of its contents or substance. It was known to none, it was intended to be made known to none but the counsel for whose use it was designed. How then could it produce any prejudice to John Fries? No attempt was made, no intention was manifested to read it. It was privately handed to Mr. Lewis. How then did it become public, in what manner were copies distributed to various hands? Not, sir, by the court, but by the counsel of John Fries. Mr. Lewis, in a moment of real or affected indignation, threw the paper from him, declared his hand should not be polluted by it, and cast it upon the table of the court, and it does not appear that to this hour he knows the contents of the paper he so hastily condemned. Several gentlemen of the bar by this means got hold of it and some copies were taken. But for this conduct on the part of Mr. Lewis, nobody ever could have known the contents of the paper or the opinion of the court. It was this that gave publicity to the opinion, and extended a knowledge of its contents, not only without the design and concurrence of the court, but decidedly against them. The act of the court was thus thrown into a different course and direction from what was intended or contemplated by them.

What then, sir, is the whole amount of the crime of the judge on this occasion? That he, a law judge, had been bold enough to form an opinion-not on John Fries's case, or the facts or circumstances of it, for he knew them not; but on certain abstract points of law, without first consulting and hearing Messrs. Lewis and Dallas.-And further, he had not onl yformed such opinions, but he had the audacity to put them into the hands of these gentlemen, which, in the article of impeachment, is called "delivering the opinion." The judge, then, on mature deliberation, from a full

The

consideration both of English and American precedents and decisions, had really made up his mind upon what overt acts would constitute the treason of levying war; and to prevent mistake, he had reduced this opinion to writing, and for the information of the counsel on both sides (no partial selection he gave a copy of this opinion to each of them; and intended to give another to the jury to take out with them. The jury should have this opinion where they could not mistake it, instead of their memories where it might be misunderstood. Is not this, sir, a fair and just epitome of the facts given in evidence? Is it not the full measure and amount of the judge's crime and corruption? If the judge had a right to have any opinion of his own on the case, and if the opinion he formed was a correct one, and it is admitted or at least not denied to be so, where or whence could any injury arise from it to John Fries or his counsel? opinion is supported by English authority, and by the highly respectable names of Judges Paterson and Iredell. And this opinion judge Chase had an undoubted right to give to the jury. He never intended to give it until the argument was closed, and then he designed to vary from the usual mode of charging juries, only in this, that to prevent mistake and for more certainty, he would deliver in writing instead of verbally. Yet the article charges that in consequence of the forming and delivering this opinion in this illegal manner, John Fries was convicted and sentenced to death. The undis puted correctness of this opinion wipes away every idea of an intention to injure or oppress John Fries. No injustice could result to him from a legal and correct opinion, which must finally have ruled the case, delivered at any time and in any manner. There might be some inattention to usual forms, but there could be no substantial in

jury. An opinion thus anticipated, if manifestly unsound and erroneous and against the prisoner, might carry some suspicion of unjust prejudice, but how corrupt intentions are to be proved, manifested or executed by correct opinions, is to me inexplicable. The judge had taken much labour and particular pains to inform himself on the law of the case. He would not trust himself on hasty opinions made up at the moment when the life of a fellow citizen was at stake, and might be the forfeit of an error; and he therefore carefully examined the law and deliberately took an opinionFor this unusual attention, he deserves thanks and not impeachment. If knowledge of the law be a crime in a judge, ignorance is his best recommendation; and that judge is most worthy and best qualified for his office, who possesses no opinions of his own on any legal subject, but presents himself as a scholar to be taught by the counsel, and has no impressions but such as they are pleased to give him. I mean not to pass a sentence of condemnation on the views or conduct of the counsel of Fries. Their sole object and anxiety were to save the life of their client; and if they believed they could better effect this end by taking fire at the conduct of the court, by exciting a strong feeling and prejudice against the mode of proceeding, and by involving the court in embarrassment and difficulty, it was for them to judge how far they might pursue this object by such means, and to their own judgment I submit it. It is not easy to say how far counsel may fairly go in such a case, and when the life of the client is in issue, much more will be allowed than in common cases.

We have heard much about the agitation of the bar on this occasion. The particular cause of it has not been clearly explained. It might have been produced by the demeanour of Mr. Lewis,

which from his own account was violent and indignant, or it might have been the mere bustle produced by the different efforts that were made to get hold of the noxious paper which Mr. Lewis cast from him with so much feeling as too foul for his hand; or from a combination of these with other causes. Another circumstace equally immaterial, has been dignified with much importance by the attention the managers have bestowed upon it. I mean the novelty of the proceeding. Every witness was asked in solemn form, "Did you ever see the like before?" practising lawyer?" you defended ?"

"How long have you been a "How many criminals have "Was not this mode of forming and giving opinions by the court a novelty to you?" Granted-it was a novelty-I say granted, for argument's sake-it was a novelty; and what follows? Is it therefore impeachable? Every innovation, however just and beneficial, is subject to the same consequence. But, sir, if this novelty proceeded not from impure intentions, and was not followed by oppressive or injurious consequences, where is its injustice or criminality? There were many other novelties in that trial. It was a novelty that a man named John Fries should commit treason, and be tried and convicted for it. I never heard of precisely the same thing before. It was a novelty that counsel should desert their cause in the abrupt manner in which it was then done. But I presume it will not be pretended that these things were wrong merely because they were novel; much less that a judge is to be convicted of high crimes and to be removed from office for a harmless novelty-The articles charge not the judge with innovations and novelties in legal forms, but with depriving John Fries and his counsel of their constitutional rights; and if he has not done this, the rest is of no importance now.

But

what is this strange novelty that excites so much interest and alarm? Is it that a law judge had a law opinion and was capable of making it up for himself without the assistance of learned counsel? I hope not. I should be sorry to suppose this is a novelty in the United States. Was it then the reducing this opinion to writing, putting it on paper with pen and ink that makes the dangerous novelty? To have the opinion is nothing; but to write it constitutes the crime. And yet, sir, where is the difference to the prisoner; except that in the latter case there is more certainty; less chance of misapprehension and mistake on the part of the jury, than when it is delivered to them verbally. It should be recollected, sir, and I am sure it is too important to be forgotten by this honourable court, this written opinion contained all the limitations and discriminations on the law of treason which could serve the prisoner, as well as those which might operate against him. But, sir, I deny that there was so much novelty either in forming this opinion or in reducing it to writing, as is pretended. Is it uncommon for judges to state their opinions on particular points of law to counsel, even before argument, for the direction of their observations? And was it ever before considered a prejudication of the case or an encroachment upon the rights of the bar? In criminal courts the practice is constant and universal. Previous to the trial of the cases of treason after the restoration of Charles II. the judges of England met together, and did form and reduce to writing opinions, not only upon the mode of proceeding upon the trials, but also on all those questions or points of law, which they supposed would arise and require their decision in the course of the trials. See Kelynge's reports, pa. 1, 2, &c.-11. Here the judges met in consultation ex