On trial for treason in early America
In this excerpt from The Trials of Allegiance, Carlton F.W. Larson looks at Supreme Court justice James Wilson’s 1790 lecture on the American jury system and then examines how juries handled cases where men were charged with treason against America for aiding the British during their occupation of Philadelphia.
On a cold winter’s day on December 15, 1790, James Wilson, now a justice of the United States Supreme Court, inaugurated his series of law lectures in a large hall at the College of Philadelphia. For Wilson, this moment, the summit of his professional career, nonetheless radiated warmth. Looking out into the hall, Wilson would see President George Washington, First Lady Martha Washington, Vice President John Adams, and numerous members of the United States Congress and the Pennsylvania legislature. They were all there to hear Wilson, perhaps the most erudite legal mind in America, embark on his most ambitious intellectual project — a comprehensive overview of American law that bade fair to establish Wilson as the American Blackstone.
The most distinctive procedural aspect of Anglo- American law, of course, was the jury system. To the audience that night, Wilson explained, “The rights and duties of jurors, in the United States, are great and extensive. No punishment can be inflicted without the intervention of one. . . . Is it not, then, of immense consequence . . . that jurors should possess the spirit of just discernment, to discriminate between the innocent and the guilty?.” The jury system would be one of Wilson’s persistent themes; indeed, the published version of Wilson’s lectures contains forty- six pages on juries (and only three on judges). As he would put it in a later lecture, “To be tried only by men of one’s own condition, is one of the greatest blessings — to know that one can be tried only by such men, is one of the greatest securities — which can be enjoyed under any government.” The jury was “the most excellent method for the investigation and discovery of truth; and the best guardian of both public and private liberty, which has hitherto been devised by the ingenuity of man.”
The jury was “the most excellent method for the investigation and discovery of truth; and the best guardian of both public and private liberty, which has hitherto been devised by the ingenuity of man.”
Wilson consistently lectured in the detached voice of the scholar and never referred to the particulars of individual cases or to his own experiences. When speaking of the jury, however, Wilson almost certainly had a particular set of trials in mind. It was in this very room, just twelve years earlier, that Wilson had defended the most significant capital cases of his career. Between September 1778 and April 1779, twenty- three men were tried for high treason for aiding the British during the British occupation of Philadelphia. Although these men were charged with attempting to undo the very Revolution to which Wilson had pledged his life, his fortune, and his sacred honor, Wilson appeared in court, as he had in Chester County, not to prosecute them, but to defend them. From the defense perspective, the results had been spectacular; Philadelphia juries acquitted nineteen of the twenty- three men, a high acquittal rate even in an age known for widespread jury leniency. And in three of the four cases in which the jury convicted, the jurors petitioned the Supreme Executive Council for clemency. Even the judges who presided at the trials were surprised, attributing the verdicts, not to the actual innocence of the defendants, but to the “extreme lenity and tenderness of the Juries.”
These results raise a fundamental question: Why were Philadelphia jurors so willing to acquit defendants of treason in the middle of a convulsive civil war, the most violent and disruptive event any of them would ever know? To answer this question, we must begin with the jurors themselves. What type of person served on a Philadelphia jury? What prior experiences and preconceptions did he bring to the jury box? What processes were used to select the juries? These questions are usually unanswered by historians, who tend to focus on the more visible role of judges and speak only generically about “juries.” Such reluctance is understand¬able, as the cliché of the jury as a black box remains powerful to this day. Yet with sufficient diligence the box can be opened, even after 240 years, and we can enter that room at the College of Philadelphia, where twelve men would sit in judgment of the allegiance of their peers.
Why were Philadelphia jurors so willing to acquit defendants of treason in the middle of a convulsive civil war, the most violent and disruptive event any of them would ever know?
The wheels of English criminal procedure, rusty from several years of disuse, began turning again in Philadelphia on August 21, 1778, when the three justices of the Supreme Court issued a precept to Philadelphia County Sheriff James Claypoole for holding a Court of Oyer and Terminer and General Gaol Delivery at the State House, beginning on Monday, September 21. The next day, Claypoole issued a proclamation announcing the court’s sitting. Claypoole presumably selected and summoned the grand jury and the panel of trial jurors sometime between August 21 and September 21.
The State House, now known as Independence Hall, was the most natural location for the trials, as it held the courtroom where the Pennsylvania Supreme Court had sat since 1743. This courtroom was directly opposite the Assembly Room, where the Continental Congress had approved the Declaration of Independence. Delays in restoring the State House courtroom from damage during the British occupation, however, meant that this highly symbolic location for treason trials would be unavailable. The trials were instead conducted at the College of Philadelphia. The second floor of the College’s New Building, known as “College Hall,” would have been well suited to public trials. Over ninety feet long, it had a raised platform on the north end, where the judges presumably sat, and additional seating galleries on the south end. The Hall had become a major part of Philadelphia’s cultural life, and was used for plays, concerts, lectures, and organ recitals. Now the Hall would have to serve the very different purpose of trying the most contentious capital cases in Pennsylvania’s history.
Carlton F.W. Larson is Professor of Law at the University of California, Davis School of Law.
