The President. Both you and Mr. Lewis have stated that the jury were present when the written opinions of the Court were handed to the clerk: Could they hear what passed on the occasion?
Mr. Dallas. Undoubtedly, sir. I do not mean, however, the jury who tried Fries, but the general panel of jurors, from whom Fries’s jury might have been taken.
The Court rose about four o’clock.
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.