Alexander J. Dallas, sworn.
Mr. Dallas. I will endeavor to be correct in the statement which it is my duty to give; and I am sure that I shall be substantially so, though I cannot promise to place the facts precisely in the order of time in which they occurred; nor to recite the very words that were used by the several parties in the course of the transaction.
When the northern rioters were brought to Philadelphia, in the spring of 1799, some of their friends applied to Mr. Ingersoll and to me to undertake their defence. Mr. Ingersoll was then Attorney-General of Pennsylvania; and on consideration, I believe, declined the task. Mr. Lewis, either before or after this application, was also requested to act as counsel for the prisoners; and upon his acquiescence, we repaired to the prison to make the necessary arrangements preparatory to a trial. Mr. William Ewing had been engaged by several of the rioters, and we agreed to unite in the defence, as the same general facts in law applied to all the cases.
In April term, 1799, the first trial of Fries took place. It was conducted with great propriety throughout, by the Court, and by the prosecuting officer; and the counsel of the prisoner were permitted to address the jury at large, on the law and the facts, as well as to cite every authority which they thought proper. Fries was convicted; but on a motion made by Mr. Lewis and me, the verdict was set aside, and a new trial awarded.
The second trial of Fries, upon a new indictment (the first having been discontinued by Mr. Rawle) occurred in May, 1800. Mr. Lewis and I had again, at his request, been assigned by the Court to defend him. On the morning fixed for the trial, I entered the court room some time after the court had been opened. Fries was standing in the prisoner’s box, the jurors of the general panel appeared to be in the jury boxes, and the hall was crowded with citizens. On my entrance, I perceived Mr. Lewis and Mr. E. Tilghman engaged eagerly in conversation, and the gentlemen of the bar, generally, seemed to be much agitated. As soon as Mr. Lewis saw me, he hastened towards me on the outside of the bar, and told me, in effect, that a “very extraordinary incident had occurred; that Mr. Chase, after speaking in terms of great disapprobation of the defence at the former trial, declared that the Court, on mature deliberation, had formed and reduced to writing, an opinion on the law of treason involved in the case; and that he should direct one copy to be delivered to the attorney of the district, another to the prisoner’s counsel, and a third (after the opening for the prosecution) to the jury, to take out with them.”
Here Mr. Harper rose, and said: Mr. President, surely it is improper that the witness should repeat what Mr. Lewis told him, not in court, nor when the judge was present.
Mr. Dallas, turning to Mr. Harper, said: “Sir, I know the rules of evidence, and I mean to conform to them.” Then turning to the Vice President, he continued, “If, Mr. President, the counsel’s patience had lasted for a minute, he would have heard that I repeated Mr. Lewis’s communication to the Court, and that it was not contradicted. What I have said was necessary to introduce that fact; and surely, it is strictly within the rules of evidence.”
Mr. Lewis and I exchanged an opinion on the impropriety of the conduct of the Court; we determined (as I thought, when first recurring to my memory for the facts, and as I still think, though I wish not to speak positively) to withdraw from the defence; and we entered the bar together. When there, something occurred which called the attention on our part, and Mr. Lewis informed the Court, in effect “that there was little dispute about the facts in the cause, and that as the Court had deliberately prejudged the law, he could not hope to change their opinion, nor to serve his client; while a submission to such a proceeding would be degrading to the profession.” It was then, I think, that I stated to the Court, the information which I had received from Mr. Lewis, (but certainly it was either then, or, as it has been suggested to me by a respectable gentleman of the bar, at the opening of the court on the next day,) and I paused, to give an opportunity for contradiction or explanation; for, although I had no doubt of Mr. Lewis’s intention to deliver a correct representation of what had passed, it was possible, and I might myself have mistaken the import of his communication. I cannot now state all that Mr. Lewis told me, but I am confident that I then repeated it all to the Court. No remark being made in consequence of the pause, I proceeded to state a few comparative observations on the province and rights of the judge, and the province and rights of the advocate; and concluded with declining to act any longer as counsel for the prisoner. The Court was soon afterwards adjourned. These are all the material occurrences of the first day, which I recollect; except, perhaps, that soon after I came into court, I heard Mr. Peters remark to Mr. Chase, “I told you what would be the consequence. I knew they would take the stud.”
On the next day, the court was opened, Fries was placed in the prisoner’s box, the jury attended, and the number of spectators was increased. Silence being proclaimed, Mr. Chase asked, “if the prisoner’s counsel were ready to proceed on the trial?” and Mr. Lewis and I, successively, declared, that we no longer considered ourselves as the counsel of Fries. Mr. Peters then, as well as at other times, expressed a great desire that we should overlook what had passed; he told us that the papers delivered the day before had been withdrawn, and that he did not care what range we took, either on the law, or the fact. Mr. Chase also said: “The papers are withdrawn, and you may take what course in the defence you please; but it is at the hazard of your characters.” I thought the expression was in the nature of a menace; that it was unkind, improper, and unnecessary. Mr. Lewis observed, in effect: “You have withdrawn the papers; but can you eradicate from your own minds the opinion which you have formed, or the effect of your declaration on the attending jurors, a part of whom must try the prisoner?” Mr. Chase said: “If you think to embarrass the Court, you will find yourselves mistaken.” He then asked Fries if he chose to have other counsel assigned? Fries answered, that he did not know how to act, but that he thought he would leave it to the Court and the jury. On which, Judge Chase exclaimed, “Then we will be your counsel; and, by the blessing of God, do you as much justice as those who were assigned to you.” Mr. Lewis and I had visited Fries in prison during the preceding afternoon; we had told him our determination to withdraw from his defence, unless he and his friends wished us to resume it; and we declared it to be, in our view of the case, his best chance to escape, as we could entertain no hope of changing the opinion of the Court. He finally left the matter to us; and I think Mr. Lewis in my hearing, with my concurrence, advised him not to accept other counsel, if the Court should offer to assign them. The rest of the facts, as stated by Mr. Lewis, correspond so precisely with my recollection, that I presume, after this recognition, it is unnecessary to repeat them. I wish it, however, to be properly understood that, on the second day, both the judges were extremely anxious to prevail on us to proceed in the defence; and, as I understood, withdrew all the restrictions of the preceding day. We persisted, however, in our determination; because, after what had happened, we deemed it the best chance to save our client’s life, and not because we wished, as has been insinuated, to bring the Court into disgrace or odium. Fries was accordingly tried and convicted without counsel.
On this course of argument, we could not ascertain the opinion of the Court, nor how far the case of the Western insurrection would be deemed to apply, till the charge was pronounced. But, after hearing the charge, and after a new trial was granted, I confess the whole force of my mind was bent to show, on the new trial, the strong distinction between the cases of 1794 and those of 1799; and that even in England, there was no authority since the Revolution of 1688, for construing the offence of Fries to be treason, unconnected with the obligation of the judges to conform to the previous adjudications.