TRIAL OF JOHN FRIES, FOR TREASON: Recommenced, an account of a Motion made by MR. LEWIS for a new Trial; grounded on the disquali∣fication of JOHN ROADS, one of the Jurymen on the former Trial. (See Appendix, No. II.)
CIRCUIT COURT OF THE UNITED STATES. PENNSYLVANIA DISTRICT.
JOHN FRIES was again arraigned on the indictment for treason *, before the Honorable SAMUEL CHASE and RICHARD PETERS, Esquires.
The prisoner pleaded, NOT GUILTY.
MR. LEWIS and MR. DALLAS, before engaged to plead for the prisoner, on account of the conduct directed by the court, to be ob∣served by the counsel, withdrew their assistance; so that the prisoner was left without counsel; and on being asked by the court, if he would wish to have some assigned, he did not accept the offer.
THURSDAY, April 24.
Before the jurors were sworn in, they were individually asked (upon oath) these questions: "Are you any way related to the prisoner?" Page 178 They all answered, "No."
One of the jurors (Mr. Taggert) after he was sworn, expressed himself to the court to be very uneasy under his oath: he then meant that he never had made up his mind that the prisoner should be hung, but very often had spoken his opinion, that he was very culpable; he did not, when he took the oath, conceive it so strict, and therefore wished, if possible, to be excused.—The court informed the juror, it was impossible to excuse him, now he was sworn.
The court informed the prisoner, that he had a right to challenge 35 without showing cause, and as many more as he could show cause for. Thirty-four were challenged, and the following admitted and sworn on the jury:
Samuel Wheeler, Foreman; Henry Pepper; John Taggert; Cor∣nelius Comegys; Ephraim Clark; Thomas Bailey; Lawrence Cauff∣man; John Edge; Charles Deshler; Henry Dubois; Isaac Dehaven; John Balliot.
Counsel for the Prosecution, MR. RAWLE, MR. INGERSOL.
Then opened the charge exhibited in the indictment—He observed, that the jury must be aware of the very unpleasant duty he had to perform: he felt an extreme difficulty of situation—called forth by his duty to exhibit a charge against the prisoner at the bar of the highest magnitude, who now stood to answer, unattended by any legal advice; he felt impressed with the necessity of sticking more than usually close to the line of his duty, which he should endeavor to dis∣charge as faithfully as possible. And he trusted that, while the jury felt their relation to their unfortunate fellow-citizen at the bar, they would, at the same time, make all suitable allowance for any errors which might appear on his (Mr. Rawle's) part, though it was sincere∣ly his desire to avoid any, either in laying down the facts or the law, which he should do under the direction of the court; and, he hoped, that the jury would carefully sift and examine the law and testimony which his duty called upon him to advance, in order to substantiate the charge.
MR. RAWLE then proceeded to open the charge—he said, he should be able to prove, that John Fries, the prisoner at the bar, did oppose the execution of two laws of the United States; to effectuate which Page 179 he was provided with men, who, as well as himself, were armed, with guns, swords, and other warlike weapons, which, by their numbers and military appearance, were sufficient to accomplish their purpose, which was, not only to intimidate the officers of the government appointed to execute the above laws themselves; but to release from the custody of the marshal of Pennsylvania a number of persons who were held in prison by the said marshal, and to prevent him executing process upon others. All this was done, as stated in the indictment by a combina∣tion and conspiracy to oppose those laws, by a large body of armed men, of whom the prisoner at the bar was the chief, and commander.
MR. RAWLE then proceeded, under the direction of the court, to state the law.—The treason whereof the prisoner was charged was, "Levying war against the United States." U. S. Const. Art. 3. Sect. 3.
What he asked, was levying war against the United States?
He conceived himself authorized, upon good authority to say, levy∣ing war did not only consist in open, manifest, and avowed rebellion against the government, with a design of overthrowing the constitution: but it may consist in assembling together, in numbers and by actual force, or by terror opposing any particular law or laws. Again, there can be no distinction as to the kind or nature of the law, or the par∣ticular object for which the law was passed, since all are alike the acts of the legislature, who are sent by the people at large to express their will. Force need not be used to manifest this spirit of rebellion, nor is it necessary that the attempts should have been successful, to con∣stitute the crime. The endeavor, by intimidation to do the act, whe∣ther it be accomplished or not, amounts to treason, provided the object of those concerned in the transaction is of a general nature, and not applied to a special or private purpose.
In order to effect the object of those embarked in crimes of this high nature, it is well known that various means are necessarily employed; various acts may be perpetrated to accomplish the main end: they may proceed, by the execution of some enormous crimes, as burglary, arson, robbery, or murder, either, or all of them; but even if one or all of these crimes were committed, except the purpose should be of a general nature, they may form distinct and heinous offences; but the perpetra∣tors may not be guilty of treason. If a particular friend of the party had been in the custody of the marshal; if even a number sufficient for the purpose should step forward and rescue such a person, if it was not with a view to rescue prisoners generally, it would amount to no more than a rescue; but, if general, it is treason. It is the views of the party that fixes the crime, and therefore only the design is necessa∣ry to be known.
To prove that this doctrine was well established in the United States, Mr. Rawle turned to 2 Dallas, 346 and 355, stating the opinions of the court in the cases of Vigal and Mitchel, charged with, and con∣victed for treason. The attack on Gen. Nevill's house was of this general nature, because he was an officer appointed to execute the obnoxious law; and being to the officer and not to the man that they objected, it was thought to be treason, and that decision was well grounded.
Page 180 He observed, that the clause in our constitution was founded on a statute which was passed in England, to prevent the ever increasing and ever varying number of treasons, upon the general and undefined opposition to royal prerogative: the situation of things was such, previous to that period, as to call forth from the stateman, from the philosopher, and from the divine, even in those dark ages, the most ve∣hement complaints: in attendance to these reasonable and just mur∣murs, the statute was passed.
Mr. Rawle was then producing an authority, when Judge Chase said, the court would admit, as a general rule, of quotations which referred to what constituted actual or constructive levying war against the king of Great Britain, in his regal capacity; or, in other words, of levying war against his government, but not against his person, be∣cause it was of the same nature as levying war against the United States would be applied here: so was that part called adhering to the king's enemies:—they may, any of them, be read to the jury, and the deci∣sions thereupon,—not as authorities whereby we are bound, but as the opinions and decisions of men of great legal learning and ability. But even then, the court would attend carefully to the time of the decisions, and in no case must it be binding upon our juries.
Mr. Rawle quoted Hawkins, B. 1. chap. 17. sect. 23. as an autho∣rity of authenticity to prove, that not only those who rebelled against the king, by taking up arms with the avowed design of dethroning him; but those who withstood his lawful authority, and who endea∣vored to oppose his government; who withstood the king's forces, or attacked any of hiss fortresses—those, in fine, whose avowed object was of a public and general and not of a private and personal nature, were guilty of high treason. He also read Sir John Friend's case from Holt, 681. and Damarree and Pinchases' case, 8 State Trials, 289.
JUDGE CHACE begged the attorney to read only those parts of the cases which referred to what could be treason in the United States, and nothing which related to compassing the king's death.—It would be found, he observed, by an attention to the last case, that because the intention, was a rising to demolish ALL meeting-houses, generally, it was considered to be an insurrection against the toleration act, by numbers and open force, setting the law at defiance. This would be found to be the opinion in Foster 213.
Mr. RAWLE said, thus he conceived it—even if the matter made a grievance of was illegal, the demolition of it in this way was, ne∣vertheless, high treason, because of the people so assembled taking the law into their own hands; thus in Foster it would be seen that demolishing all baudy-houses, as such was high treason, as much as demolishing all meeting-houses, being equally an usurped authority. He also read Douglas 570, Lord George Gordon's case, when it was Lord Mansfield's opinion that any attempt, by violence, to force the repeal of a law, or to prevent its execution, is levying war, and treason.
He considered, from those few authorities, that he was justifiable in saying that a rising, with intent by force to prevent the execution Page 181 of a law as well as laws in general, preventing the marshal executing his warrants, and preventing the other officers charged with the ex∣ecution of the laws in question, amounted to levying war, agreeable to the constitution of the United States.
Mr. RAWLE then proceeded to state the most prominent facts which could be produced in the course of the evidence, in which it would fully appear, he presumed, that John Fries, the prisoner, was the most active in his opposition to those laws and to every attempt to car∣ry them into effect; that he in every instance showed his aversion of, and opposition to the assessors, and determination by threats and me∣naces to prevent them doing their duty, and that whenever any force was used, or terrific appearances held up, he was the commander and gave the orders to his men who, at times in great numbers joined him; and that finally by threats and intimidation, equally the same in the eyes of the law as force, he, the prisoner, did attain his object• to wit, the release of a number of prisoners who were confined for op∣posing the execution of the law, and were actually in custody of the marshal in a house at Bethlehem, which by reason of his having pri∣soners there, and his having an armed posse to protect his lawful au∣thority, was to all intents a fortress of the United States—and further that he did, compleatly for a time, prevent the execution of the laws intended, in those parts, and thus did bid defiance to all lawful autho∣rity.
John Fries, you will attend to all the evidence that will be brought against you; will attend to their examination, and ask any questions you please of the several witnesses, or of the court, but be careful to ask no questions wherein you may possibly criminate yourself, for re∣member, whatever you say to your own crimination, is evidence with the jury, but if you say any thing to your justification, it is not evi∣dence, the court will be watchful of you, they will check any thing that may injure yourself: they will be your counsel, and give you eve∣ry assistance and indulgence in their power.
WILLIAM HENRY, ESQ called.
See his former testimony page 24, and page 82.
Mr. Henry related the first information he received of this oppositi∣on to the laws in question, and their unwillingness to suffer the as∣sessments. That on application by Mr. Eyerly (the commissioner) he issued a number of subpoeneas to bring before him sundry persons to examine these facts, which he found ineffectual from the intimidations of a number of people who were met where the examinations were to be held. The witness, understanding that the marshal was to meet a number of persons upon whom he had executed process, thought it proper to go to Bethlehem on that day, in order to prevent any extre∣mities that might be attempted. He related the arrival of Keefer and Paulus and others, and afterwards of about 70 or 80 foot, generally armed with guns, having shot pouches and powder horns, and also of about 50 light horsemen with swords and pistols, that of these men Page 182 Fries, appeared to be the leader; that he was the person engaged in negotiation with the marshal for the prisoners, whom the witness un∣derstood he said he would have. That there were frequent cries out of, "we will have the prisoners," and frequent threats thrown out, particularly against Mr. Eyerly, Mr. Balliot, and himself (the wit∣ness,) sometimes pointing their guns to the windows.
Was the prisoner present at these threats?
I cannot recollect, as I was about in different parts of the house—one person I saw cock his piece several times to those standing on the stairs. One of the riflemen came into the back room and swore, that if these damned stamplers had given them an oppor∣tunity, they would have shown them how they could have fought, and they would show them yet.
How long has the word stampler been in use in those parts?
Only since about the fall of '98.—The witness farther deposed, that Fries was distinguished from the rest by a black feather in his hat—that the persons who were in custody of the marshal resided from 30 to 40 miles from most of those who came to rescue them, and near 40 miles from where Fries lived.
WILLIAM BARNETT (see page 28.)
Being one of the posse, was appointed by the marshal to meet and endeavor to prevail on the armed party not to come into Bethlehem; he deposed that he mentioned to them the western insurrection, and told them of the consequences of resistance, but to no effect: Fries, the prisoner, said, he had had a fight yesterday, and would have an∣other to-day; the witness expected he had been in a frolic. That the captain of the riflemen seemed determined to release the prisoners, and indeed that was their common cry. The witness asked them if they would not allow that if the prisoners had done wrong, they should suffer for it: they answered they had no objections to that, but they should not be dragged to Philadelphia, they should be tried at Easton, their own county town. They appeared to be in liquor a little.
The witness was asked if he had any recollection about who would get the first blow, or who were expected to fire on them (Fries and his followers.) The witness had not a perfect recollection of it.
Do you not recollect any person saying "you must stay, strike, and make as good as you can, if I fall or get the first blow," or something like that, in the German language.
I do not recollect any such words.
JOHN BARNET (see page 31.)
Deposed that he was one of the posse at Bethlehem; that he saw the armed men come into the town, the horse with their swords drawn, as usual, when they went to war. When the witness stood guard on the stairs, Fries and another wanted to go up; Fries had his sword, and the other a pistol: upon their asking for the marshal, Page 183 he was called, and Fries was let up to him, but the other was not suffered to go up: one at a time the witness thought was enough. The witness heard some of the prisoners at Bethlehem say, that they did not know the men who rescued them, nor did they know of their coming, or wish to be rescued.
CHRISTIAN WINTERS (see page 34.)
Was one of the marshal's posse—he related some conversation be∣tween the marshal and the prisoner on the stairs: after he was relieved from that station, he went down, when he asked the people out of doors what they were doing: they said they would obey their cap∣tain's orders; the witness did not know what captain they meant; they were all strangers to him.
Did any man strike at you!
No, but after the affray was over, there was one of them walked under the stairs with his sword, of whom the marshal sent me to inquire his name: he answered he did not mean to do any harm. Another said he did not mind these damned st•mplers.
PHILIP SCHLAUH (see page 41.)
Deposed that he was at Bethlehem on the 7th, of March where he saw the prisoner at the bar, who said to his company that he had been up with the marshal, and that the prisoners were refused by the mar∣shall, who said if they were taken it must be by force—"Now boys," said he, "I give you my orders; we don't mean to hurt any body; we have to pass between 4 or 5 centries, I expect I shall get the first blow, and when I get the first blow yo•〈◊〉 do as well as you can; will you agree to it boys?" "Yes" they 〈…〉
—Do you recollect the very 〈◊〉 Fries mentioned?
The very words were, striking his breast "I shall be the foremast man, I expect I shall get the first blow, then do at well as you can."
Did he say any thing about firing?
Do you remember any words he used?
Christian Winters returned—Having forgot to mentioned that when the demand was made of the marshal, he told the prisoner he could not deliver up the prisoners: Fries said "you are not to be blam∣ed; you do your duty, and I give you my word you shall not be hurt by my men, as for the rest I cannot answer."
SAMUEL TOON (see page 51.)
Related Something of the company proceeding to the bridge, the conversation and occurrences there, and the mission to Bethlehem, in which he, and two others were sent for the release of Kiefer and Paulus—That when Stahler's company were drawn up before the Page 184 house, one of them, named Henry Hoover, said if he only had eight men, he would go up and rescue the prisoners, when the witness heard Fries answer that he should not behave himself so, for that was not the way to go on. After a little time Fries said to his company "come on boys, dont be afraid." This was after he had been up with the mar∣shal. They then wanted to press up stairs, and then the prisoners were delivered up. The witness heard no other expressions from Fries.
ANDREW SHIFFERT (see page 56)
On the company meeting at Ritter's tavern the witness asked them what they were going to Bethlehem for? They said "to release the prisoners." Then said the witness, you must either fight or hide your∣selves in the Buck wheat straw. Ritter answered there was no danger of that, for when they come to see so many in arms they would soon draw back, and would let the prisoners free.
Was there any thing said about whether to go with arms or without arms?
There was nothing said against it, that I know of. I told them I would rather go home.
WILLIAM NICHOLS (marshal) (see page 37.)
Related the receipt of the warrants, which he produced, and the first part of his progress; also the circumstance that occurred with Shankweiler, and of the commencement and progress of the affair at Bethlehem. Reasoning with the prisoner at the bar, and his still persist∣ing in his demand of the prisoners, the witness said that it was a cow∣ardly thing to oppose an individual thus placed, but that if he had 20 armed men, the prisoners should not be rescued. The prisoner laugh∣ed at that: on telling him that an armed force would be sent up, he answered that they were able to come against any force.
Did he show any particular regard for these prisoners, or what was his assigned reason for demanding them?
No he did not, he said the law was a bad one, and ought not to be executed.
*—When the conversation passed between you and I, did I not ask you if these prisoners could not be admitted to bail?—I said I would come forward and risk my life, that you should not be hurt—Was it so or was it not?
Very possibly, but I do not recollect i•.
Had I any arms when I came up to you.
Not at that time.
The court then adjourned to dinner, first having placed the jury un∣der two sworn bailiffs, and qualified each juror not to speak to any one nor suffer any one to speak to them, touching the matter relative to the trial of this issue.
Page 185 JOHN DILLINGER (see page 57.)
Deposed his having left a message at Young Marks's house for him to meet the next day to go to Bethlehem, and that Stahler who sent him, said it was very hard to let these men (the prisoners) suffer by going down to Philadelphia. Being at Bethlehem the next day, the witness saw the prisoner at the bar there: hearing an uproar, the wit∣ness went into the house, where he heard the prisoner (Fries) say, "draw near boys, don't be afraid."—I pushed the people back, as did several others there.
Was it a common muster day?
No, I believe not.
CHRISTIAN HECKAVELTER qualified.
The witness resided in upper Milford township—Soon after I re∣ceived my warrant as assessor of the township and was proceeding on the business, I was told by my neighbors that the people of the town∣ship would not allow me to do it. After I had been to a few houses, I was told if I went on, it should be at my peril—this was the latter end of November I believe. I then returned home, and informed Mr. Balliot and Mr. Elliot, in order to consult them, what should be done. They agreed to call a township meeting to collect the minds of the people. After it was held, I received from a deputation of three men appointed for that purpose, information that I must desist, for there was no such law in existence. After that Mr. Eyerly in∣formed me he had called a meeting of the people at squire Schymer's, he took me with him. A number of people assembled there, some armed and some without arms. Mr. Eyerly told them he was come to ex∣plain the law to them. There was a question among them whether it was a law or not; some said it was not in existence, and that it was a law of his own making, for that he was able enough to make such a law himself; I believe it was agreed among them that they would not have their houses measured.
Was there not frequent threats thrown out?
Yes there was; they also gave it as their positive de∣claration that they would not submit to the law; this was their com∣mon opinion.
Do you know any thing of papers being pasted up with swords, pistols, or threats, being painted or drawn on them?
Deposed that he was an assessor, in Macungy township
—Not long after I received my commission, a women came to me, and said I should not go on with that business, before I was prepared with an iron cap: another old women soon after told 〈◊〉 I should not venture to that business of measuring houses: I would come in bad condition with it. I told her I did not think it, because they were all Christians there Page 186 about, and I believed christians would not hurt me. The talk was, that in some houses they kept hot water against the assessor came round to do his duty. After that I heard there, that there had been several meetings like complots, or conspiracies to obstruct the assessors, on that account I was frightened to make a beginning. I heard that Mr. Heckavelter was stopped. Hearing that there was to be a meet∣ing at squire Schymer's I went there, where Mr. Eyerly explained the law.
After that, did the people let you go on?
Was there any sedition papers put up near you?
Yes, about three miles off—near Millar's town, but I cannot tell what they were; I never read them.
Deposed, That he was appointed assessor for Lynn township: That about December, 1798, he came to about the ninth plantation, when he was stopped by the people.—I heard that there was to be a town∣ship meeting held, so I went, and took two constitutions with me, and the proclamation of General Washington to the Western insurgents in 1794. I also showed them my orders, and the act of Congress. They thought Congress had no right to tax them: I showed them that Congress had a right. They said, I should stop till the lower townships began to measure, as Philadelphia and Germantown; so I was forced to stop. The township was not assessed till after the light horse went up there, and then the liberty poles were cut down.
ISAAC SCHYMER, ESQ
Was an assessor for the township of Williams and Lower Sauchon; he deposed, That he was proceeding on his business; and, on account of the talk of opposition, wrote to a neighboring assessor to go about with him, but that he refused on that very account: he then went by himself; at one place he was stopped, when the man said to the wit∣ness, he would abuse him if he pretended to measure his house. The witness said, he did not mean to quarrel with him; he must make his returns to him in ten days. The man also said, there would be danger in his going to take the rates.
In Lower Sauchon the witness also met with opposition: the men had gone from their homes; but a quantity of women were gathered there, and compelled him to desist.
JAMES WILLIAMSON, ESQ
Deposed, That he was an assessor in Northampton county: That soon after he had received the appointment, several of his near neigh∣bors came and warned him not to go about the township: That he attempted many houses, but they would give him no information; whereupon he told them to bring their rates in ten days, according to Page 187 law: they answered, they would not bring them, they would make no returns: every one said, he should offend his neighbors if he did. I then thought it best to put up advertisements for them to meet toge∣ther, on a certain day, to consult what it was best to do: a very large party of them met. After a little time, three or four seem to wish to disturb the meeting. One of them asked for my authority: I showed them my appointment: they seemed to be much opposed to what was done: I reasoned with them, but to no purpose; many of them said, it was no law. I read the law to them: they were pretty well satisfied while I was reading, till I came to where the valuation was mentioned, then one of them cried out, it was a damned law, and they never would submit to any such law. I told them it was a law, and as long as it was a law, we must support it; they said they never would, and signified they would •ather fight against it. I told them that fighting was attended with dangerous consequences, for that men lost their lives in it; but they said they would rather die than submit to it, or live under it; they had fought against such laws, and they would again. They told me, that I should not go about to collect the returns, they never would suffer it to be done; I should let the business alone, and if any damage occurred to me by being fined, the township should reimburse me. The whole body seemed to rise and give their assent to this.
JAMES CHAPMAN, ESQ
Related nothing in his testimony different from his deposition in the former trial, page 67.
JOHN RODRICK (see page 72.)
Did not vary from his former testimony, but shortened it, in the less important parts.
WILLIAM THOMAS (page 58.)
Depose, That Fries and Kuder sent Marks and Gettman to bunt (he before said find) the assessors: That upon their entering Quaker town, on the 6th of March, the people fired all their pieces. He related their conduct to Mr. Foulke and Mr. Childs there, and the meeting next morning to go to Millar's town, and thence the circumstance till the arrival at their bridge; that they had a drum and fife which was played, and that they were commanded by John Fries and Kuder.—He deposed, That Fries said to his men,
What did you go in the house for?
Why, Henry called me, and said I must come along.
Did you know any of the prisoners?
No; none of them.
What did you go up to Bethlehem for?
Why, old Marks said, it was to show ourselves; but I cannot tell what for.
Was it to take the prisoners?
I do not know myself. The people of Northampton were go∣ing up to take the prisoners, and we went to show ourselves.
Were you armed?
How did the people go away after they got the prisoners?
Why, they got away as fast as they could: those that were on horseback rode away as fast as they could, and those on foot ran away.
When I came out to you and told you that the marshal had showed me his order, had I any arms, or a sword?
No. The last time, when you told the men they must rescue the prisoners by force, you had a sword.
Did you hear the people cry out, they would have the prisoners?
Yes; one Hoover, particularly.
Did you ever see me at any of the township meetings, except at Kline's?
I never saw the prisoner at any meeting at all, as I was not at the meeting at Kline's: I was only at the meeting at Mitchel's.
After we had come from Bethlehem three or four days, I told the prisoner that I heard the light horse was coming up: the prisoner said no, it was all settled and quiet: if they sent a child of ten years old, he (the prisoner) would help the marshal to take them.
EVERHARD FOULKE, ESQ (page 115.)
Deposed, That he was an assessor in Lower Milford: That he pro∣ceeded on in the assessment until he met the other assessors, and the principal assessor, James Chapman, at Jacob Fries's tavern, where they dined together; and after dinner the prisoner came into the room, and said, he was sorry to see them there upon that business: he warned them not to proceed any farther; if they did they should be hurt; and then he immediately left the room, without even an answer. He then mentioned the circumstance near Singmaster's, as related by Mr. Rodrick (p. 71.) the prisoner seized the deponent's horse, but let him go again, saying, he would take him the next day: That they had 5 or 700 men in arms, and would come to his house and take him. He heard the firing at Quaker's town; the circumstances which occurred there he related. Having taken the assessment papers, the prisoner returned them, saying it was more than the witness deserved.
Did they say any thing about getting the law repealed?
I am not certain.—The other people said they would submit; but not till after the other states did: Fries said, they would never submit.
YOU are a magistrate, are you not, sir?
Did Fries know it?
Yes; he had many times known me in that capacity.
—When I took you from the people to the back kitch∣en, and away out of the house backward, and helped you on your horse, Did I or not desire you to go out of the way, so that the peo∣ple should not see you?
Yes, you did take me out the back way, and said, Captain Kuder was then commanding the people in the front of the house: you did desire me to keep out of their way.
CEPHAS CHILDS (see page 73.)
Related some of the prominant transactions at Quaker town, where he was much abused, though not by the prisoner; but his papers, as coroner, were taken away by the prisoner, and returned to him; when, having been warned not to proceed, the witness told the prisoner he would not return to it in that capacity, unless forced to it by law, as he had left it. One person who abused the witness said, he had fought for liberty, and would fight for it again; but he afterwards returned, seemed sorry for it, and several times afterwards, acknow∣ledged his crime, and hoped forgiveness. The general language of the people was abuse to the "damned laws," as they called them.
ISRAEL ROBERTS (page 113.)
In several conversations with the prisoner, he heard him express his dislike of the law. Having procured the law, and heard the prisoner say that he had never read it, he desired him to examine it, which the prisoner said he would do, and asked leave to take it home.—The wit∣ness afterwards asked his (Fries's) son, what his father thought of the law? he answered, not much, he believed. At a meeting held (per∣haps at Mitchel's, p. 65 and 68.) an attempt was made to read the law, but they would not suffer it: one man said, he knew the law; another said, they wanted to hear none of our damned laws, nor would hear it, and, stamping his musket on the floor, said,
Did you ever hear him say any thing about war?
I have heard him say many times if there was a war he would be in it: if the French, or whoever invaded the country, he would oppose them. I mentioned to him that government would send up an army. He said if they did, they would turn about and join them, he was of opinion.
Did you ever recollect hearing him say, that if a be∣ginning was made it would go on well?
I do not.
FRIDAY, April 25. DANIEL WIEDNER.
Did you, on the 6th of March, see a party of men marching down the road from Jacob Fries's?
Yes; I saw a body of men march to Fries's, and then to Quaker town; some were armed, and some unarmed. I went after them as far as Fries's.
Had they a drum and fife?
Yes; they had when they came by my house, and by Jacob Fries's too.
Did you see the prisoners with them?
Who appeared to have the command?
The prisoner and capt. Kuder.—They wanted somebody to go after the assessors: so Gettman, Marks, and two more went.
Who wanted them to go?
The prisoner at the bar.
What were they to do with them when they got them?
Why they were to bring them to Quaker town.
Were any of these four men who went after the assessors armed?
How many of them were armed?
I think Marks and Gettman were, or all of them; I am not sure. I think one of the four was the prisoner's son: I do not know whether he was armed.
Did you not meet at Marks's the next morning to go to Beth∣lehem?
Yes. When we left Marks's, we went on towards Ritter's ta∣vern, and before we got there, Marks's son was coming back, and held up his sword for us to stop: he said that he thought it was all over before now; they were gone from Ritter's tavern. Some agreed to go back, some said since they were gone so far they would go through.
Of which was the prisoner at the bar?
I think he was for going on.
Was William Thomas among you?
Was he for going on, or not?
I cannot recollect.—We then went on to Bethlehem.
Did the prisoner go into the house at Bethlehem, and what hap∣pened there?
Why, he went into the house, and when he came out, he said, the marshal would not give up the prisoners without we should take them by force, and if they had a mind to take them, he would go foremost. Fries and the rest then went in, but I don't recollect whe∣ther he had a sword at that time: he had one when we were going to Bethlehem.
GEORGE MITCHEL (page 64.)
Related the ground of going to Bethlehem, and their arrival there.
Did you see any of the people before the house point their guns?
No, not to my knowledge.
Did you hear any threats used to Judge Henry or any other?
Not that I know.
At Marks's, the time I said I meant to oppose the law, the room was pretty full of people; in what part of the room was it?
It was on the right hand side of the room, on the bench.
Was there any people by?
Not that I recollect.
Be cautious what you say, John Fries.
Do you not remember that I said (after the committee was agreed to) I would come forward to the government, if they would send the order by a child of ten years old, if I was sent for?
Not that I recollect.
The counsel for the prisoner here rested their evidence. The prisoner was asked if he had any witnesses to produce: he answered, None.
Said he felt himself so very peculiarly situated in this case, that he would wish the opinion of the Court. The unfortunate prisoner at the bar appeared to answer to a charge, the greatest that could be brought against him, without the assistance of counsel, or any friend to advise with.—To me, said Mr. R. the evidence against the pri∣soner is extremely strong. It will be recollected, that in opening the evidence, I informed the jury what points I should prove: I opened my ideas of constructive law, and produced a few authorities in sup∣port of my opinions. I believe it will be found, that in no material point have I failed to substantiate what I first gave notice that I could prove. I therefore conceive the charges are fully confirmed.
Page 192 But although, if this trial was conducted in the usual way, and counsel were ready to advocate the cause of the prisoner, it would now be proper on my part to sum up the evidence as produced to the jury, and apply it to the law, in order to see whether the crime was fixed or not—under the present circumstances, I feel very great re∣luctance to fulfill, what would in other circumstances be my bounden duty, lest it should appear to be going farther than the rigid requisiti∣on of my office compels me to. I therefore shall rest the evidence and the law here, except the court think that my office as public prosecu∣tor demands of me to do it, or that I should not fulfil my duty without doing it.
—It is not unfrequent for a prisoner to appear in a court of justice without counsel, but it is uncommon for a prisoner not to accept of legal assistance. It is the peculiar lenity of our laws that makes it the duty of a court to assign counsel to the person ac∣cused. With respect to your situation, sir, it is a matter entirely dis∣cretionary with you whether you will state the evidence and apply it to the law or not. There is great justice due to a prisoner arraigned on a charge so important as the present: there is great justice also due to the government. On the one hand an innocent person shall not be made to suffer for want of legal assistance; on the other a guilty person shall not escape through an undue indulgence, or the failure of the accuser in a duty his office may require of him. If you do not please to proceed, I shall consider it my duty to apply the law to the facts, the prisoner may therefore offer what he pleases to the jury.
I submit to the court to do me that justice which is right.
That I will, by the blessing of God, do you eve∣ry justice.
Mr. Attorney, while you are justifiable in con∣sidering the situation of the prisoner, that he might not suffer by any partial impressions you may make on the jury, there is another consi∣deration deserving attention—there is justice due to the United States. Though I see no difficulty in resting it here, yet, possibly persons who may have come into court since the trial commenced may expect something of a narrative of the transactions, and such a narrative may be of great help to the jury. I wish it to be done for the due execu∣tion of public justice, and, God knows, I do it not with a desire to injure the prisoner, for I wish not the conviction of any man. It is a painful task, but we must do our duty. Still I think you are at li∣berty to fulfil your own pleasure.
MR. RAWLE would, then, under a solemn impression that it was his duty, take up some part of the time of the court and jury in rela∣tion to the prisoner at the bar, a task rendered far more painful on his part, from the circumstance of the prisoner's appearing there (unex∣pectedly) without counsel to plead his cause. In as few words as pos∣sible he would endeavor to collect the most prominent features of the testimony which had been produced, and to apply it to the law.
Page 193 As he stated before, Mr. Rawle said, levying war in the United States against the United States, was a crime defined by the constituti∣on; in relation to the republican form of government existing among us it could only consist in an opposition to the will of the society, of which we all are members, declared and established by a majority; in short, an opposition to the acts of Congress, in whole or in part, so as to prevent their execution, either by collecting numbers, by a dis∣play of force, or by exhibiting that degree of intimidation which should operate, in either way, upon those charged with the execution of the law, either throughout the United States or in any part thereof, to procure a repeal, or a suspension of the law by rendering it impractica∣ble to carry such law or laws into effect in the place so opposing, or in any other part. This offence he considered to be strictly treason against the United States.
The question then is, how far the case of the prisoner and his con∣duct merits this definition? In order to be informed of that it was necessary to call to recollection the evidence, so collected, as to display the train and progress which marked its footsteps from its first dawning, till its arrival at the fatal deed denominated treason.
It will first be observed by the testimony of several respectable wit∣nesses (Messrs. Heckavelter, Ramich, Schymer, Ormond, and Wil∣liamson) that attempts were made and executed, by a combination, in which, unfortunately for him, the prisoner at the bar was very ac∣tive, to prevent the assessors from doing the duty required of them when they accepted their office, and that this combination existed both in Northampton and Bucks counties, and to such a degree that it was impossible to carry the law into effect. In lower Milford more parti∣cularly we have the evidence of four respectable gentlemen (Mr. Chap∣man, a principal assessor, and Mr. Rodrick, Mr. Foulke, and Mr. Childs, three assessors) who were employed in the execution of those laws. These gentlemen say that they met with such opposition at an early period of the insurrection, as deterred Samuel Clark from under∣taking the business at all, although he had taken upon him the office. From this difficulty, Messrs. Foulke, Rodrick and Childs determined that they would proceed to assess lower Milford township together, which they attempted, and did not desist until compelled by the extreme opposition which their respective testimony relates to have happened on the 5th and 6th of March, in their progress to, and at Quaker's town, which ill usage is all corroborated by other witnesses. This spirit of opposition to the laws, as exhibited generally, is also related by Mr. Henry and Col. Nichols, the marshal, wherein it appears that process could not be served, and that witnesses could not be subpoenead, being deterred from the threats made to them by this extensive com∣bination; and that in the serving of process personal abuse was given, as well as to the assessors who attempted to execute the law. In short the law was prostrate at the feet of a powerful combination.
Mr. RAWLE here called to view the occurrences in Bucks county, as deposed by Messrs. Foulke, Rodrick, Chapman, Thomas, Mitchel, and Wiedner, exhibiting a disposition to insurrection by a great num∣ber of persons, and who engaged in its acts; he referred to the meeting Page 194 at Jacob Fries's, where John Fries, the prisoner at the bar, expressed himself as determining to oppose and continue hostile to the laws. The circumstance afterwards near Singmaster's, where Mr. Rodrick made his escape, and where, as well as at other times, the prisoner forbade those officers to proceed, under threats of personal danger. It ap∣peared Mr. Rodrick had given offence, not by his conduct, but be∣cause he came from a distance of ten or twelve miles into that town∣ship to prosecute his duty. However the assessors met the next day, but were stopt at Quaker town, where they were extremely abused.—To be sure, while the prisoner at the bar was in the room, and when∣ever he was present, their abuse was suspended, when he absented himself, it was renewed. The papers were taken from Mr. Childs, and also from Mr. Foulke, but returned, because they were not the identi∣cal papers. Here it must be observed in justice to the prisoner that one more of his few good actions appeared, which Mr. Rawle wished in his heart had been more numerous.—Fries assisted Mr. Foulke to get out of the house the back way, and advised him to keep out of the way of the men.
On the evening of that day they went up to Miller's town: here Mr. Rawle called to mind the message delivered by John Dillinger for convening the meeting the next day; this message was the fruits of a consultation held at the house of Jacob Fries, after they left Quaker town, when they determined to proceed to Millar's town the next morning. The next morning they met and went on as far as Ritters, where it appeared they were stopped for a short period by young Marks, who had been sent forward, with information that the prisoners were gone on to Bethlehem: a doubt being started whether they would not be too late, it was debated, and at last determined to go forward: of this latter opinion was the prisoner at the bar. It was in evidence that none of those people knew the prisoners whom they were going to release: this Mitchell and others swore.
Here Mr. Rawle thought commenced the overt act in the indict∣ment; hitherto only the general opposition to the law, and the inten∣tion with which the after conduct was perpetrated, appeared.—They proceeded to Bethlehem, and here the officer of militia, the man who derived his power from the people, the prisoner, Captain John Fries, whose duty, it was to support the law and constitution of the United States, made a most distinguished figure. At Bethlehem it appeared that the prisoner was to step forward to effect the surrender of the pri∣soners, and of course to lay prostrate the legal arm of the United States. These prisoners were in the lawful custody of the marshal, he had lawful process against them from the district judge; they were in the house appointed for their safe keeping until they should be remo∣ved; he kept guard over them, and in order to execute his office he had provided, by virtue of the powers given to the sheriff in the seve∣ral counties agreeable to law, an armed force called a posse committatus, or the power of the county. This force (about 16 or 17) he suppo∣sed sufficiently great to prevent the prisoners in his charge being libe∣rated, it appeared, however in the sequel that they were not sufficient for that purpose.—The prisoner with an armed force arrived at Beth∣lehem, Page 195 and proceeded on his mission to the marshal: he had a sword when he marched his men into the town; but it appeared that he left it when he entered on his other business, to wit, demanding the surrender of the prisoners; the marshal answered, that he could not deliver them up. John Fries then returned to his men; and from the testimony of Mitchel, Barnet, and Schlaugh, (this was an import∣ant part of his conduct) he said,
This, Mr. Rawle thought, was an unquestionable, full and complete proof of the commission of the overt act, and that overt act is high treason, as laid in the third and fourth counts of the indictment, to wit, that they did, by force prevent the marshal from executing law∣ful process, to him directed; and, secondly, that they did deliver, and take from him certain persons, whom he had in lawful custody; and, further, this was done by force and arms, of men arrayed in a warlike manner, and by a number exceeding one hundred persons. This the indictment justly calls levying war, and treason.
To him Mr. Rawle said, there was no doubt but the act of levy∣ing war was completed in the county of Bucks, independently of all those actions at Bethlehem; for there the prisoner and others were armed, and arrayed with all the appearances of war: with drums and fifes, and at times firing their pieces; and this to oppose the laws and prevent their execution, and there, by this force, they executed one, and the main part of their plan; they there did set the law at de∣fiance: that was part of their grand object, and was done with a ge∣neral, and not with a particular view, an essential ingredient in treason. Whether these actions were to be considered as a separate act of treason, or whether they were to evince the intentions of the party, it certainly must be considered as testimony, and such as must have an important weight towards the verdict.
Gentlemen, said Mr. Attorney, you will consider how far the indi∣vidual witnesses are deserving your credit; if you consider them worthy of being believed, and if the facts related apply to the law which I submitted to your consideration, and which, from the silence of the court, I think you must consider as accurate, if not I shall stand corrected by the court,—there can be but little doubt upon your minds, that the prisoner is guilty: if it be not so, in your opi∣nion, you must find him otherwise.
I have endeavoured to do my duty with integrity. I have advanced nothing but what appears to me to be clearly substantiated; but with you, gentlemen, and with the court, I leave the truth of the opinion.
John Fries, you are at liberty to say any thing you please to the jury.
It was mentioned, that I collected a parcel of people to follow up the assessors, but I did not collect them; they came and fetched me out from my house to go with them.
I have nothing to say, but leave it to the court.
JUDGE CHASE Then addressed the JURY as follows:
GENTLEMEN OF THE JURY,
JOHN FRIES, the prisoner at the bar, stands indicted for the crime of treason, of levying war against the United States, contrary to the constitution.
By the Constitution of the United States, art. 3. sect. 3. it is de∣clared,
By the same section it is further declared,
Too much praise cannot be given to this constitutional definition of treason, and the requiring such full proof for conviction; and declar∣ing, that no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.
This constitutional definition of treason is a question of law. Every proposition in any statute (whether more or less distinct, whether easy or difficult to comprehend) is always a question of law. What is the true meaning and true import of any statute, and whither the case stated comes within it, is a question of law, and not of fact.—The question is an indictment for levying war against (or adhering to the enemies of) the United States, is—
It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide on the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case.
It is the opinion of the court, that any insurrection, or rising of any body of people, within the United States, to attain or effect, by force, or violence, any object of a great public nature, or of public and general (or national) concern, is a levying of war against the United States, within the contemplation and construction of the constitution.
On this general position the court are of opinion, that any such in∣surrection, or rising to resist, or to prevent, by force or violence, th• execution of any statute of the United States, for levying or collecting taxes, duties, imposts, or excises; or for calling forth the militia to execute the laws of the Union, or for any other object of a general nature or national concern, under any pretence, as that the statute was unjust, burthensome, oppressive, or unconstitutional, is a levying war against the United States, within the contemplation and construction of the constitution.—The reason for this opinion is, that an insurrec∣tion Page 197 to resist or prevent, by force, the execution of any statute of the United States, has a direct tendency to dissolve all the bonds of society, to destroy all order, and all laws; and also, all security for the lives, liberties, and property of the citizens of the United States.
The court are of opinion, that military weapons (as guns and swords, mentioned in the indictment) are not necessary to make such insurrection or rising amount to levying war; because numbers may supply the want of military weapons; and other instruments may effect the intended mischief: The legal guilt of levying war may be incurred without the use of military weapons, or military array.
The court are of opinion, that the assembling bodies of men, armed and arrayed in a•warlike manner, for purposes only of a PRIVATE nature, is NOT TREASON; although the judges, or other peace officers should be insulted, or resisted; or even great outrages committed to the persons, or property of our citizens.
The true criterion to determine whether acts committed are treason, or a less offence, (as a riot) is the quo animo or the intention with which the people did assemble. When the intention is universal, or general as to effect some object of a general public nature, it will be treason; and cannot be considered, construed, or reduced to a riot. The commission of any number of felonies, riots, or other misdemean∣ors cannot alter their nature, so as to make them amount to treason; and, on the other hand, if the intention and acts combined amount to treason, they cannot be sunk down to a felony, or riot. The intention with which any acts (as felonies, the destruction of property, or the like) are done, will show to what class of crimes, the case belongs.
The court are of opinion, that if a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, that they are only guilty of a high mis∣demeanor; but if they proceed to carry such intention into execution, BY FORCE,—that they are guilty of the treason of levying war; and the quantum of the force employed neither lessens, nor increases the crime; whether by one hundred, or one thousand persons, is wholly immaterial.
The court are of opinion, that a combination, or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination, or conspiracy, into execution; some actual force, or violence, must be used, in pursuance of such de∣sign to levy war; but that it is altogether immaterial, whether the force used is sufficient to effectuate the object; any force connected with the intention, will constitute the crime of levying war.
This opinion of the court is founded on the same principles, and is, in substance, the same, as the opinion of the circuit court, for this district, on the trials (in April 1795) of Vigol and Mitchell, who were both found guilty by the jury, and afterwards pardoned by the late President.
At the circuit court for the district (April term 1799) on the trial of the prisoner at the bar, Judge Iredell delivered the same opinion, and Fries was convicted by the jury.
Page 198 To support the present indictment against the prisoner at the bar, two facts must be proved to your satisfaction:
First. That some time before the finding of the indictment, there was an insurrection (or rising) of a body of people in the county of Northampton, in this State, with intent to oppose and prevent, by means of intimidation and violence, the execution of a law of the United States, intituled "An Act to provide for the valuation of lands and dwelling-houses, the enumeration of slaves within the United States;" OR, of another law of the United States, intituled "An Act to lay and collect a direct tax within the United States:" and that some acts of violence were committed by some of the people so assembled, with intent to oppose and prevent, by means of intimi∣dation, and violence, the execution of both, or of one of the said laws of congress.
In the consideration of this fact, you are to consider and determine with what intent the people assembled at Bethlehem, whether to effect, by force, a public or a private measure.
The intent with which the people assembled at Bethlehem, in Northampton, is a necessary ingredient t• the fact of assembling, and to be proved like any other fact, by the declarations of those who assembled; or by acts done by them. When the question is, "What is a man's intent?"—It may be proved by a number of connected cir∣cumstances; or by a single fact.
If from a careful examination of the evidence, you shall be con∣vinced, that the real object and intent of the people assembled at Bethlehem was of a public nature, (which it certainly was, if they assembled with intent to prevent the execution of both of the above-mentioned laws of congress, or either of them) it must then be proved to your satisfaction, that the prisoner at the bar, incited, encouraged, promoted, or assisted in the insurrection, or rising of the people, at Bethlehem, and the terror they carried with them, with intent to op∣pose and prevent, by means of intimidation and violence, the execution of both the above-mentioned laws of congress, or either of them; and that some force was used by some of the people assembled at Bethlehem.
In the consideration of this fact, the court think proper to assist your inquiry by giving you their opinion.
In treason, all the participes criminis are principals; there are no accessaries to this crime. Every act, which in the case of felony, would render a man an accessary, will, in the case of treason, make him a principal. To render any person an accomplice and principal in felony, he must be aiding and abetting at the fact; or ready to afford assistance, if necessary. If a person be present at a felony, aid∣ing and a assisting, he is a principal. It is always material to consider whether the persons charged are of the same party; upon the same pursuit; and under the expectation of mutual defence and support.—All persons present, aiding, assisting, or abetting any treasonable act, are principals. All persons, who are present and countenancing, and are ready to afford assistance, if necessary, to those who actually Page 199 commit any treasonable act, are also principals. If a number of per∣sons assemble and set out upon a common design, as to resist and pre∣vent, by force, the execution of any law, and some of them commit acts of force and violence, with intent to oppose the execution of any law, and others are present to aid and assist, if necessary, they are all principals. If any man joins and acts with an assembly of people, his intent is always to be considered and adjudged to be the same as theirs; and the law, in this case, judgeth of the intent by the FACT. If a number of persons combine or conspire to effect a certain pur∣pose, as to oppose, by force, the execution of a law, any act of vio∣lence done by any one of them, in pursuance of such combination, and with intent to effect such object, is, in consideration of law, the act of all who are present when such act of violence is committed. If per∣sons collect together to act for one and the same common end, any act done by any one of them, with intent to effectuate such common end, is a fact that may be given in evidence against all of them; the act of each is evidence against ALL concerned.
I shall not detain you at this late hour to recapitulate the facts;—you have taken notes, and they have been stated with accuracy, and great candor, by Mr. Attorney.
I will only remark, that all the evidence relative to transactions be∣fore the assembling of the armed force at Bethlehem, are only to sa∣tisfy you of the intent with which the body of the people assembled there. If either of the three overt acts (or open deeds) stated in the indictment, are proved to your satisfaction, the court are of opinion, that it is sufficient to maintain the indictment; for the court are of opinion that every overt act is treasonable.
As to accomplices—they are legal witnesses, and entitled to credit, unless destroyed by testimony in court.
If, upon consideration of the whole matter (law as well as fact) you are not fully satisfied, without any doubt, that the prisoner is guilty of the treason charged in the indictment, you will find him not guilty; but if, upon consideration of the whole matter, (law as well as fact) you are convinced that the prisoner is guilty of the treason charged in the indictment, you will find him guilty.
The jury retired, for the space of two hours, and brought in their verdict, GUILTY.
After the verdict was given, Judge Chase, with great feeling and sensibility, addressed the prisoner, observing that as he had no counsel on the trial, if he, or any person for him, could point out any flaw in the indictment, or legal ground for arrest of judgment, ample time would be allowed for that purpose.
FRIDAY, May 2.
The Court this morning called before them Charles Deshler, a ju∣ror on the above trial of John Fries, who, on the first evening of the said trial, on the adjournment of the court, separated from the jury and retired to his lodgings. Mr. Hopkinson, in behalf of Mr. Desh∣ler, produced his own affidavit, and that of two others, which proved, Page 200 that on the said evening, Charles Deshler was inadvertently separated from his brethren by the crowd, in going out of the jury box; that he did not know to what place the jury had adjourned; that he then proceeded to his lodgings, where he cautiously avoided all conversation respecting the trial depending.—The court, satisfied by this represent∣ation, of the innocence of Mr. Deshler, ordered that he be discharged, and that the before-mentioned affidavit be entered on the record of the court.
JUDGMENT. Judge Chase's Address.
The prisoner being set at the bar, Judge Chase, after observing to Hainey and Gettman that what he had to say to Fries would apply generally to them, the judge proceeded—
JOHN FRIES—You have been already informed, that you stood convicted of the treason, charged upon you by the indictment on which you have been arraigned, of levying war against the United States.—You have had a LEGAL, FAIR and IMPARTIAL trial, with every indulgence that the law would permit. Of the whole pannel, you PEREMPTORILY challenged thirty-four, and, with truth I may say, that the jury who tried you, were of your own selection and choice. Not one of them before had ever formed and delivered any opinion respecting your guilt or innocence. The verdict of the jury against you was founded on the testimony of many creditable and unexception∣able witnesses. It was apparent from the conduct of the jury, when they delivered their verdict, that if innocent they would have acquitted you with pleasure; and that they pronounced their verdict against you with great concern and reluctance, from a sense of duty to their coun∣try, and a full conviction of your guilt.
The crime of which you have been sound guilty is treason; a crime considered, in the most civilized and the most free countries in the world, as the greatest that any man can commit. It is a crime of so deep a dye, and attended with such a train of fatal consequences, that it can receive no aggravation; yet the duty of my station requires, that I should explain to you the nature of the crime of which you are convicted; to show the necessity of that justice, which is this day to be administered; and to awaken your mind to proper reflections and a due sense of your own condition, which I imagine you must have reflected upon during your long confinement.
You are a native of this country—You live under a constitution (or form of government) framed by the people themselves; and under laws made by your representatives, faithfully executed by independent and impartial judges. Your government secures to every member of the community equal liberty and equal rights; by which equality of liberty and rights I mean, that every person, without any regard to Page 201 wealth, rank or station, may enjoy an equal share of civil liberty, an equal protection of law, and an equal security for his person and pro∣perty.—You enjoyed, in common with your fellow-citizens, all those rights.
If experience should prove, that the constitution is defective, it pro∣vides a mode to change or amend it, without any danger to public or∣der, or any injury to social rights.
If Congress, from inattention, error in judgment, or want of in∣formation, should pass any law in violation of the constitution; or burthensome, or oppressive to the people, a peaceable, safe and ample remedy is provided by the constitution. The people themselves have established the mode by which such grievances are to be redressed; and no other mode can be adopted, without a violation of the constitution and of the laws.—If Congress should pass a law contrary to the con∣stitution, such law would be void, and the courts of the United States possess complete authority, and are the only tribunal to decide, whe∣ther any law is contrary to the constitution.—If Congress should pass burthensome or oppressive laws, the remedy is with their constituents, from whom they derive their existence and authority. If any law is made, repugnant to the voice of a majority of their constituents, it is in their power to make choice of persons to repeal it; but until it is repealed, it is the duty of every citizen to submit to it, and to give up his private sentiments to the public will. If a law burthensome, or even oppressive in its nature or execution is to be opposed by force, and obedience cannot be compelled, there must soon be an end to all government in this country.—It cannot be credited by dispassionate men, of any information, that Congress will intentionally make laws in violation of the constitution, contrary to their sacred trust, and so∣lemn obligation to support it. None can believe, that Congress will wilfully, or intentionally, impose unreasonable and unjust burthens on their constituents, in which they must participate. The most igno∣rant man must know, that Congress can make no law that will not af∣fect them equally, in every respect, with their constituents. Every law that is detrimental to their constituents, must prove hurtful to themselves. From these considerations, every one may see, that Con∣gress can have no interest in oppressing their fellow-citizens.
It is almost incredible, that a people living under the best and mild∣est government in the whole world, should not only be dissatisfied and discontented, but should break out into open resistance and opposition to its laws.
The insurrection in 1794, in the four western counties of this state (particularly in Washington) to oppose the execution of the laws of the United States, which laid duties on stills, and spirits distilled, within the United States, is still fresh in memory: it originated from prejudices and misrepresentations industriously disseminated and dif∣fused against those laws. Either persons disaffected to our govern∣ment, or wishing to aggrandise themselves, deceived and misled the ignorant and uninformed class of the people. The opposition com∣menced in meetings of the people, with threats against the officers, which rip•ned into acts of outrage against them, and were extended Page 202 to private citizens. Committees were formed to systamatize and in∣flame the spirit of opposition. Violence succeeded to violence, and the collector of Fayette county was compelled to surrender his com∣mission and official books; the dwelling house of the inspector (in the vicinity of Pittsburgh) was attacked and burnt; and the marshal was seized, and obtained his liberty on a promise to serve no other process on the west side of the Alleghany mountain. To compel sub∣mission to the laws, the government were obliged to march an army against the insurgents, and the expense was above one million one hun∣dred thousand dollars. Of the whole number of insurgents (many hundreds) only a few were brought to trial; and of them only two were sentenced to die (Vigol and Mitchell) and they were pardoned by the late President. Although the insurgents made no resistance to the army sent against them; yet not a few of our troops lost their lives, in consequence of their great fatigue, and exposure to the severity of the season.
This great and remarkable clemency of the government had no ef∣fect upon you and the deluded people in your neighborhood. The rise, progress, and termination of the late insurrection, bear a strong and striking analogy to the former: and it may be remembered, that it has cost the United States 80,000 dollars. It cannot escape observa∣tion, that the ignorant, and uninformed are taught to complain of taxes, which are necessary for the support of government, and yet they permit themselves to be seduced into insurrections which have so enor∣mously increased the public burthens, of which their contribution can scarcely be calculated.
When citizens combine and assemble with intent to prevent by threats, intimidation, and violence, the execution of the laws, and they actually carry such traitorous designs into execution, they reduce the government to the alternative of prostrating the laws before the insurgents, or of taking necessary measures to compel submission. No government can hesitate. The expence, and all the consequences therefore, are not imputable to the government, but to the insurgents.—The mildness and lenity of our government are as striking on the late as on the former insurrection; Of nearly 130 persons who might have been put on their trial for treason, only five have been prosecuted and tried for that crime.
In the late insurrection, you, John Fries, bore a conspicuous and leading part. If you had reflected, you would have seen, that your attempt was as weak, as it was wicked. It was the height of folly in you to suppose that the great body of our citizens, blest in the enjoy∣ment of a free republican government of their own choice, and of all rights civil and religious,—secure in their persons and property, and conscious that the laws are the only security for their preservation from violence, would not rise up as one man to oppose and crush so ill-founded, so unprovoked an attempt to disturb the public peace and tranquillity. If you could see in a proper light your own folly and wickedness, you ought now to bless God, that your insurrection was so happily and speedily quelled by the vigilance and energy of our govern∣ment, aided by the patriotism and activity of your fellow-citizens, who Page 203 left their homes and business and embodied themselves in the support of its laws.
The annual, necessary expenditures for the support of any extensive go∣vernment, like ours must be great; and the sum required, can only be obtained by taxes, or loans.—In all countries the levying taxes is un∣popular, and a subject of complaint. It appears to me, that there was not the least pretence of complaint against, much less of opposition and violence to, the law for levying taxes on dwelling-houses; and it becomes you to reflect that the time you chose to rise up in arms to oppose the laws of your country, was when it stood in a very critical situation with regard to France, and on the eve of a rupture with that country.
I cannot omit to remind you of another matter, worthy of your consideration.—If the marshal or any of the possee, or any of the four friends of government, who were with him, had been killed by you, or any of your deluded followers, the crime of murder would have been added to the crime of treason.
In your serious hours of reflection, you ought to consider the conse∣quences that would have flowed from the insurrection, which you in∣cited, encouraged, and promoted, in the character of a captain of mili∣tia, whose incumbent duty it is to stand ready (whenever required) to assist and defend the government and its laws, if it had not been im∣mediately quelled. Violence, oppression and rapine; destruction, waste, and murder, always attend the progress of insurrection and rebellion; the arm of the father would have been raised against the son; that of the son against the father; a brother's hand would have been stained with brother's blood; the sacred bands of friendship would have been broken, and all the ties of natural affection would have been dissolved.
The end of all punishment is example; and the enormity of your crime requires that a severe example should be made to deter others from the commission of like crimes in future. You have forfeited your life to justice—let me therefore earnestly recommend to you, most seriously to consider your situation—to take a review of your past life, and to employ the very little time you are to continue in this world, in endeavors to make your peace with that God, whose MERCY is equal to his JUSTICE. I expect that you are a Christian; and as such I address you. Be assured my guilty and unhappy fellow-citizen, that without serious repentance of all your sins, you cannot expect happiness in the world to come; and to your repentance you must add faith and hope in the merits and mediation of Jesus Christ. These are the only terms on which pardon and forgiveness are promised to those, who profess the Christian religion. Let me therefore again entreat you to apply every moment you have left, in contrition, sorrow, and repen∣tance. Your day of life is almost spent, and the night of death fast approaches. Look up to the Father of Mercies, and God of Comfort. You have a great and an immense work to perform, and but little time in which you must finish it. There is no repentance in the grave; for after death comes judgment; and as you die, so you must be judged. By repentance and faith, you are the object of God's mercy; but if you will not repent, and have faith and dependance upon the merits Page 204 of the death of Christ, but die a hardened and impenitent sinner, you will be the object of God's justice and vengeance. If you will sincere∣ly repent and believe, God hath pronounced his forgiveness; and there is no crime too great for his mercy and pardon.
Although you must be strictly confined for the very short remainder of your life, yet the mild government and laws which you have en∣deavored to destroy, permit you (if you please) to converse and com∣mune with ministers of the gospel; to whose pious care and consolation in fervent prayers and devotion, I most cordially recommend you.
What remains for me is a very painful, but a very necessary part of my duty. It is to pronounce that judgment, which the law has appointed for crimes of this magnitude. The judgment of the law is, and this Court doth award "that you be hanged, by the neck, until dead:" And I pray GOD ALMIGHTY to be merciful to your soul!
The following Charge, by Judge Peters, was delivered to the Jury before the Charge of Judge Iredell, in the first Trial, and ought to precede it in Page 164, but was unavoidably omitted in its proper place.
GENTLEMEN OF THE JURY,
AS this case is important, both in its principles and consequences, I think it my duty to give my opinion, formed with as much deliberation as the intervals of this lengthy trial would permit, on the most prominent points of law which have been made in this cause. I have condensed my sentiments into as short a compass as possible. I shall leave remarks on the evidence, and more enlarged observations on the law, to the presiding judge, who will deliver to you the charge of the court. At his request I state my individual opinion, though I do not always deem it necessary, when there is an unanimity of senti∣ment in the court.
1. It is treason "in levying war against the United States" for per∣sons who have none but a common interest with their fellow-citizens, to oppose or prevent, by force, numbers or intimidation, a public and general law of the United States, with intent to prevent its operation, or compel its repeal. Force is necessary, to complete the crime; but the quantum of force is immaterial. This point was determined by this court on a former occasion, which was, though not in all cir∣cumstances, yet in principle and object, very analogous to the subject of our present inquiries. I hold myself bound by that decision, which on due consideration, I think legal and sound. I do not conceive it to be overshadowed, or rendered null, by any legislative construction contained in any subsequent act of congress. The law, though esta∣blished by legislative acts, or settled by judicial decisions, may be al∣tered by congress, by express words, in laws consistent with the con∣stitution. Page 205 But a mere legislative construction, drawn from any act by intendment, ought not to repeal positive laws, or annul judicial decisions. The judiciary have the duty assigned to them of inter∣preting declaring and explaining,—the Legislature that of making, altering, or repealing laws. But the decision of a question on the constitutionality of a law is vested in the judiciary department. I consider the decisions in the cases of Vigol and Mitchell, in full force, and founded on true principles of law. The authorities from British precedents and adjudications are used as guides in our decisions. I will not enter into a discussion whether we are bound to follow them; because they are precedents,—or because we think them reasonable and just.
If numbers and force can render one law ineffectual, which is tan∣tamount to its repeal, the whole system of laws may be destroyed in detail. All laws will at last yield to the violence of the seditious and discontented. Although but one law be immediately assailed, yet the treasonable design is completed, and the generality of intent desig∣nated, by a part assuming the government of the whole. And thus, by trampling on the legal powers of the constituted authorities, the rights of all are invaded by the force and violence of a few. In this case, too, there is a direct outrage on the judiciary act, with intent to defeat, by force and intimidation, the execution of a revenue law, enacted under clear and express constitutional authority. A deadly blow is aimed at the government, when its fiscal arrangements are for∣cibly destroyed, distracted and impeded; for on its revenues its very existence depends.
2. Though punishments are designated, by particular laws, for cer∣tain inferior crimes, which, if prosecuted as substantive offences, and the sole object of the prosecution, are exclusively liable to the penal∣ties directed by those laws, yet, when committed with treasonable ingredients, these crimes become only circumstances or overt acts. The intent is the gist of the inquiry in a charge of treason; and is the great and leading object in trials for this crime.
The description of crimes, contained in the act, commonly called the Sedition Act, lose their character, and become but component parts of the greater crime, or evidences of treason, when the trea∣sonable intent and overt act are proved. So it is with rescue of pri∣soners; which, in the present case, was not an independent offence, but an overt act of the treason. These were crimes—misdemeanors—at common law; and might have been punished by fine and im∣prisonment when substantive independent offences. But, when com∣mitted with treasonable intent, are merged in the treason, of which sedition, conspiracy and combination are always the harbingers. I do not think that the acts relating either to sedition or rescue have al∣tered the principle, though they have defined and bounded the punish∣ments. The law, as to treason, is the same now, as if those offences were still punishable at common law. The Sedition Act cannot con∣stitutionally alter the description o• the crime of treason, to which the combination and conspiracy to perpetrate this offence, with force and numbers, are essential attributes. Numbers must combine and conspirePage 206 to levy war. But if these indispensible qualities of the crime are, by the Legislature, declared only misdemeanors, and separated from the treasonable act, the Legislature nullify the description of treason con∣tained in the constitution; and so indirectly alter and destroy, or make inefficient, this part of that instrument. The congress neither possess, nor did they intend to exercise, any such power. They could not (nor did they so intend) place the crime declared in the constitution to be treason, among the inferior class of offences, by describing some of its essential qualities in the Sedition Act, and prescribing punish∣ments, when they solely constitute substantive and independent offen∣ces. Congress can only (as they have done) prescribe the punishment for treason, regulate the trial, and direct the mode in which that pu∣nishment is to be executed.
3. However indisputably requisite it may be to prove, by two wit∣nesses, the overt act for which the prisoner at the bar stands indicted, yet evidence may be given of other circumstances, or even of other overt acts, connected with that on which the indictment is grounded, and occurring or committed in any other part of the district, than the place mentioned. Although the prisoner be not on his trial, nor is he now punishable, for any other than the overt act laid, other overt acts and other circumstances, parts of the general design, may never∣theless be proved, to shew the quo animo—the intent—with which the act laid was committed. Indeed the treason would be complete, by the conspiracy, in any part of the district, to commit the trea∣sonable act at Bethlehem, if any had, in consequence of the conspira∣cy, marched or committed any overt act for the purpose, though the actual rescue had not taken place. So we thought in the cases of the western insurgents, that the treason, concocted at Couche's fort, would have been complete, if any had only marched to commit the crime; though the design had not arrived to the disgraceful catastrophe it finally attained. Indisputable authorities might be produced to sup∣port this position.
4. The confession of the prisoner may be given in evidence as cor∣roboratory proof of the intent, or quo animo. But, although proved by two witnesses, being made out of court, it is not of itself sufficient to convict. Two witnesses are necessary to prove the overt act. But the intent may be proved by one witness, collected from circumstances, or even by a single fact.
5. The doctrine of constructive treason has produced much real mis∣chief in another country; and it has been, for an age, the subject of discussions, among lawyers, other public speakers and political writers. The greater part of the objections to it are totally irrelevant here.—The subject of them is unknown, and may it ever remain so, in this country. I mean the compassing the death of the king. It will be found that the British judges, since the days of political darkness and bigotry have passed away, are to be found among the most able and decided opposers of the abuses of this doctrine. They do not follow decisions and precedents rooted in bad times, because they find them in their law books. On the contrary, on a fair investigation it will be proved, that those contrary to justice, reason and law are reject∣ed Page 207 It is not fair and sound reasoning to argue against the necessary and indispensable use of construction, from the abuses it has produced. What is there among the best of human (and I wish I could not add divine) systems which has not been perverted and abused? That there must be some defined sense and interpretative exposition made of the terms "levying war," and when, and in what circumstances, it is le∣vied "against the United States," cannot be denied. The able coun∣sel, in this case, who has said the most on this subject, and travelled the farthest into the gloomy, dark and tyrannical periods of the British history and jurisprudence, for melancholy and disgusting proofs of atro∣•ious abuses, and even crimes, committed under color of law, has, unavoidably, himself furnished also proofs of the necessity we are under of some constructive or interpretative expositions. He, at first, confined these expositions to three cases. Now if there is a necessity of one, it shews that without supplementary interpretation, the law would be a mere dead letter. Aware of the dangerous lengths to which the abuses of construction have been carried, courts and juries should be cautious in their decisions; but not so much alarmed about abuses, as to refrain from the proper and necessary use of interpretation. I do not then hesitate to say, that the position we have found established, to wit, that opposition, by force and numbers, or intimidation with intent to de∣feat, delay or prevent the execution of a general law of the United States, or to procure, or with a hope of procuring, by force and num∣bers, or intimidation, its repeal or new execution, is treason by levy∣ing war against the United States. And it does not appear to me to be what is commonly called constructive, but open and direct treason, in levying war against the United States, within the plain and evident meaning and intent of the constitution.
6. As to the objections, founded on want of proof of regular ap∣pointments under, and of the proper execution of the law called the house tax law, I do not see that they apply. If the prosecution was definitely for opposing one or more officer or officers of this tax law, the proof might be more •igidly required. But as all the necessary use made of these collateral and subordinate circumstances, relative to the tax law officers, is for the purpose of showing the quo animo or intent with which the treason alledged was committed, I consider them as not relevant in this cause. It is even enough in criminal prosecu∣tions, more directly aimed at the specific offence of opposing au offi∣cer, that he was an officer de facto.
7. As to the disarming and confining the two Videlles, or advance, of the armed insurgents, by the marshal at Bethlehem, I think him legally as well as prudentially justified in his conduct. Even a consta∣ble has a right to restrain and confine, under strong circumstances of suspicion, persons whose conduct or appearance evidence an intention to commit illegal and violent acts. Much more so was the marshal (having notice of an intended rescue of his prisoners) justifiable in seizing and disarming two of the armed body, against whom existing circum∣stances raised strong and evident suspicion. But I think this has been made more important than it really is. Because the release of these men was not the object of, or even know to the prisoner at the bar Page 208 and his party, when they commenced their treasonable march, for the release of the prisoners in the marshal's custody, at Bethlehem.
8. The President's proclamation should have been pleaded as a par∣don, if it was intended to be relied on as such. This not having been done, it is not legally before us. But since it has been mentioned, I think it necessary to declare it as my opinion, that it does not ope∣rate as a pardon to precedent offences. It is directed by law as a step, preparatory to applying an armed force, against those supposed to have committed crimes and embodied for unlawful purposes. It is a hu∣mane warning, calculated to prevent the effusion of blood? Its allega∣tions of facts, or its injunctions, have no operation in the trial of the prisoner at the bar.
Whether the prisoner is or is not guilty of the treason laid in the indictment, in the manner and form therein set forth, it is your pro∣vince to determine. It is the duty of the court to declare the law; though both facts and law, which I fear are too plain to admit a rea∣sonable doubt, are subjects for your consideration. We must all obey our public duty, whatever may be our private feelings. Mercy is not deposited in our hands. It is entirely within the constitutional autho∣rity of another department.
The following opinion of Judge Peters on the motion for a new trial was put into our hands after the sheet was printed were it should have come in, which is page 45 of the appendix.
ALTHOUGH I am not perfectly satisfied with the testimony, which is contradicted by the juror on his oath; I will allow it to be taken for granted; and meet the question on principle. I am in sentiment against granting the motion for a new trial. Because—1. The juror said no more than all friends to the laws and the govern∣ment were warranted in thinking and saying, as the facts appeared then to the public. Fries being generally alledged to be the most prominent character, it was on this account, and not with special or particular malice, that Rhoad's declaration was made.
2. If a juror was rejected on account of such declarations, trials, where the community at large are intimately affected by crimes of such general importance and public notoriety, must be had, in all pro∣bability, by those who only openly or secretly approved of the con∣duct of criminals. This would be unjust and improper, as it affects the government in its public prosecutions. Little success could be expected from proceedings against the most atrocious offenders, if great multitudes were implicated in their delusions, or guilt.
3. It is natural for all good citizens when atrocious crimes, of a public nature, are known to have been committed, to express their abhorrence and disapprobation, both of the offences and the perpetra∣tors. It is their duty so to express themselves. This is not like the Page 209 case of murder, or any offence against as individual; or where seve∣ral are charged and none remarkably prominent. In this latter case selecting one out of the mass might evince particular malice.
4. I have no doubt that declarations of an opposite complexion could be proved; and yet the jurors were unanimous in their verdict. The defendant has had a fair, and I think an impartial trial.
But as a division in the court, might lessen the weight of the judg∣ment if finally pronounced, and the great end of the law in punish∣ments being example, I, with some reluctance, yield to the opinion of judge Iredell. Although justice may be delayed, yet it will not fail, ei∣ther as it respects the United States, or the prisoner.
SATURDAY, April 26, 1800. CONRAD MARKS
Was arraigned on an indictment for treason*. He pleaded, Not Guilty.
The following PERSONS were admitted and sworn on the JURY.
- Richard Downing,
- Thomas Morris,
- Jacob Grim,
- Eli Canby,
- Richard Roberts,
- Francis Gardner,
- John Jacobs,
- Benjamin Morris,
- Anthony Oberly,
- John Longstreith,
- William Davis,
- Llwellin Davis.
The cause was opened by the attorney of the district, (Mr. Rawle) who stated the nature of the offence of which the prisoner stood in∣dicted, and adduced a number of witnesses on the part of the prosecu∣tion. Several witnesses were also produced on the part of the prisoner. Mr. Ross and Mr. Hopkinson, who were the counsel assigned by the court for the prisoner, very ably and ingeniously defended his cause, at some length; and were fully answered by Mr. Ingersol on the part of the prosecution. Judge Chase, in an elegant, learned and feeling charge, addressed the jury, informing them of the law, and reciting the facts as they appeared in evidence. The jury retired about twenty minutes past 11 o'clock at night. Judge Chase informed the jury, pre∣vious to their retiring, that the court would wait till twelve o'clock, to see if they could agree on their verdict; and that they must return to court and inform whether they could agree or not. At that hour the jury returned and informed the court, that they could not agree. The judges ordered that the jury be kept together in some conve∣nient Page 210 place till Monday morning at ten o'clock, to which time the court adjourned.
On Monday morning the jury returned a verdict, NOT GUILTY.
An indictment was afterwards filed against the defendant for con∣spiracy, obstruction of process, rescue and unlawful combination, on which he submitted to the discretion of the court.
Without any farther examination, the court being fully apprised of his conduct, Judge Chase passed the following sentence:
That he be imprisoned two years, and fined 800 dollars, at the ex∣piration of which, to give security for his good behavior, himself in 2000 dollars, and two sureties in 1000 dollars each, and to stand com∣mitted till the sentence is complied with.
Before the sentence, Mr. Ross addressed a few words to the court in his behalf: he observed, that though his client had offended against the laws of his country, yet he had been deceived into his opposition: it had been said, from what he thought undoubted authority, that no such law was in existence. As this was the case, and as his circum∣stances were low, he hoped the court would consider his situation.
JUDGE CHASE said, he was a most atrocious offender; he had not the least doubt but he was guilty of treason in a high degree, and that the verdict ought so to have been found, and be have been made an example of. There must have been some mistake as to evidence, or the jury could not have returned a verdict of NOT GUILTY.
MONDAY, April 28. GEORGE GETTMAN & FREDERICK HAINEY
Were arraigned on an indictment for treason, to which they plead∣ed, Not Guilty.
The Counsel for the Prisoners were Mr. EDWARD TILGHMAN and Mr. MOSES LEVY.
The following PERSONS were the JURY:
- Francis Gardner,
- Samuel Evans,
- William Preston,
- Richard Roberts,
- William Lane,
- Godfrey Baker,
- Samuel Clarkson,
- Peter Shyner,
- Samuel Allen,
- John Stroud,
- Philip Arndt,
- William Davis.
The trial took up two days; and on Wednesday morning the jury returned with a verdict of GUILTY.
WEDNESDAY, April 30. ANTHONY STAHLER
Was arraigned on an indictment for treason, to which he pleaded, Not Guilty.
The Counsel for the Prisoner were, MR. HOPKINSON and MR. ROSS.
The following were sworn on the JURY:
- Richard Robinson,
- Charles Deshler,
- George Illig,
- John Scarbord,
- John Jones,
- John Edge,
- Jacob Grim,
- David Jones,
- William Preston,
- Thomas Morris,
- Peter Eler,
- Abraham Heed.
The jury, on Thursday morning, returned with a verdict of NOT GUILTY.
The attorney lodged a detainer on a charge of conspiracy, &c. and on Friday morning the grand jury returned against him a true Bill. Indictments for treason had been found against Philip De•ch and Jacob Klein; but Mr. Attorney entered a nolle proseque thereupon, and prosecuted for conspiracy, rescue, &c. upon which the grand jury returned true Bills.
They submitted to the court; and after examining a few witnesses, and ascertaining their circumstances as near as possible, the court sen∣tenced each of them to be imprisoned eight months, to be fined 150 dollars, and to enter into recognizance for their good behavior for one year, themselves in 400 dollars each, with two sufficient sureties.