From William Lewis
Philadelphia 11 Octr. 1800.
Your letter of yesterday1 I recieved this morning, requesting to “know with exactness, what passed between the President and the Counsel of Fries &c.” and as nothing that I deem improper ever passed between them, I shall without hesitation furnish all the information in my power. It seems proper however to accompany it with some additional information, as I do not wish a part of the transaction to be seen without a view of the whole. Fries being a poor man and unable to fee Counsel, Mr. Dallas and I were assigned his counsel by the court. On the morning of the day appointed for his trial,2 in the presence and hearing of the jurors assembled for the purpose, the Honorable Mr. Chase, the presiding Judge, addressing himself to the prisoners counsel, and I believe to the counsel for the prosecution, observed from the bench, that he understood there had on a former occasion, been a great waste of time in discussing the law of Treason, and a variety of topics which were altogether immaterial, which had nothing to do with the business before the court, and which the court would not now suffer to be gone into. He added, that to prevent any thing of the kind, the court had considered and made up their minds on the law, and drawn up a charge for the jury respecting it, to be handed to them as soon as the case was fully opened on the part of the prosecution. He also added that they (the Judges)3 had ordered two copies to be made out, and one of them to be delivered to the Counsel for the prosecution,4 and the other to the prisoner’s counsel for their government in conducting the trial, and that if they had any thing to say respecting the law, they must address themselves not to the jury but to the court, who were the proper judges of it. One of the copies was I believe delivered to Mr. Rawle the district Attorney, and another was offered to me as counsel for the prisoner, but I declared that my hand should never be tainted, by the touch of a paper containing a prejudged opinion in any case in which I was of counsel, much less in a capital one, and I refused to receive it. The Attorney for the prosecution was not ready for trial, and it was postponed ’till the next day. As there was but little controversy respecting the facts, and as the life or death of the prisoner altogether depended on questions of law which had been predetermined, and the charge respecting them had been prepared for the jury before they were sworn, and as it was authoritatively announced from the bench, that the Prisoner’s counsel were to be deprived of what they deemed a legal and constitutional right, of addressing the jury in a criminal case, as well on the law as on the evidence, Mr. Dallas and I immediately concluded not to degrade the profession to which we belonged, by acting under an appointment from the court on any such terms, and withdrew ourselves from the prisoner’s defence.
The next morning Judge Chase addressing himself to me, (for I believe Mr. Dallas had not come into court,) asked if the prisoner was ready for trial? I observed, that he must answer that question himself. He was soon after brought to the bar, and on his telling the court, he was without counsel, I informed the court of the cause of it, but not without observing, that when ever I was employed as counsel, I would be as tenacious of my professional rights, and of the rights of my Client as any man, but that I would never act under an appointment from any court with terms annexed, degrading to me, and precluding all manner of services to the person that I might be appointed to defend. The court then said that the papers which seemed to have given offence to the prisoner’s counsel, and had occasioned a noise, were all called in and burnt or destroyed, and that as there was now an end to them, we might proceed in our own way, and we were also told that we might address ourselves either to the court or the jury on questions of law as we might think proper. In justice to Judge Chase I must add, that his condescension now, surpassed if possible, his high toned dogmatical conduct on the preceding day, but this however did not take place until I had declared it to be the legal and constitutional right of the jury, in all criminal prosecutions, to determine the law as well as the facts, that it had in England been uniformly the practice, since counsel had been admitted for the prisoners, and that I never had nor never would address myself to the bench in a trial on a criminal prosecution. I further observed, that although the offensive papers might be burnt, the predetermination of the court was not, and that Mr. Dallas and I should adhere to the resolution which we had taken. He avowed the same determination. The trial commenced and proceeded, without any counsel on the part of the prisoner, though if my recollection be accurate, the court offered to assign him other counsel.5 No counsel of reputation could I suppose, accept of the appointment after what had passed, and none were appointed. In the course of the trial one or more adjournments took place, and during one of them, a juror separated from his fellows and went to his lodgings at a tavern, where he held a conversation respecting the prisoner, his conduct and the evidence that appeared against him, but this conversation was not considered by the court, as sufficiently material to viciate the verdict, and sentence of condemnation passed against the prisoner. Soon after this, the President’s Son6 asked me, if I had any objections to let his Father see my notes of the points that I had intended to make for Fries, with my authorities in support of them, and I am pretty sure that he said his Father wished to see them. I answered, that I had no objections, and that his father might see them. The President however never sent to me for them, nor did I ever send them to him, nor did a single line or word ever pass between him and me respecting Fries or his trial, nor did any thing further than I have stated, ever pass between the President’s Son and me on the subject, nor between the President and me directly nor indirectly.
It may perhaps be proper to add, and it is all that I can add, that when I was in consultation with the Attorney General of the United States7 on other business, and when I neither thought of Fries nor his trial, he (the Attorney General) observed to me, that as he might perhaps be applied to, or spoken to (for I forget the precise words) by the President, respecting Fries, he wished to know Mr. Dallas’s reasons and mine for thinking he ought not to be hanged, and to have a note of the law authorities on which our opinions were founded. I promised to comply with his request, and I believe that a similar one was made of Mr. Dallas.
After more delay than was proper, we wrote him a joint letter,8 stating three points of defence, and mentioning our authorities in support of them.
One of them was, that the resisting of the execution of a law, not being a militia act, nor a law respecting the military force of the country in the manner that Fries had done does not amount to treason. on this point, different opinions may perhaps be held by men of respectable legal talents, but be this as it may, it seems to me almost impossible, for any two men of real law talents, to form different opinions on either of the following points
1st. On the part of Fries it would have been contended, had he not been deprived of the benefit of counsel, that his trial was at a place unauthorized by law, that the proceedings were, coram non judice and void, that in case of a conviction, the court were legally bound to arrest the judgment, and that no legal execution could take place under it. The offence was committed in a Northampton county, and the trial was had in Philadelphia. The 29th. section of the judiciary act,9 says “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, twelve pettit jurors at least shall be summoned from thence.
Had Fries had the benefit of counsel, it would have been shewed, that the insurrection had long since ceased, and that the due administration of justice had been restored, that the only inconvenience attending a trial in Northampton county, would be confined to the trouble which the Judges might experience in riding there, and of course, that if this inconvenience was sufficient, to cause a change of trial from the proper County, to a more distant one, it will be sufficient on all future occasions, and it will therefore be better to repeal the act, than to continue it in form while it is in substance altogether disregarded.
Or if the inconvenience of attending a trial in the proper county, was so great as to justify a trial in another county, then a suggestion thereof should be made on record, at the instance of the Attorney of the United States, and an entry should also be made, that there could not be a trial in the proper county without great inconvenience, with an entry of an order, for holding a court for the trial in a different county. Nothing of this kind appears on the record, nor did it ever take place. It is therefore believed, that had Fries had the benefit of counsel, either the trial at Philadelphia must have been prevented, or a motion in arrest of judgment must have met with success. Otherwise it would appear, that by law the trial was to be had in the proper county, unless prevented by certain circumstances, and by the record it would appear that the trial was had at another place, without any circumstances being stated to warrant it; that is to say, that neither any suggestion, or proof, or judgment of the court or Judges appears, to authorize an idea, of the existence of any such great inconvenience, as in the act of congress is mentioned. It is believed that had not the prisoner been deprived of counsel, this objection would have been conclusive in his favor on a motion in arrest of judgment, and it is also believed that an execution under a verdict and judgment thus obtained, would have been an illegal homicide under colour of law.
But the prisoner had no counsel to bring these points before the court, and perhaps they were never thought of.
The last point was, that the separating of the jury vitiated the verdict. If the prisoner had been assisted by counsel, it would have been admitted that the separating of the jury in a civil action, or in a case of misdemeanor, does not vitiate the verdict, even where no improper communication appears to have taken place, and I am confident, that I may safely state, that the researches of the court extended no further than to cases of this kind. But it would have been contended, that in a capital case, so cautious and careful is the law, in favor of the life of man, that lest there may have been a tampering with the jury that separates, although the tampering cannot be proved, the bare act of separating, without any improper communication, vitiates the Verdict. It would have been shewn, to be the law of England, that if the jury separate in a capital case, their verdict, if this is known before it is given in, shall not be recieved, without swearing them anew, and going over the trial again, and the position would have been supported, on very high legal authority, that if a verdict is received, after such separation, it is null and void; that no judgment can be rendered on it; that if it is rendered, it is null and void; that no execution can take place under it, that the party may of right demand a pardon, and that the King has no discretion but ⟨is b⟩ound to grant it.
Whether the Attorney General was ever consulted on the subject by the President, or whether the President ever said a single word to him respecting it, I do not know nor have I ever heard. You must excuse me my dear friend, for troubling you with a longer statement than your letter called for, or than you could have expected. I have heard so many strange & unfounded things on this subject, as to make me unwilling to say any thing respecting it, without giving a correct Statement of the whole business. I may not perhaps have given the precise words made use of by Judge Chase, but I am confident, that wherever I have departed from them, it has been in moderating and Curtailing the strength and extent of his mandatory prohibitions. I do not wish to appear in print, but you are at full liberty to mention the contents of this letter, together with my name wherever you please.
I am with high consideration of regard Your faithful friend and Servant
Major General Hamilton.
ALS, Hamilton Papers, Library of Congress.
1. Letter not found. H had requested the information concerning John Fries for use in his Letter, October 24, 1800. H, however, did not use any of the facts which Lewis provided in the letter printed above.
For information on Fries’s Rebellion, see James McHenry to H, March 13, 1799, note 12.
Lewis and Alexander J. Dallas were assigned by the court to serve as defense counsel to John Fries in his two trials for treason. At his first trial, which began in the United States Circuit Court for Pennsylvania sitting at Philadelphia on April 23, 1799, and continued until May 9, 1799, Fries was found guilty of treason (RG 21, Minutes of the United States Circuit Court for the Eastern District of Pennsylvania, 1792–1802, National Archives; Wharton, State Trials description begins Francis Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia, 1849). description ends , 482–609). On May 14, 1799, when Fries was brought into court to be sentenced, counsel for the defense made a motion for a new trial on the ground that one of the jurors had made prejudicial remarks against Fries after he had been summoned to serve as a juror. The court granted Fries a new trial, which began on April 24, 1800, and continued until May 2, 1800, when he was again found guilty (RG 21, Minutes of the United States Circuit Court for the Eastern District of Pennsylvania, 1792–1802, National Archives; Wharton, State Trials description begins Francis Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia, 1849). description ends , 610–48).
A complete account of the pretrial hearings to which Lewis is referring may be found in the testimony which Dallas, Lewis, and Samuel Chase, one of the presiding judges at Fries’s trials, gave at Chase’s impeachment trial in the Senate in 1805. See Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1849). description ends , XIV, 80–676. Portions of the testimony are printed in Wharton, State Trials description begins Francis Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia, 1849). description ends , 610–48.
2. Fries’s second trial.
3. Richard Peters, United States judge for the District of Pennsylvania, and Supreme Court Justice Samuel Chase were the presiding judges.
4. William Rawle.
5. The court did offer to assign another counsel to Fries, but according to later testimony he either refused the offer or deferred his decision to Judge Chase (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1849). description ends , XIV, 114; Wharton, State Trials description begins Francis Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia, 1849). description ends , 620).
6. Thomas Adams.
7. Charles Lee.