
    The United States versus Fries.
    INDICTMENT- for Tréafcm fey -levying virar, againft the United States, at Bethlehem, in the County of Northampton. The Pi ifoner, after a trial that lafted fifteen days, was con viewed : whereupon Lewis and Dallas⅜ his Counfel, moved for a hew trial, on two general'gro'unds.
    1ft. That there had been a mif-trial. ■
    
    
      id. That there had not been an unbiajjed and impartial trial. I. The fadfs on the firft ground, appeared to be thefe: A venire, tefted .the lithof October, 1798, .and returnable the lithof Jpril, 1799, had iifued, by which the Marihal was Commanded_to fummon 24 Grand-Jurors, and “ a number of , uhoneft and lawful men of your laid diftrift, riot Ids than “ forty-eight, and not exceeding Jixty, to ferve as petit,-jurors/’ • Annexed to this Vmire, the Marihal, in due form, made a re- ■ turn of the whole number of fixty jurors, all of whom were .fummoned from the City and County of Philadelphia: And ona ftpatafe paper, figned by him, he returned an additional ritlmber of 17 jurors, fummoned from the County of Northampton, and of 1⅞ jurors, fummoned from the County of Bucks ; making, in the whole, 89 jurors. For this latter return, however, no Venire had iiTued, nor did any fpecial award appear on the Record; and the jury that tried the Prifoner, was com-pofed of jurors from Philadelphia, Northampton, and Bucks.
    
    On thefe fadts, the Prifoner’s Counfel made the following points:
    That although it was notufual to grant a new trial inacapi-* tal cafe, it was, unqeftionably, in the power of the Court to do it. 3 Bl. Com. 391- I Burr. 394. 2 Sir a. 968. 6 Co. 14.
    That before any procefs for the trial iftued, the Adt of Con-grefs contemplates a decifion of the Court on the place of trial, the number of jurors to be fummoned from the proper County, and the other parts of the Díftridt frbm, which the reft of the jurors fhall be fummoned.
    That the Venire had iftued before the deCifion of the Court on thefe preliminaries; that the authority of the Venire went nofurther than tofummons-fixty jurors ; and that fixty jurors being actually fummonedand returned from Philadelphia County alone, the authority of the writ was executed.
    That neither the Adt of AiTembly of Pennfylvania, nor the commonlaw of England, would furniíh a power, or precedent, for returning a greater number of Jurors than the Venire', or an order of the Judges, authorifed. 2 State Laws, 263. f. 4. 5. 3 Bac. Abr. 739. Co. Litt. 155. a. 2 Hal. H. P. C. 263. Keyl. 16. 2 Dali. Rep. 340. 4 Bl. Com. 344. 3 Bl. Com. 352. Co. Litt. 155. a. 21 Vin. Abr. 472. 6 Co. 14.
    That, therefore, a greater number of jurors have been returned, than the Venire directed, or the Judges ordered ; and .that there was nc authority at all for .fummoning the jurors from the Counties of Bucks and Northampton.
    
    That even fuppoftng the 29th fediiori of the Judicial Adt could have the effedt of a Venire, that effedt could extend no farther, than toauthorife the Marihal to fummons junsrs from the County, in which the crimeof the particular offender under trial is charged to have been committed ; but the Marihal had fummoned the jurors from other Counties ; and, in fadt, the Prifoner had been tried by Jurors from the three counties. See 4 Hawk. Pi C. c. 27. f. p. 136* f Hal. 260. 2 Hawk. c. 41./ 2. p. 376. 4 Hawk. 171. 3 Bae. Abr. 754. Doug. sgr.>
    
    'That criminal profecutions are not within the ftatutes of J.eoffaillc ; the exception appears on the Record ; it may be taken advantage of at any time; and for,any mif-trial, on account of jury procefs, as well as on any other account, the verdidt muft be fet afide. 4 Bl. Com. 369. 2 Hawk. c. 27. 1 Ld. Raym. 141. .4. Hawk. c. 31. f 4. p. 240. Ibid. c. 47. f 12. p. 464. 5. Ibid. 'c. 27. f. 104. p. .175, 6. La'ws.of ■ Errors, 65. 4 Hawk. c. 25. j. 24. p. 16. íbid. c. 35\f 28. p. 17;
    
      That the Venire for fummoning the jurors on the trials ⅛ the year 1794? did not reftrift the Marfhal, as'the prefent does, not to exceed iixty ; but required him, generally, to return “a number of honeft and.lawful men of your fait! Diftridl not lefs tc than fo^ty-eight (whereof 12 ihall be of the faid County of AlleghaneyJ to ftrve as petit jurorsand this mandate gave the Marfhal the difcretion referred to by Judge Paterson, as having been properly exercifed. 2 Dali. Rep. 335.
    II. The fails on the fecond ground in fipport of the motion fora new trial were, that Rhodes, one of the jurors, after be had been fummoned as a juror, declared at feveral places, at feveral times,ánd to feveral perfons, in fiibftance, as follows:—-tC That he was not fafe at home for thefe people (meaning the ⅛ infurgents) that they ought all to be hung, and, particularly, “ that Fries mull: be hung.’’ The Juror was confronted with the witneffes who attefted thefe declarations, and denied them, as pointed particularly at Fries; but admitted that he had made ufe of general éxpreffions, indicative of his difapprobation of the conduit of the Infurgents.
    On thefe fails, the Counfel for the prifoner admitted, that the proper time for taking this objeilion, would have -been, when the Juror was called to be fworn, had they been apprifed of it; bur, they infilled, that what would have been good caufe of principal challenge, if known, is good caufe to fet afidfe .a verdiil, if not known ; and that the previous hoftile declarations of a Juror would be a good caufe of challenge. 11 Mod. 119. Salk. 645. 3 Bac. Abr. 258. 9. 4 St. Trials. 743. Cooke’s Cafe.
    
    The anfwers given by Ramie, the attorney of the Diftriit, and Sitgr eaves, infupport of the verdiil,'were, to the following effeil:
    I. That the venire, and ail of Congrefs, furnifiied a fufficient authority 'to the Marihall for both return? of Jurors: And that, in fail, the Diftriit Judge had given a verbal order, fubfe-quent to the venire, for teturning thofe additional jurors, who were fummoned from the co.unties of Backs and Northampton.
      
    
    That after having challenged the poll, the party was too late . to challenge the array. Co. •Litt. 158. 12 Mod. 567. Ld. Ray?n. -884.
    That the venire, on the Engl if: authorities, is in it felfa, 
      limitation, diredting 24 to fee returned; and yet for conVeniencyá greater number is always fummoned. 3 Bac. Abr-. 245. 276. 'Cro. j. 467. 2 Tri. per. Pais. 599. 3 St.' Iri. 707. Ld. RuJ-fel’s cap. 7 he United States vs. the Infurgents. 2 Dali. Rep, 335;
    That .if a perfon not fummoned at all gives the verdidt, the verdidt will be bad ; but where the whole of the Jurors have been fummoned by the Marfhall,an exception, even before trial, ■ ought not to prevail. There were, in fadt, only go of the 89 perfons who were fummoned, that did attend; and the venire is not exceeded by that number. 4 Hawk. c. 41. 1 P'bl. Adis »f Congrefs 58. Doug. 591.
    That there is, in fubifance, an award of the Jury by the Court, after iffue was joined between the United States and the Prifoner, as appears by the clerk’s indorfement on the indidt-mentj and the names of the twelve Jurors who tried the ⅛-didtment, were duly notified to the prifoner.
    II. That although the power of the Court to grant a new trial in a capital cafe could noj be denied, fuch a new trial had been feldom, if ever, granted ; and caufe of challenge to a Juror ought to be very cautioully received as a ground for fejting afide a verdidt.
    That, in this cafe, if the Court thought there was no injuft-ice, there ought to be no' new trial. 2 Burr. 936.
    That the declarations of the Juror related to the generaí tranfadlion 5 they were not applied to the i/Tue he was fworn to try; and they were not perfonally vindidtive as to Fries. 21 Fin. Abr-. “Juries” Co. Litt. 157. b. Tri. per Pais. 189. 2 Roll. Abp. 657. 4 Si. Tri. 748. 21 Fin. Abr. “Trial” 260. r Salk. 143. Refpublica vs. Clifton, in the Supreme Court of Pennfylvánia, a pamphlet.
    
    After a folemn confideration of the fubjedl, Iredell, JuJl-ice, delivered his opinion in favor of a new trial, on the fecond ground of objedtiort, that one of the Jurorf had made'decía-ratitms, as well in relation to the prifoner perfonally, as to the-general-queftion of the infurredtion, which manifeíted a bi'afs, or pre-determination, that ought never tobe felt by a Juror. He added, that.he did not regard the firft ground of objedtion as.in'furmountable; but deemed it unneceflary to give a deci-five opinion on it.
    
      
       The length of the trial introduced the queftion, how far the Court could order an adjournment in a capital-cafe ? The principle óf ne-Ceffity, and the recent precedents in England, in the cafes of Rex vs. Hardy, and Rex w. Take, were conlidered by the Court, and afted upon. The jury were, ho «ever, kept together in the fame room at a Tavern, during the times of adjournment ; and once (on Sunday) were taken for recreation, in a carriage,-into -the Coucuy ; bntftill remaining under th# charge of an officer, and within the/juriiUiftion of the Court.:
    
    
      
       Tt was doubted whether the juror was ,t competent witnefs on 'this queftion ; but tbs Cove-i- thought, that though he could not be compelled. to give'ieiiftnony, he might give it if he plealed; and, accordingly, ih-. tvas admitted, at his own requeft'. On the examination, however, he appeared very incorreft 'in his recolleilion of facts, though k'was agreed, on all hands, that he was an upright man.
    
    
      
       The ilifcriéi Judge certified this fail during. ⅛⅜ argument.
    
   Peters, DijlriSi Judge,

did not think, that either objection ought to prevail. He thought that the venire, and returns of the jurors, were authorifed by principle and precedent; and that the declarations of Rhodes were fueh as might naturally be made in relation to the infurredtion, without m,ani-fefting á particular hoftility towards the prifoner, or leading to a convidtoh in fpite of any evidence, or argument, that might occur on the trial As, however, the confcquence of dividing the Court, would be a rejection of the motion ; and as the inte-refts of public juftice, and the influence of public example, would not be impaired by the delay of a new trial, the District Judge determined to acquiefce in the opinion of Judge Irepe£1. •

A new trial awarded. .  