Brown chose Harpers Ferry as his target in part because it was a "station on the underground railroad" (p. 42). In fact, though Chambersburg to the north was a well-recognized "station," Harpers Ferry had no safe houses or established "conductors" even after Brown planted one of his men there months before the raid. Harpers Ferry was his target because it contained the only federal armory in the South and an arsenal holding thousands of rifles. He hoped his seizure of the town would astound people North and South and rekindle the sectional quarrel over slavery.

McGinty's summary account of Brown's raid is brief and generally accurate and reaffirms the revisionist view that some local blacks "gathered around" in support of Brown (pp. 50–51). But he also relies on Lieutenant Israel Green's faulty 1885 account of having subdued a defiant Brown in the final moments of the raid despite noting elsewhere Brown's claim to have surrendered during the assault. Likewise he reports the trial testimony of the armory officials Brown held captive, who said that Brown had not fired his rifle during the assault and was trying to surrender when Green beat him to the floor. Eyewitness testimony is itself maddeningly inconsistent. But unsupported accounts recalled a quarter century later confirm nothing more than the constructive and fluid character of episodic memory.

The question of where Brown would be tried—in federal or state court—was quickly settled. Brown was captured on the grounds of a federal armory; his men had shot local residents outside that legal "enclave" in Virginia; and they had unwittingly killed a black baggage master on the Potomac bridge in Maryland. President Buchanan was indifferent to where Brown and his men were tried. In any case, McGinty explains, neither the supremacy clause...