May 19th. 1800
In compliance with your request, we shall now proceed briefly to communicate the points and Authorities, which we intended to urge in the case of the U.S. vs. Fries, if the Conduct of the Court had not unexpectedly deprived us of every hope of Success from these Means of defence. It may be proper to premise, that on the Morning appointed for the Trial, the Presiding Judge in the Presence of <
the [. . .]>, the Jury, and a numerous Audience, delivered to the Clerk a Paper, which he said contained the Opinion of the Court, formed, after mature deliberation, upon the Law of Treason; directed Copies of the Papers to be given to the Attorney of the District and the Prisoner’s Counsel; and declared his Intention to present a Copy of it to the Jury, as soon as the Case was opened on the part of the U.S. He referred likewise, in Terms of disapprobation to the Arguments, which (as he was informed) had been used in favour of the Prisoner on the former Trial, and announced a determination to prevent his Counsel from citing any Authorities at Common Law, or indeed any Authorities prior to the English Revolution. The Cause thus prejudged, the province of the Advocate thus circumscribed, and the Mind’s of the Jury thus prejudiced, we deemed it a duty that we owed to the Prisoner, to the Public, and to Ourselves, to surrender the Task which the Court had previously assigned to Us: for as there existed no Controversy in relation to the facts, and as the Jury would naturally rely on the Judgement of the Court in relation to the Law, we had not the Vanity to suppose that any Effort on our part, could do more than give to the trial the form and ceremony of a Defence, while our Acquiescence might afford some sanction to the establishment of a Precedent, hostile to the rights of the Citizens, ruinous to the Trial by Jury, and degrading to the Character of the Profession. The Candor and Humanity which have induced You to interpose in the present mode, have < also> however influenced our Decision. Allowing therefore for the different Effect of Arguments publicly delivered, before a Jury entitled in a capital case to pass both on the Law and the Fact, and with whom even a doubt would lead to an acquittal, we offer for your Consideration the following general positions;
1. That there has been a Mis-trial,
2. That the Offence charged was not Treason,
3. That a new Trial ought to have been awarded.
I. That there has been a Mis-trial.
|1.||By the Judiciary Act it is declared, “That in Cases punishable with Death, the Trial shall be had in the County where the Offence was committed, or where that cannot be done without great Inconvenience, 12 Petit Jurors, at least shall be summoned from thence.” [1. Vol. p. 67 S. 29. Swifts Edit.]|
|2.||The Offence was committed by Fries in the County of Northampton, but his Trial was in the County of Philadelphia.|
|3.||The Language of the Act is mandatory, “the Trial shall be had in the County where the Offence is committed,” and some “great inconvenience” must appear Judicially to the Court, before they can exercise the discretion of ordering a Trial in any other County. No such inconvenience was suggested on the Record, or even stated at the Bar, and if it existed in the present instance, it must forever exist in all future Cases, and this Clause of the Law be rendered altogether useless.|
|4.||It is true, that an ineffectual Motion was made on the first Trial, to change the place of Trial, but it was over-ruled on Grounds which have no Application to the second Trial: [2. Dall. Rep. 513]. For|
|1.||There was no inconvenience owing to the riotous state of the County of Northampton at the time of the second Trial.|
|2.||And the Court, (being bound to notice every thing that was essential to the exercise of Jurisdiction,) might have ordered the Trial in the proper County, before it was commenced in Philadelphia, by a finding of the new Indictment, a Nol-pros having been entered on the Old one.|
|5.||For any Mis-trial on account of Jury Process, or on any other Account, the Verdict must be set aside. [6. Co. 14.b Hawk. P.C. 13:2. Ch. 47. S. 11. Ibid. 13. 2. ch. 27 L. 108].|
II. That the Offence charged was not Treason.
|1.||The Constitution defines Treason to be “Levying War against the United States, &ca”, and the Act of Congress inflicts the punishment of Death on the person convicted of the Crime. [1. Vol. p. 16. Const. Art. 3. L. 3. Ibid. 100. L. 1.]|
|2.||As the Spirit of the Constitution is opposed to implied powers, and constructive Expositions, we are bound to take the plain, manifest meaning of the Words of the Definition, independent of any glossary, which the English Courts, or Writers, may have affixed to the Words of the English Statute.|
|3.||The plain manifest meaning of the Words then, is—“a forcible Opposition to the Power of the Government, with the Intent to subdue and overthrow it.”|
|4.||This Meaning may embrace a forcible attack upon the Legislature, (or perhaps any other principal Department of the Government,) to compel the repeal of a Law.|
|5.||But it does not embrace the Case of an Opposition to the Execution of a particular Law.|
|6.||It seems indeed, upon principle, to be a confusion of Crimes, to include in the same class a forcible attempt to subvert and overthrow the power of the Government, and a mere resistance of subordinate Agents, in carrying a particular Law or regulation into effect.|
|7.||If Fries and his Companions had opposed in Arms the Troops that were sent against them, it would clearly have been an Act of Treason: but in the Conduct which they pursued, we can only perceive Sedition, Riot and Rescue. [1. Hal. P. C. 146. Fost. 219].|
|8.||Such likewise has been the Legislative Construction and Discrimination between the Cases; for unquestionably the Penal Law and the Sedition Act define and punish the Offences committed by Fries and his Companions, as distinct from the Offence of Treason, and when an Offence is classed under a particular head in the penal Code, it is inconsistent to search for it and punish it, under another head. [1. Vol. p. 109. S. 22. L. 23. 11 Hal. P.C. 151. Keyl. 75. Fost. 200. 201.]|
|9.||But even if the English Decisions and Writers are considered as giving a construction for our use to the same words employed in the Statute of Edw. 3., they do not extend so far as to pronounce an opposition to the execution of a particular Law to be Treason, by levying of War.|
|10.||At Common Law there is not a single Case or dictum to support such a doctrine, though indeed in the reign of Hen. 8. rescue was made Treason by a statute, which was afterwards repealed.|
|11.||Under the Statute of Edw. 3. there have been many wild constructive Treasons, by levying War, of which Coke, Hale, Blackstone &ca, solemnly complain, but none, even in the bad times of the Juridical History of England, have gone so far as the present Case.|
|12.||We cannot trace a single instance of a <
|13.||The constructive cases in England turn upon Universality of Object in opposition to the power of the Government. The Case of Damarree and Purchase was decided on that Ground; for if the rising had been to suppress all Bawdy Houses, it would have been equally within the principle, as the rising to suppress all Meeting Houses. [4. St. Tr. 844. 900]|
So a rising to alter or reform religion, which can only be done by force on the Legislature, is Treason. [4. B. Co. 81. 1. Hawk. P.C. Ch. 17. L. 25.]
But Ld. George Gordon’s trial and acquittal establish the Doctrine for which we contend. It is true, Ld Mansfield there declares an Opposition to the Militia Law, to be Treason, <
[. . .]> but we apprehend the reason of this is, because it is in effect the same to oppose the Militia or the Execution of the Militia Law, as to oppose the regular Forces, which has always been held to be Treason, and the Expression, used by Lord Mansfield, is confined to an Opposition to the Execution of this particular kind of Law, and does not extend to any others as would, we think, have been the case, had the rule been the same in other Cases.
III. That a new Trial ought to have been awarded.
|1.||After the Jury were sworn, and the Evidence partly given, one of the Jury separated from his Brethren, and slept at his own Lodgings.|
|2.||During this Separation he conversed with one Person on the subject of the Trial,—“ declaring that the Evidence of a certain Witness went hard against the Prisoner” [Affida. of Mr. Barnet] and being told by another Person, that “he supposed the Evidence would go hard against Fries.” [Affida. of Isaac Roush.]|
|3.||Hence, in the contemplation of the Law, he was committed by an Expression of his own Opinion, and influenced by the Expression of the Opinion of another.|
|4.||The Law and practice of Pennsylvania, (in the Federal, as well as State Courts,) have uniformly opposed the separation of the Jury in a capital case, though Necessity has compelled an Adjournment of the Court.|
|5.||The Law of England is peremptory, that a Jury in a capital case cannot be discharged without giving a Verdict, and that they cannot give a privy Verdict: From Foster 25 & 28 it appears, that the Meaning of the Expression, “cannot be discharged” is, that the Jury cannot be permitted to separate, and the reason, why a privy Verdict cannot be received in a capital Case, is, for fear of tampering and Corruption, which is much stronger than the Case of separating before they have agreed. [Co. Litt. 227.b. Hawk. P.C. 132. C. 47. l. 1. 2. 4. B. Co. 360. 2. Stra. 984. 3. B. Co. 390. 2. Hal. 296. Keyl. 57.]|
|6.||It is true that a separation in civil Cases works only a punishment of the delinquent Juror; and in Misdemeanors the rule is not strictly enforced, though an able Counsel has given a formal Opinion, that the Separation would be a Mis-trial even in a Misdemeanor.|
|7.||The Cases put by Hale will be found to admit of a clear Explanation, consistent with our present position. [1. Hal. P.C. 295.b.]|
|1.||The first case is not stated to have been a capital one, and if it was a capital one, the Jury were discharged, in consequence of the Separation, & a new Jury sworn. [2. Hal. 295.]|
|2.||The second is either a case of Misdemeanor, or of trespass, & the whole proceeding was Matter of Consent. [Ib. 296.]|
|8.||But the Law has been adjudged. On the question, “whether after a Prisoner is upon his Trial, and the Evidence for the Prosecution is given, the Jury may separate for a time, which is the consequence of an adjournment to another day,” the Judges of England were decidedly in the Negative. [4. H. Tri. 232. Harg. Edite. Ld. Delamere’s Case. 3. Inst. 30.]|
|9.||And on the principle of this Decision, the Lord High Steward declared, that a Verdict and Judgement, given after such Separation, would be erroneous, void and liable to be reversed.|
|10.||This remained the Law of the Land, so that there could not be either an adjournment of the Court, nor a Separation of the Jury, in a capital case, till the late trials of Hardy, Looke &ca, But the Alteration, then introduced, was confined to the Necessity that called for it—to an adjournment of the Court,—not to a Separation of the Jury. Accordingly, in none of these Instances did the Jury separate. [Hardy’s Trial pa. 252. 8 Looke’s Trial 167 to 171. O’Connor’s case Stone’s case.]|
We are, / Sir, / Your most hble servts
A. J. Dallas
MHi: Adams Papers.