The Cleveland Daily Herald

Cleveland, April 16, 1859

Thirty-Seven Free Citizens of Ohio Consigned to a Jail

because they Refused to be Tried by a Jury that had Prejudged their Cases.

      The Wellington-Oberlin rescue cases assumed a new phase on Friday, and we must occupy brief space, although our columns have of late been filled with the details of the trial of Bushnell, in reviewing the history of this matter, and in calling attention to the unprecedented and unpardonable course of District Attorney Belden. We do not know how to characterize the vindictiveness, the malice, the venom, with which the prosecution calls for the vengeance of the law upon these men.

      Let us go back to the finding of these indictments, merely to remind our readers that one of the men allowed by the prosecution to sit on the grand jury, was Mr. Boynton, the father of the boy, who, for twenty pieces of silver, was hired to deceive and decoy a miserable, ignorant black man into the hands of his captors. Here was the first unblushing outrage upon propriety, - yes, upon decency.

      The next step in this mockery of fair and honorable dealing, was the empanelling of a petit jury, every man of whom was an adherent of the Democratic party, and one of them a Deputy United States Marshal. We do not say law was violated by this, but we do say – and every right minded person will agree with us – that this was ungenerous, unfair and an utter violation of the dignity and magnanimity becoming the professional character and position of a high public prosecutor. It was fit only for a four-corner Justice’s trial on a horse warranty question.

      The trial was had on the case against Bushnell, and the jury very summarily, found him guilty. We are not disposed to impugn the integrity of these jurors: they acted under the solemnity of an oath each had the intelligence to comprehend, and the responsibility of which they ought fully to feel. How those men could say – for by their verdict they have so said – that those two Kentucky slave catchers told the truth about that Power of Attorney, while some half dozen of as good citizens as Loran County contains were guilty of flat, deliberate, downright perjury, is a matter for the m to settle with their own consciences. We do not arraign them for the opinion upon that subject, but proceed to the scene with c ensured upon the rendition of the verdict.

      The question came up as to the trial of the other cases, and the District Attorney, in his vindictiveness, his malignity towards the remaining defendants, insisted that each of them should be tried by that same jury – a jury that under the solemnity of their oaths, had prejudged all these cases.

      Let it be borne in mind that this jury, by its verdict, had found that there was concert of action at Wellington, on the part of the crowd of which these defendants were a component part. That, of course, prejudged the vital point in the remaining cases.

      But the outrage upon judicial propriety and decency can only be appreciated by adding this fact, that the jury, which sat upon Bushnell’s case, was a “Struck Jury.” What lawyer ever heard of a “Struck Jury” for an entire term of Court? We have it from the most experience gentlemen of our bar, from those who for years have sat upon the Bench, who have grown gray in the profession, that a “Struck Jury” is always confined to the one case to try which it was empanelled. Ordinarily the term like facts, and the claim of the District Attorney that the “Struck Jury” is for the term, while it would be novel, would not, as a matter of course, be glaringly unjust; but in this instance it is monstrous.

      When the defendants found that the District Attorney, in his madness, was determined to put them through the wretched farce of a pretended trial while the verdict of guilty had been already pronounced by the jury before whom they were to be arraigned, they abandoned their defence, and Judge Spalding said, in behalf of the defendants, that if compelled to go before this jury, they would introduce no witnesses, and the trial would be solely on the part of the government. The defence dismissed their Counsel, and refused to stultify themselves by appearing to accede to such a legal outrage upon their rights. Then it was the District Attorney exultantly claimed his privilege of ordering Bushnell into the custody of the Marshal; and he did more, he moved that those persons who were at large, upon their own recognizances, be taken into custody. After their names were called, and they had entered the box assigned them by the U.S. Marshal, Judge Spalding moved, in behalf of the defendants, that an entry be made on the Journal showing the several recognizances cancelled. – This was done, or ordered to be done by the Court. Subsequently, the District Attorney applied for an order that these defendants be admitted to bail, at any time, by entering into recognizances, with sureties to the satisfaction of the Clerk. The Judge made the order, but distinctly said no bail or sureties would be required; that is, they might renew their own individual recognizances, if they saw fit. Then the vengeance of the District Attorney seemed for a moment satisfied, and these men were marched to our Jail, where they lie incarcerated. And for what? Why, for refusing to be tried by a jury that had prejudged their cases.

      That is the length and breadth of this matter; and we rest it here, begging the people of Ohio to ponder upon this outrage, and to answer to themselves this question: What is the trial by Jury worth in Ohio?

      As it may be denied that there are now thirty-seven defendants, we wish to state that in two cases the District Attorney entered a nolle. These two were Democrats.