The respondent hath closed his defence by an appeal to the great Searcher of Hearts for the purity of his motives. For his sake, I rejoice that, by the timely exercise of that mercy which, for wise purposes, has been reposed in the Executive, this appeal is not drowned by the blood of an innocent man crying aloud for vengeance; that the mute agony of widowed despair, and the wailing voice of the orphan, do not plead to Heaven for justice on the oppressor’s head. But for that intervention, self-accusation before that dread tribunal would have been needless. On that awful day the blood of a poor, ignorant, friendless, unlettered German, murdered under the semblance and color of law, sent without pity to the scaffold, would have risen in judgment at the Throne of Grace, against the unhappy man arraigned at your bar. But the President of the United States by a well-timed act, at once of justice and mercy, (and mercy, like charity, covereth a multitude of sins,) wrested the victim from his grasp, and saved him from the countless horrors of remorse, by not suffering the pure ermine of justice to be dyed in the innocent blood of John Fries.
The Managers proceeded to the examination of witnesses in support of the prosecution.
William Lewis, affirmed.
Mr. Dallas, Mr. W. Ewing, and I were counsel for John Fries, at his request, and I believe by the assignment of the Court, on his trial in the year 1799. It was conducted, I believe, in the usual manner, and we were certainly allowed all the privileges that were customary on such occasions. The trial was had before Judges Iredell and Peters. He was convicted, and a new trial was ordered, because one of the jurors had manifested a prejudice against the people in general concerned in the insurrection, and against Fries in particular. This trial took place partly in April and partly in May, 1799. At October session following, Mr. Dallas and I attended at Norristown, expecting the trial would again take place; but it did not. The proceedings on the first indictment were quashed by the District Attorney, and a new bill was found at April term, 1800, at which Judges Chase and Peters presided. Mr. Dallas and I appeared again as the counsel of Fries, at his request, and I believe we were assigned by the Court, but of this I am not certain. On the morning of a certain day, which I do not now recollect, I entered the court room when the judges were on the bench, and, if I recollect rightly, the prisoner was in the bar; but if he was not then there, I feel very sure that he soon was. The list of petit jurors was called over, and many of them answered.
Almost immediately after the jurors were called over, Judge Chase began to speak. At this time Mr. Dallas had not come into court. Judge Chase said, he understood, or had been informed, that on the former trial or trials, for it was impossible for me to know whether he alluded to the case of Fries only, or of him and others, there had been a great waste of time in making long speeches on topics which had nothing to do with the business, and in reading common law cases on treason, as well as on treason under the statute of Edward the Third, and also certain statutes of the United States, respecting the resisting of process, and other offences less than treason. He also said, that to prevent this in future, he or they, I do not precisely recollect which, had considered the law, had made up their minds, and had reduced their opinion to writing on the subject, and would not suffer these cases to be read again; and in order that the counsel (but whether for the prisoner, or the counsel on both sides, I cannot say) might govern themselves conformably, he had ordered three copies of that opinion to be made out, one to be delivered to the prisoner’s counsel, one to the counsel in support of the prosecution, and the other, as soon as the case was fully opened, or gone through, I cannot say which, to be delivered by the clerk of the court to the jury. I rather think that the expression was, fully gone through.
Judge Chase said, I think on the first day, that they were judges of the law, and if they did not understand it they were unworthy of their seats, or unfit to sit there, and that if the prisoner’s counsel had any thing to say, to show that they had mistaken the law, or that they were wrong, the counsel must address themselves to the Court for that purpose, and not to the jury. I made some observations in answer, which it is impossible for me in all respects particularly to recollect, as having passed at this time, since some parts of it may perhaps have taken place in other stages of the business. At this time Mr. Dallas was not in court. I was struck with what appeared to me to be a great novelty in the proceedings; and as I was extremely anxious to be of service to Fries, I was desirous that Mr. Dallas might be present. I think I went out of the bar to get somebody to go for him, and while I was out of the bar, he entered the room. I briefly stated to him what had taken place, or some parts of it; but I believe, not the whole. We came forward, and we made some remarks, which I am unable to repeat. I was early struck with the idea, that as the Court had made up their minds, and decided the question of law, before the jury was sworn, or the witnesses or counsel heard, it was not likely we should alter that opinion by any thing we might say, and that we should probably render Fries more service by withdrawing from his defence, than by engaging in it. We told him so, and earnestly recommended to him to pursue that course. He appeared greatly alarmed and extremely agitated, and much at a loss what determination to come to. We, however, told him that, if he insisted on it, we would proceed in his defence at every hazard, and contend for what we deemed our constitutional rights as his counsel, until stopped by the Court; or we used expressions to this effect. His state of alarm and apprehension scarcely left him the power to decide for himself. After some time he acquiesced in our advice; said he had nobody to depend on but us; that he was sure we would do our best for him, and he would leave us to do for him as we pleased. Being very anxious for him, we told him we would call upon him at the jail, and satisfy his mind as to the course which we wished him to pursue. He finally agreed to our proposal to withdraw; but as we were apprehensive that the Court might assign him other counsel in our place, and that our views might be defeated by such an arrangement, we advised him against accepting any, and I understood that he afterwards did refuse to accept of any other counsel. I will not assign my reasons for giving this advice, as it might, perhaps, be improper, unless I am directed by the Court.
Mr. Martin asked what those reasons were?
The President desired the examination to proceed on the part of the House of Representatives, and said when that was closed, the witness might be examined by the counsel for Judge Chase.
Mr. Lewis. It being thus determined that we should withdraw, and that Fries should not accept any counsel that might be assigned him, I left the court, expecting to have little or nothing more to say, as we were no longer counsel for the prisoner. The next morning, soon after the court was opened, and, I believe, when the prisoner was in the bar, Judge Chase addressed Mr. Dallas and myself, and probably Mr. Rawle, and asked us if we were ready to proceed? I answered that I was not, or that we were not any longer counsel for the prisoner. He asked our reasons for this; and I began to answer by mentioning what had taken place the day before; on which he and Judge Peters certainly manifested a strong disposition that we should proceed in the prisoner’s defence, and that they would remove every restriction which had been previously imposed. I was stopped in what I was about to say by Judge Chase telling us to go on in our own way, and address the jury on the law as well as the facts, as we thought proper; but, at the same time, he said it would be under the direction of the Court; and at our own peril, or the risk of our characters, if we conducted ourselves with impropriety. This had rather a contrary effect on my mind than that of inducing me to proceed, as I did not know that there had been any thing in my conduct so indecorous as to make it necessary to remind me that, if I proceeded, it should be at my own peril and risk of character; and this expression, therefore, rather strengthened than lessened the determination which I had taken.
Finding that Mr. Dallas and I were determined not to proceed in the prisoner’s defence, Judge Chase said, if we intended to embarrass the Court we should find ourselves mistaken, as they would proceed without us, and, by the blessing of God, render the prisoner as much justice as if he had the aid of our counsel or assistance. Both the judges, therefore, on the second day, even took pains to induce us to proceed in the defence, with liberty to go through the whole question as well in relation to the law as the facts; but we absolutely refused, believing it not likely that any arguments we could urge would change the opinion of the Court already formed, or destroy its effects, and also believing that, after what had taken place, the life of Fries, even if he should be convicted, would be exposed to less jeopardy without our aid than it would be if we should engage in his defence.