The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-05-17


notice in part at this Rage of the argument Il,
informs us IN his aniw.r, that the Law of trea
ION having been iO'cmnv fettleti BY prior adiu
! dicatons, he ~as not at liberty T., Depart from
the principles 70 fettled, even had he though,
them incorrect, and he enters into len.th,
! difcnihon TO flew the importance OF uniform
adherence to doctrines properly coniidered and
| iolemniy eitablhhed. 1t is no part OF my in.
tenton to dfpute either the correctness of the
! deciions prevouiiy made upon the conaiiuti.
onal doctrine of treafon, or the propricty of an
adherence 10 thoie dcciiions on the part OF
Judge Chafe. For although / contider both ex-
iremeiy Objectionable, they yet appear TO me TO
conitItute no part of the prefcnt enquiry
ms enquiry is whether the Judge was aut, o.
riZed or can be executed for delivering an opinion
upon the law before couafel were heard on TIN.
part of the accuied, and for debsrrine counf.l
from the exerciie of their constitutional priv.
iege to addrsfs the jury on the law as well as
the facts, thereby making the opinion thus pre-
Judged and thus extra: judicially delivered com
pieteiy decifve Of the cafe. And give me leave
20 lay, mr. that the reafoning, reforted to by
the respondent to execute this conduit on bis
part is, in my opinion, an aggravation of his
offence. 1t is of Importance truly that ipr;ee
mould be guarded againft improper inipreiiions
rom council, by having the law previou(y e..
planned TO them.-And it is a favour TO conn.
lei 10 be informed that the ground they mean,
10 occupy is not tenable, that they NAV look
out for other reiources. Would not this re,.
ioning go to authorize judge in all criminal
PROHIBITIONS to fettle the law before the cafe
was heard! He has nothing eIfe to do, fir. ac.
cording to this doctrine, than to inform himfelf
OF the facts, as IN Fres's cafe, and then before
any triai is had fettle the law at the fame time
prohibiting council from arguing that to the in
ry. And ifthe reafon that the law has been e.
loiemniy tettled that it cannot be departed
from is TO form an execute, the more fettled the
ls"' The longer practiced upon, the fropper
the reaioG. In every cafe OF murder or theft
then 1t is to confer favour on the council to in
form them what grounds are not tenable. It;s
OF Importance TO inttrua the jury what The law
is upon the cafe, that they may be guarded a.
CANT improper inlpref1ions, and then TO rerder
this OBJECT eHectual, prevent the council from
arguing the law to the jury. In the cafe OF
Lres, hold 1t that the knowledge OF the Judge
tnat me cafe depended foley upon legal pin
ciplesi circumfance highly ageravatinp his
offence. He knew that there was no difnuf,. 10
to facts, and that by thus preiudeinv the law
he liked the deftny of the accufsd. But il w,s
material to do this to guard the Jury from inn
proper imprefiions My Cod |! has il come
to this !! And is this the amount of our boaft-
ed constitutional right of jury trial, that thew
Whole executive right it is 10 determine both the
law and the fact, are TO be guarded from impro.
per Imprefiions by the preiudged, extra-indi-
ciai opinion OF him who pohcnes no right 70
determine either ~
we are told by the Respondent, that he no,
ohiy never lnterdleted the council for Fries from
arguing the law to the jury, but that he after
wards on the next day expressly offered 70 LET
them take as wide range as thew nIeafcd NJ
Preildent, | mutt confefs have been difan.
pointed. had expected that much of the de.
fence agalnft the tirlt article would have refed
upon the tr2nfactions of that dav ] had fa ey-
peeted, not becaufe of any opinion of nv own
that from them any lubfantial execute could be
extracted but becaufe public opinion had
iomewhat inclined TO ref an execute upon that
foundation. For myfelf, it has been nv mis-.
fortune to he unable to perceive in this par. of
me traniactlon any features other than fuchas af
ford additional proof of the unjuft and oppref
hoe intent win winch the judge appears TO have
acted. Indeed, fir, the refpondent nun hin,
ieif have confdered the tranfactions of tbc e..
cond day, as dangerous topics. He has touch.
ed them lightly indeed. If his conduct had
oeen 10 free from blame as is contended in the
ahlwer, why wasan appearance of fairnefs to
De cant over the fcene by having the papers re-
called upon which the opinion had been writ
ten, Whit the opinion itfelf remained Al
Mort view ofthis part of the traufaction NAV
not be unimportant. 1t may afford us G,ne
itrong proofs of the motives Of the refyoudent
we are involnntarly led to inquire WHY the
papers were recalled? Was it becaufe The
opprefiive tendency with which they operated
upon the cafe of the accufed f? Was it becauf-
OF any conviction on the part of the Judge Of the
Impropriety of the neps he had taken, or com.
FUNCTION for the cruel fituation in which he had
placed poor Fries? No, fir ! The papers
were recalled becaufe of the firm and manly
ftand made by the counfel. 1t was becsufe
thoie council were men of characters too indie.
pendent, and were governed by ftnfe of dnty
too high to fl1bmit to fuch prollration oftheir
rights. The determination to recall the ma.
pers was not taken until after it was feen that
the counie would abandon their cauEe rather
than acquiefce in a condu6 70 oppreniv. and
70 Injurious. "'
This recalling Of the papers was fsrce an.
cd tor the purpoie of giving fpecious appear.
ance TO the face ofthings /; but The folly thereof
could only be exceeded by the criminalitv Of
the irf act. Was the crime the greater becspGr
The opinion was written Was il the an Of
writing the opinion and throwing down the na.
per to the bar which conftituted tbe evil IN
tnes Or wasit the formation of pre;udy.
ed and extr7judicial opinion completely deci-
hve OF the cafe, and the communication Of tbat
opinion IN the very prefeuce of thofe who were
to try the accufed? In my opinion il was the