Reporters' Note. The following pages contain a report of the proceedings before the Circuit Court of the United States, at Columbia, S. C., in what are known as the Ku Klux Cases. That portion of the publication which embraces the arguments on the motion to quash the indictment in the case of the United States vs. Allen Crosby, et al., and the evidence and arguments in the case of the United States vs. Robert Hayes Mitchell, et al., is strictly a verbatim report of all that occurred. The evidence in the case of the United States vs. John W. Mitchel and Thomas C. Whitesides is also verbatim, but the remainder of the report is somewhat condensed. In the latter cause, the arguments are verbatim, so far as they relate to questions of general interest, in connection with these Ku Klux prosecutions, and are condensed only in their references to the alibi which the defence attempted to prove. The evidence in the causes tried subsequently is considerably condensed, but no material fact that appeared, and nothing which occurred to indicate the animus of witnesses, on either side, has been omitted. The report of the case of Edward Y. Avery is much more complete than that of John S. Miller, and the statements of those prisoners who pleaded guilty are abstracts only to the extent of the omission of a large number of the questions. B. P. L. F. P. Introductory Part. On the 27th day of November, 1871, the United States Circuit Court convened at Columbia, S. C. The Hon. HUGH L. BOND, of Maryland, Circuit Judge, presided, and the Hon. GEORGE S. BRYAN, of Charleston, District Judge, sat with him upon the Bench. After the roll of grand and petit jurors was called, the Hon. D. T. Corbin, United States District Attorney, challenged the array upon the following grounds: 1. That said jurors were not designated and drawn in the manner provided by law. 2. That said jurors were drawn from the jury box by a small child, and not by the Clerk or Marshal, as required by law. 3. That said jurors were not drawn in the presence of the Clerk and Marshal, but were drawn in the presence of the Clerk only. In support of these objections the following affidavits were read: The affidavit of the United States Marshal, L. E. Johnson, asserted that he was in the city of Charleston on the second day of August, 1871, and in going to his office on that day he was informed that the grand and petit jurors for the next stated term of the Circuit Court had been just drawn, which greatly surprised him, as he had received no notice from the Clerk, Daniel Horlbeck, Esq., or any other person, of the intended drawing of the jurors that day by the Clerk, and consequently was not present during any part of the time of the drawing of said jurors, as the law requires. The affidavit of the Chief Deputy Marshal, Edward P. Butts, was to the effect that, on the second day of August, while he was in his office in Charleston, he was notified by the Clerk of the Court that he (the Clerk) was about to draw the jurors for the next term of the Court, to be held in Columbia, and that he went into the room where Daniel Horlbeck, Esq., the Clerk of the Court, had the jury box, which he (Horlbeck) unlocked and opened in his presence; that a small boy being called in, and instructed by the Clerk to draw from the jury box the ballots; that the boy commenced drawing the ballots; that he (Butts) was called away after he had drawn a few, and left Mr. J. H. Shriner, a Bailiff of the Court, to take his place. Butts also deposed that the Marshal was not present during the time of the drawing. John H. Shriner deposed that he was a Bailiff of the Court at the time named, and was present, as asserted in the foregoing affidavits; that his Honor Judge Bryan and the Clerk, Daniel Horlbeck, were present, and Deputy Marshal Butts was present a part of the time, and that the jury box was brought into the Court room, and opened in the presence of all the parties, a small colored boy being employed to draw the ballots. The remainder of Mr. Shriner's affidavit corroborated those given above as to the absence of Marshal Johnson. In support of the challenge, Mr. Corbin said that he did not attempt to impute, either to the Clerk or any other person, any designed evasion or non-compliance with the law. He supposed that the fact that the jury was drawn by a small child was attributable to an old custom sanctioned previously by this State, but long since abolished. That custom, however, had been continued by the Clerk of this Court, he having been, for a long time, Clerk of the State Court, while the custom obtained there. He added, that the order required the drawing to be done by the Clerk or Marshal, and nobody else, and in the presence of both the Clerk and Marshal. The Deputy was not mentioned in the order; and where a special trust has been confided to draw a jury, counsel presumed there could be no question that the trust must be discharged personally. He added that he was prepared to submit authorities, if the Court desired them. The Hon. Reverdy Johnson, of Baltimore, Md., who was present as counsel for the defense in the prosecutions, which it was supposed would be brought under the "Enforcement"* and the "Ku Klux "* Act of Congress, in opposing the challenge made by the District Attorney, said that he had asked Mr. Corbin what he designed to accomplish if he succeeded in getting the array dismissed, but had received no answer, except that the object was to get another jury. Mr. Johnson understood by a portion of the order of the Court, that the jury had to be selected from every part of the State, and not from the vicinage, and, therefore, if this jury was discharged, these trials must be postponed, and the whole proceeding of drawing a jury gone over again. Mr. Johnson added, speaking for himself, that if the counsel for the Government entertained any fears that the judgments in these cases, passed on the verdicts of this jury, might be set aside for irregularity in drawing, he would waive all objections to the manner in which the jury was drawn. The discussion between the District Attorney and Mr. Johnson continued until adjournment. Mr. Corbin said he had taken this course on account of an important Maryland decision (Clair vs. The State) where an irregularity in draw *Printed in the Appendix. |