Monday, February 11.
The Court was opened at 12 o’clock.
Henry Tilghman, sworn.
I was present at the circuit court of the United States, for the district of Pennsylvania, held on the 22d day of April, 1800. A very short time after the opening of the court, (whether the general panel of jurors had been called over or not, I do not recollect,) Judge Chase declared that the Court had maturely considered the law arising on the overt acts charged in the indictment against John Fries; and that they had reduced their opinion to writing; he mentioned that he understood that a great deal of time had been consumed on a former trial, and that in order to save time, a copy of the opinion of the Court would be given to the attorney of the district; another to the counsel for the prisoner, and that the jury should have a third to take out with them. I took no notes of what passed either on the first or second day. Fries was tried on the third day, and having been appointed, with Mr. Levy, counsel for Heany and Getman, indicted for treason, and who were actually tried on the 27th or 28th, I deemed it my duty to attend the trial of Fries, to take notes of the evidence, the arguments, and the charge of the judge. I do not recollect that Judge Chase said any more on the first day than what I have mentioned previous to his throwing a paper or papers on the table round which the bar usually sit. The moment the paper or papers were thrown on the table, Judge Chase expressed himself in these words: “Nevertheless, or notwithstanding this,” (I cannot recollect which expression he used) “counsel will be heard.” The throwing of the papers on the table and the address of the judge caused some degree of agitation at the bar; in a short time after the judge used the last expression, I looked round and saw Mr. Lewis walking from under the gallery towards the bar: I stepped towards Mr. Lewis, and met him directly opposite the entrance into the prisoner’s bar. The prisoner, as well as I can recollect, not being then in court, but being brought into court some time that morning, I entered into conversation with Mr. Lewis, and as well as I can recollect, during that conversation, Mr. Dallas came into court. Mr. Dallas and Mr. Lewis had some conversation in my hearing, after which they came forward to the bar; the paper, as well as I can recollect, was then handed by Mr. Caldwell, the clerk of the court, to Mr. Lewis. Mr. Lewis cast his eye on the outside of the paper, and looked down, as if he was considering what to say. He threw the paper from him, as it appeared to me, without reading it, and the moment he threw the paper down, said, “My hand shall never be stained by receiving a paper containing a prejudged opinion, or an opinion made up without hearing counsel.” I cannot recollect which was the expression, but this was the substance. I have not the least recollection that any thing passed on the third day, between the counsel for the prisoner and the Court; for when Mr. Lewis used these expressions, his face was not turned to the Court, and he spoke with a considerable degree of warmth; the Court sat in the south part of the room, and Mr. Lewis (I think) turned his face full to the westward, when he used these expressions. The paper lay on the table a considerable time; after which some gentlemen of the bar took it up, and I for one copied it. Whether I took the whole of it, and all the authorities cited, I cannot say. The prisoner having been brought into court, his counsel had a good deal of conversation in my hearing on the subject of supporting or abandoning his defence; that conversation appears to me to have been accurately stated by Mr. Lewis and Mr. Dallas. I do not recollect why the prisoner was not put on his trial that day, but the Court adjourned between 12 and 1 o’clock. I went home, and after taking a walk, on returning, I saw the district attorney on my steps. He asked me whether I would have any objection to delivering up the copy which I had taken of the opinion of the Court. I said I had no objection, and gave it to him. That paper was not read on the first, or any other day by the Court, or any thing stated by the Court, as the substance of it. On the next morning, to wit, the 23d, the prisoner was brought into court. The Court asked the prisoner’s counsel if they were ready to proceed to the trial. Mr. Lewis rose and uttered a few words, in order to show that they did not mean to proceed with it. Judge Chase here interrupted Mr. Lewis—the particular expressions of the judge I do not recollect; the substance of them was, that the counsel were not to consider themselves bound by the opinion which the Court had reduced to writing the day before; that the counsel were at liberty on both sides to combat that opinion. Judge Chase, as well as Judge Peters, appeared to be very anxious that the counsel should undertake the defence of the prisoner. Judge Chase said, the cases at common law before the statute of Edward the Third, ought not to be read to the Court: he mentioned the case of a man whose stag the king had killed, and who said he wished the stag’s horns were in the king’s belly; he also mentioned the man who kept a public house, with the sign of a crown, and said he would make his son heir to the Crown. He said such cases as these must not, shall not be cited; and I think he made use of these expressions: “What! cases from Rome, Turkey and France?” That, the counsel should go into the law, but must not cite cases that were not law.
He said that he had an opinion in point of law as to every case that could be brought before the Court, or else he was not fit to sit there. He said something (but the precise words I do not pretend to recollect) as to the counsel proceeding according to their consciences; he said that the gentlemen would proceed at the hazard of their character, and when it appeared pretty plain that the gentlemen would not proceed in defence of the prisoner, he said, You may think to put the Court to difficulties; but if you do, you miss your aim, or words in substance to that effect. Judge Peters addressed the counsel, and said if an error has been committed, why may it not be redressed? the paper has been withdrawn—and I think both the judges concurred in expressing the sentiment that matters were to be considered as if the paper had never been thrown on the table. When Judge Peters mentioned that the paper had been withdrawn, Mr. Lewis answered, The paper, it is true, is withdrawn, but how can the Court erase from their minds an opinion formed without hearing counsel. A good deal more passed which I do not recollect, having taken no notes. Mr. Dallas addressed the Court, but I have no recollection of what he said. The counsel continued firm in their determination to abandon the prisoner: the Court took great pains to induce them to act as counsel for the prisoner, and before Fries was remanded to jail, expressed their hope that the counsel would think better of it, and appear in his defence. I recollect nothing more of what happened on the second day. Should any questions be put to me, they may awaken a recollection of what does not now occur to me.
On the third day when the prisoner was brought to the bar, he was asked if he had any counsel, (I think, on the second day, the Court had mentioned to him that he might have other counsel,) he said no, he would depend on the Court to be his counsel. Judge Chase said, The Court will be your counsel, and by the blessing of God, will serve you as effectually as your counsel could have done. The trial proceeded, and after the testimony was given and a short statement of the case made by the district attorney, the judge charged the jury; he told them they were judges of the law as well as the fact. He stated to them that cases determined in England, before their Revolution, should not be received by the Court. I have my notes of the charge; he stated the law very much in the manner as it was stated by Judge Patterson in the trial of Mitchell, for whom I was counsel. I cannot undertake to recollect any thing farther than I have already stated.
William Rawle, affirmed.
The circuit court of the United States sat in Philadelphia in April, 1800. As the former proceedings in relation to the prisoners indicted for treason were considered at an end, except from the intervention of an act of Congress, it appeared to me most regular to quash all the previous proceedings. I made a motion to this effect, which was granted. On the same day the Court charged the grand jury, and I sent to them bills against John Fries, and other persons charged with treason and other offences. The bill against John Fries was returned on the 16th a true bill, and he was immediately brought up, arraigned, and pleaded not guilty. Messrs. Lewis and Dallas appeared as counsel for Fries. Copies of the indictment, and lists of the jurors and witnesses, were furnished to Fries as directed by law. The bringing on the trial was postponed on account of the absence of George Mitchell, whom I deemed to be a material witness. According to my best recollection it was not intended that John Fries should be tried on the 22d, the first day alluded to. I cannot say that John Fries was then at the bar. That circumstance does not appear on the minutes of the clerk of the court. It was certainly not my intention that he should have been brought up, but he may possibly have been brought through mistake. Shortly after the Court met, Judge Chase observed, that, as much time had been lost on the former trial or trials, the Court had determined to express their opinion in writing, on the point of law, that they might not be misunderstood; that they had therefore committed that opinion to writing, and that the clerk had made copies of it, one of which should be given to the district attorney, one to the counsel for the prisoner, and one the jury should take out with them: as these words were pronounced, several papers (I think three) were handed down, or thrown down, as it were; my back was to the Court, and whether this was done by Judge Chase or the clerk, I know not. I immediately took up the one intended for me and began to read it, but casting my eyes to the opposite side of the table, I saw Mr. Lewis with another copy before him, looking at it, apparently, with great indignation, and then throwing it on the table. I am pretty clear nothing passed between the Court and the counsel in the course of that morning. I observed much agitation among the gentlemen of the bar, who were conversing with each other with apparent warmth; but having at that time a very great burden of criminal prosecutions on me, my attention was much engaged, and I did not hear distinctly what was said, nor did I know, until the Court rose, that there was a probability of the counsel for John Fries declining to act. I think that twenty-one persons were that day brought before the Court charged with seditious combinations, and who submitted to the Court. The Court rose pretty early in the morning, and intimated that I should not call any witnesses in relation to the submissions until the trials for treason were over. When the Court rose I learnt from several gentlemen, that Mr. Lewis and Mr. Dallas were disgusted with the conduct of the Court, and meant to decline acting as counsel for Fries, and I have an indistinct recollection that I heard something of this kind drop from Mr. Dallas himself. I went home, and had been there but a few minutes, when Judge Chase and Judge Peters came in. We went into another room, and Judge Peters began by expressing a good deal of uneasiness, from an apprehension that the gentlemen assigned as counsel for John Pries would not go on. Judge Chase said he could not suppose that that would be the consequence. I supported the idea which Judge Peters had expressed; I told him the gentlemen of the Philadelphia bar were men of much independence and character, and that unless those papers were withdrawn, and the business conducted as usual at our bar, they probably would desist from conducting the defence. My recollection at this distance of time cannot be very distinct, but I am pretty well satisfied that Judge Chase expressed his regret that the conduct of the Court should be so taken, and said, that he did not mean that any thing which he had done should preclude the counsel from making a defence in the usual manner. Judge Peters asked if I would consent to go out, and undertake to recover the papers; I said I had no objection, and both the judges concurred in requesting me to do so. I recollected seeing Mr. Edward Tilghman and Mr. Thomas Ross engaged in making copies. I did not recollect to have seen any others so engaged. I went to their houses and asked for the copies, which were readily given, and took them to Mr. Caldwell, clerk of the court. I asked him if he had noticed any others to have been taken? He said he thought a copy had been taken by Mr. William Meredith. I desired him to go to him and endeavor to recall it. I did not know that Mr. Biddle, who was then a student in my office, had taken a copy in part, or I should have desired him to give it up. From some circumstances which I do not recollect, I find that I did not hand my own copy to Mr. Caldwell. I now have it in my possession. The paper was not read, I think, by any but those who transcribed it, and I entertained an anxious hope, after what had taken place, that the gentlemen would proceed with the defence of the prisoner. I shall now take the liberty of referring to some original notes made by me at the time—from which I can state what passed the following morning. So far as they go I believe them accurate, though they may not enable me to relate all that was said. On the 23d April, John Fries was brought and put to the bar, Messrs. Lewis and Dallas attending. The Court asked if we were ready to proceed. Mr. Lewis rose and said: If employed by the prisoner, I should think myself bound to proceed, but being assigned—he was here interrupted by Judge Chase, who said, “You are not bound by the opinion delivered yesterday, you may contest it on both sides.” Mr. Lewis answered: I understood that the Court had made up their minds, and as the prisoner’s counsel have a right to make a full defence, and address the jury both on the law and the fact, it would place me in too degrading a situation, and therefore I will not proceed. Judge Chase answered with apparent impatience: “You are at liberty to proceed as you think proper, and address the jury, and lay down the law as you think proper.” Mr. Lewis answered, with considerable emphasis, I will never address the court in a criminal case on a question of law. He then took a pretty extensive view on the propriety of going into cases decided before the Revolution, and said, if he was precluded from showing that the judges since the Revolution in England had considered themselves bound by the decisions before the Revolution, which ought not to be the doctrine in this country, he must decline acting as counsel for the prisoner. Judge Chase answered: “Sir, you must do as you please.” Mr. Dallas then addressed the Court. He contended that the rights of advocates had been encroached upon by the proceedings of the day before. He went into a general view of the ground taken by Mr. Lewis, and concluded with his determination not to proceed as counsel for John Fries.
Judge Chase then observed, No opinion has been given as to facts in this case. I would not let the witnesses be examined in the combination cases, because I would not let the jury hear them before the trial of Fries came on. As to the law, I knew that the trial before had taken nine days; that many common law cases were cited, such as wishing a stag’s horns in the King’s belly, and that of a man’s saying he would make his son heir to the Crown; such cases ought not, shall not go to the jury. No case can come before me on which I have not a decided opinion as to the law, otherwise I should not be fit to preside here. I have always conducted myself with candor, and I meant, gentlemen, to save you trouble. It is not respectful, nor is it the duty of counsel, to say they have a right to offer any thing they please. What! decisions in Rome, France, Turkey? No lawyer will say that common law cases are law under the statute of Edward the Third, nor justify those judges who overset the statute of William, and overrule the necessity of having two witnesses to one overt act, and to admit hearsay testimony to prove matters of fact. It is the duty of counsel to lay down the law, but not to read cases that are not law. Having thus explained the meaning of the Court, you will stand acquitted or condemned to your own consciences, as you think proper to act. But, gentlemen, do as you please. The course will be, the district attorney will open the law, state his case, and produce his witnesses. You are at liberty to controvert the law as to the matter, but the manner must be regulated by the Court. Judge Peters said, You are to consider every thing done yesterday as withdrawn. Mr. Lewis replied, True, sir, the papers are withdrawn, but the sentiments still remain; I shall not therefore act.
Mr. Dallas expressed the same determination, which I did not take down.
A pause for a few moments took place, when Judge Chase said, You cannot put the Court into a difficulty by this conduct, gentlemen; you do not know me if you think so; and, desiring the persons between him and the prisoner to stand aside, and addressing himself to John Fries, he asked, Are you desirous of having other counsel assigned you, or will you go on to trial without? John Fries, after a pause, said he did not know what to do; he would leave it to the Court. Under these circumstances I felt a repugnance to go on with the trial, not wishing to act in a case so extremely singular. I therefore moved to postpone the trial to the next day; the Court readily concurred, and Fries was remanded to jail.
On the 24th, Fries was brought to the bar again. Judge Chase asked him if he had any counsel. He told the Court that he relied on them as his counsel, and he expressed himself with a degree of firmness and composure that convinced me that his decision was formed on mature reflection. Then, Judge Chase answered, By the blessing of God we will be your counsel, and do you as much justice as those assigned you.
George Hay, sworn.
The greater part of the evidence I am to deliver relates to what was said by me as counsel for J. T. Callender, who was indicted for a libel on the President of the United States, and what was said by one of the judges; for I do not recollect to have heard the voice of Judge Griffin at any time during the trial. In order to make this statement as accurate as possible, as my memory is not strong, it is necessary to resort to a statement made by myself and the counsel associated with me in the defence of J. T. Callender, which I now hold in my hand, and every part of which, according to my best recollection, is correct.
Mr. Harper here interrupted Mr. Hay, and said, The witness may refer to any thing done by himself at the time the occurrences happened which he relates. But I submit it to the Court how correct it is to refer to what was not done by him, or done at the time.
The President asked Mr. Hay whether the notes were taken by him.
Mr. Hay. The statement was made by different persons. Some parts were made by myself, perhaps the greater part; the rest by Mr. Nicholas and Mr. Wirt. I believe I shall be able to state from it every material occurrence which took place at the time.
President. Have you the parts made by yourself separate?
Mr. Hay said he had not.
The President then put the question, whether the witness should be permitted to use the paper? and, the question being taken by yeas and nays, passed in the negative—yeas 16, nays 18.
Mr. Randolph asked the witness to state to the Court the circumstances which took place during the trial of James T. Callender, and particularly what respected the excuse and testimony of John Basset.
Mr. Hay. I will state as well as I can what fell from the judge, and which appeared to me to be material. After some previous observations, the counsel for the traverser claimed for their client his constitutional right to be tried by an impartial jury. I cannot pretend to relate precisely either the course of proceeding or the exact words which were used, since I am deprived of the aid of those notes which I know to be correct. I shall not, therefore, recite the precise words, but I shall give the substance of them, and the words themselves as nearly as possible. According to my best recollection, Judge Chase’s declaration on that point was, that he would see justice done to the prisoner in that respect. In order to obtain the object which the counsel for Callender had in view, we pursued this course. Believing that a majority of the petit jury, if not all of them, were men decidedly opposed to J. T. Callender, in political sentiments, and thinking it probable, from the state of parties at that time, that they had made up their minds, we wished to ask every juror, before he was sworn, whether he had ever formed an opinion with respect to the book called “The Prospect before Us.” According to my best recollection, Judge Chase interfered, and told us it was not the proper question. He said he would tell us what the proper question was. He then went on to state that the proper question was this: “Have you ever formed and delivered an opinion concerning the charges in this indictment?” Though I have but little dependence on my memory, in general, yet in this I am certain, that I not only give the substance, but the identical words used. To this question an answer was necessarily given in the negative.
When Mr. Basset was called by the marshal, he manifested some repugnance to serving on the jury. He said, according to my best recollection, that he was unwilling to serve, because he had made up his mind as to that book. I do not pretend to say that the words used were precisely those I state. He may have expressed himself in the words ascribed to him by the stenographical statement given of the trial. The objection, thus made by Mr. Basset, was overruled by Judge Chase, who asked him whether he had ever formed and delivered an opinion concerning the charges in the indictment. He was sworn to answer this question. Like the other jurors, he answered in the negative, and the judge ordered him, like the other jurors, to be sworn on the jury. He was sworn, and did serve.
Mr. Harper. Was the word used by the judge, and or or?
Mr. Hay. I am perfectly clear it was and, and not or.
In the state of things at that time, and seeing the temper that was manifested on the trial, I would not, and did not, ask the juror a single question without submitting it to the Court, and soliciting their permission to ask it. I solicited the leave of the Court to ask a question. The reply of the judge was this—the difficulty I experience at this moment in stating the precise words, furnishes the reason I had for wishing to have recourse to the statement I had in my hand; since I am denied that indulgence, I will not pretend to state literally what was said, but I will state the substance. I told the judge I wished to ask a question. “What,” said the judge, “is the question you want to put?—state it. If I think it a proper question, or if I choose it, you may put it. Come, what is your question?” Notwithstanding the humiliation I felt at being addressed in such a way before a crowded audience, I asked, “Have you formed (leaving out, “and delivered”) an opinion concerning the book from which the charges in the indictment are taken?” The reply of Judge Chase was, “no, sir, No, you shall ask no such question.” And the question was not asked. This is all I recollect at this moment respecting Mr. Basset, and the occurrences connected with that part of the trial.
It was stated by Callender, in his affidavit, that Colonel Taylor, of Caroline, was a material witness; but of this I am not certain, because I have not read the affidavit since the trial. In the interval that elapsed between the day on which the first motion was made, and that on which the trial took place, Tuesday, Colonel Taylor was summoned. When he came to town, I know not. I have no recollection of having seen him until he came into court. I had, therefore, no opportunity of ascertaining whether it would be in his power to furnish the accused with the evidence he expected to derive from him. After the witnesses on the part of the United States had been adduced to prove the fact of publication, and after the attorney of the United States had opened the case, and stated the law arising upon the evidence, Colonel Taylor was offered to the Court as a witness. He was sworn; and, immediately after, or probably while he was swearing, Mr. Chase asked the counsel of Callender what they expected to prove by him. If I recollect rightly, Mr. Nicholas, one of my associates, observed that we did not know distinctly what could be proved by Colonel Taylor; but that we expected to prove what would amount to a justification of one of the counts in the indictment; that we expected to prove that Mr. Adams, the then President of the United States, had avowed, in conversation with Colonel Taylor, sentiments hostile to a republican Government; and that he had voted in the Senate of the United States against the law for sequestering British property in this country, and against the law for suspending commercial intercourse between the United States and the Kingdom of Great Britain. I do not recollect precisely the words which were used by Mr. Nicholas, in making the observations that accompanied this statement; but I think he said he hoped that it would be understood that he was not tied down to these particular points, saying that probably the answers given by Colonel Taylor might suggest other questions proper to be put. Nor do I use the precise words in which Judge Chase made an objection; but I do remember that the objection was made. The principle upon which he founded his objection was this, that Colonel Taylor’s evidence did not go to a justification of any one entire charge; and he declared Colonel Taylor’s evidence to be inadmissible on that ground. The judge was then asked by Mr. Nicholas whether we might not prove part of a charge by one witness, and the other part by another. The judge answered him, that he desired him to understand the law as he had propounded it; and the law was this: that this could not be done; that Colonel Taylor’s evidence related to only one part of a charge, and that he could not prove one part by one evidence, and one part by another. I then observed to the judge that I thought Colonel Taylor’s evidence admissible even on the principle laid down by the Court; that I thought his testimony would go to prove both members of the sentence. The one asserted that Mr. Adams was an aristocrat, the other, that he had proved faithful and serviceable to the British interest; and that he could prove that he had heard Mr. Adams make the remarks already stated; and that he had proved serviceable to Great Britain in the way mentioned by the author, that is, in giving the two votes in the Senate, alluded to in the work. The judge did not say in express terms that the position taken at the bar was wrong, but he said that the evidence of Colonel Taylor was inadmissible, and that the counsel knew it to be so; and I believe it was at the same moment of time he said that our object was to deceive and mislead the populace. I remember these expressions as well as if I had heard them yesterday. Finding that the attempt I had made to render a service, not to the man, but to the cause, instead of affording service to the cause, only brought on me the obloquy of the Court, I felt myself disgusted, and said no more on the subject.
I recollect that we were requested by the judge to reduce to writing the questions that we wished to propound to Colonel Taylor. I thought the measure so novel and unprecedented that I was not disposed to comply with this desire. The questions were, however, stated in writing by Mr. Nicholas, who observed that he hoped we would not be confined in the examination of the witness to the questions thus stated in writing. If I mistake not, before the questions were reduced to writing, Mr. Nicholas made some observations about the mode pursued by the Court in reference to the attorney for the United States, and that exercised towards the counsel for the prisoner; that the attorney for the United States had not been required to state in writing the questions he wished to ask. When this remark was made to the judge, he said that the attorney for the United States had stated in the opening of the case all that he expected to prove; “but though this were done, we were not bound to do it.” My impression is that that word escaped the judge several times.
Mr. Nicholson. What word?
Mr. Hay. The word “we.”
Mr. Nicholson. Did it refer to the Court as well as the attorney?
Mr. Hay. So, sir, I understood it.
The fourth article relates to the refusal of the judge to postpone the trial on the affidavit of Callender; on which I can only say that the affidavit was filed, but whether regularly drawn or not I do not know. This affidavit, according to my best recollection, stated the absence of material witnesses.
The next article relates to a subject that it is very unpleasant to me to make any remarks upon, because I feel myself to be a party concerned. The judge is charged with—
[Mr. Hay here read the third, fourth, and fifth clauses of the fourth article.]
There were many expressions used by Judge Chase during the trial which were uncommon, and which I thought, and still think to be so. With respect to the asperity with which he censured me, I shall not—
Mr. Harper interrupted the witness, and desired him to state the expressions, and let the Court judge for themselves.
Mr. Hay. The first expression which made a very strong impression on my mind, was this: In the course of the argument, urged by me in support of the motion for a continuance to the next term, I assumed it as a clear position, that the law of the State of Virginia, which directs that the jury shall assess the fine, would govern in this case. As soon as I got to that part of the argument the judge interrupted me, and gave me to understand that I was mistaken in the law, and added, the assessment of the fine by the jury may be conformable to your local and State laws, but when applied to the federal courts, it is a “wild notion.” In the case of Colonel Taylor’s evidence, which I have already stated, the judge said that we knew the evidence to be inadmissible, though we pressed it upon the Court, and then the expression followed which has been already mentioned, that we were endeavoring to mislead and deceive the populace. At another time he was pleased to observe, Gentlemen, you have all along been in error in this cause, and you persist in pressing your mistakes on the Court. On more occasions than one he charged the counsel with advancing doctrines they knew to be wrong. I endeavored in one part of the cause to satisfy the Court that the book called the “Prospect before Us,” could not be given in evidence in support of the indictment, because the title of the book was not mentioned in the indictment. In support of my argument, I observed to the Court that if the indictment mentioned the book from which the charges were formed, and any subsequent prosecution should afterwards be instituted, the traverser would have nothing more to do than to produce a copy of the record, and plead in bar of a subsequent prosecution; but that according to the opinion of the Court, the situation of the traverser would be more precarious than according to the doctrines for which I contended; for that the traverser, if he should plead a former prosecution in bar, would not be able to prove the fact by comparing the record with the indictment; but must resort to extraneous evidence to prove that the subsequent prosecution was founded on the same publication that gave rise to the first. The judge was pleased to observe, without seeming to understand the distinction that I endeavored to draw, that I knew the present prosecution could be pleaded in bar. I certainly did know it, and was endeavoring at that very time to show by my argument that the better mode of proving the truth of the plea would be by a copy of the record, rather than by an appeal to parol testimony. Judge Chase again interrupted me, and said, I knew that this prosecution might be pleaded in bar.
In the course of the same argument, which I addressed to the judge, for the purpose of showing the truth of the positions we had stated, I observed that according to the established doctrine, the words “tenor and effect,” in an indictment for a libel, bound the party to the literal recital of the parts charged as libellous. In support of that opinion I quoted several authorities that satisfied my mind. The judge was pleased to tell me, I was mistaken in my application of them; but I do not remember his precise words. He said the words “tenor and effect” did not oblige the prosecutor to give more than the substance of the paper meant to be recited. It is contended, said he, that the book ought to be copied verbatim et literatim; I wonder, he continued, they do not contend for punctuatim too.
Mr. Nicholson. Was this observation addressed to the bar?
Mr. Hay. It appeared to me to be intended for the people; for he looked round the room when he said, with a sarcastic smile, I wonder they do not contend for punctuatim too. I recollect also, that when Mr. Wirt, who was associated with me as counsel for the traverser, was addressing the Court, he was ordered by Judge Chase to sit down—in this precise language, sit down. The judge also declared that the counsel on the part of Callender should not address any observations to the jury concerning the unconstitutionality of the second section of the sedition law, in respect to prosecutions for libellous publications.
When Mr. Wirt was arguing from a proposition he had laid down, he said the conclusion which followed was perfectly syllogistical. The judge bowed to him in a manner I cannot describe, and said, “A non sequitur, sir.” I do not remember any other expression used by the judge calculated to deter the counsel from proceeding in the defence of J. T. Callender. But I do remember that I was more frequently interrupted by Judge Chase on that trial, than I have ever been interrupted during the sixteen years I have practised at the bar. I do not state how often I was interrupted, because I do not recollect; but I know the interruptions were frequent, and I believed them to be very unnecessary, not only as they regarded myself, but the counsel who were associated with me in the defence.