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Revolutionary American Jury: a Case Study of the 1778-1779 Philadelphia Treason Trials, The SMU Law Review Volume 61 Issue 4 Article 4 2008 Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials, The Carlton F. W. Larson Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Carlton F. W. Larson, Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials, The, 61 SMU L. REV. 1441 (2008) https://scholar.smu.edu/smulr/vol61/iss4/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE REVOLUTIONARY AMERICAN JURY: A CASE STUDY OF THE 1778-1779 PHILADELPHIA TREASON TRIALS Carlton F.W. Larson* ABSTRACT Between September 1778 and April 1779, twenty-three men were tried in Philadelphiafor high treason against the state of Pennsylvania. These tri- als were aggressively prosecuted by the state in an atmosphere of wide- spread popular hostility to opponents of the American Revolution. Philadelphiajuries, however, convicted only four of these men, a low con- viction rate even in an age of widespread jury lenity; moreover, in three of these four cases, the juries petitioned Pennsylvania'sexecutive authority for clemency. Since it is unlikely that most of the defendants were factually innocent, these low conviction rates must be explained by other factors. This Article offers such an explanation, and, in the process, uses these trials as a case study of jury service in late eighteenth-century America. We know surprisingly little about this important subject, as legal historians have focused primarily on the more visible role of judges. Drawing on a wide variety of sources, this Article seeks to remedy this imbalance by pro- viding the most thorough study yet written of a group of eighteenth-century American jurors. This Article demonstrates, for the first time, how eighteenth-century American defense counsel creatively used peremptory challenges deployed along religious, political, and economic lines to create favorable juries, composed almost entirely of men who had previously served in treason cases. Through careful study of demographic records, this Article recon- structs the Philadelphia jury box and allows us to identify not only the * Acting Professor of Law, School of Law, University of California, Davis. A.B., summa cum laude, Harvard College; J.D., Yale Law School. Special thanks to the helpful staffs of the Historical Society of Pennsylvania, the Pennsylvania State Archives, the Phila- delphia City Archives, and the Friends Historical Library at Swarthmore College. Stephen Corson and Bradley Kerr provided significant information relating to their ancestors, who participated in the treason trials. I benefited from comments at a faculty workshop at the Dedman School of Law, Southern Methodist University. Floyd Feeney, Margaret Johns, Peter Lee, Donna Shestowsky, Robert Spoo, and Bruce Smith offered penetrating and helpful comments on earlier drafts. I am especially grateful to two extraordinarily talented and diligent research assistants, Amber Dodge and Rachel Anderson, without whom this project would never have been completed. Mark Ramzy provided valuable assistance with statistical analysis of Philadelphia tax records. The staff of the UC Davis Law Library helpfully tracked down numerous interlibrary loan requests. This project received finan- cial support from the Office of Research at UC Davis and the Dean's Office at UC Davis School of Law. 1441 1442 SMU LAW REVIEW [Vol. 61 social status of the jurors, but also the intricate network of connections linking the grand jurors, the trial jurors, and the defendants. It explains how Philadelphiajurors repeatedly balked at the death penalty, effectively nullifying Pennsylvania'scapital law of treason. It also examines the sub- sequent attacks on jury independence triggered by these acquittals, ranging from strident newspaper criticism to a deadly militia attack on the home of James Wilson, signatory to the Declaration of Independence and defense counsel in many of the treason trials. By examining the actions of juries in a convulsive, violent civil war, the Article also illuminates the jury's histori- cal role in balancing liberty and national security, an issue that continues to confront America today. S United States Supreme Court Justice James Wilson walked through the streets of Philadelphia on December 15, 1790, he Ljkconfronted a cold, biting wind and a gray, cloudy sky.' But the weather could hardly have marred Wilson's spirits; for all intents and pur- poses, this may have been the sunniest day of his life. At six p.m. that to deliver his inaugural lecture on law at a evening, Wilson was scheduled 2 large hall at the College of Philadelphia. For Wilson, who had never entirely lost the brogue of his native Scot- land, this moment was likely the crowning achievement of his profes- sional career. 3 He had achieved much in his forty-eight years-he was one of only six men who had signed both the Declaration of Indepen- dence and the United States Constitution, and he was now serving on the United States Supreme Court. 4 But nothing could quite compare to this moment. 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 Penn- sylvania legislature. 5 They were all there to hear Wilson, perhaps the most erudite legal mind in America, embark on his most ambitious intel- overview of American law that bid fair lectual project-a comprehensive 6 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 1. CHARLES PAGE SMITH, JAMES WILSON 310 (1956). 2. Id. 3. Id. at 1, 310. 4. See generally id. For an excellent analysis of Wilson's life and thought, see JOHN FABIAN WIrr, PATRIOTS & COSMOPOLITANS 13-82 (2007). 5. MARTIN MEYERSON & DILYS PEGLAR WINEGRAD, GLADLY LEARN AND GLADLY TEACH: FRANKLIN AND His HEIRS AT THE UNIVERSITY OF PENNSYLVANIA, 1740-1976, at 61(1978). 6. See generally Mark David Hall, James Wilson's Law Lectures, 128 PA. MAG. HIST. & BIOGRAPHY 63 (2004). 2008] The Revolutionary American Jury 1443 of one .... Is it not, then, of immense consequence to [the public and individuals] .... that jurors should possess the spirit of just discern- ment, to discriminate between the innocent and the guilty?7 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).8 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 bless- ings-to know that one can be tried only by such men, is one of the great- est securities-which can be enjoyed under any government." 9 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."1 0 Wilson consistently lectured in the detached voice of the scholar and never referred to the particulars of individual cases or to his own exper- iences. When speaking of the jury, however, Wilson almost certainly had a particular set of trials in mind. Twelve years earlier, in this very room at the College of Philadelphia, Wilson had argued before Philadelphia juries in the most high stakes cases of his career. Between September 1778 and April 1779, twenty-three men were tried for treason against the state of Pennsylvania by assisting the British occupation of Philadelphia. Al- though these men were charged with attempting to undo the very Revolution to which Wilson had pledged his life, his fortune, and his sa- cred honor, Wilson appeared in court not to prosecute them, but to de- fend them. And 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 leni- ency." Even the judges who presided at the trials were surprised, attrib- 7. James Wilson, Lectures on Law, in 1 THE WORKS OF JAMES WILSON 67, 74 (Rob- ert Green McCloskey ed., Harvard Univ. Press 1967) (1790-92). 8. Id. at 503-49; see also SHANNON C. STIMSON, THE AMERICAN REVOLUTION IN THE LAW: ANGLO-AMERICAN JURISPRUDENCE BEFORE JOHN MARSHALL 127-36 (1990); Shan- non C. Stimson, 'A Jury of the Country': Common Sense Philosophy and the Jurisprudence of James Wilson, in SCOTLAND AND AMERICA IN THE AGE OF THE ENLIGHTENMENT 193- 208 (Richard B. Sher & Jeffrey R. Smitten eds., 1990). 9. Wilson, supra note 7, at 332. 10. Id. 11. Historians Jack Marietta and G.S. Rowe have demonstrated that conviction rates at trial never dropped below 59.7% for any decade between 1680 and 1800 in Penn- sylvania. JACK MARIETTA & G.S. ROWE, TROUBLED EXPERIMENT: CRIME AND JUSTICE IN PENNSYLVANIA, 1682-1800, at 46 (2006). Similarly, in Frederick County, Maryland, be- tween 1749 and 1779, 62% of all defendants in criminal jury trials were convicted. James D. Rice, The Criminal Trial Before and After the Lawyers: Authority, Law, and Culture in Maryland Jury Trials, 1681-1837,40 AM. J. LEGAL HIST. 455, 459 (1996); see also DOUGLAS GREENBERG, CRIME AND LAW ENFORCEMENT IN THE COLONY OF NEW YORK, 1691-1776, at 71 (1976) (finding that only 15% of criminal cases in eighteenth-century New York re- sulted in acquittal); P.J.R.
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