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DEVELOPMENTS of TREASON and the ROLE of the JURY Legal UNITED STATES V. HODGES: DEVELOPMENTS OF TREASON AND THE ROLE OF THE JURY JENNIFER ELISA CHAPMAN† ABSTRACT Legal history is an important element in understanding current legal and political debates. What can a long-forgotten treason trial from the War of 1812 teach us about present-day discussions of treason and the devel- opment of the jury trial in America? In August 1814, the toWn of Upper Marlboro, in Prince Georges County, Maryland, arrested a number of Brit- ish soldiers as stragglers or deserters. Upon learning of the soldiers’ ab- sence, the British military took into custody the local physician, Dr. Wil- liam Beanes, and tWo other Upper Marlboro residents, and threatened to burn Upper Marlboro if the toWn did not return the soldiers to the British military. John Hodges, a local attorney, arranged for the soldiers’ return to the British military and was charged with high treason for “adhering to [the] enemies, giving them aid and comfort.” The resulting jury trial— presided over by Justice Gabriel Duvall, a U.S. Supreme Court Justice and Prince Georges County native—highlights: (1) how the crime of treason was viewed in early American culture, and (2) the role of the jury as de- ciders of the facts and law in early American jurisprudence. Hodges’s trial proceeded against the backdrop of the War of 1812 and Was informed by the 1807 treason trial of Aaron Burr. TABLE OF CONTENTS INTRODUCTION ...................................................................................... 118 I. CONTEXTUALIZING UNITED STATES V. HODGES —TREASON, JURIES, AND THE WAR OF 1812 ......................................................... 119 A. Treason in Early America ........................................................... 119 1. Early Treason Trials and the Trial of Aaron Burr .................. 122 B. Jury Trials in Early America ....................................................... 124 C. The War of 1812 .......................................................................... 126 II. THE CRIME ........................................................................................ 129 A. Before the Crime ......................................................................... 129 B. The Crime .................................................................................... 131 III. THE TRIAL ....................................................................................... 132 A. The Trial Report of John Hodges ................................................ 132 B. The Trial: Actors, Actions, and an Instantaneous Verdict .......... 133 † Jennifer Elisa Chapman, Ryan H. Easley Research FelloW, University of Maryland Francis King Carey School of Law, Thurgood Marshall Law Library. The Author wishes to thank Garett PoWer, Frederick Leiner, and Dr. EdWard Papenfuse for their insightful comments. 117 118 DENVER LAW REVIEW [Vol. 97:1 1. Witnesses and Witness Testimony ......................................... 134 2. Deserters, Stragglers, and/or Prisoners ................................... 136 3. The Prosecution and the Defense: What is Treason? ............. 137 4. Justice Duvall’s Opinion and the Jury .................................... 139 C. Analysis.......................................................................................140 1. Why Did the Jury Find John Hodges Not Guilty? ................. 140 2. Why Was John Hodges Tried for Treason? ............................ 142 IV. IMPACTS OF THE CASE .................................................................... 144 A. Changing Concepts of Treason in America ................................ 144 B. Changing Concepts of the Role of the Jury in American Jurisprudence ............................................................. 146 1. Sparf and Hansen v. United States ......................................... 147 2. Maryland: The Unger Cases ................................................... 148 CONCLUSION ......................................................................................... 150 INTRODUCTION Legal history is important to understanding present-day legal and po- litical issues. What, then, can a long-forgotten treason trial from the War of 1812 teach us about present-day debates around the doctrine of treason and the development of the jury trial in America? This Article starts by examining the context of John Hodges’s treason trial and begins the com- plex examination of how history impacts current views of treason and jury trials in America. In August 1814, as British forces left a burned and ravaged Washing- ton, D.C., the Maryland toWn of Upper Marlboro, in Prince Georges County, arrested a number of British soldiers as stragglers or deserters.1 Upon learning of the soldiers’ absence, the British military took into cus- tody Dr. William Beanes, and tWo additional Upper Marlboro residents, and threatened to burn Upper Marlboro if the toWn did not return the Brit- ish soldiers.2 John Hodges, a local attorney, arranged for the soldiers’ re- turn to the British military3 and Was later charged With high treason for “adhering to [the] [e]nemies, giving them [a]id and [c]omfort.”4 The re- sulting jury trial—presided over by Justice Gabriel Duvall, a U.S. Supreme Court Justice and Prince Georges County native—highlights how the crime of treason Was viewed in early American culture and the role of the jury as deciders of the facts and the laW in early American jurisprudence.5 1. 1 JOHN HODGES REPORT OF THE TRIAL OF JOHN HODGES ESQ. A CHARGE OF HIGH TREASON, TRIED IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE MARYLAND DISTRICT AT THE MAY TERM, 1815, 5 (1815) (hereinafter HODGES). Upper Marlboro is located in Prince Georges County, Maryland, approximately tWenty miles from Washington, D.C. 2. HODGES, supra note 1; John Hodges (of Thomas) (b. 1763 – d. 1825), ARCHIVES OF MARYLAND (BIOGRAPHICAL SERIES), http://msa.maryland.gov/megafile/msa/spec- col/sc5400/sc5496/002800/002849/html/002849bio.html (last visited Oct. 8, 2019) [hereinafter John Hodges (of Thomas)]. 3. HODGES, supra note 1, at 9–10; John Hodges (of Thomas), supra note 2. 4. U.S. CONST. art. III, § 3; HODGES, supra note 1; John Hodges (of Thomas), supra note 2. 5. HODGES, supra note 1, at 27; Duvall, Gabriel, FED. JUD. CTR., https://WWW.fjc.gov/his- tory/judges/duvall-gabriel (last visited Oct. 8, 2019). 2019] DEVELOPMENTS OF TREASON 119 Hodges’s trial took place during a tumultuous time, against the backdrop of the War of 1812, While the 1807 treason trial of Aaron Burr was still fresh in American minds.6 This Article: (1) examines the historical context of Hodges’s treason trial; (2) describes and analyzes the facts of the alleged crime and resulting jury trial; (3) analyzes the historical developments in America of treason as a crime; and (4) assesses the changing conceptions of the jury’s role as deciders of the facts and the laW. Specifically, Part I examines the histori- cal context of Hodges’s trial by analyzing treason and jury trials in early America and the impact of the War of 1812.7 Part II recounts the facts of the alleged crime including: the persons involved and events leading up to the crime.8 Part III describes and analyzes the trial including: the persons involved; witness statements; attorney arguments; and Justice Duvall’s statement to the jury.9 Part IV examines: the impacts of the case; the changing conceptions of the crime of treason during times of strife in American history; and the evolving role of the jury in American jurispru- dence.10 I. CONTEXTUALIZING UNITED STATES V. HODGES —TREASON, JURIES, AND THE WAR OF 1812 This Article examines the 1815 treason trial of John Hodges Within the context of the development of the crime of treason, the role of the jury in American jurisprudence, and the effects of the War of 1812. A. Treason in Early America A number of sources11 influenced the development of the American treason doctrine.12 These sources included: English laws; the effects of the tumultuous revolutionary period; and the nation’s founders balancing a desire to safeguard America While ensuring charges of treason Would not be “used as an instrument of political prosecution.”13 Early treason trials— specifically, the 1807 treason trial of Aaron Burr—informed how the na- tion perceived treason at the time of John Hodges’s trial in 1815.14 6. See, e.g, MARK R. KILLENBECK, M’CULLOCH V. MARYLAND: SECURING A NATION 192 (2006); The War of 1812, SMITHSONIAN NAT’L MUSEUM OF AM. HIST., http://amhis- tory.si.edu/starspangledbanner/the-war-of-1812.aspx (last visited Oct. 8, 2019). 7. See infra Part I. 8. See infra Part II. 9. See infra Part III. 10. See infra Part IV. 11. See Willard Hurst, Treason in the United States, 58 HARV. L. REV. 395, 395–417 (1945). 12. See generally Treason Act of 1351, 25 EdW. 3 St. 5 c. 2 (1350) (defining treason in English laW); Charles Warren, What is Giving Aid and Comfort to the Enemy?, 27 YALE L.J. 331 (1918) (fo- cusing on the development of the elements of treason). 13. See PETER CHARLES HOFFER, THE TREASON TRIALS OF AARON BURR 58, 63–70 (Peter Charles Hoffer & N.E.H. Hull eds., 2008); JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 370 (Henry Holt & Co. ed., 1998). 14. See United States v. Burr, 25 F. Cas. 55, 186 (C.C.D. Va. 1807). 120 DENVER LAW REVIEW [Vol. 97:1 English treason law influenced America’s founding fathers as they crafted the U.S. Constitution. Specifically, America’s founders Wished to develop a treason doctrine that—unlike English treason doctrine—could not be used to suppress political adversaries. The
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