he law and constructed treason with the
usual ingenuity of officials working by the job. Judge Kelyng's loose
opinion that an attack on a brothel was high treason, was cited by Mr.
Rawle, the District Attorney, as good law.[155] What "in England is
called constructive levying of war, in this country must be called
direct levying of war." Judge Peters charged that though force was
necessary to constitute the crime of treason, yet "the quantum of
force is immaterial," of course it may be wielding a wheat straw, or a
word, I suppose. "The doctrine of constructive treason has produced
much real mischief in another country" [England]. "The _greater part
of the objections to it are irrelevant here_."

[Footnote 155: Wharton, 539; Kelyng, R. 70, 75.]

Fries was found guilty. His counsel moved for a new trial, on the
ground that before the trial one of the jurors had declared, "Fries
ought to be hung;" "I myself shall be in danger unless we hang them
all;" that the jurors were irregularly drawn, and the trial was not
held in the county where the offence was committed. Judge Iredell
ruled that it was "_a high contempt_ at this time _to call for a
renewal of an argument whereon a solemn, decisive opinion was
delivered_." Judge Peters declared the juror had "said no more than
all friends to the laws and the government were warranted in thinking
and saying." Yet a new trial was granted.

The new trial was held before Judge Chase, who had, as Mr. Wharton
says, a "singular instinct for tumults which scents it at a distance
... and irresistibly impels a participation in it," "moving
perpetually with a mob at his heels." Yet "apart from his criminal
jurisdiction he was reckoned a wise and impartial judge, a master of
the Common Law, and a thorough and indefatigable administrator of
public functions." "It was this despotic ardor of temperament ...
which made him, when a young man, employ with resolute audacity the
engine of popular revolt, and which led him when older, and when in
possession of that power against which he had so steadily warred, to
wield with the same vigor the sword of constituted authority."[156]
Gentlemen, he was like many that this Honorable Court perhaps have
known, who were privateering Democrats in 1812, and Kidnapping Whigs
in 1850. To him we are indebted for the invaluable decision that the
United States courts have no Common Law jurisdiction.

[Footnote 156: 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.]