U.S. Supreme Court United States v. Fries, 3 U.S. 3 Dall. 515 515 (1799)
United States v. Fries
3 U.S. (3 Dall.) 515
Indictment for treason by levying war against the United States, at Bethlehem, in the County of Northampton. The prisoner, after a trial that lasted fifteen days, [ Footnote 1 ] was convicted, whereupon Lewis and Dallas, his counsel, moved for a new trial on two general grounds.
1st, that there had been a mistrial.
2d, that there had not been an unbiased and impartial trial.
I. The facts on the first ground appeared to be these:
A venire, tested 11 October, 1798, and returnable 11 April, 1799, had issued by which the marshal was commanded to summon 24 grand jurors and "a number of honest and lawful men of your said district, not less than fortyeight, and not exceeding sixty, to serve as petit jurors." Annexed to this venire the marshal in due form made a return of the whole number of sixty jurors, all of whom were summoned from the City and County of Philadelphia, and on a separate paper signed by him he returned an additional number of 17 jurors summoned from the County of Northampton and of 12 jurors summoned from the County of Bucks, making in the whole 89 jurors. For this latter return, however,
no venire had issued, nor did any special award appear on the record, and the jury that tried the prisoner was composed of jurors from Philadelphia, Northampton, and Bucks.
II. The facts on the second ground in support of the motion for a new trial were that Rhodes, one of the jurors, after he had been summoned as a juror, declared at several places, at several times, and to several persons in substance as follows: "That he was not safe at home for these people (meaning the insurgents) that they ought all to be hung, and particularly that Fries must be hung." The juror was confronted with the witnesses who attested these declarations, and denied them, [ Footnote 2 ] as pointed particularly at Fries, but admitted that he had made use of general expressions indicative of his disapprobation of the conduct of the insurgents.
After a solemn consideration of the subject, Iredell, Justice, delivered his opinion in favor of a new trial, on the second ground of objection, that one of the jurors had made declarations, as well in relation to the prisoner personally as to the general question of the insurrection, which manifested a bias or predetermination that ought never to be felt by a juror. He added that he did not regard the first ground of objection as insurmountable, but deemed it unnecessary to give a decisive opinion on it.
Peters, District Judge, did not think that either objection ought to prevail. He thought that the venire and returns of the jurors were authorized by principle and precedent, and that the declarations of Rhodes were such as might naturally be made in relation to the insurrection, without manifesting a particular hostility towards the prisoner or leading to a conviction in spite of any evidence or argument that might
occur on the trial. As, however, the consequence of dividing the court would be a rejection of the motion, and as the interests of public justice and the influence of public example would not be impaired by the delay of a new trial, the district judge determined to acquiesce in the opinion of Judge Iredell.
A new trial awarded.
[ Footnote 1 ]
The length of the trial introduced the question how far the court could order an adjournment in a capital case. The principle of necessity, and the recent precedents in England in the cases of Rex v. Hardy and Rex v. Tooke were considered by the court and acted upon. The jury was, however, kept together in the same room at a tavern during the times of adjournment, and once (on Sunday) were taken for recreation in a carriage into the country, but still remaining under the charge of an officer and within the jurisdiction of the court.
[ Footnote 2 ]
It was doubted whether the juror was a competent witness on this question, but the court thought that though he could not be compelled to give testimony, he might give it if he pleased, and accordingly he was admitted at his own request. On the examination, however, he appeared very incorrect in his recollection of facts, though it was agreed on all hands that he was an upright man.