pressly for the purposes now deemed so criminal in judge Chase, and took to their aid the king's counsel. Our judge did not take to his assistance the attorney of the United States in forming his opi nion; nor did the judges in England deliver to the counsel of the accused, the result of their deliberations, but doubtless it would have been received as a favor if they had. In the only two points of difference, therefore, between the two cases, we have most decidedly the advantage.

But, sir, how can the proceeding of judge Chase, in principle and effect, be distinguished from the common and universal pradice of charging grand juries, on the legal nature and description of the crimes to come under their notice? When a judge is about to hold a criminal court, he is particular to introduce into his charge those very offences, and his opinions upon them, which by information or otherwise, he supposes will be brought before the court. The opinion of the judge in such cases is formed, is reduced to writing, and is publicly delivered in the presence of all the jurors, both grand and petit, but never was before conceived to be objectionable. Nor was it ever before supposed to be a prejudication of any man's case, who might afterwards be tried for an offence thus defined. Judge Chase stated what acs in his opinion, would, in construction of law, amount to treason in lcvying war; but whether those acts and the neces sary intention which must accompany them, would be proved upon John Fries or any body else, was left quite at large to be decided by the jury on the evidence. In Hardy's trial, pa. 13, chief justice Eyre states to the grand jury, "Jurors and judges ought to feel an extraordinary anxiety that prosecutions of this nature should proceed upon solid grounds. I can easily conceive, therefore, that it must be a great relief to jurors placed in

the responsible situation in which you now stand, bound to do justice to their country and to the parties accused, and anxious to discharge this trust faithfully; sure I am that it is consolation and comfort to us, who have upon us the responsibility of declaring what the law is in cases in which the public and the individual are so deeply interested; to have such men as the great sir Matthew Hale, and an eminent judge of our own times, who, with the experience of a century, concurs with him in opinion, Sir Michael Foster, for our guides.

"To proceed by steps-From these writers upon the law of treason (who speak, as I have before observed, upon the authority of adjudged cases) we learn, that not only acts of immediate and direct attempt against the king's life, are overt acts of compassing his death, but that all the remoter steps taken with a view to assist to bring about the actual attempt, are equally overt acts of this species of treason; even the meeting and consulting what steps should be taken in order to bring about the end proposed, has been always deemed to be an act done in prosecution of the design, and as such an overt act of this treason.-This is our first step in the present enquiry. I proceed to observe, that the overt acts I have been now speaking of have reference, nearer or more remote, to a direct and immediate attempt upon the life of the king but that the same authority informs us, that they who aim directly at the life of the king, (such for instance, as the persons who were concerned in the assassination plot in the reign of king William) are not the only persons who can be said to compass or imagine the death of the king. "The "entering into measures which, in the nature of things, or in the common experience of man"kind, do obviously tend to bring the life of the

king into danger, is also compassing and imagining the death of the king;" and the measures which are taken will be at once evidence of the compassing, and overt acts of it."

Where is the criminality of such instruction and direction; but in what does it differ in principle and in all its possible consequences to the prisoner, from the conduct of judge Chase? The learned English judge thought he was obliging the jury, not encroaching upon them-by stating fully and precisely the legal construction of those acts which would probably be given to them in evidence to support the charges of treason. It is true the treason charged upon Hardy was not that of levying war-it was that of compassing the king's death. Now what overt acts amount to a compassing of the king's death, is a question of law resting upon long and established decisions and precedent. And judge Eyre thought it no crime to declare to the jury his opinion of the law in this respect. So in our case, treason by levying war, is a general constitutional definition of the offence; but the application of this general definition, and the fixing and describing such overt acts as amount to a levying of war, is matter of legal construction, depending upon a knowledge of former adjudications, which the judge was bound to know, or he was not worthy of his office, and which he was also bound to communicate to the jury. The difference in the cases is only here. Chief justice Eyre formed his opinion on deliberation and he reduced it to writing; but he also publicly delivered it with all the weight of his name and authority in the face of all the jurors and of the country. Whereas judge Chase gave his opinion privately to the counsel, to be at their disposal and discretion; to use it for the benefit of their client if they could; or to disre

It

gard and suppress it if they thought proper. might forever have been concealed from the jurors and from the world, if the counsel of Fries had not themselves made it public. This practice of delivering opinions on points of law in charges to grand juries, is not confined to the English courts. It is the same in the United States. The managers have pronounced a very deserved eulogium upon the official conduct and character of judge Iredell. The respondent has been referred to him as a bright example of justice and impartiality, and it has been lamented that with such an example before him, judge Chase should have so wandered from the path of rectitude. We take their standard of excellence. We agree to be judged by judge Iredell; and if I shew that this humane and learned judge really did the same thing for which the respondent now stands on his trial, I hope there will be an end of the complaint. On the first trial of this same John Fries for the same offence, judge Iredell actually committed, with some circumstances of aggravation, the same enormous crime for which judge Chase is now impeached. He did form an opinion on the law of treason, he did reduce that opinion to writing, and he did deliver that opinion, the same in substance, and nearly the same in words with that delivered by judge Chase. This bright example was before our eyes, he is now so, and let us be judged by him. In the charge delivered to the grand jury in 1799, who found the first bill against Fries for treason, speaking of those cases which he thought would come before the court, the judge says, The only species of treason likely to come before you, is that of levying war against the United States. There have been various opinions, and different determinations on the import of those words. But I think I am warranted in saying, that if in the

case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the Congress of the United States altogether, (as for instance the land tax act, the object of their opposition) any forcible opposition calculated to carry that intention into effect, was a levying war against the United States, and of course an act of treason, But if the intention was merely to defeat its operation in a particular instance, or through the agency of a particular officer, from some private or personal motive, though a higher offence may have been committed, it did not amount to the crime of treason. The particular motive must however be the sole ingredient in the case, for if combined with a general view to obstruct the execution of the act, the offence must be deemed treason."

Judge Iredell, therefore, so far from conceiving it to be a crime to have an opinion upon the law of treason in levying war and the overt acts which would constitute it, to reduce that opinion to writing and to deliver both to counsel and jury, seems to have considered it, as chief justice Eyre had done before him, to be his duty to do so. The opinion delivered by this respectable judge coincides entirely with that of judge Chase, and the manner of delivering was, on our opponents' principles, vastly more exceptionable. The novelty of this proceeding seems to have vanished on investigation. There is indeed one striking differ ence in the two opinions-That judge Chase goes more fully and clearly into the definition of the of fence, and is more particularly careful to state those distinctions and discriminations which might serve the accused, and reduce his transgression to some smaller offence, provided they could appear in his case. He sets out not only the descrip