he fpoke with much warmth. The paper which had been thrown on the table laid there a confiderable time, after which fome gentlemen of the bar took it, and I for one copied it; whether I copied the whole I cannot tell. The prifoner being then brought into court, his counsel had a good deal of converfation with him up on the point, whether they should be his counfel or fhould withdraw. I do not recoliet whether Fries was brought up that day for trial. After the adjournment of the court which was early in the day, I went home, and after dinner I took a walk upon my returning home, I faw the attorney of the district at my door in the act of departing--when he faw me he waited until I came up and afted me whether I had any objection to deliver up the copy which I had taken of the paper thrown by the court. I anfwered that I had not, and immediately delivered it to him. I alfo informed him that Mr. Thomas Rofs, a gentleman of the bar, had taken a copy, and he departed. The paper was not read by the court nor any thing ftated by them to be the fubftance of it. On the next morning the prifoner was again brought into court and placed at the bar. The court then afked his counfel whether they were ready to proceed with his trial. Mr. Lewis rofe and made ufe of a few words tending to fhew that they were no longer counfel for Fries. Judge Chafe interrupted him, but I do not recollect the precife words-the fubftance was, that the counfel were not to confider themfelves as bound by the opinion of the court, but were at liberty to combat that opinion on both fides. He appeared to be anxious that the counfel fhould proceed with the defence of the prifoner. He ob. ferved that cafes at common law concern. ing treafon ought not to be read to the court, and mentioned the cafe of the man in England whofe ftag the king killed, and who wished the horns in the king's belly, and alfo the cafe of the man who kept the fign of the crown, and who faid that he would make his fon heir to the He faid fuch cafes as thofe muft not, fhould not be read, and I think made ufe of this expreffion," what cafes from Rome, Turkey, or France ?" That the crown. counfel might cite what was law. but not what was not the law. Judge Chafe further obferved that he had an opinion in point of law as to every cafe that could be brought before the court, or he was not fit to fit there. He faid fomething as to the counfels proceeding or not procceding, agreeable to their confciences, and obferved that the gentlemen would pro ceed at the hazard of their characters. When i appeared that the counsel would not pr. ceed in the defence of Fries, Judge Chafe obferved, you may think to bring the court into difficulties gentlemen, but if you do you mifs your aim." Judge Peters feemed very folicitous that the counfel fhould proceed, and asked them whether if an error had been committed by the court, why should they t be at liberty to correct it, and added that the papers had all been withdrawn, and I think that both the judges concurred in faying that the cafe was to be confidered as if the paper had never been thrown on the table. When Judge Peters obferved that the paper had been withdrawn, it was replied that the court could not erafe an opinion which had been formed without hearing counfel. Mr. Dallas addreffed the court, but I have not recol lection of what he faid. The counsel continued firm in their determination of abandoning the prifoner. The court took great pains ro induce them to act, and before the piifoner was remanded to jail, expreffed their hope that the counfel would think better of it the next day, and appear in his defence. I recollect nothing more on that day. On the third day the prifoner was brought up and afked whether he had any counfel. He replied that he had none, and that he would depend upon the court to be his counfel. Judge Chafe then faid then by the blefling of God the court will be your counfel, and will ferve you as well as your counfel would have done." The trial then proceeded, and after the evidence, and a short ftatement of the law by the district attorney, judge Chafe charged the jury. He told them that they were the judges of the law as well as the fact, and that cafes decided in England before their revolution, would not be received by the court as the law with respect to treafon. I have my notes of the charge, ftating the law of treafon, which is very much the fame as the opi nion of Judge Patterfon, delivered in the cafe of Mitchell, in which I was counfel for the prifoner. Queftion by Mr. Randolph. You fay that when the written paper was thrown on the bar table, it produced confiderable agitation. From what caufe do you fuppofe that it arofe? Mr. Harper. I must take the opinion of the court as to the propriety of potting that question. On Saturday laft we heard much legal opinion given in the teftimo. ny, and now opinions being afked: how. ever high we might eftimate the opinions of Mr. Tilghman, yet it is not evidence, and we must take the opinion of this ho norable court. The Prefident requested Mr. Randolph to reduce the question to writing, which having been done, the queftion was taken in the court, whether it fhould be put to the witness, and de.ermined unanimously in the negative. Question-You have been a long time at the bar, did you ever see a proceeding similar to that in the case of Fries? Answer-I have been in the practice of the law for thirty one years, and I have no recollection of a similar proceeding. Q When Mr. Chase said that counsel would be heard, did he say that the counsel must address themselves to the court on the law and not to the jury? A At that time he said nothing of that sort, nor do I recollect that he ever did say so. Edward Tilghman-cross examined by Mr. Harper. Q You say, Mr. Tilghman, that you are certain that when the paper was thrown down, that Judge Chase did not ssy that the counsel must address them. selves to the court on the law? A I am certain. court at any time forbade the counsel to Q Did Judge Chase say that the counsel should not be suffered to read the acts of congress? A I do not recollect to have heard any thing said concerning the statutes of congress. Q Did Judge Chase express disappro bation at the other courts having suffered these laws to be read? A I do not recolea that he did. Q By Mr. Hopkinson-Did you observe any disposition in the court or in Judge Chase to oppress John Fries? Mr. Nicholson-I object to that question. Mr. H.-I withdraw it. Q By Mr. Martin-Is it not customa ry for courts in criminal cases to charge the jury as to the law? A The usual practice in the courts in which I have been, is for the court to per mit the counsel on both sides to argue the law before the jury at length, and after they finish, to charge the jury. They generally inform them whatia the opinion of the court is the law, but that the jury are the judges both of the law and fact-The counsel generally pursued that course which they conceived to be most advantageous for the clients, and in capital cases I have never seen them stopped by the court. Q by Mr. Nicholson-In all your prac tice both in Pennsylvania and Delaware, have you ever known an instance of the courts informing the jury what was the law previous to counsel being heard? A I never have. Q by Mr. Martin-Did the court in the csse of Fries tell the jury what was the law, before they requested the coup sel to proceed? A They did not, nor when they charg ed the jury, was the paper which had been thrown down mentioned. The jury were not sworn... Q by Mr. Nicholson-were the jury Q Have you any recollection that the attending at the time the paper was thrown down and in a situation that they could hear what passed? A The general pannel attended with great punctuality, and although I have no positive recollection, yet I am pretty certain that a number of them were present. I have looked over the list of the jury who served, and those who were challenged, in order to discover whether I could recollect to have seen any of them at the time, but my memory totally fails me. Generally when the court is open the jury box is filled, which will hold but elever—and every time we try a cause, a chair is brought for the twelfth juror The rest of them remain in the hall of the court. When judge Chase observ ed that the counsel might proceed at the hazard of their character, the general pannel was in court. Q by Mr. Randolph-Did not judge Chase say that the law had been setaled? A I do not recollect that he did, nor was it stated that the opinion in the pa, per was the opinion delivered in the trials of Vigol and Mitchell or in the first trial of John Fries. Q How many copies were taken of the paper thrown down by the court ? A I do not recollect to have seen any taken but the one taken by himself and the one by Mr. Ross. They were all copied at the bar table where the paper was thrown, nor was the opinion ever -carried from the bar table, where the -jury had not access. Q by Mr. Nicholson-did you hear the subject spoken of that day? A We who took copies of the opinion spoke our opinion on it, and it was a subject of much conversation among the gentlemen of the bar. Q You say that it is usual for courts to charge juries on the law, have you ever known the court to reduce their opinion to writing and to give it to the jury to take out with them? A. I never saw an instance of the kind in my life; William S. Biddle sworn and examined by Mr. Randolph. Q Were you prefent at the trial of Fries, and when copies of a written opinion of the court were thrown down on the bar table? A My recollection upon that fubje& is very imperfect; but I have fome recollec. tion that the copy which I took, was from a paper thrown down by judge Chase. I copied the fubftance of the opinion upon treafon, but not the whole. No application was made to me for the copy which I had, nor did I communicate to any per fon that I had it, until during the laft fef. fion of congrefs, when, having fome converfation with the gentleman of the bar Mr. Dallas obferved that he had never in Philadelphia, concerning the opinion, feen it, and expressed a wish to read it. I then obferved, that I believed I had a copy of it, and went over to my office and brought it to him, Q Would you know the paper you co. pied? A I would. Q Is that it? (producing a paper). A It is, Q Did you hear much converfation concerning the opinion? A I do not recollect. I believe there was among the members of the bar; but I know not whether any of the jury heard it? William S. Biddle cross examined. Q In the paper which has been produ ced, and which you fay is the copy which you took, there are a number of references: were they made by yourself, or were they in the opinion? A I do not recolle precifely. The authorities mentioned on the last page are all made by me. Q You fay, that no application was made to you for the copy of the opinion which you took. Do you know that the court or the diftrict attorney knew that you had taken a copy of the opinion? A I do not know that either of them knew it. William Rawle, affirmed. them and began to read, but cafting my Q Were you prefent at the trial of eyes up, I faw Mr. Lewis on the oppofite Fries? A I was. Q What took place on that occasion ? A The circuit court of the United States, for the diftria of Pennsylvania, met on the 11th of April, 1800. As the proceedings against John Fries were conidered as not to be revived, without the interpofition of an act of congrefs, it appeared beft to me to move the court, on the firft day of their feffion, to quash the indi&ment against him. This I accordingly did, and the court granted my motion. Upon the fame day the court charged the grand jury, and I fent up to them, among others, an indictment against John Fries, which was returned a true bill. On the 16th of April John Fries was brought to the bar, arraigned, and plead not guilty. I can't fay whether Meffrs. Lewis and Dallas were on that day affigned him by the court as counfel, or whether they continued to act, having been his counsel on the first trial. Copies of the indiament were furnished to Fries and his counsel. The trial was then poftponed on account of the abfence of a material witnels, and it was not affigned for the day, which Meffrs. Lewis and Dallas have given teftimony of, and which has been called the first day of the trial. Fries might have been in the box, through miftake, becaufe, that I had on a certain day directed the marshal to bring up a number of perfons, charged with feditious practices, and Fries might have been brought with them. Shortly after the court met, Judge Chase observed that the court had made up their minds as to the law of treason, and to avoid being inifunderstood, they had reduced their opinion to writing, and that they had directed three copies of the opinion to be made out; one for the diftrict attorney, another for the counsel for the prifoner, and a third for the jury, to be delivered to them after the cafe had gone through, on the part of the profecution. As these words were pronounced, feveral papers were thrown, I know not whether by the court or the clerk. I took up one of fide of the table, with one of the papers in his hand, which he looked at with apparent indignation, and then threw it on the table. I cannot call to my recollection any thing further that paffed between the counfel and the court on that day. I perceived much agitation among the gen. tlemen of the bar; but having a great burthen of criminal profecutioas on my hands, I could hear nothing until the court rofe. In the courfe of that morning 2! perfons were brought to the bar for feditious combinations, and fubmitted to the court. The court rofe early in the day, and requested me not to examine the witnesses on thofe cafes of fedition. Af er the court rofe, I understood that the counfel for Fries, meant to decline acting in his defence. I have an indistint ecollection of hearing this from Mr. Dallas. Soon after I got home on that day, judge Chafe and judge Pet rg came to my house. We went into auther room, from that in which I was fitting, when judge Peters began by expreffing an apprehenfion that the counfel for Fries would decline a ing for him. Judge Chafe obferved that he could not fuppofe, that that would be the cafe. I fupported the opinion of judge Peters, and flated that the gentlemen of the bar of Philadelphia, were very independent, and that in my opinion the counfel for Fries would not proceed, unless the papers were withdrawn, and they were permitted to go on in their ufual way. Judge Chafe obferved that he was forry that the opinion had been confidered in the light it was, and that it was not intended to preclude the counsel from going on in the usual manner, provided they thought proper. Both the judges then requefied me to obtain all the copies of the opinion which had been taken, which I readily promised to comply with. I recolleted to have feen Meffrs. Tilghman and Rofs taking copies of the opinion. I went to their houfes and requested them, which they gave to me immediately, and I took them to Mr. Caldwell, the clerk of the court. Iafked him whether he knew of any other perfons taking a copy and he an fwered that he believed that Mr. William Meredith had upon which I requested him to go to Mr. Meredith and try to obtain it. I did not at that time know that Mr. Biddle, who was then a fludent of mine, had taken a copy; nor did I then recollect that I had one of them iny felf. I therefore did not hand it to the clerk, but have it now in my poffeffion. The papers which were thrown down did not appear to me to be read by any perfon, but thofe who copied them; and I entertained an anxious hope on the next day, that the gentlemen who were concerned as counsel for Fries would proceed n his defence and be fatisfied. I will now, with the permifsion of the court, refer to fome original notes which I took upon the remaining part of the transaction. On the 23d day of April, John Fries was brought to the bar. The court then addreffing themfelves first to me, and then to the counfel for Fries, afking if we were ready to proceed with the trial? to which I answered affirmatively. Mr. Lewis then obferved, that if he had been em. ployed by the prifoner he would think himfelf bound to proceed; but having been affigned as his counfel. (He was here interrupted by judge Chafe, who faid you are not bound by the opinion delivered yellerday, but are at liberty to conteft it on both sides) Mr. Lewis, anfwered, that he had underdood that the court had made up their minds as to the law, and as the prifoner's counfel had a right to addrefs the jury, both on the law and the fact, it would place him in too degrading a situation, to argue the cafe after what had passed, and therefore he would not proceed with the defence. Judge Chafe anfwered with impatience, "You are at liberty to proceed as you think proper. Add efs the jury and lay down the law as you think proper" Mr. Lewis answered with confiderable warmth, "I will never addrefs myself to the court upon a queftion of law in a criminal cafe." He then went into a lengthy argument upon the law of high treafon in England, previous to their refolution, and contened that the courts fince that period had confidered themselves as bound by thofe decisions which were made prior to it. Judge Chafe obferved that the counsel must do as they pleafe. Mr. Dallas then rofe and went into a general view of the ground, which had been taken by Mr. Lewis, and concluded with his determination not to pro obferd counfel for Fries. Judge Chafeved, ascee "no opinion has been given as to the fals of the cafe. I would not fuffer the witnelses, against thofe perfons charged with feditious combinations to be examined before the trial of Fries came on, let their evidence might have been heard by fome of the jury. As to the law, I know that the trial before took a confiderable time, and that cafes at common law and decisi ons in England before the revolution on the law of treafon; fuch as the cafe of the man whofe ftag the king killed, and wifhed the horns of the flag in the king's belly, and the cafe of the inn-keeper, who kept the sign of the crown, and who faid he would make his fon heir to the crown. opinion, as to the law, otherwife I should |