William G. Lewis to John Adams, May 19, 1800

May 19th. 1800

Sir,

In compliance with your request, we shall now proceed briefly to communicate the points and Authorities, which we intended to urge in the case of the U.S. vs. Fries, if the Conduct of the Court had not unexpectedly deprived us of every hope of Success from these Means of defence. It may be proper to premise, that on the Morning appointed for the Trial, the Presiding Judge in the Presence of < , Start deletion, the [. . .] , End, >, the Jury, and a numerous Audience, delivered to the Clerk a Paper, which he said contained the Opinion of the Court, formed, after mature deliberation, upon the Law of Treason; directed Copies of the Papers to be given to the Attorney of the District and the Prisoner’s Counsel; and declared his Intention to present a Copy of it to the Jury, as soon as the Case was opened on the part of the U.S. He referred likewise, in Terms of disapprobation to the Arguments, which (as he was informed) had been used in favour of the Prisoner on the former Trial, and announced a determination to prevent his Counsel from citing any Authorities at Common Law, or indeed any Authorities prior to the English Revolution. The Cause thus prejudged, the province of the Advocate thus circumscribed, and the Mind’s of the Jury thus prejudiced, we deemed it a duty that we owed to the Prisoner, to the Public, and to Ourselves, to surrender the Task which the Court had previously assigned to Us: for as there existed no Controversy in relation to the facts, and as the Jury would naturally rely on the Judgement of the Court in relation to the Law, we had not the Vanity to suppose that any Effort on our part, could do more than give to the trial the form and ceremony of a Defence, while our Acquiescence might afford some sanction to the establishment of a Precedent, hostile to the rights of the Citizens, ruinous to the Trial by Jury, and degrading to the Character of the Profession. The Candor and Humanity which have induced You to interpose in the present mode, have < , Start deletion, also , End, > however influenced our Decision. Allowing therefore for the different Effect of Arguments publicly delivered, before a Jury entitled in a capital case to pass both on the Law and the Fact, and with whom even a doubt would lead to an acquittal, we offer for your Consideration the following general positions;

1. That there has been a Mis-trial,

2. That the Offence charged was not Treason,

3. That a new Trial ought to have been awarded.

I. That there has been a Mis-trial.

II. That the Offence charged was not Treason.

So a rising to alter or reform religion, which can only be done by force on the Legislature, is Treason. [4. B. Co. 81. 1. Hawk. P.C. Ch. 17. L. 25.]

But Ld. George Gordon’s trial and acquittal establish the Doctrine for which we contend. It is true, Ld Mansfield there declares an Opposition to the Militia Law, to be Treason, < , Start deletion, [. . .] , End, > but we apprehend the reason of this is, because it is in effect the same to oppose the Militia or the Execution of the Militia Law, as to oppose the regular Forces, which has always been held to be Treason, and the Expression, used by Lord Mansfield, is confined to an Opposition to the Execution of this particular kind of Law, and does not extend to any others as would, we think, have been the case, had the rule been the same in other Cases.

III. That a new Trial ought to have been awarded.

We are, / Sir, / Your most hble servts

Wm. Lewis

A. J. Dallas