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CLEVELAND, WEDNESDAY, May 11, 1859. I shal to enforce the confinement in some other Court convened at 9 o'clock. The fact that county jail within this District. sentence was to be passed upon Bushnell, and “Mr. Marshal, you will take the prisoner into probably Langston, caused the court room to custody." be densely crowded with eager listeners and This sentence was received with quietness by watchers of the proceedings. A large propor- the prisoner and his friends. tion of the audience was composed of ladies. The Court then asked for any farther mo
Judge SPALDING announced that he had a tion. motion to make before the Court, that the next Mr. RIDDLE moved to proceed with the case case of those indicted, that of John Watson, 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.
of Lorain County had that morning arrested Mr. Bushnell, who, with his wife and child, Jennings, Lowe, and Mitchell, on a charge of occupied seats near the bench, was told to kidnapping, and that they were now in the cusstand up. The COURT asked the prisoner if he tody of that officer. He believed, and could had any thing to say why sentence should not say he knew, that all this machinery of arrestbe pronouncecl. Mr. Bushnell intimated that ing these men and confining them on that he had not. The Court then asked if he had charge, thereby delaying and hindering the any regrets to express for the offence of which business of the Court, was the work of the dehe stood convicted. Receiving another nega- fendants who thus endeavored to put a stop to tive, it proceeded to pronounce sentence from farther proceedings against the indicted. He inanuscript, as follows:
had also taken notice that a writ of habeas cor“It is at all times a disagreeable and painful pus in the case of Bushnell would be applied duty for the Court to pronounce the sentence for, which would perhaps interrupt the proceedand impose the penalty which the law demands ings of the Court. for its violation. The discharge of this duty is He also stated that he had been appointed peculiarly painful in dealing with the class of by the Government to defend these witnesses offenders to which you belong, who deem it a in the Lorain County Court in his official capraiseworthy virtue to violate the law, and pacity. Under these circumstances it would then seek its penalties with exultation and defi- be impossible for him to proceed at present
with the case of Watson. “A man of your intelligence must know, that Judge SPALDING replied that the Districtthe enjoyment of a rational liberty ceases the Attorney knew, as well as the Court and every moment the laws are allowed to be broken with lawyer at the bar, that if the Court needed impunity, and thereby fail to afford any protec- these witnesses, a writ of habeas corpus ad testion to society, – that if the standard of right tificandum would bring them at any moment is placed above and against the laws of the from any jail in the State, and keep them at land, those who act up to it are any thing else the convenience of the Court. The plea that than good citizens or good Christians. You they were carried off was a mere sham, as anymust 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 Gov- had a right to an immediate trial, and the conernment that protects him in life and property, venience of no District-Attorney in the land his conduct is as criminal as his example is dan- was to be consulted. If the prosecution wanted gerous.
the case postponed he asked that the motion be “ The good order and well-being of society submitted in writing and sworn to. demand an exemplary penalty in your case. Judge BELDEN remarked that his official charYou 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
66 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 "Nor your blackguardism.” Cuyahoga County for sixty days from date, and “And your private character still less.” pay the costs of this prosecution. It is made the The District-Attorney then moved to the duty of the marshal to see this sentence exe-Court that the bail of the prisoners be reduced cuted ; and in case any casualty should inter- to $500. Considering that this has been the fere with the security of your confinement in amount of secured bail which has been required the jail named, it is made the duty of the mar- | 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.
“ RULE 51. On such motion, the affidavit A recess was at length taken until 2 o'clock or official statement will be taken as true; and for the preparing of affidavits on both sides. no contradictory, supplemental, or amended
affidavit or statement will be permitted.”
It consented to receive, however, an indeCourt convened at 2 o'clock.
pendent 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
U. States Dis
United States of America, follows:
Northern District of Ohio, ss. Strict Court. Grounds for Continuance. 1st. That An- United States,
No. 72. derson Jennings, Jacob K. Lowe, Richard P.
Indict. for Rescue, etc. Mitchell, and Samuel Davis, necessary witnesses, John Watson. had this morning been arrested by the Sheriff The defendant, John Watson, moves the of Lorain county by a warrant issued on an Court that he may be put on his trial to the indictment for “ kidnapping” in Lorain county Jury, on the plea of “not guilty,” without furCourt of Common Pleas, and had been, or ther delay::: would be, during the day, taken away, so that In support of said motion the said John Wattheir testimony could not be had.
son upon his oath says: 2. That the next term of the Lorain county 1st. That he was arraigned before this triCourt of Common Pleas. would commencé on bunal on the 8th of December, A. D. 1858, and Tuesday next, and that the District-Attorney plead " not guilty;" to said indictment, and dehad been appointed by the Government for their manded an immediate trial. At the instance of defence.
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 suin 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, Tuesday in March, 1859. Before that day arthe very fugitive from service, mentioned in rived, however, at the instance of the U. S. the indictment for rescue; and that the indict- District-Attorney, and for his special accommoments for kidnapping were found on testimony dation, a further postponement of the trial of of some of the rescuers, or on testiinony pro- defendant was had, by consent of defendants cured by them.
Counsel, until the 5th day of April, 1859, when 4th. That Lowe was arrested on his way defendant duly appeared in Court, and therehere and compelled to enter into recognizance after regularly appeared from day to day until with surety for his appearance in the Lorain the 15th day of April, 1859, when, on motion county Court, on Tuesday next, which recog- of the U. S. District-Attorney, he was ordered nizance would be forfeited unless he appeared, into the custody of the U. S. Marshal for said and if he appeared, he might be detained two Northern District of Ohio, and was on the same or three weeks.
day last mentioned, by him committed to close 5th. Cochran and Bacon were absent with confinement in the county Jail of the county out the consent of the District Attorney, and of Cuyahoga, in the State of Ohio, where he their testimony was indispensable.
has ever since been, and is now, restrained of 6th. That writs of habeas corpus would be his liberty, and awaiting his trial, upon no other applied for in the Bushnell and Langston cases, charge than that contained in said indictment which would require the immediate attention of of rescuing a fugitive from service. the District-Attorney.
2d. This affiant says it is not true that, an7th. That no trial could be had in any of the terior to the time when he was placed in close remaining cases, in all probability, without a confinement in the jail of Cuyahoga county as most unreasonable delay, which would be aforesaid, he had ever contemplated a breach of caused by the action of the defendants, or their his recognizance, voluntarily entered into as confederates, or by advice of their counsel. aforesaid, and it is not true that he, at any time,
The Court read the 50th and 51st Rules, and surrendered himself in discharge of his said reunder them adjudged itself bound to allow the cognizance; nor yet is it true that his counsel ·motion of the District Attorney. The Rules proposed to surrender him in discharge of his are the same as obtain in the State Courts. recognizance; on the contrary, this asliant says
“RULE 50. Motions for continuance for rea- that he should, undoubtedly, at this moment be sons known to the party at the commencement at large upon his said recognizance, if he had of the term, shall be filed on or before the I not been ordered into custody as aforesaid on
the 15th day of April aforesaid, upon the motion for probable guilt through the medium of the of the U. Š. District-Attorney as aforesaid. trial just closed. They are at present in the cus
3d. This affiant further says, that the journal tody of the jailer under an order of this Court. entry of this Court, made on the 15th day of I think your Honor must be satisfied that that April, aforesaid, so far as the same púrports to order was made and embodied in the Journal show that this defendant, in connection with under a misapprehension of the facts. other individuals resting under similar charyė, They are simply these. These parties were surrendered himself in discharge of his recog- in attendance upon this Court regularly and nizance, was made under a mistaken conception constantly, in obedience to the order of the of the facts as they transpired, and, so long as Court, bound by their own recognizances in the said journal entry is permitted to stand in force, sum of one thousand dollars each; and were in this defendant will be unable, consistently with faithful observance of all the conditions of those the preservation of his own self-respect, to renew recognizances. Now I need not stop here to lis individual recognizance, or to give bail for discuss the rights of these defendants on the his appearance at a subsequent term of this one side, and the rights of the government upon Court. He must, therefore, continue to lie in the other. Ordinarily a recognizance is ample jail unless he can have the benefit of a speedy protection against custody or arrest, so long as trial.
its conditions are not infracted. But I do not 4th. This affiant says further, that in addition say- :--- no lawyer will attempt to sustain ---- that to the injury likely to be sustained by defend- when persons at large upon their recognizances ant in his bodily health, by a long-continued are here at the bar of the Court in its presence imprisonment in warm weather, he has reason on actual trial, it is not competent for the Court to believe that a farther postponement of his to order them into custody, when it becomes trial will lose him the benefit of a very material absolutely necessary to retain their persons bewitness in the person of William D. Scrimgeour, yond the possibility of escape. But I do underwho is fast wasting away by means of a con- take to say here, in deference to the decision of sumption, and is by his friends expected to live the Court and to the profound learning of the but a short time. Said W. D. Scrimgeour re- gentleinan who appears in behalf of the Govsides at Oberlin, in the county of Lorain, and ernment, that never before, anywhere was a mocan be brought into Court, as this affiant is ad- tion ever made to order a man into custody who vised, during any day of the present or the was on bail, and constantly in the most submisnext coming week. He has hitherto, since the sive obedience to every condition of his bond, commencement of this class of trials, been too and to every order of the Court: or such an unwell to be brought so far from his home. order given, unless it was in such exigencies of
trial as have been referred to. I know State of Ohio, Cuyahoga County, ss.
all know that it is customary to order, on good Sworn to before me by the said John Wat- cause shown, an increase of the amount, or the son, and subscribed by him in my presence, the sureties of bail, even when there has been no 11th day of May, 1859.
infraction of that already given. But certainly, JOSEPH S. GRANNIS,
with respect to actual arrest, they have this Notary Public for said County. right, that while they are in the full discharge
of the condition of their recognizances, they Spalding, Tilden, and Riddle, Att’ys for De- have a right to expect that the Government will fendant,
respect, and that every one else will respect, The counsel upon both sides endeavored to their rights under it, and if that bail is insuffimake some remarks upon these two inotions, cient, an order for its increase can be made, but but the Court remarked that no explanation or an arrest never. comment was necessary, as the first motion, Now it is said on the part of the Government filed by the District Attorney was sufficient, that these parties surrendered their recognizand would, for the reasons set forth, be granted. ances, and hence were taken into custody. I
The Court announced that the remainder of wish to avoid any question of veracity, comparthe cases, John Watson's included, would be ative or unqualified. continued.
But that these parties did not either intend to Mr. RIDDLE then arose and remarked : surrender their recognizances, or as a matter of
Mr. RIDDLE. With the indulgence of the fact did not surrender them, whatever may have Court I will call its attention to a matter to been the understanding of the Government which I have already incidentally referred, and officials in the hurry and perhaps the excitethat is in reference to the circumstances under ment of the occasion, I take it, your Honor, which these defendants are in the custody of the must be true. And what followed ? Why, jailer.
after they were taken into custody, that was Now, it makes no matter who these parties followed by an order of the Court to remit these are, no sort of difference what the offence with parties back on their own personal recognizwhich they stand charged, nor where they re- ances to the very position which they occupied beside of course nor how much or how little fore; which would seem to imply that in the may be known to your Honor of their possible judicial mind, after ordering them into custody
in the wrong
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
---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 A question now arises upon the propriety direction. It is asking on behalf of these of their course ; and I do not now refer to any defendants what the Court will always grant to outside discussions; we have nothing to do every one else, that if a misapprehension has with opinions or occurrences outside the Court inadvertently crept into the record, it may be Room — I refer to this question and its bear- set right to their advantage, and to the advanings upon the position these parties occupy tage of truth and justice, objects that Courts before this Court. And now we ask, will your have generally pretended to have in view. Honor, while always remembering, as Judge BELDEN replied. 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 tlie extraordinary request the gentlesumption of the law, that these parties must be man has just preferred. presumed to be innocent until they are proven He professes to have asked nothing that to be guilty, is not a mere idle worthless would, if granted, compromise the dignity of formula?:
the Court, and yet in the same breath we have What can these parties do? They are per- the declaration that his clients stand and have fectly unconscious of having at any time en- stood for three weeks upon the merest technitertained any intention to infract the conditions cality, upon which they are at issue with the of their recognizances or the orders of the Court. Why, where else do your clients stand? Court, and no less perfectly unconscious of Where else have they stood ever since they having ever voluntarily surrendered their re- have been in prison ? if what you say is said cognizances. Much more than that they sincerely. Now here are two or three things KNOW that they never did so surrender them; about which my friend on the other side will and they know that they did ask to have them not differ with me. And I refer now to the cancelled after they had been taken into cus- circumstances preceding the commitment of tody. Now, is it not plain, looking at this these individuals. He knows, I know, your matter fairly, that these parties cannot come Honor knows, and he admits now, that when forward into Court, and enter into recognizance the motion was made to change the relative poagain without tacitly conceding, not only to the sition of these parties to this Court, it was the compromising of their own self-respect, but in very motion which he says here would be apthe face of the universal world, that they were propriate, and that was, that individuals, who, wrong, when they know as this Court' must by unparalleled leniency on the part of your now know that they are right; I now speak Honor, had been permitted to go at large upon of course with reference to the manner in their own personal recognizances for so many which they came into custody. And now cer- months after they were indicted for crime, that tainly your Honor cannot fail to see the pre- these individuals, thus long and largely privicise position in which they are placed, and leged, when a stage in the trial” had been wholly through the misunderstanding of the reached, by the conviction of one of their numofficers of the Court. They most assuredly ber, after a full and impartial hearing of testihave never coveted imprisonment. There is mony and argument, in which it became my nothing in such a mode of life to gratify their duty to look more particularly after the cer
tainty of their presence ; and when they had | own motion into the custody of the Marshal, already surrendered themselves into custody by and then notified the Court that they themsurrendering their recognizances, that I made selves would back out, your Honor, that they'd the motion that the security be raised from re- have nothing farther to do with the defence of cognizances to bail with sureties. And this is these men. And when this excitement had the very motion which the gentleman has just passed away and the Court was about adjournadmitted to be a proper one.
ing, I did think that in the discharge of my But the gentleman was not satisfied with this, duty as .counsel for the Government, it might but wished to go two or three steps in the rear. be proper for me to make a motion, that by He states that upon my application the cases giving some reasonable security they might be were delayed
released from custody again. Again, your [Mr. RIDDLE corrected the gentleman; the Honor overruled me, and said they could
go statements of which this last was the first were out as before upon their personal recognizmade in the affidavit just read by Judge Til- ances. And again, I submitted without comden.
plaint. that the cases were delayed till the 7th But I do say that when these gentlemen, of March. I say this was not so. Not to im- beseeching a favor, stand here and put the pugn him; I charge nothing beyond a mistake. question of grace upon the ground that your I wished to take up the cases as soon as ten or Honor is wrong, that the Clerk twelve days from the time of their appearance, that I am always wrong and they're always The Grand Jury had adjourned some two right, that they do not exactly occupy the supweeks before the bills were properly
. returned, pliant and respectful attitude which they claim without my being three minutes in the Grand to your Honor that they do. And I do think Jury Room while the testimony was being given that it is my duty and my right to object, to before them, and I could not keep the witnesses protest, and to claim that these men now occupy here at the expense of the Government. I a position where they ought to be required to was willing and anxious to take up the cases so give security, and I think the amount I stated soon as I could send for witnesses, which would was a reasonable amount. I have no disposinot be longer than ten or twelve days; it | tion to ask your Honor to demand of them unwould have been much more convenient for me reasonable bạil; but I do feel it my imperious to have gone on then, but the learned counsel duty to ask and to demand that these persons who then appeared for the defence, suggested occupy the position of other persons indicted the 8th of March, to which the Court acceded. for crime, and a portion of them already conThe postponeinent from the 8th of March to victed upon fair and impartial trial. And I the 5th of April was made by my request, and do this in no bad spirit. Much as I have been greatly to my own accommodation, for which abused and charged with all manner of unkindness and indulgence on the part of the worthy motives, I have not taken any one step counsel for the defence I desire to express my which I thought in my own mind would even sincere thanks.
look like unkindness, severity, or unfairness ; But now to the other matter. When Bush- and if any word or look or tone or manner nell was convicted it became my duty, in be- of mine has.conveyed to any of you a different half of the United States, which I represent, impression, I beg that I may be excused here, to put him in custody. And when the verdict by these Gentlemen, and by your Honor. of the jury was brought in there was a good Now I do hope that these gentlemen will not, deal of confusion, and here our difference of here, without a motion, ask your Honor that understanding occurred. The confusion arose these defendants may go upon their own recogout of the question whether the jury could sit nizances. And whether the record be true or on the second case. I simply objected to the false, no harm is done by it to the defendants. challenge of the array. I never intimated but Mr. RIDDLE. I do not wish to press my that the jury could be challenged for cause. I motion, your Honor, but I wish to set myself believed they would nearly all excuse them- right on a point raised by the gentleman. selves. Your Honor overruled me. I thought The COURT. Mr. Riddle, there is no motion I was right, and think so still, but submitted to before the Court, and further remarks are quite the ruling without a complaint or a murmur. unnecessary. In the midst of this confusion and excitement Mr. RIDDLE. May I not correct the error the learned counsel for these defendants had of the gentleman, by which I am placed in a their clients called and surrendered into cus-false position ? tody:
The COURT. There is no motion before the Mr. RIDDLE.:- That's false, utterly false. Court, Mr. Riddle; further remarks are unneJudge SPALDING. ----- That's a lie. .
cessary. Judge BELDEN. Well, Gentlemen, I can- Mr. RIDDLE. I understand your Honor, not believe you mean to seriously insult me; then, to deny me the privilege of making an but if you do, I have only to retort upon you. explanation. I say it is true as I have stated it. They had The COURT. Further remarks are quite untheir clients called and surrendered of their necessary, sir.