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CORNELL UNIVERSITY LIBRARY 
 
 924 080 809 100 
 
 REPORT 
 
 TRIAL OF FRIENDS, 
 
 IRITHE 
 
 CITY OF PHILADELPHIA, 
 
 June, 1828, 
 BEFORE THE HONOURABLE EdWaRD KING, ESQ. 
 
 PBZSIOEHT JUDSE OF THE COURT OF COICUOH BKEAS, FOR TUE FIRST JUDICIAL 
 DISTRICT OF FENHSYLTANIA: 
 
 OR, THE CASE OP 
 
 EDMUND SHOTWELL, 
 
 JOSEPH LUKIIfS, 
 
 CHARLES MIDDLETOIf, 
 
 AND TWO OTHERS, 
 
 Who had been, by the Mayor of the City, committed to prison, 
 whence they were brought up by Habeas Corpus, 
 June \6th, 1828. -i 
 
 TAKEN IN SHORT-HAND, BY M. T. C. GOULD, 
 
 STENOGRAPHES. 
 
 PHILABELPHM: 
 
 3. Harding, Printer 
 
 1828 
 
OL\0 
 
 ?5V 
 
 I72.t 
 
 EASTERN DISTRICT OF PENNSYLVANIA, to wit: 
 
 •*••••«*« ^^ ''^ HEMKMBBHED, that OH the twBiity-eighth day .of June, 
 
 • J in the fifty-second year of the Independence of the United 
 
 • ssAi- • states of America, A. D. 1828, M. T. C. GotriD, of the said 
 ••••••••• District, hath deposited in this Office the Title of a Book, 
 
 the right whereof he claims as Proprietoi;,- in the words 
 following, to wit:.... 
 
 " Bitfpart of the .Trial of Friends, in the Ciiy of Philadelphia, /un^:1828, 
 before the Honourable Edward Kine, Esq. President Judge of the Cpuri 
 of Common Pleas, far the first Judicial District of Pennsylvania: or 
 the ease of Edmund, Shotwell,', Joseph Lukins, Charles Middleton, and 
 
 ' iujo others, who had been, by tlte Mayor of the City, committed to prison, 
 tvhence they were brought up by Habeas Corpus, June 16th, 1828. 
 Taken in Short-hand, by M. T. C. Gould, Stenographer. 
 
 In conformity tq the Act of the Congress of the United States, inti- 
 tuled " An act for the encouragement of learning, by securing the copies 
 of maps, charts, and books, to the authors and prbprietors of such 
 copies during the times therein mentioned." And also to the Act in- 
 tituled "An Aqjt supplementary to an Act, intituled, " An^ct for the 
 encouragement of learning, by seciiringthp copies of m^s, charts, and 
 books, to the authors and proprietors of such copies during the times 
 therein mentioned, and extending the benefits thereof to the arts of 
 designing, engraving, and etching historical and other prints." 
 
 D. CALDWELL, 
 Clerk of the Eastern District of Fennsylrania. 
 
INTRODUCTION. 
 
 IT will no doubt be satisfactory, to such readers as 
 are not familiar with recent events in the Society of 
 Friends, and particularly the circumstances connected 
 with the following report, to have a concise statement of 
 some^of the most material facts connected with the sub- 
 ject; indeed, something of the kind appears necessary to 
 a clear understanding of what follows. 
 
 For the information of readers unacquainted with the 
 church government of the Society of Friends, it may be 
 proper to remark, that there are in America eight Yearly 
 Meetings, all independent of each other. The Yearly 
 Meeting held in Philadelphia, is composed of 1 1 Quar- 
 terly Meetings, viz: Philadelphia, Abington, Bucks, 
 Concord, Cain, Western, Southern, Burlington, Had- 
 donfield, Salem, and Shrewsberry and Rahway. Each 
 Quarter is composed of several Monthly Meetings. 
 Philadelphia Quarterly Meeting, before Green street 
 Monthly Meeting dissolved its connexion with it, was 
 composed of nine Monthly Meetings, viz: Philadelphia 
 Monthly Meeting, held in Mulberry street; Northern 
 District, held in Key's alley; Southern District; held in 
 Pine street; Western District, held in Twelfth street; 
 Green street, in the Northern Liberties'; Radnor, Exeter, 
 Muncy, and Roaring Creek. None of these meetings 
 have any interest whatever in the burying ground in 
 dispute, except the five Monthly meetings in this city, 
 viz: Mulberry street, Key's alley, Pine street. Twelfth 
 street, Sind Green street, in which it is exclusively vested. 
 
 For reasons which it is npt necessary particularly to 
 mention here, the party in Philadelphia QuarteHy Meet- 
 
ing termed orthodox, having the clerk on their side, 
 came to the conclusion'.to lay down, or, in other words, 
 to dissolve Green street Monthly Meeting, and attach its 
 members to the Northern District. As Green street 
 Friends did not acknowledge the Monthly Meeting dis- 
 solved, they declined receiving orders for interment 
 from the Northern District; as this would be in some 
 measure admitting the authority of that meeting over 
 them; and knowing that the right of soil was vested in 
 them, equally with the other meetings in this city, they 
 conceived it would have been highly improper to have 
 done so; for when it. was known, that the ' Northern 
 District proceeded to disown the members of Green 
 street, they would, of course, consider the granting orders 
 of interment to them & matter of courtesy, and not of 
 right; and upon this ground they could, and no doubt 
 soon would, have refused interment to Green street Friends, 
 after disownment; and in this way,the!y would have been 
 effectually deprived of _ the privilege of interment in this 
 ground. 
 
 The alleged laiying downor annihilating of Green street 
 Monthly Meeting, and attaching its members to the 
 Northern District Meeting, is untenable for the following 
 reasons: viz. 
 
 1st. It can be shown that it was done by a minority of 
 the members of the Quarterly Meeting; assisted by the 
 clerk, in opposition to the judgment of the majority. 
 
 3nd. That Greeii street Monthly Meeting had, as the 
 only alternative left for the preservation of its rights as a 
 Monthly Meeting, or those of its members individually, 
 dissolved its connexion with the Philadelphia Quarter, 
 and had officially, informed that meeting of the fact, 
 prior to the alleged laying down. 
 
 3d. That Green street Monthly Meeting was obliged 
 to this course by the previous measures of a minority of 
 the members of the Quarterly Meeting agaipst Green 
 
street, forced upon the meeting by the aid of the clerk, 
 as the acts of the Quarterly Meeting. 
 
 4th. That these measures were in direct contravention 
 of the discipline of the society. 
 
 Sth. In any case that involves the rigjits either of a 
 Monthly Meeting, or of a member, merely, even if the 
 whole of the members in attendance should agree to if, 
 the discipline gives the Quarterly Meeting no power to 
 originate any subject matter against any Monthly Meet- 
 ing, or any member of society, but merely gives it power 
 to consent Jto or dissent from any measure which a 
 Monthly Meeting, or a member, may in the prescribed 
 order of society submit to its judgment. 
 
 6th. There is not one word in the discipline that gives 
 a Quarterly Meeting any power to lay down or annihilate 
 a Monthly Meeting; it only gives it power to consent 
 that such a meeting may be laid down, or to prevent 
 such an annihilation, after it is agreed upon by the Month- 
 ly Meeting, and by it submitted to the judgment of the 
 Quarter. 
 
 7th. The consent of Green street Monthly Meeting to 
 the laying down was neither given nor asked; nor was 
 this meeting consulted upon the occasion, at any time; 
 or informed that such a measure was contemplated, until 
 after the alleged act was effected, and the meeting had 
 become a branch of Abington Quarterly Meeting. 
 
 8th. If the Quarterly Meeting has power thus arbitra- 
 rily to annihilate a Monthly Meeting, and attach its 
 members to any meeting within its limits, without con- 
 sulting; them, and then disown them for-not attending 
 such a meeting, it has power to require impossibilities : 
 to require them to attend meetings for worship and 
 discipline at a hundred mile9 distance. 
 
 9th. As evidence (o show that these measures were 
 in opposition Jtg the judgment of a majority of the mem- 
 bers of the Qpartcrly Meeting, they were at the time 
 
VI 
 
 opposed generally by a majority of voices; and, besides 
 Green atreet^Monthly Meeting, Radnor Monthly Meeting, 
 composed of five preparative meetings, has dissolved its 
 connexion with the Philadelphia Quarter; and out of the 
 other four Monthly Meetings in the city, a Monthly Meet- 
 ing has been organized by Abington Quarter, and is now 
 composed of about 800 members, persons who, on account 
 of these and other, measures, transferred their rights of 
 membership from these four meetings of the city, to By- 
 berry Monthly Meeting, belonging to Abington Quarter, 
 and of persons who had for like reasons transferred their 
 rights to Darby Monthly Meeting, belonging to Concord 
 Quarter, and afterwards had them transferred to the new 
 meeting since its organization, by certificate from Darby, 
 and of individuals who have transferred theirrightsof mem- 
 bership immediately to the new meeting. And, moreover, 
 it is believed a large proportion, not much short of a 
 moiety of those who continue members of the Quarter, 
 or indeed of the four Monthly Meetings, are opposed to 
 the measures against Green street, and are in favour of 
 an equitable distribution of the property. 
 
 10th. Admitting that a Quarterly Meeting has power 
 arbitrarily to annihilate a Monthly Meeting, in this in- 
 stance there was no valid reason for such an act; the 
 meeting was regularly kept up, the discipline administer- 
 ed in the order of society, and greater harmony and unity 
 subsisted in that meeting, than in any other meeting in 
 the city. 
 
 11th. Previous to the act of dissolving the connexion 
 with the Quarterly Meeting, in the discussion of subjects 
 in that meeting, involving the rights and privileges 
 of Green street Monthly Meeting, the representatives 
 and members of that meeting were ordered to be silent, 
 and it was expressly declared that the " members of that 
 meeting could not be heard." 
 
 12th. The members of that meeting and their friends 
 
VII 
 
 were publicly denounced as infidels, and it was express- 
 ly declared, "there must be a sepafation." And on this 
 principle, the clerk in some instances positively refused 
 to take their taames on committees, or to allow them a 
 particii)ation in the business of the meeting. 
 
 1 3th. At the time the alleged laying down took place, 
 Green street Monthly Meeting was not represented in 
 the Quarter, and consequently had no participation in the 
 act. * 
 
 14th. The universal j^ctice of the Society requires a 
 general consent, either active or passive, of the members 
 in attendance, to every aflSrmative act of any meeting for 
 discipline or business, and has never recognised any other 
 principle of action. 
 
 The burying ground in question cost somewhere 
 about 36,000 dollars, and was purchased out of the joint 
 funds of the Monthly Meetings in this city, and islicld, as 
 appears by the deed of trust, by 15 trustees, for the use 
 and benefit of the said five Monthly Meetings in Phila- 
 delphia, including Gree^ street 
 
 A committee of two Friends was appointed in each of 
 the five Monthly Mejeting^, comUionly denoiAinated the 
 committee of ten, to have the c^e of this, with other 
 joint property, who employed a person to take chai^ of 
 the burying ground, and' to execute all orders for interment 
 that should be issued by the committees appointed for 
 that purpose, which commonly consisted of eight or 
 more Friends, appointed by each Monthly Meeting, seve- 
 rally: These committees had always acted independently 
 of each other, and of the committee of ten. 
 
 Some time after the alleged laying down of Green 
 street Meeting, seven of the committee of ten undertook, 
 on their own authority and responsibility, and without 
 any order or direction from either of the Monthly Meet- 
 ings, to eject from their body the two representatives 
 from Green streetj^and directed John Chapman, the per- 
 
via 
 
 son employed to have charge of the burying ground, not 
 to execute any orders from the committee for granting 
 orders of interments belonging to Green street Green 
 street Friends considered this an unwarrantable assump- 
 tion of power, and when occasion offered, they gave an 
 order for interment, as had been customary; which being 
 refused by J. Chapman, five of the trustees were applied 
 to, who gave the following permission to enter the ground, 
 viz.: 
 
 We the undersigned trustees of the burial grounds, and other 
 undivided property, belonging to the Five Monthly Meetings 
 of Friends, commonly called Quakers, of Philadelphia, includ- 
 ing that at Green street, in the Northern Liberties, do hereby 
 respectfully request, that the orders for the interment of mem- 
 bers, that may be given by persons who now are, or hereafter 
 may be, appointed for that purpose, by Green street Monthly 
 Meeting, be executed by John Chapman, in the same manner 
 as orders given by the persons appointed in the o.ther Monthly 
 Meetings; and if the said John Chapman declines executing 
 such orders, we do hereby assent to Gabriel Middleton, one of 
 our number, entering upon the premises, and executing such 
 order, and to the employment of any person, or persons, who he 
 may think proper to assist him therein. 
 
 (Signed) WILLIAM YARDLEY. 
 
 BENJAMIN TUCKER. 
 (Copy.) WILLIAM ABBOTT. 
 
 JAMES MARTIN. 
 
 GABRIEL MIDDLETON. 
 Philadelphia, Smo. 30th, 1827. 
 
 Clothed with this authority, a member of Green street, 
 who was one of the trustees, proceeded to the bury- 
 ing ground, and being refused admittance, removed the 
 lock from the gate, had a grave made, and effected the 
 interrhentj this was several times repeated, as will appear 
 in the course of the trial. , To avoid the unpleasant ne- 
 cessity of removing the lock from the gate, whenever an 
 interment was to take place. Green street Monthly Meet- 
 ing appointed a comnaittee to make application to the 
 trustees, five of whom gave permission to erect a gate. 
 
IX 
 
 Thus authorized, the committee made an opening in 
 the western wall of the burying ground, and erected a 
 gate accordingly: while this was doing, Jeremiah Wil- 
 lits, a member of the Northern District Meeting, made 
 the following affirmation before the Mayor, viz: 
 City of Philadelphia, ss. 
 
 Jeremiah Willits, of the said city, having been duly afiSrmed, 
 saith, that on the morning of the 31st of the Bth moiitb, 1828, in 
 consequence of hearing that Edmund Shotwell bad gone out 
 to Friends' burial ground, between Race and Cherry streets, and 
 Schuylkill Sixth and Seventh streets, in said city, for the pur- 
 pose of cuttmg down the wall and placing a gate therein; he, 
 this a£Srmant, was induced to go to the spot : on arriving there, 
 affirmant found an open breach in the wall, apparently eight or 
 ten feet wide, and perhaps within one foot of the ground', and 
 two black men at work, removing the bricks and rubbish from 
 the yet remaining wall at the bottom of the breach. The open- 
 ing in the wall was on the west side, in Schuylkill Sixth street, 
 nearly opposite the gate way on the east side . On the outside 
 of the breach, lay a gate, hung in the frame, with fastenings, and 
 all apparently fitted to place in the wall. Inside of the wall, 
 sat Joseph Lukins and Edmund Shotwell, and on the north side 
 of the breach, and within the burial ground, were several men 
 at work erecting sheds, or some temporary buildings, amongst 
 whom, affirmant recognised Charles Middleton. Affirmant 
 asked them by whose authority they were doing this. Edmund 
 Shotwell' replied, by the aiiithority of the proper owners, the best 
 authority that could be. Affirmant then addressed the black 
 men, who were pulling down the wall, and asked them by whose 
 authority they acted. They both^epUed, by Edmund Shotwell's, 
 and Edmund Shotwell himself said, they were acting by his au- 
 thority. Affirmant then demanded their niames, which they both 
 readily gave, to wit : Benjamin Beard, and Morris Hopkins. Im- 
 mediately, on affirmant asking'their names, Edmund Shotwell 
 took a pick, and^ined in pulling down the wall, and said his 
 name was Eduuind^Shotwell. 
 
 (Signed) JEREMIAH WILLITS. 
 
 /LfSrmedi and subscribed before me, the 2d day of June, 
 A. D. 1828. 
 
 '(Signed) JOSEPH WATSON, Mayor. 
 
 2 
 
fv Wberenpon Joseph Wahatwi, the Mayor, issued the fol- 
 iowing warrant: iv' . , "' 
 
 9D.';;. ..The Commonwealth op Pennsylvania: 
 To any C^hstaiOf of i Che said City, Greeting': 
 You are hereby commanded to take the body of Edmund 
 ShoWellv. 'Joseph Lukins, iCharles - Middleton, (Benjamin 
 Beard, iMqrris Hopkins^ black men,) if they be found in the 
 said city or county, and bjEing.them before Joseph Watson, Esq., 
 Mayorjof the|iajd'9ityjto5i|!gWftr the Commonwealth of a charge, 
 f^^^l^ «9: tbg^^^^o^^ajfjd information of Jeremiah Wil- 
 lits, a,n(|^^ejjjgarJstk^QiBultiiously assembling,' and committing 
 |tel5f8<^T0^5tl*g Bgbljgfle3fie„J>y forcibly pulling down a portion 
 ^^^'ljrip^,w.gllarpmd yig I'riends' Burying Ground, and for 
 5ft3!l9fflg»d^^%S^^ be,,y our , warrant. Witness the said Joseph 
 W#ftQRj(Mb* Si?|li AfWWlP set bis hand and seal, the 3d day 
 of Juneitn tte!£8?ffiOf purl^prd one thousand eight ihundred 
 ^lid.tweBtyieig^*.! .,» -•; g;,; 
 
 :j ; (Sigiipdi .sMa jsr9 "sc.JOSEPH WATSON, Mayor. 
 f -U.ppiSnyiiS^i JteSFntntjiJCheLpersons named therein were 
 airestedV^and- appeared bsfbre the Mayor, on the 4th in- 
 stant, at -3*c)'clock,I*r-^M.', -Attended by Thomas Kittera, 
 their coun§e'J:'ah<fJohil Wurts appeared on behalf of the 
 gj^^^«y}iitioTi,^w,it}) CJjarles /^Uen, and Henry Cope, mem- 
 b,erSrof_'the,S(SuAliernvpi^trict Meeting. After a full in- 
 testi^fttioiBiian^se^ii^iiBtion of the following witnesses 
 for the' 'i>rOSec\iktot}f-\i2f.: Jeremiah Willits, Samuel 
 St6k6's,--John ^i')ipt'rfcoit^''and Edward Randolph, the 
 Mayp'r ordered EdmiTtjit "Shotwey, Joseph Lukins, and 
 Charlps]N^iddletp,iX,*iQ, eater into their own recognisance 
 in.; the sum of fiver hupdred dollars each; and the two 
 cd)loured men, labourers, to enter into their own recog- 
 nisartee, each in the sum of twenty dollars, and one surety 
 in the like sum, to keep the peace. As they had not 
 broken the peace, they considered this requisition un- 
 
 * Charley Middleton, one of the persons imprisoned, is ac- 
 knowledged a member, by those called orthodox, never Saving 
 been called upon by the overseers as an offender in any case. 
 
XI 
 
 reasonable and arbitrary,: and, as they aUe^, woult! 
 have been an acknowledgment that they had been guilty 
 of some act that would justify such si'nieaB(i¥e; they4h6iiii'- 
 fore promptly refused compliance, and were all commit- 
 ted to the common jail. See Mittimus, pstge <1 3. (• '"i^ 
 In the course of the examination beftjK) the Mayor,- J-; 
 Willits said, that he had not oonsuMed with any person 
 on the occasion, and strongly disclaimed bfeingithe prose- 
 cutor; affirming, that hei had nothing tadojwtth it. U])- 
 on further inquiry, however^ it appoaiJedy that J. WtUitrf 
 had attende^a meeting attlie oOke of H. Biniiey, and 
 that Thomas Wistar, "raftwiiaf'SlevvaKlsaii, ThoWsS^^r. 
 Cope, Israel Cope, atid'<?lia»l6i*!Allenj^were atk) jiVeBtlifi 
 and when, it would s6te"m, rtjftf'proseciitiOn #<i4 Vleter- 
 mined on; and however' unwilling thes^fi'ie'nds'-mayBe 
 to-incurthe odium attaoli^d to -this Ijrt^eeufttih,^^^!^* 
 sorry to say, they are dl^ly WentiJfedJ^i'ftlsiit^^'sritap'- 
 peared in the course c(ft6hBiS*V89ligjil*tft<?tBsntBgyi.wfer& 
 the prime movers in the business; but wished to conceal 
 tllemselves behind the curtain, and make an instrument 
 of Jeremiah Willits, to carry their purposes into effect. 
 By,his deposition, upon which the Mayor issued his war- 
 rant, the defendants are charged, with neither more nor 
 less, than making a breach in the burying ground wall, 
 for the purpose of placing a gate in it: — but in the war- 
 rant, a charge is made, " founded on the affirmation and 
 information of Jeremiah Willits, and others, with tumul- 
 tuously assembling, and committing a breach of the -pub- 
 lic peace, by forcibly pulling down a portion of the brick 
 wall around Friends' Western Burying Ground. " And 
 although J. Willits is here made the principal, we shall 
 find, by examining the commitment, that the ground is 
 changed, and Samuel Stokes is made the accuser; and ifi 
 tliis document, E. Shotwell is required " to give bail for 
 hjs future good conduct and behaviour towards the said 
 Samuel Stokes," &c. Now it docs not appear, that 
 
XII 
 
 Samuel Stokes ever made any complaint to the Mayor, 
 or in any way countenanced any such requisition; but 
 was merely examined as a witness, and it ought to be ob- 
 served, that when called upon to give testimeny before 
 the Judge, he promptly denied being the complainant, 
 and unhesitatingly, declared upon his examination, that he 
 was not afraid, that the defendants would break the peace, 
 or do him, or his property, any injury. The discrepancy 
 between the affidavit of J. Willits and the warrant, and 
 between t!:at sad the commitment, are very obvious, and 
 appear i rtccnciiable with correct proceduVe. 
 
 Considerable pains have been taken to make the im- 
 pression, that the recognisance demanded by the Mayor, 
 which the defendants refused to comply with, was the 
 same as that required by the Judge^ which they freely 
 entered into. This idea is very incorrect. The former 
 was, for their " future good conduct and behaviour;" but 
 the latter waa, merely for their appearance before him. 
 
REPORT. 
 
 Suprtmi Court Rohm, Philadelphia, 
 
 8 o'clock, A. M., June 16, 1828. 
 
 Before the Honourable Edward King, Esquire, Presi- 
 dent Judge of the Court of Common Pleas, &q. 
 
 Commonwealth, at the relation of" 
 Edmund Shotwell, Joseph Lukins, 
 Charles Middleton, Morris Hop- 
 kins, and Benjamin Beard, 
 [Prisonef's.] 
 vs. 
 The Keeper of the Prison of the 
 county of Philadelphia. 
 
 Sur. Habeas Cor- 
 pus ad subjicen- 
 dum. 
 
 The keeper makes return, that he holds the said prison- 
 ers by virtue of several commitments of the Mayor of 
 the city of Philadelphia, one of which is as follows: 
 
 C((y (f Philadelphia, tt. 
 
 Tbx Coumob'wxalth 01 FssssriTAKiA: 
 
 Ih any Cmulable, and to the Keeper of the Prison of the etiy and county 
 of Philadelphia, Greeting.- 
 
 These are to authorize and require you the said Constable, 
 forthwith, to convey and deliver into the custody of the keeper 
 of the said prison, the body of Edmund Shotwell; charged on 
 afQimation before me, Joseph Watson, esquire. Mayor of the said 
 city, by Samuel Stokes, and others, with having committed, with 
 others, a breach of the public peace, by forcibly pulling down a 
 part of the wall of Friends' Western Burial Ground, in the said 
 city, and being required by me to give bail for his future good 
 conduct and behaviour towards the said Samuel Stokes,, the 
 tenant in possession, as well as to all the good citizens of this 
 Commonwealth, and having failed to do so, therefor^j you the 
 said keeper are hereby required to receive the said Edmund 
 
14 
 
 Shptwell into your custody-, in the Siiid prisou, and him there 
 safely to keep until the next Mayor's Court, or until he shall 
 thence be delivered by due course of law. And for so doing, 
 this'shall be your sufficient warrant. 
 
 Given under my hand and.seal, this 4th day of June, 1828. 
 
 Bail demanded, $500; ) 
 
 personal recognisance > JOSEPH WATSON, Mayor. 
 
 of defendants only, y, 
 
 I certify, the above to be truly copied from the original com- 
 mitment. 
 
 J. Reakirt, Ke&pet of the Prison for the cityflnd county of 
 Philadelphia. 
 
 Edmund Shotioell, and the other prisoners, being 
 present, attended "by the keeper, the party at whose in- 
 stance the comtnitnnents took place agatni' appeared to 
 support the commitments, by their counsel, Samuel Rush, 
 Esq., Attorney General for the M'ayor's Court, and Rich- 
 ard C. Wood, John Wurts, and Joseph R. Ingersoll, 
 Esquires. « 
 
 Counsel for the prisoners., — Eli K. Price, Thomas 
 Kittera, and Charles J. Ingersoll, Esquires. 
 
 Mh. Wurts, on the part of the prosecution, opened 
 as follows: It will be necessary for me to st^te in the 
 first place, that a hearing took place before the Mayor, 
 and after the facts were submitted to him, the application 
 was -not to b^nd over for any past act, but to require se-' 
 curity of these individuals to keep the peace. The ]VIayor' 
 said, that as to three of the individuals he knew them 
 personally, and wquld not require security of them, buj: 
 under the circumstances of the case, they should give 
 their own recognisance to keep the peace. As to the 
 other two individuals, with regard to whose responsibility 
 he knew nothing, he should require of them a recog- 
 uisance of twenty dollars, with sureties, to keep the peace. 
 
15 
 
 The parties declined doing this, and, as the only alter- 
 native left him, he committed them. ^ 
 
 Now in the outset of this case, there is a question to de- 
 cide: — In the first place, whether you will enter into the 
 facts which appeared before the Mayor, and upon which 
 he founded tiis conclusion, that it was expedient for him 
 to require a recognisance of those individuals. The 
 Mayor is at the head of the city, and is specially charged 
 with the prosecution of persons in the city of Philadel- 
 phia, and is more directly responsible for any infraction 
 of the public fieace, than any other person. And when 
 a matter has been submitted to him, and after a full hear- 
 ing, he comes to the conclusion, that he cannot, consistent- 
 ly, as a peace officer, discharge the individuals without 
 some further injunction than that which the law imposes 
 upon every individual, it seems to me, that it would be 
 an extraordinary step for a Judge, who is not more par- 
 ticularly charged with keeping the public peace than any 
 other individual in the community, to say, that the Mayor 
 has committed an error in judgment, and that he will ex- 
 act nothing by way of security. It appears to me,, that 
 this is a grave question, before we can enter into the factsf 
 for there is no difficulty in establishing the facts^ as they 
 were established before the Mayor, although, perhaps, it 
 may not be exactly convenient at this time — but it can 
 be done if deemed expedient to do it. The Mayor says, 
 I know what human nature is, and when there is hot 
 blood, I am not to rely on individuals. 
 
 I submit these preliminary observations, and if neces- 
 sary to enter into the facts, we shall do so. 
 
 Mr. Kittera. If I understand the subject, there ia 
 an" objection by the prosecutors to go into any hearing. 
 You are told, that the Mayor is the chief police officer of 
 the'city; that he has decided the fate of these men, and 
 that they are to remain in prison, without application to 
 any body for a re-hearing. The Mayor, Mr. Wurts 
 
16 
 
 thinks, is the law o^ the land, whatever the Mayor may- 
 do, or any superior ofEler.' The #)ctrine it, thata Jus- 
 tice of the Peace may coipmit any nian h6 pleases, for any 
 offence, or for nb offence at all, butjnorely because he is 
 afraid that an improper act may be committed. 'And be- 
 cause that officer has d6oided, therefore the*f erson is no^ 
 to be heard. Was there ever such 'doctrine heard of be- 
 fore a court? The very object of &■ ffnbeas Corpus is, 
 to re-exanrine all that has been done. When you look 
 at this commitment, you will find upon the very face of 
 it, that it is void. They are pot conimitted for any of- 
 fence, although'it is,sai^, they have committed a breach 
 of the peace. Thtey are not committed for any* prime to 
 be tried in Philadelphia, or any where else; but for re- 
 fusing to give security,, to be of good conduct and beha- 
 viour! If we go" no further: than *the commitments, these 
 men must be discharged;, we shall ask it, whether we go 
 into it or not. How are you to know*Whether they are 
 legally committed, without going into the facts? They 
 are committed for refusing to give securitjfto keep the 
 peace; and the Mayor has decided, that they are liable to 
 such commitment. We bring them before you, and ask 
 you to go into the facts again; and is it not a practice of 
 every day, and are not the Supreme Court often called 
 on to go into all these particulars? How far the decision 
 of the Mayor can influence you, is one thing, but it is 
 impossible to decide, without going into a re-hearing. If 
 you are to take the judgment of the Mayor, you should 
 not have issued a Habeas Corpus. But we are now told, 
 that you are tdi remand without a hearing; never was there 
 such a thing heard of! 
 
 Judge King. I have no sort of difficurty in deter- 
 mining as to my right, nor as to my absolute duty, to go 
 into a hearing of this matter. It would be placing citi- 
 zens in a very extraordinary predicament, if this privilege^ 
 could be denied them. If I cannot examine it, the Chief 
 
17 
 
 Justice and Judges of the Supreme Court cannot;— in this 
 respect, they have no higher authority than the President 
 of this court. We know, well what the English practice 
 is, as to the ability and power of a Judge, to hear prepa- 
 ratory evidence, in which a regular investigation is made, 
 to ascertain, and to see, whether certain commitments are 
 lawful; and to make an examination into the whole merits, 
 to see whether the commitments are justified: otherwise, 
 the most valuable rights of citizens would be committed 
 to the subordinate magistrates;, for the Mayor has no more 
 power, and is^inothing more than a Justice of the Peace, 
 whose acts, civil and criminal, are subject to the rever- 
 sion of this court and other tribunals. •» 
 
 Mr. Kittera. Now the object on the part of the 
 prosecutiojh is, to bring evidence, to show, that the Mayor 
 had a right to do as he did, upon thg merits of this case, 
 whatever they may be. But the commitment is illegal, 
 on which they are called on to give bail. The duty of 
 the Mayor, if he had grounds on which to go, was to com- 
 mit these individuals to keep the peace; but he has com- 
 mitted them for their future good conduct and behaviour. 
 Now what is meant by thisPrf It is unnecessary that I 
 should ask; becausi^it is sufficient for me to know, that 
 they are not committed for. failing to give security to 
 keep the peace. Is it that they had not conducted with 
 perfect decorum? If so, he had no right to commit them 
 for failing to give bail for future good conduct and beha- 
 viour. It is a matter perfectly well settled, that the com- 
 mitmfbt is to be, to keep the peace, and these are the 
 technical terms, to " keep the peace. " And though the 
 commitments state to be of good behaviour, yet it is ex- 
 planatory of wliat kind of good behaviour it is, that the 
 commitment is for.. But if the commitment is void upon 
 the face of it,it supersedes the necessity of showing, that 
 the ground of commitment was illegal. 
 
 Mr. Wurts. It seems difficult to propose any co&rse 
 
18 
 
 which shall be satisfactory. A fevy minutes ago, we were 
 to go into tiie facts, and now, we cannot look beyond the 
 act of the Mayor. We have shown, that nothing was re- 
 quired but their personal dbligation. The position is now, 
 that we are to look to nothing but the commitment of the 
 Mayor, and that it is no matter about titiese individuals — 
 if the peace be broken an hour afterwards, it is all right. 
 The whole object, a few minutes ago, was, that we must 
 review the whole act, that you must go farther than the 
 commitment, and decide, whether or not these individuals 
 shall be liberated. AH that was asked, and is asked, is 
 a recognisance to keep the peace. I take it for granted, 
 you will see, whether' the public peace is endangered or 
 not. It is a matter of serious consideration before a Judge, 
 when he finds individuals have been committed by a pub- 
 lic officer, to liberate them^without''«inquiring into the 
 facts, wHether the public peace is to be injured by so 
 doing. I am willing to put it upon the ground taken a 
 few minutes ago, and^ if the Mayor has committed an 
 error, in regard to these individuals, in the ma|ter com- 
 plained of, then discharge thein; but, if , you shall be of 
 opinion with the Mayor, that the public peace is to be 
 compromilted by so doing, your decision will be the oth,er 
 way. , 
 
 Mr. KiTTEKA. This is a Habeas Corpus, and the 
 keeper of the prison returns, that he detains the prison- 
 ers by virtue of certain commitments; and if he has no 
 right to keep thpm, they are discharged of course. Sup- 
 pose the Mayor had committed th,em without any state- 
 ment at all, but the printed warrants; or suppose he had 
 committed them for not taking off their hats to their bre- 
 thren, or for the want of good breeding^ or some particular 
 form of language, or drgss ; the commitments would be 
 illegal, and' thpir discharge a matter of course. Their 
 commitment they do not attempt to support; they^ seem 
 to agree that it is illegal, and yet they ask you to go into. 
 
19 
 
 the evidence ; and they seem to think, you have a right 
 to correct the commitment^ and make it legal from the 
 time it took place, up to the time it came before you. 
 
 These men have their rights, and if they have lain in 
 jail under illegal commitments, they have their remedy; 
 and now it is pretended, that you have a right to correct 
 this, by striking out the words, for good 'behaviour, and 
 inserting something that will constitute an offence; but 
 you have no such right, you cannot do this. We are not 
 taking an unfair course. If these commitments were 
 legal, we hav«e a right to go into the evidence, to show, 
 that for the purpose of legal commitments,, the Mayor 
 ought not, upon the evidence before him, to have made 
 such commitments; the court must discharge these men 
 from these commitments. They may make a new ap- 
 plicaljion to the Mayor, or to any other officer; but it 
 must be a riew application, and they must lay new grounds 
 before that officer, and that officer must commit them by 
 new^bommitmenls; The effect of that would be, that if 
 an officer has acted illegal, to leave him liable for his acts 
 to those who have suffered by them. If they acknow- 
 ledge this to be illegal, their course is to apply to the 
 Mayor, or to any other Justice of the Peace, and to lay 
 before him the ground of complaint, and that officer may 
 commit: but if this is illegal, it ends the subject of in- 
 quiry, as it regards the commitments. 
 
 Mr. Joseph R. Ingersoll. The course which this 
 thing has taken, vir^thin the last five minutes, is rather 
 novel. You were required of those, who are called 
 prosecutors, which is a misnomer, I believe, for there 
 can be no prosecutors, without prosecution; but the per- 
 sons, who applied to the Mayor, were called on to give 
 \3^G circumstances, upon which fliey required a continu- 
 ance in custody of the individuals before you. It was 
 then kiggested, on behalf of those persons who made the 
 
20 
 
 application, Jjiatif this commitment was an illegal one, it 
 w?s unnecessary. . ^ * 
 
 ■ We were told first by the counsel, and by your honour, 
 that it was pot only proper, but your duty, to go into the 
 subject 5 and yet, tlje very momept an effort is made to go 
 into the investigation, they say, you shall opt go into it. 
 We have not said that the warrant was defective, but we 
 tal^e it for granted, that it is good, and we call upon you, 
 to go into an investigation of the facts. We are told, 
 that these persons have their rights, that they have been 
 undqly imprisoned, and that th^y will take care to punish 
 those who have illegally imprisoned them, for' the ille- 
 gality of their conduct, -yet ypur honour will perceive, 
 tliat every commitment that takes place from the ordi- 
 nary committing magistrate, contains the very words in 
 question. The Mayor commits, uniformly, for the se- 
 curity of the peace, and to be -pf good behaviour, towards 
 all the citizens of the Gompionv^ealth ; and it is no hard- 
 ship, for an individual to say tliat he will behave well 
 towards every body. But if this had contained* the 
 words, in addition to those that are contained in it, that 
 they should keep the peace, and be of good conduct, and 
 behaviour, the addition of the words that are there, the 
 uniform course would show that the commitments would 
 be proper and good; but committing them to be qf good 
 behaviour alone, is perfectly bad. But what does l;he 
 case resqive itself into? It is admitted, that a warranty 
 calling, for good behaviour, is common and universa]: 
 there is, therefore, no harm in this introductioa; — there 
 is nothing mortal, fatal, or destructive, ^gcause an officer 
 has used w6rds that are infornial. What has the com- 
 mitting magistrate done? You will see in the result, that 
 he has done, what it is not onjy your authority, hut your 
 duty to do; as to the time of committing, when the, of- 
 fence was committed, or, whether any offence at all was 
 committed; and whether, upon the whole inv.estigalion. 
 
21 
 
 the individuals before you are, or are not to be discharged 
 from custody, if there be a flagrant or gross attempt of 
 the magistrate that committed them, this does nqt require 
 investigation; j'ou would say upon the face of it, u 
 sh3^11 be put down. Buj; wh^n you fii^d the allegation 
 is of siiqb a cii'^racter, as to requira* security against the 
 tumultuous disturbance and inconsist^nqies of these in- 
 dividuals, they should be called on to give their *own 
 personal security. An^ when you find the course now 
 adopted, is exactly ttie course require4 fiy the individuals, 
 wl\o make the application, ant^ by your honour, also; do 
 you now say, that we shall not go intg an investigation? 
 Then ,the whole thing is to be unsettlied. I admit the 
 propriety of* your honour's entering injo all the circum- 
 stances, to see whether the individuals oughl; to be dis- 
 charged* or not. - -t 
 
 Mr. Charles J. Ingersoli,. Your hopour cannot fail 
 to perceive, sir,| that the controversy before you is a grave 
 one. 
 
 This crowd of anxious spectators have- not assembled 
 here to witness a case simply pf holding to bail fpr good 
 behaviour. There is sojnething or other, lying much 
 deeper than thate 
 
 It is said, and I am not a little surprised to hear it said, 
 that there is no prosecution an4 no prosecutor. I do not 
 wish to quibble about the phrase^ but that there must be 
 a prosecution or a persecution is certain. The questions 
 before you are questions of right. Certain persons are 
 before you, and they ask for the benefit of the writ of 
 Habeas Qorpus, which no judge dare refuse, which no 
 judge desires to refusf. The first objection that I have 
 heard is„ that the Mayor, having committed under his 
 hand as Mayor, these persons are to.remain in custody, 
 though not prosecuted, till the Greek calends, or till they 
 die and rot there; because the Mayor has sAid that it shall 
 be so. ¥our honour hag promptly replied, that being 
 
22 
 
 tailed on for^a writ of Habeas Corpus, you must go into 
 the evidence. Then on the part of those for whom I 
 am concerned, it is objected that you are not to go into 
 an investigation of jhe detention of any man, if the war- 
 rant is illegal; and I think there is no dispute of it; that 
 you cannot go into an examination, because there is 
 nothing before you but a Habeas Corpzis. And if the 
 instrument before you is itivalid in form, and null and 
 void in substance, the objections taken are perfectly well 
 founded. It is stated that they are in custody for pulling 
 a wall, simply, not saying whether up or down. They 
 might as well be in custody for pulling off their cdats 
 or hats. — The thing is in|ormal,,and in this country it 
 is not sognd. It is a pretty unceremonious thing to take 
 a man by the shoulder and put him in jail; and the laws 
 of all coiyitries say, that it shall be done in conformity 
 to certain forms. There is no objection to your taking 
 up the case of committing, but the objection is, to going 
 into a case which is no case. The warrant we are satis- 
 fied is illegal; and there is no inconsistency in the objec- 
 tions; they are perfectly concurrent in the first place, and 
 the case is a plain and every day practice and experience. 
 There is nothing before you but a writ of Habeas Cor- 
 pus, which complains of illegal detainer. You call for 
 the warrant, and if right' the party' sustain it denovo; and 
 if wrong, sir, there is nothing to do but to say let the 
 party have the benefit of the writ of Habeas Corpus; I 
 dismiss the complaint; yet it is my duty as a magis- 
 trate, and I am open to hear the complaitat; and then you 
 comriiit, take security, or acquit, or do, every .thing that 
 the Mayor did or any man can do. All that is asked for 
 is, if any thing is to be done, to let it be done according' 
 to law, method, and uniform method, in a course of jus- 
 tice. The men should not be kept longer if they are 
 committed on an illegal commitment. As to any menaces 
 that have been thrown out or intimated, I have heard 
 
23 
 
 of none. This question is," whether the parties are iii 
 custody on a legal warrant; if so, testimony is to be sub- 
 mitted ; jf not, there is nothing to be done, but to dis- 
 charge, and let them be |-ecommitted by you or any other 
 judge, upon application and just cause shown. 
 
 Judge King- Suppose this warrant a nullity upon the 
 face of it; whenever a. writ o{ Habeas Carpus is returned 
 and annexed to a warrant, which is upon the face of it in- 
 formal, in Pennsylvania we never have l^een in the habit 
 of discharging upon thjt ground. It is apparent to every 
 individual what the effect would be; and" therefore we 
 must proceed to examine and decide. The rule applies 
 to those in defence, and it applies, to those charged with 
 murder; and if called on to discharge the vilest offender, 
 the rule' is so,6bvious, that I doubt whether the defend- 
 ants would desire the establishment of it. I should have 
 no difficulty on this point if the warrant were more defec- 
 tive than it is; for if called on to adjudicate, it would be 
 my duty to commit them if authorized by the testimony; 
 otherwise I should be opening the door for every bad 
 man in the community, ^j ^his remark is a general one, 
 and not applicable to the present case. In the first com- 
 mitment there is evidently a mistake, but I doubt whether 
 the commitments are illegal. Be thii^ as it may, I have 
 as little hesitation, in this instance, in ruling against the 
 defendants, as in the first ease against the other party. 
 
 Samuel Stokes, a. witness on the part of the prosecution, 
 called and affirmed. 
 
 Mr. Stokes, previous to his examination, stated, that he 
 had undei'iteod his name was inserted in the commit- 
 ment as the prosecut(ja'. He said he wished it under- 
 stood, that he was not the prose;cutor, but merely a witness 
 in the case. 
 
 Examined by Mr. Wurlp — Where do you reside ? I re- 
 side on the'premises, between Schuylkill Sixth and Seventh 
 and between Race and Cherry streets. Have you a family 
 
24 
 
 there ? Yes. State whether your house is within the walF. 
 It does stand within the wall of the burying ground. Do 
 you iceep the keys trf the gate leading to this ground ? Yes, 
 I keep the key to the former gate, the only one that was 
 there prior to the one lately erected. Be good enough to 
 tell us what took place there on Saturday week. 
 
 I was out on seventh day week ago, the thirty-first of 
 last tnonth, in the tnOining, and on returning home about 
 ten o'clock, I was told that there were persons in the yard 
 for the purpose of opening a gate-Way. Did you find your 
 family alarmed P Yes, they were alarmed on account of 
 ray absence ; they were not afraid of being assaulted, or 
 any thing but on account of my absence. I went to the 
 men, and informed them that I should make it my busi- 
 ness immediately to inform the coimmittee, to give them 
 a chance of seeing them on the ground. 
 
 Judge King,— Who were the men? There were pre- 
 sent at thattime, Moses Lancaster, Joseph Lukin^, Charles 
 Middleton, and five others that I did not know at that 
 time. There were two coloured men, who appeared to be 
 labourers to the brick-layers, 
 
 Mr, Wurts. — Were these two coloured men the same 
 that were committed by the Mayor ? I cannot say posi- 
 tively as to both — one was. I immediately left them, and 
 called on the committee, as I told thein I should. I called 
 on Jasper Cope, Israel Cope, Henry Cope, Charles Allen, 
 Jos. R. Jenks, John Lippincott, and Joel B., Remmington, 
 that is seven out of eight of them. I was directed by one 
 of the committ^ee on my return, to tell the men to desist, 
 and not to proceed at their peril. 
 
 Judge King. — Were you diredted by one of the com- 
 mittee, to tell the men to desist? Yes. I returned home 
 and did so. I forbade them to go on, as I had been di- 
 rected. They seemed to pay no attention to it, but pro- 
 ceeded as before. I then discovered Edmund Shotwell 
 at work; he vt^as' there at the first, but I did not know 
 him then. Moses. Lancaster was not there when I returned ; 
 
25 
 
 he did not remain long, nor was he one that engaged in 
 the work; I am satisfied of that fact. They proceeded 
 with the work, and so far accomplished it as to hang the 
 gates and put the locks on. 
 
 By Mr. Wurts. — Did they bi;iDg the gates with tiiem ? 
 I did not see them brought, but from the situation in which 
 I saw them, I had reason to believe they were broughtthere 
 ready made. 
 
 JuDOU Kino. — When ydu first discovered the breach in 
 the wall, was it complete P The breaking was complete. 
 In what part 6f the wall was it ? In the western wall, di- 
 rectly opposite the gate that was there before. I understand 
 you to say thatthe breach was broken when you returned from 
 notifying the committee ? Yes, except some rubbish that 
 was removed for the' purpose of placing the sill of the gate. 
 This gate was in the western wall, and the old gate in the 
 eastern, with a walk extending across the yard from one 
 to the other. What was done with the bricks and rubbish? 
 They were left inside of the wall against a building, put 
 up near the breach for a tool house, inside of the wall. 
 
 Mr. Worts. — You say you called on a committee ; will 
 you tell under whom you are in possession of that house, 
 and have charge of the,burying ground ? I iiold possession 
 both of the private and other part from that committee. 
 Have you a written lease and agreement from that com- 
 mittee ? I have. When you say the private part of the 
 yard, what do you mean ? I mean a particular part \Vhich 
 is inclosed by a fence for a vegetable garden, attached to 
 the house, for a family. As to the residue of this ground 
 or yard, I have charge of it under the committee. Do you 
 recognise and admit their authority in regard to this mat- 
 ter ? My agreement is with them. Had you known that 
 these individuals were coming there to do as they did, 
 would yon have forbid them? If I had been informed 
 what their business was, I certainly should. I considered 
 it my exclusive right to control that part of the property. 
 
 4 
 
2& 
 
 Has the lock of the eaatern gate ever been broken since 
 you had charge of the ground ? Yes, several times. How 
 did they get'; at the lock to break it? Sometimes they 
 crossed my premises, and sometimes they climbed over the 
 wall ? How did they get up ? By a ladder. Have either 
 of the persons charged, done this ? Neither, I believe, have 
 ever broken locks. 
 
 Cross-examined by Mr. Kittera. — What is this grave 
 yard called ? It is called Friends' western burying ground. 
 What Friends? The Friends of the five monthly meetings 
 of Philadelphia, ivho have been in the constant habit of 
 burying there. Tell us which they are. They are the 
 Northern, Middle, Southern, Western, and Green street. 
 Since Green street is said to havebeen laid down, this dis- 
 turbance has been occasioned? This breaking of locks has 
 been continued only for a few months — the first part of 
 the time that I had charge there, all were buried in 
 peace. 
 
 If I understand you, the objection is to letting Friends 
 from Green street bury in that ground ? Yes, except under 
 certain restrictions, which they have not seen fit to comply 
 with. At the time of laying down Green street Meeting, 
 the members were attached to the meeting of Northern 
 district, which makes it necessary that they should now 
 apply to that meeting for orders, according to the arrange- 
 ment adopted by the meetings from which this committee 
 is appointed, under whom I hold. Do you know who are 
 the committee from Green street ? They were, when that 
 meeting was acknowledged, Joseph Lukins and Joseph 
 Townsend. How are your burials conducted, does each 
 monthly meeting give its own orders ? That always used 
 to be the practice. What is the practice when Friends be- 
 long to no particular meeting ? If a person is not a mem- 
 ber it requires a greater number to authorize it. I think 
 it requires six to give liberty in such case. Have you the 
 care of the grave yard, for the benefit of those who have a 
 
27 
 
 right to bury there? Yes. Can you tell me who built the 
 wall around that yard, not the persons who actually as- 
 sisted in putting it together, but those who furnished the 
 means? I cannot say positively; but I believe the five 
 monthly meetings contributed equally. Are there any 
 chairs, etc.? There are six chairs and a bier. Who pur- 
 chased them ? They were there when I took charge. Were 
 they purchased by the five monthly meetings? I believe 
 they were, before that meeting was denied the right of 
 burial. Do you know who it is that denies the right of 
 burial ? I do not know — it is an arrangement of the quar- 
 terly meeting that has placed them in the situation that they 
 are in. Do you know of any other exercise of right 
 over the property of Green street Meeting, with the ex- 
 ception of this ? I do Jiot. Each of the meetings holds 
 property of its own, and I know that there was property 
 which was undivided, but I know it from hearsay only. After 
 the dispute with Green street Meeting, you have answered, 
 they were barred the right of burial — when the first funeral 
 came there, after this decision, how was the deceased bu- 
 ried? There were several buried, after the meeting was 
 put down, by their own orders, but I cannot tell precisely 
 the tlipe when that privilege ceased. Who executed them 
 — who had the graves dug? The orders were received 
 from John Chapman. You were in possession as you are 
 now? I was, and had charge. The orders were executed 
 by me. You opened the gate ? Yes. You got the chairs, 
 and tools, and, every thing? Yes, I did every thing as I 
 had been accustomed to do. You did that until you were 
 directed, or until John Chapman was instructed not to re- 
 ceive orders from Green street Meeting? Yes. How 
 many does each monthly meeting appoint as a committee ? 
 Two from each monthly meeting, making ten formerly, and 
 eight now. Each monthly meeting appoints several Friends, 
 who give orders; these are a distinct committee from those 
 who have the oversight of the property. The committee 
 
28 
 
 of eight or ten, are to have an oversight of the property, 
 and to keep it in repair, and to oversee it generally. Can 
 you answer by vehat authority these orders -were given to 
 John Chapman, or from what persons they came ? They 
 came from this acting committee, this committee of over- 
 sight. Before this order to refuse was given, did you ever 
 know in your whole experience, that committee to prevent 
 the execution of an order to bury from any of the monthly 
 meetings ? I never heard of it. This grave yard is held 
 by trustees — are "they there frequently ? I have seen them 
 there occasionally. Who have you seen there? DifiFerent 
 members who are trustees. Is Gabriel Middleton a trustee ? 
 I believe he is; I always understood so. Have you known 
 him to enter the grpund ? It was him that always entered, 
 except this time; and in several instances he has broken 
 the ground himself. You have now mentioned several in- 
 stances in which they were allowed to bury, up to a parti- 
 cular time ; and when they buried after that time were 
 they obliged to take the lock off? They had to, with the 
 exception of one instance, when the other party had it open 
 foi- their own use. After the grave was dug, was the gate 
 ever locked to keep them out ? There was one instance 
 after the grave was dug. By whose orders was it done ? 
 I called on the committee. What are their names ? Jas- 
 per and Israel Cope. Who took the lock off? Gabriel 
 Middleton. Do you recollect whether Gabriel Middleton 
 put a lock on the gatie, and gave you one key and kept one 
 himself, to prevent this difficulty ? He did. In a very 
 early stage of the business ? Yes. After the company re- 
 tired, he remained and put a lock on the gate, and handed 
 me a key. He said, it was that all might use the privilege 
 peaceably — that I might have one key for the benefit of any 
 that had a right to be buried there. I told him, however, 
 then, thjit we could not use the key, that I could not use 
 it, but should have to return it, but he left itjwith , me. 
 What was done with it? I informed Jasper Cope, and he 
 
29 
 
 came out himself the next morning and removed the lock, 
 and put another in the place of it, and directed me to re- 
 turn the key to Gabriel Middleton. Was Joseph Luking, 
 one of the persons here, a member of the committee from 
 Green Street, to have the superintendence of that yard ? 
 I always understood so. Was he, do you recollect, a sub- 
 committee to see that particular repairs were done ? I be- 
 lieve he was. Did you ever see him work there? Yes, I 
 have seen him work there myself. Did you ever see any 
 thing tumultuous, or calculated to excite a disturbance in 
 the neighbourhood P No more than the same kind of work 
 would do in any other place. Did you ever make com- 
 plaint of this to any body? To none but the committee ; 
 as I considered myself under their control, I gave them 
 information. Have you reason to fear that your person or 
 yottr property are in danger of injury from these individu- 
 als ? No, not in the least; I believe I might have said while 
 they were there, that they were doing damage to the grass, 
 but they promptly offered to pay for it. I had sold the 
 grass at the time, and I do not know that the man will 
 claim any thing, but they seemed very willing to pay. 
 Don't you know that they conversed with him, and that he 
 was perfectly satisfied P He said that hff had seen them, 
 and that they were willing to satisfy him ; and he appeared 
 to be satisfied, and has got the hay away. Is not that gate 
 in the western part of the yard, a convenience — is not the 
 yard better with than without it? I am willing to give 
 my opinion, that it would be better to have the gate there; 
 but I had not been looking for it to come exactly in that 
 way. Who gave instructions not to receive orders from 
 Green street?* I am not positive, as they were given to 
 Chapman, and not to myself. For what purpose are these 
 chairs used P To accommodate persons at the time of fu- 
 nerals — they are placed at the grave. Do you know any 
 instance in which, after the ground was opened, and before 
 the funeral arrived, the house in which these chairs were 
 
30 
 
 kept, was spiked up by anybody? I did it myself, by driv- 
 ing a spike over the hasp, which was the same security as 
 a lock. "Was this after the grave was dug, and before the 
 people came? It was. By whose orders? I considered 
 it by the direction of the committee. But who ordered you 
 to do it? Henry Cope spoke of it, and came on to the 
 ground while the grave was digging. Did he then tell you 
 to secure all the fastenings, and to keep the property secure 
 in your charge ? He spoke of that among the rest— he told 
 me to mind the fastenings. How did they get along at the 
 funeral without the chairs, as they were not ta^en out? 
 Several persons had collected, and they made use of our- 
 own chairs to sit on. They had them at the fuileral? Yes. 
 And your family made no objection to it? I never refuse 
 to give any body a chair when they want to set down peace- 
 ably. 
 
 By Mr. Price. — Were there locks put upon this new gate ? 
 Yes. Where did they come from ? I still retained the lock that 
 was leftthere by Gabriel Middleton, and whether that is the 
 lock or not, I cannot undertake to say. The locks on the gate 
 are not unlike that one. Do you know how they got into the 
 grave yard ? They came thtough my yard. Did you give 
 to one of thesS^defendants a breakfast or dinner?' On se-' 
 cond day Charles Middleton was thertC, and asked me if I 
 would sell him a meal of victuals, and thinking he stood in 
 need of it, I asked him to come in and take a meal. 
 
 Re-examinid by Mr. Wurts.^-DiA you ever undettake to 
 decide who had a right to bury? 1 never did exercise con- 
 trol over that, I had no right. Is this the agreement under 
 which you serve? (Delive.ring him a lease.) It is. Do you 
 recognise any authority to open the gate except under the 
 authority of those who signed this ? According to that agree- 
 ment I consider myself bound to act for them exclusively. 
 Had the lock been broken off to dig the grave, when put on 
 before the burials ? It had been broken off, I think, but I 
 wont be certain. Was the so putting on the lock restoring 
 
31 
 
 the gate to its original cbndition ? It was. Who hroke oflf 
 the lock ? Gabriel Middleton, on both occasions, before and 
 after the grave was dug. Since you have been there, have 
 the trustees ever interfered with the property ? On one 
 occasion a paper was brought there "by Gabriel Middleton, 
 giving him authority to enter as he did. — The paper was 
 produced by several Friends, and signed by several trustees, 
 giving Gabriel Middleton authority, but they have never 
 appeared personally on the ground. Before the dispute oc- 
 curred, did the trustees ever interfere, to control this esta- 
 blishment ? Not Ihat I know of. How many trustees are 
 there? I have understood that there were fifteen. How 
 many had signed this paper that you speak of? I could not 
 state positively without referring to a record. There were 
 not a majority of the whole number? I cannot say positive- 
 ly. When was the paper exhibited ? It was when the first 
 interment was made that was contrary to the will of the other 
 party. Until the occurrence of the last week, has Joseph 
 Lukins been there since the appointment of the committee 
 under which you now act? I don't recollect having seen 
 him there on business since that time. ' He may have attend- 
 ed funerals. Have you ever held directly under any other 
 committee than this? I held the private part of the proper- 
 ty which I now occupy under the committee of ten, when 
 Green street meeting was recognised. The public part I 
 held under an agreement with John Chapman. He held un- 
 der the committee often, I suppose, before Green street 
 meeting was laid down. Have you ever had any other agree- 
 ment than this which you have now here? No. Under 
 whom did John Chapman hold? Under the committee often; 
 but after a while fie thought h^ had too much to do, and gave 
 a part of it to me. You say that you apprehend no danger 
 to yourself or to your property ? Yes. Do you not appre- 
 hend there will be violence used Unless permission is given ? 
 I do believe they wiW continue to bury there, and if this new 
 gate should be removed, they will resort to the old way of 
 
32 
 
 cUmbingover—thati8,lf the western gate Is closed, they wilt 
 again resort to the eastern. Have you ever known a refusal 
 of any order for interment? I do not know any positive re- 
 fusal, but the orders were to be granted under such restraints 
 as they have cqnsidered they could not comply with. This 
 is from information from others ; I do not know positively. 
 If you had been at home would you have refused admission 
 to these individuals? I should have felt myself bound, as I 
 stand under the articles, to have refused admission to those 
 individuals. And you would have warned them to desist from 
 work upon their'peril ? I should have informed the com- 
 mittee, and obeyed their directions. ^ 
 
 Cross-examined again by Mr. Ritiera. — When did you come 
 there? The twenty-sixth of next month will be a year. 
 You had it six or seven months before this, paper was given? ■ 
 Yes, under an old agreement. Who told you to take posses- 
 sion then? There was a person in that I had putin — he was 
 a tenant under me till this time that I speak of. William 
 Hubbard had it in possession. I had articles for it two years 
 before, and Hubbard was in possession under me. Did ihe 
 committee from Green street know of that lease that you 
 have been shown ? I am not positive about that. You have 
 said that you never knew the trustees to interfere in this 
 matter" till after the difficulty — did you ever know this coni- 
 nrittee to interfere with funerals or with orders till after this 
 affair? No; I never knew them to interfere with orders. 
 As the tenant of that house, having the care of the grave 
 yard, do you feel yourself at liberty to refuse the execution 
 of an order from any monthly meeting having the right to 
 bury ? I do not feel myself at liberty to refuse any thing 
 further than instructed by the committee. Suppose 
 pose you were Instructed by the committee of eight to dis- 
 obey the orders for burial from the North meeting, from the 
 Southern, or the Western meeting — would you feel yourself 
 at liberty to refuse admission into the yard ? There must be 
 a very great change of circumstances before I could refuse 
 
33 
 
 (hem. Tou would admit those who came with orden from 
 those meetings to bury ? I would. 
 
 Have preparations been made to close up the gate prepar- 
 ed in the western part of the yar^? I believe that prepara- 
 tion is making and is partly madci;-., that is, bricks are deliver- 
 ed, which, I have no doubt, are for that purpose. Who or- 
 dered .them? I cannot tell. I had direction from the com- 
 mittee to receive them. From what person ? From Israel 
 Cope, and I believe he is the only person. The bricks are 
 there on the ground, and a time fixed when the breach is to be 
 closed— I do not know positively, but expect it<will be done 
 to-day. ' I have no doubt that the breach will be closed, and 
 ,ihat those materials are for that purpose. You believe th^t 
 ithey will continue to bury there, and that locks will be again 
 broken — do you believe that it will be done by these indi- 
 viduals ? I do not believe it will, by any of these individuals, 
 but think it will be done by somebody. How are the orders 
 received by you? It will be seen by these articles of agree- 
 ment, that Thomas Mayland is under instruction to receive all 
 orders, being on the ground where the hearse is kept. 
 
 Again re-examined by Mr. Wurts. — Did you hear these per- 
 sons say before the Mayor that they would do the same thing 
 .again? I am not positive. Do you know whether their 
 ^me^ have said that they would b^ advised to pursue the 
 same course again ?- I am not distinctly sure about it, but I 
 think the counsel said they would be advised to pursue the 
 same course in future._ From all that you have heard, do 
 you not believe that they would do the same thing? I am 
 not prepared to say that these individuals would ; but with 
 respect to their holding the burying place,' I believe the meet- 
 ing will, for the benefit of which they acted. I believe the 
 same persons for whom they acted will advise the same plan 
 for accomplishing their purpose. 
 
 Jeuemiah Willits called and affirmed on the part of the 
 prosecution. The witness read his testimony from notes, 
 
 5 
 
34 
 
 which, he said he made on First day, the next day after the 
 
 transaction. 
 
 On the morning of the 31st of the 5th mrath, I was inform- 
 ed that Edmund ShotWell had gone out to the western hurying 
 ground for the purpose of breaking down the wall and plac- 
 ing a gate. On my arrival there I found a large breach, 
 eight or ten feet wide, and within a foot of the ground, and 
 two black men at work removing the rubbish at the bottom 
 of thjB breach. Where was this breach ? The opening in 
 the wall was in the we^t side, nearly opposite the gate on the 
 east side. Q®,the outside of the wall lay a gate hung in a frame, 
 with fastenings, and all apparently fitted to place' in the 
 wall. Alongside lay some scantling, and inside of the wall' 
 sat 'Joseph Lukens and Edmund Shotwell, and on the north 
 Bide were several men at work erecting sheds, or tempora- 
 ry- buildings, among whom I recognised Charles Middleton. 
 Were the two coloured men the same that are now brought 
 up on this writ of habeas corpus ? I think they are the same. 
 
 I asked them by whose authority they were doing this — - 
 Edmund Shotwell replied, "by the authority of the proper 
 owners, the best authority that can be." I then addressed 
 the hla-ck men, to know by what authority they acted ; and^ 
 tfiey both replied, "by Edmund Shotwell's." I then de- 
 manded their names, which they both readily gave me, viz. 
 Benjamin Beard and Morris Hftpkins. Immediately on ask- 
 ing their names, Edmund Shotwell joined in, took a pick, and 
 went to pulling down the wall, and said his name was Edmund 
 ^j^^otwell. This is as far as the affirmation was given before 
 the Mayor. In shoving the bricks oiT of the wall, Edmund 
 Shotwell let them fell against my feet, saying, "Thee had 
 bettey go away, thee will get dust on thee." How many 
 were then present ? I think there were six, perhaps more. 
 I replied to Edmund, " Don't thee touch me, I am on safe 
 ground ;" this was repeated a second time, and he desisted. 
 
 By Mr. WuKTS. — From all that you have seen and heard, 
 do you not appreiiend that if they are not laid under some 
 
35 
 
 restraint, they will do other actl of d similar nature ? I have 
 not been very famili&r with the persons that were there- 
 but from what I have heard, I should suppose that repeated 
 acts of this kind were intended. 
 
 By J. R. Inoersoll. — Do you believe that these bricks 
 were purposely or intentionally thrown upon you? It was 
 my impression at the time. Was it done in a kind of taunting 
 way, showing his contempt for you, and fot your being there? 
 Yes, I thitik it was. He was not at the plabe, but came there ; 
 for I kept my position, and he came to the place and com- 
 menced workl I did not move my position from the time 
 I came till I went away. 
 
 Cross-examined by Mr. Kittera. — Did he take up these bricks 
 in his hands ? No, he took the pick and loosened them from 
 the wall. And that is what you call throwing bricks at you? 
 I did not say he threw bricks at me. How near were ytju to 
 the wall? I was very near. Did you complain to him that 
 the bricks had fallen on you? No. What did you say? I 
 can read it over again — I said only what I said before. Can't 
 you tell what it was without reading your notes? I can 
 come very near to it, but not so exactly as by reading. Was 
 it your belief that Edmumd Shotwell intended to commit 
 violence on your person ? I thought as I have tnentioned. 
 I did not think it was intended to commit violence, but in a 
 *l£ind of jeering way. Well, are you afraid now of any personal 
 harm from him? I have not felt any fear — I make it 
 a rule not to be afraid of any body. Are you apprehensive 
 of violence from any of these Friends ? O no, I am not afraid 
 of that. To what meeting do you belong? To the meeting 
 of Friends of Philadelphia, for the Northern District. When 
 j>ou were out there, did you forbid them to proceed? I had 
 no right to do so. Was every thing quiet and peaceable un- 
 til you came out there ? If pulling down the burying yard 
 wall was peaceable^ then it was peaceable. Was there loud! 
 talking, or other noise, more than if the same work had been 
 doing under proper authority? No, there was not.; Was 
 
36 
 
 there «ny body there but the workmen ? Joseph Lukens was 
 there, but he was not at work. Did you prosecate these 
 men before the Mayor? After leaving the premises, without 
 any authority to me whatever, I went and informed the regu- 
 lar committee, who had the care of this property. Not 
 knowing who the committee were, except in our own meet- 
 idg, I called on a number of individuals, to ascertain who they 
 were, and I was finaHy informed, by Peter Thompson, who 
 they were ; and I went and found such as I could, but not all 
 of them. After informing them, I considered that I, had no- 
 thing further.to dp, and went home to my business. On Se- 
 cond-day morning I was called on by one of the committee, 
 (Who was it? John Lippincott.) to go before the lawyer, 
 Horace Binney. I waited near by, at Henry Cope's house, 
 vintil wanted. I was there wifh him' near half an hour, when 
 Charles Allen, came over for ;ne, and I made my statement 
 hefpre them. How many of the committee were there? 
 Thomas Wistar was there, and a number of others; I do not 
 know that they were all members of the committee. Thoa. 
 P. Cope, Jasper Cope, Israel Cope, and Charles Allen were 
 there. How many of these belonged to the committee ? I 
 cannot tell. I was released after making my statement. At 
 half past three o'clock I was requested to go to the Mayor's 
 office. By whom were yon requested? By Mr. Wurts. 
 Were you called on with a subpoena? No, by verbal ap-' 
 pointment. Did you appear before the Mayor at any other 
 time? I did. Were you brought up by subpoena? I was 
 notified by friend Wurts — I don't know whether I was sub- 
 pqenied, but I received a note from friend Wurts. Do you 
 not know the difference between a subpoena and a note from 
 Mf. Wurts? I can't say — I don't know much about law-. 
 Have you any doubts whether that was or was not a subpoe- 
 na 7 Perhaps I may find it, (looks in his pocket-book-) Can you 
 tell whether it is a subpcena or not ? I do not know. Have 
 you never seen subpoenefs? Yes, I hare seen subpcenaa. 
 And yet you cannot tell ? No, not positively. 
 
37 
 
 Re-exOipiined by Mr. Wurtt.rr-You say that Jasper Cope was 
 at the office of Mr. Binaey ? It is a mistake ; I meant Israel 
 Cope-~it is the man who keeps a store in Market street ; a 
 large man — I made a mistake. Were you not informed by 
 me that it was necessary to appear before the Mayor,, and 
 that you would be compelled to come, if you did not come 
 voluntarily? I did think so. 
 
 EswAHD Ramrolfh affirmed on the part of the prosecu- 
 tion. 
 
 Examined by Mr. Wurls. — Are you one of the commit- 
 tee appointed for the purpose of receiving orders for in- 
 terment in this ground P I am, and appointed by one 
 Monthly Meeting only. Do you know whether orders for 
 interment have been offered to those who claimed the right 
 of interment there, and refused? I ktiow that since the 
 Monthly Meeting that formerly existgi in Green street 
 ha^^^been dissolved, or laid down, an anplication — not an 
 application, but an order for a person to inter their dead 
 was offered and refused. It was offered to the parent of 
 the deceased person, and he refused to accept it. How was 
 it offered? By going to the person. Having been inti- 
 mate with the family, and apprehending that some diffi- 
 culty might arise if, they attempted to act under an order 
 from those formerly authorized to grant orders under the 
 Monthly Meeting at Green street, which authority I appre- 
 hended had ceased by the laying, down of that meeting, I 
 went and voluntarily tendered an order, to obviate any 
 unpleasant circumstances that might occur (producer the 
 order.) It was declined, and the gate was opened— I did 
 not see it, but have heard that the gates were opened, and 
 the person Jnterred. Do you believe that future acts of 
 violence will be committed, unless, the law enforces some 
 restraint upon these individuals? If I should judge from 
 what has already taken place, and the sentiments which I 
 heard expressed be^re the Mayor, I should have no doubt 
 of it. Don't you C9nsider that it would endanger the public 
 
38 
 
 peace,' to have a repetition of these acts ? I am not so well 
 acquainted with the terms of the law, as to know exactly what 
 constitutes a breach of the peace. But if knocking down 
 walls, and breaking lockfe, would break the peace, I think 
 that would be done. Do you think that any force, or vio- 
 lence, or any disgraceful or riotous, proceedings would take 
 place? I can't say as to what will grow out of it; but I 
 think it is ' calculated to produce that effect. If I could 
 know exactly what kiqd of people would be there, or if I 
 knew that they would be members of the Society of Friends, 
 under the cover of those principles that we profess, I should 
 not think they would be guilty of any violence. You be- 
 lieve that members of the Society of Friends would not 
 resist these acts. What would be the cause? I do not 
 wish to be understood as saying, that there are not some 
 members of the Sbciety of Friends who would not be so 
 restrained; but tl^t a large part of the society would be 
 restrained from opposing. When you say that this large 
 portion of the'society would be thus restrained— can you 
 say whether you think these same individuals would also 
 abstain from the same, if attacked in their own dwellings? 
 Yes, and that this would be on account of their religious 
 principles. Do you know whether or not the trustees who 
 Jiold the deed for that ground have been in the habit of in- 
 terfering in the managehient, or whether it is given up to a 
 committee, appointed for that purpose?' I believe they 
 never have considered thehiselves authorized to have con- 
 trol over the property, in any way further than holding 
 the titles. They are trustees to hold the title, and it has 
 been usual for diiferentMonthly Meetings to appoint a com- 
 mittee to have the care of the property. Do you consider 
 that meeting as having been regularly laid down according 
 to the discipline of the society, and why have all their 
 powers ceased in "that meeting? I believe when Green 
 street Monthly Meeting <vas laid down, all powerceased 
 in that meetingj and the power of those under appoint- 
 
39 
 
 ments ceased with it. When that meeting was laid down, 
 what became of the members? The members that then 
 constituted the meeting, their right of membership was 
 transferred to the North Meeting^; with all the rights and 
 privileges which they had heretofore held. Application 
 should be made to th6 committee of the Northern District 
 Meeting, and that would be the regular order, and similar 
 measures have been in some instances resorted to. But I 
 never knew an instance where it was obstinately refused 
 until this. ' 
 
 Cross-examined by Mr. .Kittera, — To what meeting did 
 the person to whoth^the order was granted beIong.>> The 
 person had belonged to Gk-een street previous to its being 
 laid down. Is there a regular Monthly Meeting held there ? 
 No, there is a meeting held there which is called a Month- 
 ly Meeting. Is it held at the same time as it used to beP 
 I apprehend it is, I never attended it. Is i^ attended by 
 the same persons? It is not altogether by the same per- 
 sons. Are not the numbers at Green street as great as 
 they ever were f I cannot say. As far as you have any 
 knowledge ? But I hkve no knowledge of th6 fact, for I 
 never attended the meeting. Well, is there not consider-i 
 able more than a majority ? I am not able to answer. You 
 belong to the Northern District, and you can perhaps tell 
 how many male adults joined the Northern District Meeting 
 from Green street P I cannot answer correctly, but there 
 are persons who can. Were there as many as twenty ? I 
 apprehend double' that number, but I may be mistaken. 
 How many heads of families do you suppose joined the 
 meeting from Green street? I have no means of answer- 
 ing from any pai'ticular knowledge. Did you ever before 
 this instance ofi'er an order that was not called for? I 
 don't recollect that I ever' did. Didyou ever issue an or- 
 der for any who are members of the other three Monthly 
 Meetings,? We never feel ourselves palled on toido so. 
 Do you believe there would be any danger of violence, if 
 
40 
 
 the Friends of t|ie four Monthly Meetiogi would allow the 
 gate to remain as it is, and tiie members of Green street 
 be permitted to inter in the ground as formerly P I cannot 
 Say. Would there be any inconvenience or breach of the 
 peace P lam not qualified to furmacorrect opinion about it. 
 If no resistance was offered to them P I am not capable of 
 saying. Have you ever offered orders for burial in any other 
 instance than that spoken of? I know of no instance 
 where they have ever been refused,; that is, if they applied 
 in the regular order of the society. Now will it, in your 
 Opinion, endanger the peace of the neighbourhood to let 
 the gate remain, and let Green street Friends use it for the 
 purpose. of burying? I cannot tell what effect it would 
 have. You say that Green street Monthly Meeting was 
 laid down for departing from the order of the meeting? 
 Yes. 
 
 By Mr. Prio&, — How are the committee of ten appoint- 
 ed ? I apprehend they have been named by the different 
 meetings. Does each meeting appoint two, or do all the 
 meetings approve of the whole ten P Each meeting appoints 
 two — but I apprehend the whole are submitted to all the 
 meetings for approval, but I am not certain. 
 
 JudgkKinq.-^ Would this meeting feel authorized to re- 
 ject the orders coming from a committee of a regular meet- 
 ing? I don't think they would. 
 
 John Lippinoott, af&rmed on the part of the prosecu- 
 tion. 
 
 Bt Mr. Worts. — Are you one of the superintendents 
 of this grave yard ? Yes. To what meeting do you belong P 
 To the Northern District' Meeting. Do you believe or fear 
 that these individuals will commit acts of violence unless 
 there is some restraint put upon them? Yes, I do. Do 
 you fear that this will lead to a breach of the peace P Yesj 
 if resisted, it is likely it would. Do you know whether 
 the trustees have been in a habit of managing this ground ? 
 
41 
 
 It is left with the committee. I did not know who thig 
 committee were, till this breaking of locks commenced. 
 
 Cross-Examined. — Do you apprehend any violence if the 
 gate is permitted to stand as it is, and the Green street 
 people be permitted to bury their dead? I don't know 
 what might be done, by the surrounding neighbourhood. 
 Did you ever know an instance of the surrounding neighr 
 bourhood interfering with Green street Meeting ? No. 
 And do you apprehend that they will f No, if not re- 
 sisted. 
 
 Chaules Allen, affirmed on the same side. 
 
 By Mr. Wurts. — Are you one of the committee on this 
 ground ? I am, and I was appointed by the Southern Dis- 
 trict. Do you entertain any fears and apprehensions that 
 acts of violence will be committed, which will break the 
 peace P It is fully my apprehension that it will be the 
 case; that is, if any resistance should be made. By whom? 
 By the people of Green street. Do you believe that these 
 now before the court will do it ? It is my apprehension 
 that they will. Have you ever known the trustees of this 
 ground to interfere in the management of altering walls, 
 &c. P It has always been done by the committee who have 
 the management of the property, and appointed by the 
 several meetings ; I have held that office ten or fifteen 
 yeftrs, and I never knew any thing of that kind. How many 
 trustees are there altogether? Fifteen. 
 
 Crdss-Examined by Mr. Kittera. — During this ten or 
 twelve years did you ever interfere to prevent the execution 
 of an order to bury? We found no occasion to do it. 
 "Well, since the dispute at Green Street Meeting, has the 
 committee of eight had regular meetings ? Yes. Where 
 have you met? At diflFerent places. When was your last 
 meeting? Last fourth month was our regular meeting. 
 A meeting was held since, at the house of Henry Cope. 
 Will you tell me whether at that meeting last fourth month, 
 
 6 
 
42 
 
 the committee of Green street were present, or were noti- 
 fied ? They were not present, Did you give them notice 
 of your meeting at Henry Cope's ? We do not consider 
 them as belonging to our committee. Was this act of 
 refusing to recognise them, your own act, or the act of the 
 several Monthly Meetings ? We had information regularly 
 from the Northern District, that Green street Meeting was 
 laid down, and of course their representation ceased in our 
 committee. We were informed by the representatives of 
 the Northern District that Green street Meeting was laid 
 down and attached to them. You saw nothing in the shape of 
 a minute ? No, the meeting had been informed of the regu- 
 lar laying down of that meeting, and the attaching it to 
 the Northern District. Have the Southern District de- 
 clared that they shall not bury in this ground ? No, they 
 have not deemed it necessary; the Quarterly Meeting hav- 
 ing laid it down. They have passed no order then, by 
 which you are instructed to refuse them the right of bury- 
 ing? No order passed in that Meeting, that I know of; 
 nor do I deem it necessary. You did it then of your own 
 head ? It was not from our own heads. Was Green street 
 Meeting laid down by its own consent ? I am not quali- 
 fied to answer. From what appears, they did not consent ? 
 •But by our discipline, it seems they can be laid down 
 without their consent, according to my understanding of it. 
 
 Richard Parker, affirmed. 
 
 Do you believe that any of these individuals would com- 
 mit a like act of violence upon that ground, unless they 
 are laid under some restraint? I know nothing about it 
 at all. What do you believe from what you have heard? 
 I suppose they would. Have you heard any thing from 
 any of them ? I know nothing at all about it. 
 
 Joseph Parker affirmed, on the part of the prosecution. 
 
 Question by Mr. TVurts.—Ua.ve you heard any of these 
 individuals say they would do this act again, if they were 
 discharsred ? 
 
43 
 
 No J I heard one of them say, if he were directed, he was 
 prepared to do the same thing again : that is, if the same 
 authority were given him. 
 Who was it said this ? 
 
 Joseph Lukens; he said if the same authority were given 
 him, he would feel himself justified in acting as he had 
 done. 
 
 Cross-examined by Mr. Kittera. — Will you tell us whe- 
 ther Green street Meeting is in the full exercise of its 
 rights ? 
 
 I consider it so— J consider the laying it down, an arro- 
 gant assumption of power on the part of the Quarterly 
 Meeting, and that there is no discipline for it at all. 
 
 Question by Mr. Wurts. — Do you know any instance 
 within your experience or information from others, either 
 in England or America, in which a Quarterly Meeting ever 
 laid down a Monthly Meeting without its consent? 
 
 In no instance whatever ; I have no knowledge of what 
 has been dune abroad, except- from history. I have read 
 an account of a case that occurred in England, where con- 
 siderable efforts were made by the Quarterly and Yearly 
 Meeting, to lay down a Monthly Meeting,* but they could 
 not do it, because the Monthly Meeting would not consent. 
 The Quarterly Meeting had committees for several years 
 on the subject, arid the Yearly Meeting of London twice 
 appointed committees to endeavour to effect it. 
 
 Question by Mr. Kittera. — How does Green street 
 Monthly Meeting stand, as it regards members, when com- 
 pared with those who left it, or Tjecame attached to the 
 Northern District Meeting ? 
 
 I recollect when the Quarterly Meeting professed to 
 have laid dovfn Green street Meeting, fifteen persons came 
 forward to give in their allegia^nce (if I maybe allowed the 
 expression) to the Quarterly Meeting. They signed a pa- 
 
 * Monthly Meeting at Coterhill-head, in Hertfordshire: see John 
 Griffiths' Journal, p. 313, Philad. Edition, published in 1780. 
 
44 
 
 per, claiming the protection of the Quarterly' Meeting, which 
 was presented at the adjournment of that meeting. 
 
 Mr. Kittera. — What number of members, belonged to 
 that meeting? 
 
 I do not know. 
 
 Ma. Kittera. — Was there four or five hundred f 
 
 I cannot tell, the fifteen were a mere trifle, hardly missed 
 from the meeting. 
 
 Mr. KiTTEHA.-Can you tell how the laying down of Green 
 street Meeting by the Philadelphia Quarter, was considered 
 and treated by the neighbouring Quarters ? Was it con- 
 sidered a legal act P 
 
 A few individuals of the orthodox party in the different 
 Monthly Meetings, haveleft their meetings, and four, five, 
 or six of them (I don't speak precisely as to numbers) have 
 got together in wheelwright shops, or any other convenient 
 places, called themselves the Monthly Meeting, and have, 
 undertaken to disown all the other members — this kind of 
 Monthly and Quarterly Meetings deny the authority of 
 Green street, but the gr^at body of the society, acknow- 
 ledge their rights. 
 
 Green street Meeting determined to make application 
 to be received by Abington Quarterly Meeting, and a minute 
 was sent to Philadelphia Quarter, informing them that they 
 had concluded to dissolve their connexion with, that 
 Quarter, and to become a component part of Abington. 
 
 Question by Mr. Price,- — Did Baltimore Yearly Meeting 
 recognise the proceedings which have taken place here in 
 relation to the separation in the society? 
 
 An epistle was sentfrom the new Yearly Meeting to Bal- 
 timore, which was read in the Yearly Meeting there, and 
 replied to. When the business of that meeting was nearly 
 gone through, an effort was made to call this subject up 
 again in order to have the answer rejected, the reconsider- 
 ation was agreed to, and there were but ten or eleven 
 persons in the whole meeting, in favour of rejecting it. I 
 was present and carefully counted them. 
 
4a 
 
 Question by Judge ^ing, — When was Baltimore Yearly 
 Meeting held ? 
 
 It was held in October. 
 
 Question by Mr. KiHera. — How many persons attended 
 it? 
 
 There were a great number, present ; the house is large 
 apd was pretty w^ll filled, there were perhaps one thousand 
 persons. 
 
 By Mr. Price. — You have been to New York lately, 
 what was done there ? 
 
 I attended New Yppk Yearly Meeting, there was a sepa- 
 ration in that m,eeting, about two hundred and fifty per- 
 sons, including boys and sjtrangers, left the meeting in a 
 very abrupt and disorderly manner; but the meeting con- 
 tinued in session, and. organis^ed itself; and an epistle was 
 received from the New Yearly Meeting (as the orthodox 
 call it) and; an answer prepared. 
 
 I counted the nienvbprs of that particular Yearly M.eet- 
 ing that reraainedi and there were more than seven hun- 
 dred. 
 
 By Judge King. — How many persons remained after 
 the separation, including those from other Yearly Meet- 
 ings? 
 
 In consequence of the length of that sitting, I suppose 
 about one hundred members of the meeting had retired 
 previous to the count being taken, and that there were 
 about two hundred strangers, these added to the seven 
 hundred, would ipake the whole number that remained af 
 ter the separation, about one thous/ind persons. 
 
 By Mr. Wurts. — You have said that fifteen gave their 
 consent to the laying down of Green street Meeting, or 
 held allegiance to the Quarterly Meeting, but do you 
 mean to say that no more than fifteen left that meeting ? 
 
 I believe that to be the case ; as far as my recollection 
 goes I know of no others. I may be in an error, but I never 
 have believed there were any more. 
 
46 
 
 Mr. Wurts. — Has Green street Meeting had an increase 
 of members from Frankford ? 
 
 Frankford Monthly Meeting has been regularly laid 
 down by its Quarterly Meeting, with its own consent; and 
 the members attached to Green street Monthly Meeting; 
 but I had no reference to this increase when I spoke of the 
 fifteen who had left Green street not being missed. I did 
 not then recollect the circumstance. 
 
 Mr. Wurts. — Now have you no knowledge of a Monthly 
 Meeting being laid down in Baltimore? 
 
 I have heard of a Monthly Meeting having been laid down 
 there, but that was not by the Quarterly Meeting, but by 
 the Yearly Meeting. I did not recollect this circumstance 
 before — it is several years since it occurred. 
 
 Mr. Wurts. — I wished to refresh your memory. 
 
 Witness. — I am obliged by thy doing so. 
 
 Question by Mr. Ingersolt. — You have mentioned the 
 fact of Green street Meeting connecting itself with Abing- 
 ton Quarter; did yoii ever know of a Monthly Meeting 
 heretofore withdrawing itself, without the consent of its 
 Quarter, and attaching itself to another quarter ? 
 
 No, I have never known such an instance, nor have I 
 ever known of such provocation being given. 
 
 Mr. WuRTs.^If the Green street Meeting considered 
 itself aggrieved, had they not a regular course of appeal to 
 the superior meetings to obtain a revision and reversal P 
 
 The subordination by our discipline is from Quarterly to 
 Yearly Meetings, but it says expressly, that no preparative 
 or other meeting for business or worship, shall be s.et up or 
 laid down,* without the consent of the Monthly Meeting, and 
 when there approved, the consent of the Quarter is also 
 obtained ; if therefore, the Monthly Meeting is a meeting 
 for business, it could not be laid down without its consent. 
 
 Question by Judge King. — Was Green street Meeting 
 received by Abington Quarter ? 
 
 • " 'Till application to the Monthly Meeting is first made, and when 
 there approved," &c. — Discipline. 
 
47 
 
 Yes; it was received with the consent of nineteen-twen- 
 tieths of that meeting. 
 
 By Mr. Kittera.— tIs Green street Meeting recognised 
 at this time by a majority of the Quarters in this Yearly 
 Meeting ? 
 
 I consider it as recognised by all the Quarters except 
 Philadelphia; there may, however, be some doubts with 
 respect to Burlington and Haddonfield Quarters ; they are, 
 I believe, nearly equally divided ; there were representa- 
 tives from all the Quarterly Meetings except Philadelphia, 
 at the Yearly M^gting held the second second day in the 
 fourth month. 
 
 - Mr. Kittera.— Is it recognised by a majority of the 
 Friends in this Yearly Meeting? 
 
 I suppose it is recognised by at least four-fifths of them, 
 taking the body of society together. In the Southern Quar- 
 terly Meeting the orthodox could not raise enough to make 
 a Monthly Meeting. I thitjk they have, but three men in 
 the whole of that Quarter. 
 
 I have known an instance in Philadelphia Quarter, where 
 nine individuals have withdrawn, and set up what they 
 call a Monthly Meeting, and have gone to work to disown 
 the whole body of the regular Monthly Meeting ; I don't 
 know that they have got through with it yet, for it is a pretty 
 heavy job. 
 
 What meeting is this ? 
 
 It is Radnor Monthly Meeting. 
 
 Is it a large meeting.*' 
 
 Yes, it is composed of four preparative meetings. 
 
 Green street Meeting has also been recognised by New 
 York Monthly Meeting, it has dealt with offenders on be- 
 half of that meeting, and on its report New York Monthly 
 Meeting has issued a testimony of disownment. 
 
 By Mr. Whrts. — Did not that act lead to the division 
 in New York Yearly Meeting? 
 
48 
 
 No ; a person from England rose in that yearly meeting, 
 and asserted that there were a number of persons present 
 who were not mettibers of society, and had no right to a 
 seat there; but the mteeting determined that all who were 
 present were entitled to their seats ; and those who were 
 not willing to submit to this decision,' left the meeting in 
 the disorderly manner I have mentioned. 
 
 Mr. Wurts. — You have told us about Baltimore and 
 New York, how is it in Ohio and Indiana? 
 
 I suppose they are opposed to what has been dOne here ; 
 they have issued what they call a testimony and epistle Of 
 advice, but it is doubtful whether it is the act of the meet- 
 ing; the orthodox have a way of doing as they please, if 
 they have the clerk with theln. 
 
 How is it with Virginia and North Carolina ? 
 
 I suppose they have done the same, but of this I know 
 nothing, except from report, having never seen any docu- 
 ment issued by them ; Virginia Yearly Meeting is very 
 small, not larger than a monthly meeting in this part of the 
 country. 
 
 Mr. Wurts. — Are there two Yearly Meetings in Phila- 
 delphia P 
 
 It is a matter of opinion — the orthodox party claim to 
 be the old Yearly Meeting, the others say they are the old 
 Yearly Meeting re-organized. 
 
 Mr. Wurts. — Then there are two things that are called 
 Yearly Meetings ? 
 
 Yes. 
 
 Is there more than one that is called a Quarterly Meet- 
 ing? 
 * There has never been any more than one held. 
 
 By Judse King. — Have you all who are members a right 
 to sit in your Monthly and Quarterly Meetings .^ 
 
 Yes. 
 
 And have you a right to vote in them ? 
 
 We have a voice in those meetings, the point of decision 
 
49 
 
 with us is a general unity, which must necessarily constitute 
 a^arge Qiajority; the voice of the minority can never be 
 the unity of the meeting — but of latter time, the orthodox 
 party, if they happen to have the clerk on thefr own side, 
 will say it is the solid judgment of the meeting—the weighty 
 pari oi the meeting is united with it; and the clerk wiH 
 make his minute accordingly, without any regard to tlje 
 general voice of the meeting ! 
 
 At one o'.clock, the. Judge adjburned the hearing un- 
 til Monday the 16tli, at ten o'clock, A. M., having 
 much pressing business demanding his attention during 
 the week, in the Court of Quarter Sessions. The Judge 
 directed the Prothonotary to taie the verbal recogni»ances 
 of the prisoners <o a/i/jear before him at the time adjourned 
 to, saying, he supposed they would have no objection to 
 entering into such recognisances. There being no objec- 
 tion,, they undertook, accordingly, to appear, without any 
 tljing more. i# - 
 
 j^Monday^ Jane 16, at ten o'clockj the parties again ap- 
 petred bwore Judge King. 
 
 Timothy Paxson, affirmed on behalf of the prosecution, 
 Examined by Mr. PFurfs.-^Uovr was thisgraveyard pur- 
 chased ? It vyas purchased out of the funds of the three 
 Monthly Meeungs of Philadelphia, viz. Arch street. Pine 
 street, and'Key's alley Meetings. Out of what moneys was 
 the lot purchased? Out of the proceeds of property held 
 by the three Monthly Meetings which I have named. Out 
 of what moneys was the wall erected ? Out qf the same 
 fund, the whole of it. Do you know whether the Green 
 street Meeting contributed any thing towards it ? There 
 was no individual contributed a cent — every cent f^as paid 
 out of that fund. I believe there was a contribution 
 some years afterwards, by the several Monthly Meet- 
 ings, but! cannot be certain as to the amount. The 
 cash which had been divided, was afterwards, a part of it, 
 refunded by the five Monthly Meetings, for the purpose of 
 
 7 
 
DO 
 
 curbing; that is, I suppose it was the same fund. What 
 property was sold to raise this fund ? There were several 
 lots upon the south-eastern public square, amounting to a 
 considerable sum, a lot of meadow ground, a lot on Schuyl- 
 kill, some moneys that were held (bequests probably) by the 
 meetings of Philadelphia; and there- was a'balance of up- 
 wards of six thousand — I believe six thousand six hundred 
 dollars, out of the sale of the meeting-house lot, at the corner 
 of Market and Second street. Did all this belong to the 
 then Monthly Meetings? Yes. 
 
 Cross-examined by Mr. Kitlera. — Was this grave yard 
 purchased before Green street and the Western District 
 were set up, or after .^ After. I think it was purchased 
 in 1817. It must be after, of course. Out of what meet- 
 ingSf-v^ere Green street Meeting and the Western District 
 established ? Ifhe Western was'established out of Phila- 
 delphia, and Green street out of the Northern District 
 Monthly Meeting. State wh^her the property, part of the 
 proceeds of which has been tlius applied, was held in tru|t 
 for any particular purpose ? 'I can only state my general 
 understanding, that.it was held originally for the benefit of 
 the Monthly Meeting of Philadelphia, and,, subsequently, 
 for the three. When the trust was renewed, I suppose it 
 was in trust for the three Monthly Meetings. Did you 
 render an account to the five Monthly Meetings? I did, 
 for the moneys received by me as treasurer, having the 
 disposal of-«noneys, receipts, and expenditures of the whole 
 sum, including the costs i)f this grave yard» Do the five 
 Monthly Meetings occupy the same district that tlie,three 
 did?" In point of loCjality, I presume they do; I have no 
 recollection of any change having been made since I can 
 remember, which is about fprty yearS. I believe they are 
 precisely the same. There have been some small altera- 
 tions in the interior ofthe city. Was Green street in the 
 habit of using this grave yard as a place of burial ? Yes, in 
 common with others. , 
 
 Reexamined by Mr. Wurts. — Can you inform us out of 
 
51 
 
 what fund the lot on which the Green street house stands 
 was purchased and the house built ? The lot was purchased 
 and the house built out of the fdlid arising from the sale of 
 'the meeting-house lot, at the corner of Market and Second 
 street, as I have always understood ; I eannotspeak posi- 
 tively. 
 
 Bk Mr. KiTTEHA. — Was that property at the corner of 
 Market and Second, also held in l^st ? I presume the 
 whole was; I never saw the deeds. ♦;» 
 
 By Mr. Wurts. — Did it belong to the society'of Friends, 
 when there was but one Monthly Meeting? {t did, or 
 thatris a general impression. 
 
 By Mk. Kittera. — Can you state the value of the pro- 
 perty now within the District pf the fivB Monthly Meet- 
 ings ? This burying ground cost something like thirty-four 
 thousand dollars. The lot in the Northern District cost 
 about fourteen thousand dollars, and of that in the southern 
 part I never heard any ^Si^mate, perhaps two or three 
 thousand. What is Green street lot worth ? I do not kn.pw. 
 What would you suppose the whole property would .be 
 valufd'at? I cannot say. Is it wurth.half a million ? O 
 no, I think not. 
 
 Jkremiah Bo^vsek, a coloured man, affirmed on the p^rt 
 of the prosecution. , , - "" . 
 
 ' Have yo<f had any cpnvers^tion with the individual^ 
 who wereljrought here by a wi;it bf.habeas corpus ? 1 have 
 with one of the men; he said he had been employed there 
 by Shotwell. 1 was going towards home, and he overtook 
 me, and as he passed me, he mentioned something about the 
 orthodox, and what they had to say in regard to taking 
 down the wall. I asked him if he waSvin .prison, and he 
 said he was. I asked him how he lik^d it; he said not at 
 ■all. I asked him if he would like to go again, and he 
 said no. I told him the wall was put up again. Me said, 
 yes; but wait tiij the trial is ovpr, and we will take itdqjtvn 
 again; he said he was in the business, and lie would see it 
 out. 
 
52 
 
 Cross'-examine(jl. — When was this? Last fifth day. 
 Who did you tell it to? Nobody but my wife; but 
 George Elkinton heard it.Und asked me aliotut it, and I told 
 him exactly. Did "Jeremiah Willits come to see you about 
 it? Yes, Jeremiah Willits came last seventh day. And 
 what did he say ? He asked me if I heard such word^ 
 mentioned, and I told him yes, I had, and he got in his 
 chair directly, and \#int off. By whom were you subpoe- 
 naed ? By Mr. Wui-ts. Are you a Friend ? Yes. To 
 what meeting do you belong? I belonged to Green street 
 before they put that down — I now gO to the North Meet- 
 ing. [Here the witness was whispered toby a person stand- 
 ing by, who was severely rebuked for it by the counsel for 
 the prisoners.] Witness then said, I am not a member of the 
 society. 
 
 Here Mr. Wurts read from a lease, said to have been exe- 
 cuted by seven of the committee of ten to Samuel Stokes; 
 after which the prosecution rented. 
 
 Eli K. Price, Esquife, after a short conference with" 
 his colleagues, opened' the case in behalf of the pl-isoners. 
 
 I am happy to find from the course which this casie 
 has taken, that our inquiries will be much more limited 
 than was expected, and that we shall not be carried into 
 the general causes of the controversy that subsist between^ 
 the two parties. I had anticipated, when t came into 
 court, a course on the part of the prosecution that would 
 drive the party of the defendants into a general inquiry, 
 to justify themselves in their proceedings throughout this 
 dissention in the society. ' ' ,."• 
 
 I perceive now, that this is quite unnecessary, from 
 the case that has been exhibited oh the part of the pro- 
 secution. They have stopped at a point which leaves it 
 only necessary for us' to read to you the title deed under 
 which Green street Monthly Meeting holds this property 
 jointly with the other four Monthly Meetings, and to 
 show you that these individuals now brought before you 
 did the act complained of, not of their own individual 
 
33 
 
 accord, but for the owners, acting under the express 
 authority of Green street Mohtlily Meeting, which is 
 interested to thf; extent of onerfifth in the property, and 
 Jflso under the authority of five of the trustees who hold 
 the legal title to the property. 
 
 We shall thuS show, that the object for which these 
 persons are now put upon their defence was a lawful 
 object. That it was merely the erection of a gate in 
 the exercise of the clear rights of ownership; and that 
 ' both in its design and in its means of execution it was in 
 'evfcry respect peaceable, and for the express purpose of 
 avoiding collisions, and preventing a breach of that peace 
 which thfey are accused of having violated. 
 
 Under their title tJeed Grreen street Monthly Meeting 
 had been in the constant possession of this^property; and 
 they were attempted to be prevented from the exercise 
 of the right of burial there,* under this tit^ deed, by a 
 course of policy now unnecessary,- as I dm happy to 
 #nd, to inquire into-. But from the gates being locked 
 against tbem, by a party assuming to decide the right, 
 and to execute their own decision, they were compelled 
 to draw the locks from thesp gates, ixi order to bury their 
 dead in the joint property. It was to prevent the recur- 
 rence of acts -that might have led, hythe resistance ofFer- 
 ecj^there, to unpleasant consequences, and, to 3- breach of 
 the peace, by those less restrained by the principles of 
 the society than are most of those who are of the party of 
 the defendants, by whom thB gate in question was erected. 
 
 They had done all in their power to avoid collision. 
 A lock was put upon the eastern gate by them, and 
 two keys provided, one of which was offered to the op- 
 posite party, and the other was kept by theBiselves, for 
 ■the purpose of uninterrupted burial. vBut we have seen 
 that this lock was immediately takenyoff, and the inter- 
 ruptionsto bijrial carried to a still greater extent than 
 iweviously; .for now, between the digging of the grave 
 
54 
 
 and the burial, the gates were locked, and the entrance 
 of the funeral processions ipterrupted. It therefore toe- 
 came necessary for the sake of the quiet and peaceable 
 interment of the dead, to erect the gate which has caused 
 the present inquiry, and it is so expressed, in the minute 
 of authority from Green street Monthly Meeting. It has 
 already appeared that the execution of that object was 
 done vvith a friendly dispositfon towards all who ap- 
 proached, and that the defendants were irt the exercise of 
 the rightful authority of the dwners of the property^ 
 Further testimony will be produced to the same effect 
 on the part of the defendants. The first'paper that I 
 shall read to you is the deed vesting this property in the 
 five Monthly Meetings of Philadelphia, jointly, datedr* 
 2nd month, 1818, shortly after a general division of the 
 other property of the society had taken place, between 
 the five Monthly Meetings. .-The property had been 
 previously held by a number of individiials, so that the 
 three first parties to this deed are several individuals, 
 who held property^ for the different meetings, who con- 
 veyed it to fifteen persons, three appointed by each 
 meeting, inclusive of Green street Monthly Meeting, for" 
 the use and benefit of the five Monthly Meetings jointly. 
 The deed was then read in evidence, by Mr. Price, 
 reciting that the said fifteen trustees had been ^^'i 
 
 " Nominated and appointed as hereinafter mentioned by thejivi 
 MonMy Meetings of the Religious Society of Friends of Phila- 
 delphia, commonly called Quakers, including that at Green 
 itreetin the Northern Liberties .aforesaid, as trustees to take a 
 c6nveyance of and to hold the several lots of ground, tenements, 
 and hereditaments hereinafter described,for and on behalf and for 
 the use of the said five Monthly Meetings of Friends of Phila- 
 delphia, commonly called Quakers, including that at Green street 
 in the Northern Liberties aforesaid." 
 
 The said deed jthen describes the several pieces of pro- 
 perty to be conveyed by the parties of the first, second, 
 
55 
 
 and third parts, to the said trustees, and then follows an 
 acknowledgment from the said three first parlies, 
 
 " That the several sums of money in the several deeds of con- 
 veyance herein above recited, mentioned as the consideration 
 for the respective purchases of tbe several lots of ground, land, 
 §cc. have been well and truly paid by the several Monthly 
 Meetings of the Religious Society of Friends in Philadelphia, 
 commonly called Quakers, out of the joint /unds bdonging toihe 
 tame Monthly 'Meetings aforesaid." 
 
 And that they, the trustees, have no right, estate, or 
 interest in the said lots, &c.' And that they stand seised 
 
 " as trustees for and »n behalf and for tbe use and benefit of the 
 five several Monthly Meetings of the Religious Society of 
 Friends, commonly called Qua^kers, in Philadelphia, including 
 that at Green street aforesaid,'in order that they the said trustees 
 and the survivers and surviver, of these and their and his heirs, 
 might lawfully be invested with the legal estate of inheritance 
 of and in the same, and thereby he enabled to maintain the posses- 
 »ion thereof fox and on behalf and for the use and benefit of the 
 five several Monthly Meetings of the Religious Society of 
 Friends, commonly called Quakers, in Philadelphia, including 
 that at Grre^ street aforesaid, and to actand perform all necessary 
 matters and things relative thereto, and to execute suphdeed or 
 deeds of conveyance therebf, for such estate and estates, use and' 
 uses, and to such person or persons, as the^oe Monthly Meetings 
 of the Religious Society .of Friends, commonly called Quakers, 
 aforesaid, may and are directed, or might direct or appoint. And 
 whereas the said Jive^Monthly Meetings of the Religious Society 
 of Friends, commonly called Quakers, in Philadelphia, including 
 that held at Green street aforesaid,._ at their several Monthly 
 Meetings held in Philadelphia aforesaid, within the last year, 
 did agree that certain lot| in the deed, described, including the 
 graveyard in question, should- be held as joint property by and 
 between the- "said five M,onthly Meetings, and should be con- 
 veyed to fifteep Friends as trustees, three of whom to be appoint- 
 ed by each of the five Monthly Meetings of Friends, commonly 
 called Quakers, in Philadelphia, including (hat held at Gteen 
 street afojresaid, to be held by such trustees and their heirs, for 
 and on behalf andfor the use and benefit of the five Monthly 
 Meetings of Friends, commonly called Quakers, in Philadelphia, 
 including that held at Green street aforesaid. And whereas, pur- 
 
56 
 
 snant to the agreement aforesaid^ the Monthly Meetings .of 
 Friends of Phjiladelp^ia aforeisiii^," apppyited each three per- 
 sons in the deed named, ' -?• - '. ' 
 " As trustees to talte a conveyance' of, and toAave ahd to hold 
 the' said several lots of ground , ,'&c. for aiid on behalf and fof the 
 us,e and benefit of the five Monthly Meetings of the Religious 
 Society' of Friends, commonly called Quakers, in Philadelphiaj 
 aforesaid, inducing that held at Green street aforesaid, for ever, as 
 by the minutes of the five several Monthly Meetings of Friends 
 aforesaid, reference being thereunto ha(!,wiri mOre fiilly appear.'' 
 TBen the Indenture witnesseth, that the parties of the first, 
 second, and third part; in consideration of one dollar, convey "Jft 
 the said fifteen trustees, and the survivers or surviver of tbese| 
 and the heirs or assigns of such surviver for ever, the Several 
 lots of ground, including that in question, to have and to 
 HOLD the same to the spiid trustees and the survivers and sur- 
 viyer of them, afid the heirs and assigns of such surviver, to and 
 for the only proper use, benefit, and behoof of the said trustees, 
 and the survivers and surviver of them and the heirs and assigns, 
 of such survivers for ever. The grantors then covenant against 
 incumbrances sufFeredr by themselves, and to. execute further 
 conveyances when reasonably required. 
 
 Joseph Warner affirmed. Are you the cl&rk of 
 Green street Monthly Meeting?- I am. — Is this (show- 
 ing witness the paper,) a correct extract from the minutes 
 of that Monthly Meeting ? It is. 
 
 Mr,, Price then read the extract from the minutes re- 
 ferred to by the witness as follows: 
 
 ,At a Monthly Meeting of Friends, held at Green street, Phila- 
 delphia, the 22nd of the 5th month, 1828: 
 
 Information was received from the committee appointed to 
 grant orders for interments, that opposition had been made in 
 several instances lately, to the exercise of our right of burying 
 in one of thfe grounds held as joint property of the five Monthly 
 Meetings. And the subject claimiiig the attentipn of the meet- 
 ing, it was concluded to appoint a comrriittee to ask such aid of 
 the trustees as the necessity of the case may require, and who are 
 authorized to carry into effect, under their direction, such mea- 
 sures' as may be deemed needful to secure to us the quiet and 
 peaceable exercise of our rights, as a Monthly Meeting. '^6 
 which service the following friends were apjjointed, viz. Samuel 
 
57 
 
 Williams, Joseph Warner, JoEeph Townsend, Edinund Shot- 
 well, Samuel Smith, David Ellis, Joseph Lukens, Jesse W. 
 Newport, and William H. Ellis. 
 
 Extracted from the minutes. 
 
 JOSEPH WARNER, aerk. 
 The request made by two of the committee appointed 
 by Green street Monthly Meeting for the aid of the trus- 
 tees, was then read as follows: 
 
 In virtue of which appointment,we the said committee respect- 
 fully request, on behalf of the said Monthly Meeting of Friends 
 held at Green street, that Gabriel Middleton, James Martin, 
 Benjamin Tucker.William Yardley, and William Abbott, or any 
 of them, trustees of tlfls said joint property, held at Green street 
 aforesaid,will, by putting, or causing to be put, a gate in the wall 
 on the west side of the burial ground on Cherry street, held as 
 before described, and by erecting or causing to be erected on the 
 premises, a suitable house for a tenement, or by such other mea- ' 
 sures as the said trustees may deem preferable, secure to the 
 Monthly Meeting of Friends held at Green street aforesaid, an 
 uninterrupted ingress into and regress out of the said burial ground 
 on Cherry street, and for the purpose of interring the dead^ as 
 by the deed of trust for the said joint property is enjoined. 
 Signed on behalf of the committee. 
 
 JOSEPH LUKENS. 
 JOSEPH TOWNSEND. 
 Philadelphia, 5th mo. 23d, 182S. 
 
 The concurrence of five trustees was read in evidence 
 as follows: 
 
 We concur in the request made by the committee named in 
 the minute from the Monthly Meeting of Friends of Green street, 
 for erecting a gate in the wall of the burial ground on Cherry 
 street, and if necessary to erect a house thereon for a tenant; or to 
 take any other measures that may secure to that Meeting the 
 right of interment, in conformity with the deed of trust re- 
 cognising a common right with the other Monthly Meetings of 
 Philadelphia; it being understood that the Friends of all the 
 other five meetings shall enjoy the privilege of entrance equally 
 
 with Friends of Green street. 
 
 WILLIAM YARDLEY., ,, 
 
 BENJAMIN TUCKER. 
 
 GABRIEL MIDDLETON. 
 
 WILLIAM ABBOTT. 
 5th month 23d, 1828. JAMES MARTIN. 
 
58 
 
 Joseph Warmer, affirmed for the prisoners- 
 
 Br Mr. Price. — Are you the clerk of Green street 
 Monthly Meeting ? I am. Is that a correct extract from 
 the minutes of that meeting? (showing him a paper.) Yes, 
 it is. 
 
 Joseph Townsend, affirmed on the part of the prison- 
 ers. 
 
 By Mr. Price. — Please to state what took place, un- 
 der the authority which I have just read. Joseph Lukens 
 and myself went out to the yard, for the purpose of erect- 
 ing the gate. We went into the yard, — the gate was 
 open. You went through an open gate ? Yes. When we 
 got to the wall, where we intended to have the gate 
 erected, Edmund Shotwell and "his two coloured men 
 were there, preparing to make the hole through the wall 
 for the gate. I saw Samuel Stokes' wife there, and ob- 
 served to her, that there was some grass there that would 
 be in the way, and if she could furnish me with a scythe, 
 I would have it cut, and put into a heap, that it might 
 not be trampled Upon. She took a good deal of pains to 
 procure one, and after awhile eflfected it. I took it, and 
 furnished one of the men with it, in order to cut the grass. 
 I continued there for some time, until there was a pretty 
 large opening in the wall. While I was there, and after 
 I had procured the scythe, Joseph Lukens and myself 
 were looking on, they commenced making the hole from 
 the inside. And after they had made an opening through, 
 I went with Edmund Shotwell,and assisted in plumbing 
 the wall, where the gate was to be placed. I then left, 
 and did not see any thing further, but came to town. Was 
 every thing quiet then? Perfectly so; there was nobody 
 there but the workmen. 
 
 Bt Mr. Kittera.' — Will you state who were appointed 
 on the committee of ten, from Green street Meeting? 
 Joseph Lukens and myself. Did you never meet this 
 oommittee of ten? Yes. When first, and how often ? I 
 
59 
 
 do not recollect th« time when we first met. I wag put 
 on that appointment soon after the division of the proper- 
 ty: I was on the first committee. And have you con- 
 tinued ever since? Yes. And have you exercised your 
 rights as a committee man over that burying ground ? 
 Yes, I have all along until the present time. As * tb- 
 presentative of that meeting,! have attended to the ground, 
 and after the wall was up, it wanted a great deal of la- 
 bour — it wanted regulating, and I attended with others; 
 we had considerable work done, and a great deal of street 
 dirt put upon it. I have spent a great many days out 
 there. And you cftntinued this attention to the property 
 up to what period of time? I do not exactly know, but 
 it was about the time the difficulties took place. And 
 after the difficulties took place, we were rejected by tho 
 committee. We undertook to meet as we had before 
 done. Once in two months, the committee held a meet- 
 ing at Arch street. We were not notified, but we knew 
 the time, and attended; the committee that were then 
 there,~laid, they would not recognise us, for we had 
 nothing to do in that body. They would not take our 
 names down, but we staid till the meeting was over, and 
 we never met them after that. Did you get notice at all ? 
 No, not that time. We usually got notices through John 
 Chapman, who is employed for that purpose. 
 
 Be good enough to state, while you were a member of 
 that committee, and acted with them, whether they ever 
 interfered to prevent the interment of any body? They 
 never did. Can you state, who are the committee of Green 
 street Meeting, to grant orders of interment? I do not 
 know tjiat I can recollect all, I can recollect some of 
 ^hem. How many are there? There are seven or eight. 
 Is Joseph Lukens one of that committee? He is one of 
 the committee of ten. Do you not know, that Joseph 
 was appointed by that committee of ten for some special 
 purpose ? 1 think he was on a special committee. We 
 
60 
 
 were in the practice of appointing one, to -have the more 
 particular care. And was he a good deal about the grave 
 yard? He was. Did he do a good deal of work there? 
 Yes, ipore than all the others put together ; he planted a 
 number pfjrsesj^ani was there a great deal. What else 
 \vashe employed about? I don't know, only that he was 
 there in preparing and regulating the ground, for it had 
 to be filled up. I think there were 1800 loads of earth 
 hauled on to it; and he had to be there to take an acco^lnt 
 of it, and fill the gravel walk up. 
 
 JcDGE King. — When was this meeting laid down? In 
 Sth month, 1827, the asserted laying down took place. 
 
 By Mr. Price. — Had you any notice of the execution 
 of this lease, by some of the'committee of ten, that has 
 been read? No, we had no notice of it at all. 
 
 , Cross-examined by Mr. Wurts. — You say you en- 
 tered through an open gate — what gate was il? It was 
 the gate that leads to the dwelling house — a small gate. 
 Is that the gate into which burials enter? It is not. 
 You say you know nothing of this lease? Yes. Did the 
 other menibers of J;hat committee know of your inten- 
 tion to break through the wall? I don't know that they 
 did. Was there a,n application made to any of the trus- 
 tees except those who, signed the paper that has been 
 read? No. When was the time that you met the com- 
 mittee in Arch street the last time? It was more than 
 six months ago, I cannot tell exactly, for I made no 
 memorandum of it at the time. 'Who had the care and 
 charge of this ground? I believe that Chapman had then, 
 but I am not certain: he had charge of serving notices at 
 the time of meeting, but we got none. 
 
 By J. R. Ingersoll. — Did you ever know any dif- 
 ficulties till Green street Meeting was laid down? Green 
 street Meeting is not laid down. Well, until that act was 
 done, which you say was not laying it down? No.^ I 
 never knew an instance of the kind. Was there any 
 question ever raised till the alleged laying down took 
 
61 
 
 place? No, there was no interference of the committee 
 or trustees until that time; and then by the committee of 
 ten, and not by the trustees. When did this circum- 
 stance take place? I don't recollect, but I think it was 
 after Green street Meeting had resolved to unite with 
 Abington Quarter. We ask whether it had taken 
 place at the time you attempted to meet with the com- 
 mittee at Arch street? I do not know when it was, 
 but think it was after I met the committee. Were you 
 not disowned at that time? No, I have not beeft dis- 
 owned. You were aware that proceedings had taken 
 place purporting to disown you? Yes. Was Joseph 
 Lukens included in those proceedings purporting to 
 <lisown? He and others were in the same situation. 
 Has Green street Meeting united with itself a number of 
 persons from Frankford meeting? It has. 
 
 Re-examined by Mr. Kittera. — How has Green street 
 Meeting received the members from Frankford, as a 
 preparative meeting, or as individual members? We 
 have received Frankford Friends, but as to the particu- 
 lars and dates, I do not know. Within the last year 
 have your orders of interment been granted and admitted? 
 I cannot tell; I don't know the time. Were any received 
 since the alleged act of laying down this meeting? Yes, 
 there were. Have the dead been buried by orders received 
 from Green street Meeting? Yes, they have been. Up to 
 this time, which has been the place of burying Green 
 street members? We have buried in the Race street 
 ground ever since. 
 
 Jonathan Grrr sworn on the side of the accused. 
 
 By Mr. Pkice.— Were you along when the gate was 
 erected? Yes. Are you a carpenter? Yes, sir. Did you 
 assist in the erection of the gate? Yes. State how it was. 
 I was employed by Charles Middleton; I went out, and 
 when I came there, I found Edward Shotwell, Charles 
 Middleton, Joseph Lukens, and Moses Lancaster. We 
 
62 
 
 went in, and Edmund Shotwell and the two labourer! 
 commenced breaking a hole in the wall; I stood during 
 the time looking at them, until somebody made mention 
 that it was a pity to trample down the grass, and they 
 said ihey would cut it, provided they could get a scythe. 
 I think Joseph Lukens endeavoured to get a scythe, and 
 he got one and handed it to Charles Middleton, but after 
 a few strokes, I took it, and cut all that was cut, and it 
 was carefully gathered. U]) into a heap. We then com- 
 menced putting up a shed for the purpose of keeping the 
 tools in, necessary for digging, &c. as I understood; and 
 after we had been for some time employed in putting up 
 the shed, Jeremiah Willlts came in a chair. He got 
 out of the chair, and came inside of the wall, through the 
 breach that was made. He asked by whose authority we 
 were doing this. 
 
 Bv Mr. Kitteba. — Who did he ask? He asked the 
 coloured men; I think Mr. Shotwell made answer, by the 
 owners'. He then asked the names of the two coloured men, 
 which they gave. As I have mentioned before, he came 
 inside of the wall, and stood upon the bricks which had 
 been taken out of the wall, within two or three inches of 
 the bricks that were yet remaining. He says to Ed- 
 mund Shotwell, don't strike me; and Edmund replied, 
 thee had better go away, thee will get thy coat dirtied. 
 After a little he got into his chair and rode off; this was 
 all that passed at that time. When he came among the 
 rubbish, where was Edmund Shotwell? I do not recollect 
 where he stood, whether by the wall, or whether he was 
 sitting down, but he was there upon the spot, near at 
 hand. Did he do any thing violent? No, that is all as 1 
 have stated. Did you stay till the whole was complete? 
 It was Saturday, and I staid till night; we did not com- 
 plete it that day; but on second day we went to, finish 
 the gate. The gate had been hung on Saturday, and we 
 went to put up the strips or mouldings upon the posts on 
 
63 
 
 Monday morning. I know of nothing particular which 
 occurred; there were two men came there; everything 
 was peaceable both days, as far as I know. When Jere- 
 miah Willits said, don't strike me, where was Edmund 
 Shotwell? He was helping to tear down the wall — he 
 was picking ofl'the biicks. Did you see any thing like 
 striking on the part of Edmund Shotwell? I don't think 
 he had a thought of that kind. 
 
 By Ma. Price. — How were you supplied with water? 
 At noon we went to a pump, near the dwelling, and we 
 got a glass at the house nearest to the pump at that time. 
 In the afternoon f went to the pump, and not finding a 
 convenient way to get the water, I went to the house in 
 the burying-ground, to Mr. Stokes's, and asked his wife 
 if she would be kind enough to lend me somethins; to 
 get a drink out of. She gave me a pitcher, and I filled 
 it, and took it to the place where we were making the 
 gate. She asked me if I would be kind enough to return 
 it in the evening, and I said I would. Did you see Mr. 
 Stokes about there? Yes. Was he conversing upon 
 friendly terms? He talked with the rest of them; I do 
 not know what he said, I was minding my own business; 
 I saw him talking and laughing'with the men. Was this 
 while the work was going on? Yes. 
 
 Cross-examined. — Where did you say that Shotwell 
 was sitting down when Jeremiah Willits came? He 
 was picking at the wall when the language took place 
 between them. 
 
 Here the Judge said it was unnecessary to examine any 
 other witnesses as to the manner of the entry and doing 
 the work, for all the witnesses agree upon that. You 
 may, if you choose, examine this witness as to what pass- 
 ed between Shotwell and Willits, but confine yourselves 
 to that. 
 
 RicHAHD Satterthwaite, affirmed for theprisoners. 
 
 Br Mr. Kitteba. — What occurred when Jeremiah 
 
64 
 
 Willits came to this ground? He came inside the wall, 
 and asked By whose authority we were doing that. Ed- 
 mund Shotwell replied, "we are doing it by the autho- 
 rity of the owners." Edmund was at work at the wall. 
 And he asked the labourers by whose authority they 
 were at work, and they said by Edmund Shotwell's. 
 He asked their names, and they gave them, and Edmund 
 Shotwell also gave his. When did he first begin to 
 work at the wall? I do not know. He was at work at 
 the wall when Jeremiah said don't strike me. And Ed- 
 mund said, "thee had better go away, thee will get dust 
 on thee." Jeremiah was standing within two or three 
 inches of the wall at the time. How near were you 
 when this took place? I was at work at the shed, I was 
 within about ten feet of them. I heard nothing from 
 Edmund which appeared to be in an angry tone — and 
 saw no motion to strike or commit violence. From the 
 position in which he stood, would not the dirt from the 
 wall necessarily dirty him in falling down ? Yes. I did 
 not see any thing like a disposition to push the bricks off 
 on to Jeremiah. Had Shotwell been working at the wall 
 before Jeremiah came ? Yes, he was picking at the wall. 
 It was the same kind of work that he was at, both before 
 and after Jeremiah came, was it? Yes, it was. 
 
 Cross-examined by J. R. Ingersoll. — How long be- 
 fore Jeremiah Willits came, did you discover Edmurid 
 Shotwell at work? I did not notice where Edmund 
 Shotwell was when Jeremiah came. Were you at work 
 with your back towards the breach ? Yes, some of the 
 time — Charles Middleton and Jonathan Guy were at 
 work with me. Do you mean to say, that Edmund 
 Shotwell did not push off some of the bricks while Jere- 
 miah was there ?^ No; he did push off some. If you 
 were at work quietly and peaceably for some time be- 
 fore, how came your attention attracted at this particular 
 time? It was by Jeremiah's coming there. Did you 
 
65 
 
 hot then see Edmund Shotwell get up and go to the wall 
 where Willits. stood ? No. When Willits came in, 
 where was Edmund Shotwell ? He was close by. Was 
 he on his feet, or sitting on the grass? I cannot say. 
 He had a hammer in his hand. Ha^ he this when Wil- 
 lits drove up? I cannot sayv-he had it in his hand 
 when I noticed him. By whose direction were you at 
 work there? Charles Middleton's. Are you an ap- 
 prentice? Yes. ,1s Jonathan Guy his journeyman ? 
 Yes. Was your name given at that time? No, it was 
 not. Did you hear Jeremiah Will its ask the coloured 
 men their names ? 'Yes, and I heard one of the'm an- 
 swer. Where wer^ you then? I was at work at the 
 shed. I could see from wheire I was, when I Was looking 
 towards them;, but I was atvvork most of the time. 
 Where was Edmund Shotwell at the time the man an- 
 swered to his name? I looked ,up, and saw him upon 
 the wall. And where was Willits standing? He was 
 star^ding alongside of the w^all^ Can you tell whether 
 ihe commenced working there befor^, or after Willits 
 came? | cannot tell that. How many persons in all, 
 were there engaged? *rhpre were six engaged in work- 
 ing; and there were Joseph Lukens, Joseph Townsend, 
 and Moses Lancaster, besides. 
 
 Br Mr. Kittera. — Were the bricks picked off so as 
 to fall down, or were they, pushed away? I cannot say 
 for certain; I think he pushed, them out of his way. 
 
 Joseph Townsend recalled, and examined by Mr. 
 Price. 
 
 Has not this gate been taken out, and the place filled 
 up, since this matter has been pending before the Judge? 
 Yes, it has. By whom ? Samuel Stokes, aad Powell 
 Carpenter, the brick-layer, and two journeymen, and two 
 labourers. They were not wiUing to give their names. 
 Did you ask them for their names ? Yes. Did yon,telI 
 them to desist from their work ? Yes. Did they still 
 
 9 
 
66 
 
 goon? Yes, they did. Thomas Mayland was there- 
 he has charge of the ArcK street Meeting House. Did he 
 appear to hfive any thing-to do v*-lth taking down this 
 gate? No. What day was this ? I think it was last 
 third day — the day 'after our lijefting here. 
 
 Samuel Stokes recalled. '' 
 
 By Mr. Kittera.— ^Tell the court, if you pleas6,when 
 that new gate was taken away, and who' did it. It was 
 done on the Sdday following'thecoinmencennent of this 
 examination. It was commenced about eight o'clock in 
 the morning. Who did it? Powell Carpenter was thp 
 person engaged to put up the wall. And did he assist 
 in taking Sway the gfite? He did, with iViyself and Tho- 
 mas Mayland; and there were three black men and two 
 journeymen that'assisted' to remove the gste. Was this 
 done from your own mere notion ? I have always acted 
 under the direction of the conimittee, since I have been 
 there. Who gave you the particular orders? Israel 
 Cope. State what passed between, you and Israel. The 
 first interview was on the premises between Israel Cope 
 and myself. When was it? I cannot tell the day, but 
 it \yas the latter part of the week previous. He said the 
 gate would be removed', aiid the wall put up, and asked 
 me to superintend it, and stated what way it was to be 
 done. I understqod it would be done on second dayf 
 ut they did not' come until third day, when it was done. 
 
 (J you see any other of "the committee? None. Were 
 there any other Friends there? None. Was theTe any 
 body to give instruction except Israel Cope? No. Did 
 lie exhibit any order of the committee? He did not. 
 Did he present any authority from any body ? No. Did 
 he say that he had authority from the committee, or from 
 any body else ? I undenstood him to say that it was the 
 conclusion come to ; he said it was the advice of counsel. 
 What became of the materials ? They were set against 
 the wall, outside of the burying ground. What became 
 
67 
 
 of the tool house? ,It was torn tor,pieces eijough to re- 
 move it. And where were the piwe^ put? Against th^ 
 jvall, outside. \ -^ 
 
 Cros.s-ea^amimd. — Whpn were the rtiatferials provided 
 for this purpose? , On first day, yesterday a week ago, I 
 observed the bi:ic|j§ilying on the^ound, outside of the 
 gate. ,Do you know whether the work was delayed in 
 consequence of the ^*o^kmen not coming? I understodd 
 it so. 
 
 William YARDLEV-affirmed on the part of the prison- 
 ers. 
 
 By Mr, Price.— ^Did you ever serve on the commit- 
 tee of ten? I have served on that comlnittee from the 
 year IS|8, or from the first commencement of thai com- 
 mittee, till 1826.,^ Was that the first establishment of this 
 
 committee? It was. What were the duties of that com- 
 
 * - 
 
 mittee? The appointment.was for the purpose of having 
 the care of the burying ground, and the other joint pro- 
 perty, belonging to the Friends of. Philadelphia. Had 
 that committee any fight to control the committee for 
 granting (jrders for interment? I never thought they had 
 the least power to control them, nor was it ever assumed. 
 Did they ever, during that time, undertak&^to say who 
 should or should not be buried there? Neverrit was 
 entirely out of their province. Have they any thing more 
 to do, than to see to the property, that it does notsgo tp 
 decay ? I never considered that they had any thing more 
 to do than that generally. Was it the distinct arid ex- 
 clusive province of the committee for orders to say who 
 shall and who shall not be admitted to burial ? I consi- 
 dered that it rested with them entirely. I never consi- 
 dered that the committee often had any. more authority 
 to govern individuals of the other committee than any 
 other individuals of the society. Ho,w is the committee 
 of ten appointed ? There are tvvo mem|iers appointed out 
 of each Monthly Meeting. Are the names of the whole 
 
68 
 
 ten aubmittld to each meeting for their approval ? No,' 
 only the t^o appointed by-each meeting. Have they any 
 funds at their disposal ? There has been a small income 
 Bubject to their control. When they have wanted" funds, 
 have or have tljey not called on the diflFerent meetings for 
 contributions ? They have. For what proportion of the 
 funds ? Equal proportions. Did Green street contri- 
 bute towards this fund?^ Green street did contribute 
 while I was a member of the committee. 
 
 Or&ss-examined by Mr. J. R. Ingersoll. — On what 
 occasions have you tnown these appropriations ?' I thi&k 
 <)f none in particular^ but ai a general thing, in order to 
 keep the property in repair. Who received the money ? 
 The treasurer of the committee. Who was that trea- 
 surer ? Jasper Cope, 
 
 ? SPEECH OF MR. WURTS. 
 
 May it plecCse your Honour, 
 
 It is important, ip the outset of this argument, that we 
 should fix distinctly in pur minds, the precise question 
 which you are ultimately to determine. The petitioners 
 are brought up on a writ of Habeas Corpus, from the return 
 to which, it^appears that they are in confinement upon 
 commitments by the Mayor of the city, for having refused 
 to give security to be of good behaviour, &c. I take it, sir, 
 that the decision made in an early stage of this hearing, 
 upon the motion of the petitioners' counsel, to discharge 
 them for informality in the commitments, without going into 
 the merits, relieves us from the necessity of saying another 
 word on that head. It may be proper, however, for me to 
 remark, that as to Shotwell, Middleton, and Lukens, the 
 committing magistrate did not require security at all — but 
 their own recognisances merely, in the sum of five hun- 
 dred dollars each, to keep the peace ; and as to the coloured 
 men, their own recognisances in twenty dollars each, with 
 security in a like sum, to keep the peace. The application 
 
69 
 
 to liim was for security to keep the peace, and nothing 
 more. His decision was as'I have mentioned, and his di- 
 rections to his clerk, (I remember them perfectly) were to 
 make out commitments against them, for refusing to give 
 dte recognisances required to keep the peace. If, there- 
 fore, there be an error in the commitments, it is a cj,erical 
 one. But in point of law there is no error — for under our 
 Act of Assembly, a magistrate not only may, but must 
 bind over individuals to keep the peace, and be of go(»d 
 behaviour also, if in his discretion he shall think that the 
 persons com'plained of, are brought within the provisions of 
 the Act. Security for good behaviour includes securityto 
 keep the peace; and as your honour cannot know what ap- 
 peared before the Mayor, the true principle for your go- 
 vernment is the one upon which your decision was founded, 
 namely, that you are to inquire into the whole matter de 
 novo, and (without regard to the act of the committing 
 magistrate) to do what may seem to you right and proper 
 upon a full view of the facts. ^ ' 
 
 Upon this principle it is, that we say, as we did before 
 the Mftyor, that these individuals should be required to 
 , give security to keep the peace — a requisition which, in 
 any view that can be taken of the matter, seems to' be en- 
 tirely reasonable ; one, indeedj to which peaceably disposed 
 men might be expected to accede wUhout hesitation — one 
 which a sense of duty to ourselves and the public, renders 
 it incumbent upon us to make, and one to which, I apprehend, 
 those to whose official authority we are all accustomed to 
 look, for the preservation of peace and order in a commu- 
 nity of laws, will not turn a deaf ear. '' 
 
 You cannot, sir, shut your eyes to the fact, that the mat- 
 ter upon which you are to pass, springs out of contested 
 rights in property, which will be, because they needs must 
 be, settled by an appeal to the Judicial tribunals of the 
 country. But this cannot be done instantly : it requires 
 time ; and, in the interim, the controversy excites feelings, 
 
70 
 
 and stir» passiqns, from which nq man is exemipt. ^he 
 parties to the controversy are numereus ; and although the 
 publilb-hare i" those. pacific principles, which are profess- 
 edly their rule of action, a degree of security for the pre- 
 servation of the public peace, which would not exist, if Uw, 
 controversy dividljd any Other portion of the communi^, ' 
 still we are to, remember. that the infirgiitiea of hliman na- 
 ture hang about them. Already has one side, impatient of 
 what is alleged to be a deprivation of right, . proceeded to 
 redress' supposed grievances,'by measures, which, to speak 
 of them in the mildest terms, very indifferently ack>rd 
 with tlijir peaceable professions. The restraint \vhich 
 these pi;iofes6ions imposed, being once cast off, it is to be 
 afpprehended that serious consequences will follow, unless 
 the l^w interposes its restraning influence. Itis justly said 
 ■by the best commentator on the common law, that the pro- 
 vision which it conj^^ins for preventing a breach of the 
 public peace, is a high hobour, and one almost peculiar to 
 it; since upon every print:iple qf policy, of justice, and of 
 humanity, it is infinitely better to prevent than to pu-nish 
 crime. You will not therefore, $ir, on slight grounds, de- 
 cline the exercise of this salutary power, with which the 
 law has invested you. , „ 
 
 Passing, from these general considerations, however, let 
 us proceed to an esarainalion o&the facts, and see whether 
 they do not make it your bouiiden and imperative duty to 
 remand the- petitioners, unless they give security to keep 
 the peace. I greatly mistake the case, or I shall be able 
 toshow this in the most clear and satisfactory manner. In 
 my effort to do so, the first proposition to which I shall 
 ask your honour's attention is, that 
 
 These individuals have already 'committed a breach of 
 the peace. 
 
 , Second, that there is strong ground of apprehension, that 
 they will offend in like'manner again, unless they are laid 
 under some restraint. 
 
7-1 
 
 I am aware, sir, that even. if tlve first proposition be made 
 out with the clearness and certainty of matliematical de- 
 nioDstration, still it is'open to the reply^thsit we rfre not 
 .foF'that reason alone entitled to the security.*^! the peace, 
 since, if the petitioners -have, offended against the laws by 
 their past acts, they may be prosecuted and putiished, but 
 not held to surety of the peace for that cause alone. All 
 this is truB'^but still, if they have broken^the peace al- 
 ready, it is a fact, which, upon the inquiry now before you, 
 makes against them>. and strongly too,.aniong the other 
 proofs, tending to show the pr^alfility of a repetition of 
 similar acts. It is,'therefore, strictly propfei«ifor tne tp'urge 
 this proposition upon your attention ; arad in my endeavours 
 to estabJHsh.it, it is my purpose to show that the petitioners 
 have done acts which amount to the offences of forcible 
 entry and riot. 
 
 It is a common error, th6 extent of which is to me a 
 matter of surprise, that where a person owns land, froaa 
 the possession of which he is excluded by one having no- 
 title, he may right himself by entering and forcibly turn- 
 ing out. the wrong-doer. At first ;view, it may appear that 
 such should be the law-*-and so indeed Was the common 
 law, unless when the OAMii^r's right of entry had been taken 
 away or barred byMapse of time, or other circumstances. 
 But it was soon found to be destructive of the public peace, 
 to allow any one to r^ort to ,such vfolent means, even to 
 do himself justice, much more if he had no justice at all in 
 his claim — and hence the British statutes against forcible 
 entry and detainer were passed. These statutes are in 
 full force in Pennsylvania, and he who offends against them 
 is a violator of the law. We have, also an act of assembly, 
 passed at so early a^period as the year 1700, which pro- 
 vides that "whosoever shall violently or forcibly enter into 
 the house or possessions of^any other person within this 
 province or territory, being duly convicted thereof, shall 
 be punished as a breaker of thfe peace, and make sucb 
 
72 
 
 •atisfacti'^to the party aggrie\;^ed as the circumst^pces. will 
 beaiE," ir'read, sir, from Bur4o|i's Digest, page 309, &c., 
 that*';^u perceive jf.these individuals have made a forcible 
 entry, they ai;e proclaimed by|. the law, in so many words, 
 to be breakers of the public pe^ce. Let us inquire whether 
 they have not been guilty of this offence. ^ 
 
 It is scarce% necessary for me to remiiiyl you, that there^ 
 are three degrees or stages of title known to the law; posses- 
 sion, rjght of possession, and right of property. It is ioij 
 portant, however, for me to press upon your consi4e;;ati9n, 
 that in determining whether or not the offence of forcible 
 entry has be|P' committecf; the law regards possession, and 
 possession only. It will not go beyond it; it will not in-^ 
 quire into;, or even look at the right pf possession or 
 the right 'ot property. , But the principles as well ^s 
 the policy pf thie law in cegatd to this brancfi of the 
 inquiry, are so clearly and strongly expressed, in one of 
 our own reports, that I cahnbt do better tjian to turn to the 
 book. I allude to the case of Pennsylvania vs. RobiQson, 
 to be found on page 14 of Adjlison's.Reports. It was,,an 
 indictment for a forcible e^try and detainer of lands, and 
 the president of the court says, ".the possession may be in 
 one, the right of possession in an^h,e^^ and the right in a 
 third. One who has entered forcibly may have the pos- 
 session, and if he die,, and transmit his possession to his 
 beir, he transmits more than he had,^ for the new possessor 
 has .also the.^'ight of possession, though without the right. 
 In ejectment, the right, and the right of possession, come 
 i;i qu«stiop. Itl an indictment for a forcible entry, neither 
 comes in >question, but the possession only, aiid the force. 
 If one having the right, or right of possession, may support 
 an ejectment, \i follows not that he may enter by force, or 
 that no less possession than a rightful one, or such as would 
 support an ejectme&t, is protected from a forcible entry. 
 For whatever right, either of property or possession, tlie 
 man who makes the entry may have, he must not commit 
 
73 
 
 a crime in exerting it; and he commits a crime, punish- 
 able by indictment, if he enter with force, on a person 
 having no right, not even of possession ; and in resentmefit 
 of the crime, his right, whatever it may be, thoilgh'both of 
 property and possession, is set aside unregarded bjp the 
 law, and the person forcibly dispossessed, though having 
 neither the right, nor the right of possession, is taken under 
 the protection of the law, and restored to that possession, 
 of which he was forcibly deprived. This is done even 
 ' against a man, with both the right and the right of posses- 
 sion, who, if he had entered peaceably, or demanded it by 
 action, would have attained the possession, and been se- 
 cured in it. 
 
 "But the comparison of forcible entry with ejectment, 
 neither elucidates the subject, nor supports the c.-tuse of 
 the defendants. For though possession be of so light a 
 nature, that, when it comes in competKion with title, in a 
 legal discussion in ejectment, it will not stand; it may be a 
 sufficient occupancy, exercise of ownership, use, or enjoy- 
 ment, which will be protected against force. The inter- 
 ruption of this possession by violence is made a crime, to 
 be redressed by indictment." 
 
 The principles which are to govern us, then, are plain 
 and indisputable. We are to show possession in some 
 person other than the petitioners, or those under colour of 
 whose claim they entered, and next such force attending 
 the entry as is contemplated by the statutes. Let us then 
 address ourselves to the testimony, and see, in point of fact, 
 who has possession of this ground. Is it in these petition- 
 ers, or those by' whose authority they profess to act ? or is 
 it in those whom we represent? I might almost as well ask 
 your honour if the sun be now shining in the firmament ? 
 It is a matter almost too plain for illustration. Look at it, 
 sir, for a moment. Here' is a square of ground in the city 
 of Philadelphia, surrouiided on all sides by a brick wall 
 from eight to twelve feet high, having but one entrance to 
 
 10 
 
74 
 
 it, the keys of which ire kept by an individual, who with 
 his familj occupies a tenement on the ground, within the 
 enclosure, being placed there, and holding the whole of the 
 premises, under a lease and agreement with a committee 
 of eight individuals appointed by the four Monthly Meet- 
 ings, who, through him, have exercised exclusive acts of 
 ownership and control over the property for the last twelve 
 months. The wall was erected for the express purpose of 
 preventing an entry in any way, or at any point, except 
 through the gate on the east side, which is the door or 
 avenue, and the only one, through which an entrance upon 
 the premises can legally and regularly be made. As to all 
 the tests of possession, therefore, the property stands, to all 
 intents and purposes, on precisely the same footing with 
 a dwelling house: and he who obtains access to it, by 
 passing over the wall, or by breaking the lock of the gate, 
 is as much an intruder and interloper, as he would be if he 
 entered your dwelling by forcing the door, or passing 
 through the window. The wall was designed to exclude 
 man as well as beast, except according to the will and 
 pleasure of those who may be entrusted with the keys of 
 the gate. As in the case of a dwelling house, then, be who 
 holds the key, and opens and shuts the house, admits or 
 excludes others at his pleasure, is the person in possession; 
 so in the present instance, those who hold the keys of the 
 gate, and open and close it, exclude or admit persons as 
 they deem proper, are the persons in actual possession of 
 this ground. But even if it were inclosed in no other way 
 than as a farm or plantation, there would be no difficulty in 
 fixing the possession, especially if a person were residing 
 on it, as in the present instance. No one can have posses- 
 sio pedis of every part of his land — but his possession ex- 
 tends to all within his lines. Accordingly, in the case I 
 have already cited, the court says, " a man cannot stand on 
 every part of his land ; he cannot build houses, and settle 
 tenants on every acre of it; he cannot plough every corner 
 
75 
 
 of it, nor make a fence round the whole. Binding the in- 
 habitants of this country to rules so strict, and protecting 
 from forcible entries, onlj lands so possessed, would be 
 very inconvenient, and would, in a great measure, if not 
 entirely, elude the law; especially in those cases, for which 
 chiefly the laws were made, of poor people, least able to 
 circumscribe their survey on a legal title, to build, plough, 
 or fence." 
 
 Bear in mind, sir, thatin the case now before you, Samuel 
 Stokes resides upon the ground, and for part of it, and the 
 house thereon, holds a lease from a committee of the four 
 Monthly Meetings ^f Philadelphia; which part is as much 
 his private property during the existence of the lease, as 
 if he held the fee, except so far as reservations have been 
 made by the lessors in their own behalf. By his lease he 
 agrees, " that he will take upon himself to keep in good 
 condition and becoming order, all the premises within the 
 brick wall of the said inclosure, and not to permit any horse, 
 cow, or swine, to be kept thereon, or any use whatever 
 made of them, that shall not be with the approbation of the 
 said committee ;" and that <* during the existence of the 
 demise, he shall and will prevent and prohibit the dwelling 
 or abiding upon the said premises, of any other person or 
 persons than his own family, and persons connected with 
 It, without the consent of the said committee." By another 
 article of agreement between him and the same committee, 
 it is provided, that "at all times, the wall, pavements, 
 ways, and appurtenances appertaining to the said premises, 
 and all the implements and utensils, used about or being on 
 thepremises, shall be kept by him in good order and in their 
 proper and fit condition." Under such a lease and agree- 
 ment is it, that Samuel Stokes lives upon, and has charge 
 of this property. His predecessor, John Chapman, held 
 under a committee of ten, two of them being appointed by 
 the former Green street Monthly Meeting. His lease and 
 agreement, however, haviilg expired by its own limitation, 
 
76 
 
 and Green street Meeting having been laid down, the lease 
 and agreement which I have just read, between Samuel 
 Stokes and a committee of eight appointed bj the four re- 
 maining Monthly Meetings, took the place of and succeeded 
 to all former arrangements. Under, it, all acts of owner- 
 ship and control over the property, have for months past 
 been exercised by this committee, through their agent, 
 Samuel Stokes, residing on the premises. He never held 
 directly under any one else ; and he has repeatedly told 
 us in the course of his testimony, that he is governed by 
 and recognises this committee alone — that he does not and 
 cannot admit the right of any one to direct him, except this 
 committee ; and that he does not consider himself at liberty 
 to refuse or to grant any thing, save under the orders of 
 this committee; and accordingly no one has entered the 
 ground against their will and consent, except by breaking 
 locks or passing over the wall by means of ladders. What 
 constitutes possession, if this does not? If actually abiding 
 upon the premises in person or by agent, and literally hold- 
 ing and using them as our own absol-ute and rightful 
 property, to the exclusion of ^11 other claimants, except 
 when they resort to force, be not conclusive evidence of 
 possession, then I know not how possession is to be shown in 
 Bny case. There is no better possible test of possession of this 
 or any other species of property, than the actual occupation, 
 use, control, management, and direction of it. All of these 
 are combined in us, and with us must be the possession. But 
 how can this be made a question ?, Does it not appear by 
 the testimony of all the witnesses who have been examined 
 on this point, that for nine months, or more, our opponents 
 have not set their feet upon this ground, unless when they 
 have resorted to violence, by clambering over the wall or 
 breaking the locks? The very act complained of, was for 
 the purpose of obtaining foot-hold. Can possession be in 
 those who adopt such measures? Would they be necessary, 
 if they had possession ? And must not possession exist in 
 
77 
 
 those whose exclusive control and management of the pro- 
 perty, Is assigned as the justification of these acts of violence 
 by our adversaries? It is a matter too plain for argument; 
 and I pass from it, with this single additional remark, that 
 being in possession, the law does not stop to inquire how we 
 obtained it. We should not slirink from a scrutiny into that 
 question, if the matter before you would justify us in goitig 
 into it. But all that the law asks of.us is, are you in posses- 
 sion ? That we have shown ; and at the proper time, and in 
 the proper place, we shall show that we have also the right 
 of possession, and the right of property. SufBcient for the 
 day, however, is the evil thereof. 
 
 But being in possession, it is entirely unimfjortant for all 
 the purposes of this inquiry, who we are, how we came 
 there, or who is the real owner of the property — the law 
 will not suffer our possession to be disturbed or intruded upon 
 by force, and those who ^o it, are breakers of the public 
 peace. 
 
 Let us then proceed to the inquiry, whether the entry in 
 this instance was a forcible one, withia the intent and meaning 
 of the statutes? The settled principle upon this head is, that if 
 there be no other force attending the entry, than such as is 
 implied in every trespass, it is not within the statutes — ^but if 
 there be greater force, and the entry be made in assertio*of 
 title, then the offence is committed. This is the fundamental 
 doctrine, by which all cases are to be tested under their own 
 peculiar circumstances. I refer your honour to Hawkins, 
 P. C. title Forcible Entry, chapter 64, sections 20, 21, 
 where it is said, " that if one who pretends a title to lands, 
 barely go over them, either with, or without a great num- 
 ber of attendants, armed or unarmed, in his way to the 
 church or market, or for such like purpose, without doing 
 any act, which, either expressly or impliedly, amounts to a 
 claim of such lands, he cannot be said to make an entry there- 
 into within the meaning of these statutes." " Yet in such 
 case, if he makes an actual claim, with any circumstances of 
 
78 
 
 force or terror," (and I shall show you presently, sir, what 
 circumstances this author regards as constituting force or 
 terror,) " he seems to be guilty of a forcible entry, within 
 1 & 15, Rich. 2. whether his adversary actually quit his pos- 
 session or, not." The author proceed^ to inquire what entry 
 shall be adjudged forcible entry, and in sections 25 & 26 in- 
 forms us, that " it seems clear, that it ought to be accompa- 
 nied with some circumstances of actual violence or terror ; 
 and therefore, thatan entry which hath no other force than 
 such as is implied by the law, in every trespass whatever, is 
 not within these statutes ;" thus laying down the principle 
 which I have already suggested as the touch-stone of every 
 case. In furtherillustralion,he says, "It seems to be agreed, 
 that an entry may be said to be forcible, not only in respect 
 of a violence actually" done to the person of a man, as by 
 beating him if he refuse to relinquish his possession, but also 
 in respect of any other kind of violence in the manner of the 
 entry ;" (mark, I pray you, sir, the example he gives in illus- 
 tration of his doctrine ;) " as by breaking open the doors of 
 a house, whether any person be in it at the same time or not, 
 especially if it be a dwelling house, and perhaps also by any 
 act of outrage after the entry, as by carrying away the par- 
 ty's goods, &c." Here, then, let us pause for a moment, 
 and'apply the law as we find it, to the case under considera- 
 tion. 
 
 Breaking open the doors of a house, whether any person 
 be in it at the time or not, is declared to be in itself such an 
 act of violence, a circumstance so well calculated to evince 
 the spirit and determination of the party, that, without further 
 question, the law pronounces such entry a forcible one. What 
 then shall be said of an entry, effected and consummated by 
 the breaking down of a wall, surrounding an inclosure, on 
 which dwells a family for the protection and preservation 
 of the premises? which is, the most violent act of the two? 
 and in which of the two cases would we entertain (he most 
 lively apprehension of personal injury or danger, in standing 
 
79 
 
 in defence of the posaiession ? for that Is the spirit and e(- 
 sence of the law ; the object of the statutes being to protect 
 the person in possession against such an exigency. There 
 is, I apprehend, but little room for hesitation, in answering 
 these questions. If he who, by his single arm, breaks open 
 the door of an unoccupied house in assertion of title, does 
 thereby offend against the statutes, much more shall he incur 
 their penalties, who, with force and a strong hand, accompa- 
 nied by numbers, pulls down a wall for the attainment of pos- 
 session. 
 
 Force, then, sir, within the intent and spirit of the law, ac- 
 cording to the setfled interpretation of it, would be made 
 out in the present instance, even if our case rested on this 
 foundation alone. But, in addition to this, the entry of the 
 petitioners was accompanied by other circumstances, any one 
 of which would, in the eye of the law, constitute it a forcible 
 one. If an entry be with a multitude, and in assertion of title, 
 that a)one, without any other act, makes the entry a forcible 
 one ; and for this I give your honour the authority of Hale's 
 P. C. 138. We are told by the great commentator upon 
 Lyttleton 257 a, in treating upon this subject, that "■ the num- 
 ber of ten makes a multitude, but what shall be, lies in the 
 discretion of the justices." In the present instance, the entry 
 was by eight or nine, with crowbeirs, pickaxes, hammers, and 
 every implement necessary to effect their purpose, and which 
 might have been very readily converted to other uses than 
 the pulling down of the wall. Alarm was also occasioned to 
 the family on the premises ; and we are told by Hawkins, 
 sect. 27, "that whenever a man, either by his behaviour or 
 speech, at the time of his entry, gives those who are in pos- 
 session of the tenements which he claims, just cause to fear 
 that he will do them some bodily hurt, if they will not give 
 . way to him, his entry is esteemed forcible, whether he cause 
 such a terror by carrying with him such an unusual number 
 of servants, or by arming himself in such a manner as plainly 
 intimates a design to back his pretensions by force." Either 
 
80 
 
 the number or the Conduct of the parties making the entrj, 
 occasioned' terror or alarm to the persons on the premises. 
 It is true, Mr. Stokes says, his wife and family were not 
 alarmed for their personal safety, or because they appre- 
 hended personal violence to themselves, but because of his 
 absence. But it is equally true, that if he had remained ab- 
 sent the whole day, no alarm would have been felt by his 
 wife and family, had not the petitioners made their appear- 
 ance, and acted as they did. In the absence of her husband, 
 the wife was charged with the care and possession of the 
 property, and her alarm was excited, by finding the posses- 
 sion invaded, and the wall broken down, by a body of men, 
 who probably selected that as the most favourable moment 
 for the attainment of their end. She saw and felt how ut- 
 terly hop'eless would be any effort on her part, to turn them 
 aside from the prosecution of their scheme, and hence her 
 alarm. The bringing such alarm on those charged with the 
 mainfainance of possession, does in itself make the en try -forci- 
 ble. But this is not all — there was in the conduct and lan- 
 guage of the parties, enough to show that it would not have 
 been prudent to stand forward in defence of the possession. 
 You remember, sir, that an individual, who accidentally heard 
 of what was going on, went to the spot, and demanded of the' 
 labourers who were pulling down the wall, their names, and 
 the authority by which they were acting. Edmund Shot- 
 well was at the time seated inside the yard, but the moment 
 the question is asked, he seizes a pick, and joins in pulling 
 down the wall, saying, " My name is Edmund Shotwell !" 
 What, sir, was this, but rallying his party, and running up 
 the red flag of defiance? It would not do to let them falter 
 in their purpose for a moment, and hende the ready hand to 
 execute, and the willing tongue to avouch the deed he had' 
 undertaken. But to leave no doubt of his determination to 
 persist at all hazards, and deter any one from interfering, he 
 selects for his operations on the wall, the part near which 
 this individual had placed himself, and purposely shoves or 
 
81 
 
 kaocks the bricks upon him, observing^ in a tauniingf, sneer- 
 ing, and Insulting manner, that " he had belter go away, or 
 he would get dusted ;" -and when desired to desist, he repeats 
 the act. Can any thing show more clearly the spirit and set- 
 tled purpose of the man ? It was an actual assault and bat- 
 tery; and floes not such conduct give ground, in the language 
 of the law, " to apprehend personal injury or danger, in stand- 
 ing in defence of the possession V If no fear was felt, it was 
 because the persons whose duty it was " to stand in defence of 
 the possession," are forbidden by their principles and reli- 
 gious faith to maintain their rights by force. If they feared 
 no injury or violence, it was because so long as they^abstained 
 from resistance, the intruders could have no occasion to re- 
 sort to personal aggression. But this does not alter the law — 
 we are to look at what probacy would have happejipd, had 
 resistance beet) made; and it is obvious that the-petitioners 
 went there determined to accomplish their object peaceably 
 if they could, but forcibly if they must. Surely the passive 
 submission of those on whose rights, this aggression was com- 
 mitted, cannot change the character of the act. 
 
 It will probably be said, however, on the other side, that 
 they found the small gate leading to Mr. Stokes' house un- 
 fastened, and they entered peaceably, without disturbing any 
 one. They used no violence, they broke no locks, they did 
 not even clamber over the wall. They did not break in, but 
 entered by the strait and narrow gate, and then broke out. 
 Such a defence would be a mere subterfuge, and on a footing 
 with the plea of a burglar^ who should allege, that he enter- 
 ed during the day, and broke out at night. The character 
 of the entry is to be determined by the whole conduct of the 
 parties, and not by the mere fact of their getting peaceably 
 in. And for this, sir, 1 cite Lombard's Eirenarcha, title 
 Forcible Entry, chap. 4, page 143, where it is said, "he that 
 enteFeth in a peaceable show (as the house being either open 
 or but closed with a latch only) and yet when he is come in 
 useth violence, and throweth out such as he tindeth in 
 
 11 
 
82 
 
 place, (he, I say) shall not be excused, beeaute hit entry is not 
 consummated by the only putting of his foot over the threshold, 
 hut by the notion and demeanour that he offerethwhen he is come 
 into the house." And in Burns' Justice, Vol. II. page 268, and 
 Dalt. c. 126, it is said, "if a man enter peaceably, and there 
 shall, by force or violenoe, cut or take away any corn, grass, 
 or wood, or shall forcibly or wrongfully carry away other 
 goods there being, this seemeth to be a* forcible entry punish- 
 able by the statutes." In the present instance the entry was 
 consummated by the breaking, downof the wall. 
 
 1 trust, sir, I have satisfied you, that these individuals have 
 made a forcible entry, and consequently that they have broken 
 the public peace. I have said that their conduct also amounts 
 to a riot, and 1 proceed to show it. What, sir, is a riot? It 
 is defined to, be,' where three or more do an unlawful act of 
 violence ; or, where they do a lawful act in a violent and tu- 
 multuous manner. I pray your honour's attention to the first 
 branch of the definition : a riot is an unlawful act of violence 
 done by three or mor.e : from which it will be seen, that tu- 
 mult and noise are not necessary ingredients in a riot, except 
 where the act done is in itself lawful. 1 must again refer 
 you, sir, to Hawkins, ch. 65, sec. 3, for the principle, where 
 he says, " it seems clear, that if in an assembly of persons 
 met together on any lawful occasion whatsoever, a sudden 
 proposal should be started of going together in a body, to 
 pull down a house or inclosure, or to do any other act of 
 violence to the disturbance of the public peace, and such 
 motion be agreed to, and executed accordingly, the persons 
 concerned cannot but be rioters, because their associatir.g 
 themselves together for such a new purpose, is no way ex- 
 tenuated by their having met at first upon another." Here, 
 sir, the pulling down a house or inclosure is placed upon the 
 same footing with any other act of violence to the disturb- 
 ance of the public peace; and if done by three or more, is a 
 riot, though done in the most silent and quiet manner; pro- 
 vided, of course, the persons doing it, or those on whose be- 
 half they act, be not possessors of the house or inclosure 
 pulled down. I trust I have already satisfied you, that these 
 individuals cannot for a moment be said to he possessed of 
 
8;? 
 
 the inclosnre which they have pulled down. ,Agahi, in sec- 
 tion 7, he tells us, "it hath been generally holden, that It is 
 noway jnaterial whether the act intended to be done by such 
 an assembly, be of itselflawful or unlawful : from whence it 
 follows, that if three persons or more make a forcible entry 
 into lands, to which one of them hfis a good right of entry, or 
 if the like number in- a violent and tumultuous msmner, join 
 together in removing a nuisance, which may lawfully be done 
 in a peaceful manner, they are as properly rioters as if the 
 act intended to be done by them were never ?o unlawful: 
 for the law will not suffer persons to seek redress of their 
 privarte grievance^ by such dangerous disturbances of the 
 public peace." The act which we are reviewing, cannot, 
 with the least show of reason, be likened to the ahartement 
 of a nuisance — for the wall which has been prostrated was 
 erected around the ground with the consent and approbation 
 of all the persons interested, and cannot in any sense be said 
 to be a nuisance to the rights or property of any one. Be- 
 ing in possession, as we were, the conclusion of law follows 
 inevitably from tlie principles established, that the pulling 
 down of .the wall by these persons to obtain possession, was 
 an unlawful act of violence^and being done by three or more, 
 is a riot, although no tumult or personal conflict attended the 
 act. 
 
 And here, sir, permit me to repeat and enforce what I 
 suggested in the commencement of my argument, that the 
 petitioners (being out of possession) would not, in the eye of 
 the law, be regarded as a tittle the less criminal, even though 
 no question had ever been raised, as to the right of the Green 
 street l\Ieeting. Suppose that meeting had not been laid 
 down, or to speak in language to which no exception can be 
 taken by the other side, suppose no such proceeding as the 
 alleged laying down had taken place, and that the Green 
 street Meeting was on all hands acknowledged to be a regular 
 Monthly Meeting; still that fact would furnish no justification 
 for the conduct of these individuals. On this head they may 
 make any supposition they please. 1 will concede to them the 
 broadest foundation for which they can ask — if they even 
 had a patent for the lot in their pockets, vesting the fee in 
 
S4 
 
 them, ?till, not beina: in posjejsioh, fbeir act r«iTmin» of the 
 same chnra'cter — it is forcible entry and riot. So, too, even 
 though «>« had no rig'Tit in the property,' but barely the pos- 
 «e5si6n,^they stand within the same danger — ^yea, even though 
 we were tnrbaned TurRs, maintaining our possession against 
 ill! Christendom, no one can remove or dispossess us by force, 
 ■without violating the laws, and becoming a breaker of the 
 public peace. 
 
 There is, however, another view to be taken of this ques- 
 tion, and I beg leave to present it for your consideration. 
 Admitting for a moment, for the sake of argument, that Green 
 street Meeting has not been laid down, then the best fSothig 
 on which oiir opponents can expect to place the case is, that 
 this meeting is one of the cestui que trusts of this property, 
 or that each member of the meeling is a cestui que triist. 
 Will this help them; or form a justification of the act which 
 has been "done? Look at it, sir, Tor a moment — here is a 
 piece of prtf|)erty owned jointly by a number of persons, 
 walled in by commou consent, and placed in such condition 
 as is deemed most suitable for the purposes for which the 
 joint owners designed it, and thus conveyed to trustees, who 
 are mere title holders. Can aii^ one of the cestui que trusts, 
 or joint owners, without the consent, and indeed against the 
 will of his fellows, change the character and condition of the 
 properly? May he make such alterations or additions as his 
 own will and pleasure shall suggest, or must not the proper- 
 ty remain in the condition in which it has been placed for joint 
 use, until changes are made by common consent, or untdl they 
 are effected by diie course of law ? If live individuals hold 
 a house jointly, can one of them play any pranks in it that 
 he pleases?— miiy he pull it down— alter its whole forth and 
 
 structure — make as many eiUr^jnces to it as he pleases 
 
 break down the iiiclosure designed to protect it— and treat 
 itin every respect as his own absolute sole property, even 
 though his co-tenants unitedly come forward to prevent him? 
 And if he persists, and shows a determination to accomplish 
 hi* purpose by m;iin force, will you not interfere to check 
 and restrain him, until the law can p.iss upon the matter? 
 HUich more if he be merely one of a number of cestui que 
 
trusU, nnd hn», in conjimction with them, committed the title 
 and sfuardianship of the proper!)^ to other hands? The pro- 
 perty in question is a burial ground,-and in the nature of 
 thing's must be subject to some general regulafion, adminis- 
 tered by some known and responsible persons. B,ut if 
 every one, claiming as cestui (jue irust. the right of entrance 
 for the purpose of making interments, may break down the 
 wall, and put in his own gate, where is the restraint, wtrere 
 is the power to inquire into and dttermine the right ? There 
 is none but'the pleasure of the claimant?. If one may have 
 a gate, each and every other may ; nay, the whole of the 
 wall may be prostrated, and the ground converted into a 
 Potter's field. It cannot be, sir; the parties must abide by 
 their original compact and arrangement: If they started with 
 one g^te, through it, audit only, can any one of them lawfully 
 enfer, until they have otherwise agreed among themselves, 
 or until the law shall have otherwise deternvined for them? 
 Let me suggest a case, sir, by way of iltusitration. The city 
 of Philadelphia owns an open square of g^round within our 
 view, which has been highly improved and adorned: as a 
 public walk. Every citizen of Philadelphia, being a mets\- 
 ber of the corporation, has an interest in it, and: in effect is a 
 cestui que irust. It has been recently opened 'or. 'he recep- 
 tion of visiters, and hundreds daily throng its walks. But we 
 have all of us heard murmurs and complaints^ against those 
 to whose care and control we had consigned it, for so long 
 excluding us from its cooling shades. If, in a moment of im- 
 patience, any of us had, however quietly^ broken down the 
 railing, to effect an entrance, or if we should now do it, for 
 the purpose of making a greater nnmber-of entrances than 
 already exi.st, I ask you, sir, would our interest as corporators, 
 or as cestui que trusts, protect us from the consequences of 
 such an act? And if not, upon what better ground do these 
 individuals stand ? 
 
 But it may be asked by our opponents, have we no reme- 
 medy ? Are we to submit quietly to a deprivation of right? 
 1 answer, it you have fights, you undoubtedly have a remedy. 
 But the one you have chosen is not permitted by the laws. 
 You stand upon exactly the same footing, neither better nor 
 
86 • 
 
 worse, that every man in the community does, who cliiims a 
 title to land.. If, as you allege', tilt we deny, you are joint 
 tenanfS'with us, having a joint possession, the law gives you 
 a writ of partition. There is no difficulty about it, provided 
 you have possession'with us, as you allege. It is.asqnare of 
 ground; and may be divided by arithmetical computation of 
 feet. If, on the contrary, ^ou are not in possession, as we 
 insist you are not, and as we think we have proved you are 
 "not, and you still maintain that you have a right of property 
 in the ground, your path is equally plain — you may have 
 your writ of ejectment. Our position i«, that you are out of 
 possession, and ought to be so, because you have ceased to 
 have a right of property. But if it is believed that such a 
 right still exists, we may be treated as if we had ousted our 
 co-tenant. If one tenant in common actually turns the other 
 out of possession, an ac1,ion of ejectment will lie against him. 
 2 Bl. Co. 1,94. Christian's note on the same page. If one 
 tenant in common drives the cattle of his companion otT the 
 land, or prevents him from entering upon and occupying the 
 land, this will divest the possession, so as to entitle the com- 
 panion to bring an ejectment. 2 Cru. Dig. 552, title Te- 
 nancy in common, sect. 2. ■ 
 
 But; sir, while one of the parties has actual, absolute, un- 
 controlled possession, their opponents cannot be permitted 
 to take tlie law into their own hands, and adjudicate the 
 question of right for themselves. They must not usurp 
 the functions of witnesses,- jurors, judges, and sheriffs.' 
 They'must appeal to the laws, and wait its judgment 
 upon their claim. 
 
 A word or two moTe, sir, on the subject of right of 
 property, and I have done with it. It involves the ques- 
 tion of laying down Green street Monthly Meeting. We 
 allege that it has been regularly laid down by its proper 
 Quarterly Meeting, according to the discipline of the so- 
 ciety of Friends. But it is said on the other side, that 
 a Monthly Meeting cannot be laid down against its own 
 consent, by its superior meeting ; aud that, therefore, the 
 act of the Philadelphia Quarterly Meeting, dissolving 
 the Green street Meeting, is invalid and of no effect. We 
 
87 
 
 have abstained, sir, from entering into thw question, be- 
 cause we do not think that it is legitimately connected 
 with the matter before you. If it were, we should 
 promptly meet it, and satisfy you of the fallacy of. the 
 doctrine suggested on the other ,side. Permit me to re- 
 mark, however, that in every government, whether of 
 church or state, there must be a head, and submission to 
 its authority, where the exercise of/it becomes necessary, 
 otherwise anarchy and destruction will eiisue. There 
 must be power somewhere, to terminate controversy, 
 and no system of polity, either ecclesiastical or lay, Was 
 ever framed without providing for it. In none is it more 
 distinctly providedtor, than in the discipline of this so- 
 ciety: and if Green street Monthly Meeting , believed, 
 that the laying 'of it dbwn by the Quarterly Meeting, to 
 which it is expressly declared by the discipline to be sub- 
 ordinate, was "an arrogant assumption of power," as 
 one of the witnesses, (with the most winning modesty 
 and humility,) proclaimed it to be, the proper course was 
 to carry its grievances to the tribunal in the last resort 
 — the Philadelpl\ia Yearly Meeting; instead of stirring 
 up strife in other Yearly and Quarterly Meetings, as, by 
 the testimony of the same witness, it appears that it has 
 done. Of what avail is it to carry us to New York and 
 Baltimore, and tell us of meetings there which approve 
 of the doings of Green street, so long as they are unable 
 to show us the approbation of their own immediate su- 
 perior meetings, the Philadelphia Quarterly ^nd Yearly 
 IVIeetings ? The act of the Quarterly Meeting, whether 
 acquiesced in or not, by Green street, must be regarded 
 as valid, until revised and reversed ,by the Yearly Meet- 
 ing. But, as I have already remarked, these are matters 
 into which we have not gone, because we did not con- 
 sider them essentially connected with the question before 
 you. They must be canvassed and decided elsewhere* 
 I advert to them now, mainly for the purpose of noticing 
 the cry of injustice which has been raised against the 
 doctrine, that by the laying down of Green street Meet- 
 ing, the property held in trust for it, enures to the Meet- 
 
«8 
 
 ing for the North Ei-n District, to which the Green street 
 members .have been joined. Sir, the principle is sound 
 and equitable, and works in perfect harmony. We know, 
 as matter of histoi-y, and from the testimony in this 
 case, that there was originally but one Monthly Meeting 
 in Philadelphia. A large-amount of the property now 
 owned by the Society of Friends wa? originally held in 
 trust for this meeting, or wa,5 purchased ouf of money 
 arising from the' saleof piidperty so held.. When Jhe so- 
 ciety increased in numbers, and was spread over a larger 
 surface,- it became necessary to establish' other Monthly 
 Meetings, and accordingly, .about the year 1772, the 
 Monthly Meeting for the Southern District, in^ Pine 
 street, and the Monthly Meeting for the Northern Dis- 
 trict, in Key's alley, were set up, both cprnposed of mern- 
 bers of the original ineeting. ; The parent meeting, -the 
 old Phikdelphia Monthly Meeting, for whom the proper- 
 ty was then held in trust, at once recognised a joint in- 
 terest in it, on the part of these two meetings, and the 
 trusts were accordingly placed on that foundatic)n. The 
 society still Continued to flourish and increase ; and long 
 may it do so ; for its members ar'e among the best por- 
 tion of our community. It was, consequently, deen\ed 
 expedient a few years ago, to establish two additional 
 meetings ; and the one in Twelfth street, for the Western 
 District, and that at Green street, were organized out of 
 members of the three meetings. And now mark, sir, 
 the^ course pursued in regard to property, at this 
 particular juncture. Acting upon the principle, that 
 it belonged to the society of Friends in Philadelphia, 
 bound together, and governed by established discipline 
 and usages, and not to any particular meeting, the old 
 meeting house and lot at the corner of Market and Second 
 street, and a lot at the corner of Locust and Seventh street, 
 were sold. The first, if not both of these, belonged ori- 
 ginally to the parent, or old Philadelphia Monthly Meet- 
 ing; and at the time of sale both were held in trust for it 
 or for the three meetings. With the proceeds of sale the 
 identical grive yard in question was purchased, and the 
 
89 
 
 wall eiectecl round it. Out of the same fund also the lot 
 on Green street was purchased, the meeting house and 
 wall around it erected, and, thus completely "finished and 
 paid for, delivered over to the new Monthly Meeting of 
 Green street. Neither that meeting, nor any man in it, 
 ever contributed a dollar toward the acquisition and pay- 
 ment of these properties — they were paid for out of the 
 joint funds of the society of Friends of Philadelphia, and 
 must for ever remain the property of that society. We do 
 not contend that when one of its meetings is laid down, 
 as Green street for example, the members thereof lose 
 their rights or interest in the property : It is individual 
 djsownment only, fhat can produce that effect. TIic 
 members of the meeting laid down, retain their rights 
 and interest in the property — but they must claim and 
 exercise them through the meeting to which they are 
 joined ; that is, in the present instance, through the 
 meeting of the Northern District. When the meetings 
 weje increased from one to three, the rights of mem- 
 bers were expanded in like manner^-they carried them 
 witli thein into the new meetings j the same thing when 
 they were increased from three to five. And now, when, 
 by the regular administration of the church discipline, 
 under which they have all agreed to live, the act of their 
 superior meeting has reduced the number from five to 
 four, by the operation of the same principle, theprpperty 
 being the property of the society, is to be held and con- 
 trolled by the four meetings, to some one of Which every 
 member of the society belongs. And through his pro- 
 per meeting, only, can he participate in the enjoyment of 
 it This is our principle, sir; and I repeat, that it is 
 sound, harmonious, and equitable in all its practical re- 
 sults. 
 
 I have now submitted what I had to say in support of 
 my first proposition, that these individuals have already 
 committed a breach of the peace. I leave it with you, 
 sir, not doubting but that you will give to the sugges- 
 tions I have made, the weight to which they may be 
 entitled; and I proceed to my second proposition, that 
 
 12 
 
90 
 
 there is reasonable ground of apprehension that they will 
 offend in like manner a^ain, unless restrained by the law. 
 That they will, is an inference almost irresistible from 
 the whole aspect of the case. Having offended once, they 
 may naturally be expected, under similar circumstances, 
 to do it again. The Ia.w, at any rate, regards them in 
 the light of suspicious persons, upon whom a vigilant eye 
 should be kept. This inference is strengthened by the 
 fact, that there exists a combination among these peti- 
 tioner's and others, to do the act complained of. If the 
 argument I have already submitted, have any foundation 
 in law and fact, then is this paper, which has been adduced 
 in justification, a conspiracy, indictable and punishable as 
 such. [_Mr. Wurts here read the minute and resolution under 
 which the petitioners atted.'] Gentlemen smile at the sug- 
 gestion, but if tested by a prosecution, they might find it 
 a more serious matter than they seem now to apprehend. 
 Let them beaT in mind that an agreement between two or 
 more to do an unlawful act is a conspiracy: and if they 
 have not a clear legal right to effect an entrance into this 
 burial ground by breaking ,down the wall, then is this 
 written confederacy and agreement into which they have 
 entered to do it, a conspiracy, for which they are amenable 
 to the laws in a court of criminal jurisdiction. Perchance 
 thejpast life and known respectability of some of the per- 
 sons (I do npt know them all) whose names are signed 
 to the paper, might save them from the penalty of the 
 lawj but that would not change the character of the act. 
 I advert to it now, however, for the purpose of showing 
 that there is a settled determination to effect an entrance 
 into, this ground, and even' to erect a house on it. The 
 petitioners and others are designated to effect it by such 
 means as they in their judgment may see fit to employ; 
 and we have abundant evidence that they are not fastidious 
 in choosing, or slow in executing measures for the attain- 
 ment of their ends. There is therefore ample reason to 
 apprehend, that the act will be repeated; especially when 
 connected with the solemn declaration of their counsel, 
 proved to have been made on a former occasion, before 
 
91 
 
 the very judgment seat, that he would advise them to pur- 
 sue the same course again. What, I ask you, sir, would 
 be the consequence, if this controversy existed in any 
 other religious society, and advice of this kind were 
 given and acted upon? Your ovf\\ recollection of past 
 and not very remote events will furnish an answer. It is 
 not for me to censure such counsel — that is a matter be- 
 tween the gentleman and his clients — being a fact in 
 evidence, however, I allude to it, (as I may prqperly do, 
 without any departure from the courtesy that charac- 
 terizes the discharge of professional duty at this bar,) for 
 the purpose of Shgwing the spirit that is abroad^ But, 
 suppose, sir, that I should advise my clients to of)pose 
 resistance to encroachment, as I might very properlydo, 
 and as perhaps I shall not stand excused in point of duty, 
 if I fail to do. I do not say that I will, or that such ad- 
 vice would be followed if given. Suppose, however, I 
 should say to them, maintain your possession and your 
 rights against all invaders — stand upon your defence — the 
 law allows it, and the court must uphold itj and this ad- 
 vice on both sides should be acted on; cannot your honour 
 read the consequences that would ensue, in events that 
 occurred under similar circumstances in this cjty a few 
 years ago? The result would undoubtedly be tumult, 
 affray, personal conflict, and probably bloodshed, consti- 
 tuting what even our friends on the other side would admit 
 to be a riot. But in addition to this, several persons hav- 
 ing charge of this property have affirmed, that they fea;r 
 further aggressions upon it, and acts of violence, amount- 
 ing or tending to a breach of the peace on the part of 
 these individuals. A judge has but little discretion under 
 such circumstances. His duty is to interpose and prevent 
 the evil, by requiring surety of the peace. Mr. Stokes 
 says that he has no doubt they will enter in spite of locks 
 and bolts. Mr. Randolph, Mr. Lippincott, and Mr. Allen, 
 all say, that they believe these individuals will commit 
 further acts of violence. The former says, that if break- 
 ing'down walls and locks be a breach of the peace, then 
 he has no doubt it will be broken; and they all agree, that 
 
92 
 
 if these iiidividuals be resisted, a l^ieach of the peace will 
 take place. Lastly, we have the declaration of Joseph 
 Lukens, made to Joseph Parker, that he will do the same 
 thing again under the same circumstances. The same 
 circumstances do exist, for we have re-built the wall. 
 And here allow me to remark by the way, as this fact has 
 been adverted to with some emphasis, that the materials 
 were ready upon the ground, and the breach would have 
 been repaired before this writ was taken out, if workmen 
 could have been procured in time. It was instantly de- 
 termined to rebuild it — preparations were made, and 
 workmen spoken to, before, we had any notice of this 
 hearing. The declaration of Joseph Lukens is reiterated 
 by one pf the coloured men, who avows, even pe^iding this 
 inquiry, that when it is over, they will again prostrate the 
 Wall. To use his own language, they are in it, and will 
 go through with it. We are required to make out merely 
 the probability of a future disturbance of the peace by the 
 petitioners. I know not what evidence could be offered 
 b&tter than their own declarations. 
 
 In conclusion, sir, allow me to say, with the most re- 
 spectful deference to the judgment of your honour, that 
 upon any view of the case which I can take, it would seem 
 to me a most eixtraordinary result, if these individuals 
 should be discharged. What is it we ask ? That they 
 should be bound over to answer for the offence that they 
 have committed ? ,That they should be put to the incon- 
 venience of finding surety of the peace ? Neither is re- 
 quired — but merely their simple promise to you to keep 
 it. Should they be discharged, and the consequences ap- 
 prehended ensue, it would beabitter thought, one certainly 
 that could bring little comfort to your mind, to reflect, 
 that you might have prevented the evil, by stretching 
 forth your hand. By exercising the mild and merciful 
 power with which you are invested, you may prevent 
 offences, which, after they are committed, courts of jus- 
 tice cannot remedy, however they may punish their au- 
 thors. Its ex£rcise is especially proper, when its protection 
 is invoked by those whose religious faith prevents them 
 from repelling violence by violence. If these persons be 
 
93 
 
 discharged without surety of the peace, it must be upon 
 principles, which, if pushed to their legitimate conclu- 
 sions, will compel every man to carry his hand on his 
 dagger, and promptly imsheath it, to repel wrong or as- 
 sert right. Brute force must determine every thing; the 
 race shall be to the swift, and the battle, to the strong. I 
 trust, sir, that we shall never see any arbiter between 
 man and man but the law. When that appeal fails Us, our 
 only hope will be, that He " who rideth in the whirlwind 
 and directs the storm," will control the evil passions and 
 
 turn aside the anger of man. 
 « 
 Mr. Kittera's Speech. 
 
 There is, may It please your honour, felt in this 
 community, a deeper interest for the result of this 
 heai'ing, than has been caused by any judicial inquiry 
 that has for many years taken place. Five persons have 
 been imprisoned ; three of them belonging to the society 
 of Friends — they have been imprisoned at the instance 
 and upon the prosecution of members of the same so- 
 ciety. Not indeed, as would seem from the evidence, 
 upon their own mere motion — in order toprotect their 
 persons, or their property — but they have been put for- 
 ward by, and represent in this pursuit, alarger number of 
 individuals, who secretly directed the movement, under 
 the vain hope, that by the defendants yielding to the re- 
 quired recognisance, their agency in the afiair would be 
 unknown. This is a parly of the society of Friends, 
 self-styled the Orthodox Friends. It appears," too, that 
 the act done by the defendants, and which led to their 
 imprisonment, was not done upon their own impulse — 
 for their private emblument, or benefit — to gratify any 
 wishes or resentments that they possess — but merely as 
 workmen, employed under the direction of another large 
 body of Friends, worshipping at Green street, and con- 
 tradistinguished from the former, by the name of Friends, 
 These circumstances, sir, impart to this case a magnitude 
 that matters of this kind do not often possess. It is still 
 
94 
 
 more increased in importance, when we consider the ob- 
 jects desired to be accomplished, by those who have 
 excited, and are sustaining this extraordinary procedure. 
 
 It is, indeed, a new era in this society — one at which 
 their enemies will rejoice, and their welUwishers can- 
 not too deeply d^lore. By the schism that hafs happened, 
 and the events that have followed it, a deep wound has 
 been struck at this long and justly celebrated society. 
 Who deserve the' censure, the development here made 
 very clearly shows. 
 
 We discover in one of the litigant parties, what is not 
 a little remarkable. Those who have been teaching peace 
 to others, by their precepts, and the practice of their lives 
 — wlio have been religiously earnest to avoid legal dis- 
 putes — we find voluntarily and anxiously at law — at law, 
 too, with their ovvn brethren — ^seeking the loathsome im- 
 prisonment of members of their own society — and pub- 
 licly justifying that imprisonment, by what, if it be any 
 thing, the law' denominates a wrong, the ouster of pos- 
 session. Religious disputes, w£ are all aware, engender 
 the bitterest feelings; but they seldom fail to leave be- 
 hind them the bitterest reflections too. When the tran- 
 quil feelings, that were wont to occupy the bosoms of 
 our orthodox Friends, shall return, and they review the 
 proceedings of this day, with an attention, calm, and. un- 
 disturbed ty passaon, who can doubt what will be the 
 verdictof their judgment and conscience, after they shall 
 have re-perused that golden, but disregarded precept, 
 spread over so many pages of their discipline: " If thy 
 brother shall trespass against thee, go and tell him his 
 fault, between thee and him alone : if he will hear thee, 
 thou hast gained thy brother. But if he will not hear 
 "thee, then take with thee one or two more, that in the 
 mouth of two or three' witnesses every word may be 
 estabTished. And if he shall neglect to hear thee, tell it 
 to the church; but, if he neglect to hear the church, let 
 him be unto thee as a heathen man and a publican." 
 
95 
 
 Prior to the year IS 17, the religious Society of 
 " Friends, of Philadelphia," held by trustees a consider- 
 able real estate in the city and county of Philadelphia, 
 for the uses of the Monthly Meetings of Philadelphia, 
 unincorporated bodies. .There then existed five monthly 
 meetings. 
 
 1. The Monthly Meeting of Friends, of Philadelphia. 
 
 2. Friends of the Southern District. 
 
 3. Friends of the Northern District 
 
 4. Friends of the Western District. 
 
 5. Friends of the Meeting held at Green street. 
 Entire peace anfl harmony then pervaded the society: 
 
 so much so, that you have it in evidence, and such is 
 certainly the fact, that in the^r meetings of business, in- 
 ste-id o[ carrying measures, as they well might do, by 
 mere majorities, it was their practice to treat with 
 becoming kindness the scruples of every in'dividual 
 member, and to defer their decisions until the hearty 
 concurrence of all could be obtained. Are we then to 
 be surprised, when we take up these deeds of trust, to 
 find the same confidence prevail throughout, and to ob- 
 serve none of the limitations expressed which the coun- 
 sel supposes may have been in the views of the parties? 
 They have said enough to show you, that it is their in- 
 tention to dispute the validity of the Green street title, 
 not only to the lot in question^ but to all the estate held 
 by them in severalty: that something has been done by 
 the Philadelphia Quarter, the character of which has not 
 been defined, which has indeed been cautiously kept out 
 of view, to create a forfeiture. To whom this large 
 estate, when swept away from us, is to go — whether to the 
 other meetings of the quarter, or to the original grantors, 
 they have not favoured us with information. 
 
 In the year 1817, it was thought prudent and most con- 
 ducive to the objects of the societ}"-, that a jMrtition of 
 the real estate should be made; so that each Monthly 
 
90 
 
 Meeting should haye an exclusive property in, and con- 
 trol "over such part as should be allotted to it. An ap- 
 portionment accordingly took place — and the former 
 trustees, under the direction of all the Monthly Meet- 
 ings, conveyed to others, chosen by the respective 
 Monthly Meetings, such shares of the estate as were 
 allotted to them in partition. A part of the joint estate, 
 however, intended for burial grounds, wras not divided; 
 butjUnder the same amicable arrangement, was conveyed 
 by the former trustees, Samuel Bettle, and others, to 
 Isaac Jones, and fourteen others — -three being appointed 
 by each Monthly Meeting, as their representatives to re- 
 ceive the trust. By this conveyance, the lot in question 
 was vested in trustees, for the use of the Monthly Meet- 
 ings, Green street among the number, for their use as a 
 burying ground, — Deed, 6th Feb., 1818. 
 
 Each Monthly Meeting appointed two of their num- 
 ber, to form what has been very appropriately called, a 
 committee bf^ superintendence; whose duly it was,^to 
 take a general care of the grounds, and keep the walls 
 and buildings in repair. Each meeting had in this little 
 body its representatives — they were not to be controlled 
 by majorities — much less, were they to exercise any au- 
 thority beyond the office for which they were deputed. 
 Each meeting also apppinted two of their number, whose 
 duty it was to issue orders for the interment of, deceased 
 members. Green street Meeting, as cestui que trusts, 
 under this deed, for years continued in the unquestioned 
 exercise of all the rights conferred upon them, in common 
 with the other Monthly Meetings. Unfortunately, how- 
 ever, after the actual possession, and, use, and admitted 
 right of Green street, had thus continued for years, a dis- 
 pute took place between Green street and the other mem- 
 bers of this quarter — the causes of which have been hinted 
 at. It is well known, I believe, that the high offence of 
 Green street, consisted in receiving, and treating with 
 
97 . 
 
 respect, instead of contumely, one of the most venerably 
 members of the society. , 
 
 Green street Meeting thought that their treatment was 
 such as made it their duty to retire from the Philadelphia 
 Quarter. The particular reasons that led to this course, 
 the admissions of our opponents have made it unneces- 
 sary to gi^e in evidence, aiid it would not be proper in 
 me to animadvert upon them: — suffice it to say, that they 
 applied to Abingdon Quarter, and became a constituent 
 part of that Quarter. After this application to Abingdon 
 had takqn place, the Philadelphia Quarter proceeded to 
 " lay dowii" Green street Monthly Meeting. They de- 
 creed that it should no longer exiit as a Monthly Meeting; 
 and to-prevent four or five hundred friends from being 
 thus suddenly deprived of all their individual privileges, 
 by the same potent authpritj'-, withoyt application, they 
 attach them to another meeting, called the Northern Dis- 
 trict. To this high-handed measure — this usurpation of 
 authority, as it has been' called by their own witness, the 
 Green street Friends did. not 'yield; but have continued 
 fronj that- time to this in their accustomed place, in the 
 actual and regular meetings for worship and for busine'ss. 
 
 After^the act of laying down,;as it is called, had taken 
 place, the order? for interment from Green street were, 
 for a time, accepted and carried into effect. But, sir, in 
 proportion as the conduct of Green street received- the 
 sanction of overwhelming number.*, unkind* feelings to- 
 wards them seemed to acquire force. When the ma- 
 jority of Friends every where were known to approve 
 what they had done — when Yearly Meetings of other 
 states, in a manner marked, sanctioned their conduct — 
 when this small minority thus were smarting, and sorely 
 too, under deserved censure.^/Ac« were the doors of 
 the grave yard closed against the dead of Green street. 
 Whenever a funeral took place, one of the trusteed was 
 obliged to take off the lock. In one instance it appears, 
 
 13 
 
98 
 
 that after the gate was thus opened, and the grave pre* 
 paredjithat the gate was closed, making it necessary at 
 the approach of the mournful procession, to re-brestk the 
 locks. In another instance, one of the committee went 
 to the yard, and spiked the door of a small building, to 
 prevent females attending the funeral from sitting at the 
 grave upon chairs, for \vhich Green street had paid their 
 proportion. In the most implacable religious conflicts 
 that have taken place in this'city,this is the first instance 
 in which the bodies of the dead have been the objects of 
 misguided passion. But L would surely do injustice to 
 this large and respectable connexion of Friends, to sup- 
 pose that it "was their yt. It 'cannot be,, that they au- 
 thorized or approved of it. How many united in this 
 barbarism, as I had liked to have called it, does not ap- 
 pear. It -must have been an assumption of power by the 
 few, thopgh in 'the name of all; from, the responsibility of 
 which they cannot, but shrink. For nearly a year Green 
 street. continued to use this, ground, but under circum- 
 stances l|umiliating; tending not only to cause distress, 
 but to rouse the feelings of all residing in the neighbour- 
 hood. They were indeed told, we will allow you to 
 bury, but you must apply to the Northern Meeting for 
 permission, and thus' acknowledge that you have lost 
 your rights. , 
 
 To Friends, this state of things was painful — their en- 
 treaties were, disregarded — their hopes, that long submis- 
 sion would soften their adversaries, were now disap- 
 poiiited. 'What were they to do? "Were they any longer 
 to incur the, hazard of having the bier turned from the 
 ground, and mourning relations sent toaslc interment of 
 some more friendly church? Was it humane, any longer 
 to allow additional pangs to be inflicted at a moment 
 when the sympathies of- all are called for? ,Was it pru- 
 dent to encounter the excitement that might be produced 
 among relatives not members of the society?: They 
 
99 
 
 thought not. Application was then made to the five 
 trustees, whose names are' subscribed to this paper; with 
 a promptitude that does theih credit, they willingly lent 
 their aid. They authorized Green street to have an en- 
 trance made at the western side of the yard— so that, 
 being thus separated from the Others, there should be no 
 further disputes. The defendants, under the authority 
 of Green street and the trustees, were employed as 
 workmen to carry 'into effect this arrangement. It was 
 done by them in a manner the most peaceable, and with- 
 out the slightest interruption. They entered the yard by 
 an open gate — commenced within, made the necessary 
 opening in the western wall, and in a short time com- 
 pleted their work. There, tliis evidence of a desire to 
 abstain from every association that could possibly give 
 the otherside causeof offence, wouldhave remained until 
 this moment, had not our opponents, during the pen- 
 dency of this hearing, torn it to pieces, and thrown away 
 the materials. We will not stop to inquire what is the 
 exact character of the offence thus committed by our 
 accusers, while the subject nas sub-judice — whether it 
 was lafger or smaller than that for which the defendants 
 were imprisoned — or what severity of punishment they 
 merit for what they have done — because those I repre- 
 sent have no ambition tcj follow the example of the others, 
 by a- resort to such measures. 
 
 Sir, our opponents know full well, that had Friends 
 chosen, early in this controversy, to take the stand they 
 might have taken, not a meeting" house in Pennsylvania, 
 or out of it, within this jurisdiction, would have been in 
 their possession. Biit they unnecessarily and unadvised- 
 ly yielded, whenever, at their meetings of business, ex- 
 citement was likely to proceed from an honest and firm 
 maintainance of the rights of majorities. They consulted, 
 however, their own consciences, and adopted a course, 
 which they believed consonant to the profession and prac- 
 
100 
 
 tice of the society to which they belonged. To this alone 
 it is, that the orthodox are indebted for controlling the 
 four Monthly Meetings of this quarter. / 
 
 This case presents manysubjects for your honour's con- 
 sideration. The act complained of, has been called'by 
 numerous names — a trespass — a riot — a forcible^ntry and 
 detainer— a conspiracy: it seenis, according to the no- 
 tions of the other side, to be accommodated .to al^coost 
 any crime in the calendar. I wilj take ^the lowest de- 
 nomination of wrongs, a mere trespass, and shall show 
 you, that it is not even this; though, if it were, I have yet 
 to learn that'trespass of itself justifies surety of the peace. 
 We are pleased with this public opportunity of examin- 
 ing into these charges, for we know with what industry 
 the conduct of the defendants has been misrepresented. 
 So fjr from being u trespass, at is a legal and justifiable 
 act, arid, one which the duties of 'those who directed it 
 required. To constitute a trespass, our opponents must 
 show: 
 
 1st. Possession. 
 
 2d. Right of Possession. 
 
 Possession may be in one— the right of possession in a 
 second, and the right of property in a third. The disseizor 
 has possession-r-the disseizee the right of possession, while 
 the jus proprietatis may be in a 4ifferent person., Here, 
 to form a trespass, the two former at least must be united. 
 Strange as it may have appeared, this mattfer of possession 
 the counsel who preceded me has hardly deigned to 
 notice— to him it seemed so very clear, that your honour 
 was of course to presume it from the evidence. He will 
 find, that this is no unimportant portion of his cause, and 
 deserved much of that labour bestowed upon subjects far 
 less to the purpose. 
 
 In the absence of every thing else, possession accords 
 with the title, an4 they who allege it different, are bound 
 to prove it. By this title, there is a joint tenancy in fif- 
 
101 
 
 teen persons, to hold to the uses of Green street Meeting, 
 and four others, as a place of interment for their dead. 
 Each meeting had a right, distinct and independent of 
 every other, and in nowise subject to the control of a 
 mnjority of meetings, or a majority of trustees. 
 
 From the peculiar nature of the deed of trust, and the 
 form of the uses, I appreherwl, there can be no possession 
 under it, that is not necessarily the possession of the trus- 
 tees — I mean, if those in possession are in under the 
 deed, and recognise the title of the trustees — the cestui 
 que trusts are not^limited or certain. I do not mean to 
 say, that there cannot be a possession other than that of 
 the trustees, if it were held adversely to the trust title. 
 But that is not pretended to be the case here'; for, how- 
 ever they may disavow Green street, they uniformly ad- 
 mit and claim their possession under the trust deed. 
 
 Who claims to have the exclusive and adverse posses- 
 sion? They say, the four Monthly Meetings, who are 
 cestui que trusts. By the deed," however. Green street 
 Meeting are also cestui que trusts, in common with them, 
 in the use. Now, As it is a clear legal position, that the 
 possession of one joint tenant, or tenantin common, is the 
 possession of -the Others (16 Viner 45 Poss. c. § 4.) — it 
 follows, that if the four are in possession, as is contended,' 
 we are of course in possession, their possession being also 
 ours. 
 
 There is but one way in which tenants in common and 
 joint tenants can have possession, to exclude their cO- 
 tenants, and that is by an actual ouster. Ifthey claim 
 under an actual ouster, they claim under a wrong, which 
 derogates a little from the peaceful pretensions of Friends. 
 They must be made by their counsel to say — " true it is, 
 you were in the peaceable possession of undoubted rights, 
 but by force we put you out, and deprived you of them." 
 
 3 Blac. 167. " Ouster or dispossession is a wrong or 
 injury, that carries with it the assertion of possession ; for 
 
102 
 
 thereby the wroM^" doer gets into the actual possession 
 of the land or hereditament, and obliges him that hath a 
 right to'seek his legal remedy, in order t6-gain posses- 
 sion and damages for the injury sustained." 
 
 Ouster may be effected by various means; among the 
 rest is disseisin, the wrong upon which they must rely. 
 From the^same book, I give its definition. 
 
 3 Blac. 169. " Disseisin is a wrongful putting out of 
 him that is seized of the freehold^ — this is an attack upon 
 him who is in actual possession, and turning him out of it 
 — disseisin of things corporeal, as of houses, lands, Sfc., 
 must be by entry and actual dispossession of the freehold; 
 as if ,a man e.nters by force or fraud into the house of 
 another, and turns, or at least keeps him or his servants 
 out of possession." 
 
 16 Viner 454. Tit. Poss. A. § 12. " A bare entry on 
 another, without an expulsion, makes such a seizin only, 
 that the law will adjudge him in possession that has the 
 right — but it will not work a disseisin or abatement, with- 
 out actual expiihion." 
 
 These Friends have deemed it adviseable to adopt this 
 position, odious as it must appear to be, in order to jus- 
 tify the imprisonment of their brethren for their entry. 
 They avow, that they are themselves guilty of an aggra- 
 vated wrong, and argue, from its commission, that it 
 conferred valuable rights. I deny, that there can be an 
 ouster, while they claim under the deed, though the oc- 
 cupancy were by themselves, to the exclusion of the 
 others. If, however, it can take place, so as not to oust 
 the trustees, but only one of the cestui que trusts, which, 
 to my Blind, is a novel species of ouster, let us inquire 
 when in point of time the expulsion of Green street took 
 place? John Chapman was the tenant of Green street, and 
 the other Monthly Meetings — Stokes cam,e in under him, 
 and, however he may act, the law considers him yet the 
 
103 
 
 tenant of Green street, and he cannot dispute their title 
 or possession. 
 
 A lease, accepted by Stokes from the committee of 
 eight, could not affect Green street. 
 
 [Mr. K. here read the lease, and commented upon it.] 
 So that it is obvious from the papers themselves, that 
 Stojjes was to have the car£ of the yard, to carry into 
 effect the uses of the deed. But Stokes, upon his exami- 
 nation, admits, that he has the charge of the yard, for 
 those entitled to its use, and, in effect, acknowledges our 
 right to enter at all times. By whom was the expulsion 
 made? Was it hfthe committee of eight? They act un- 
 der special authority, and have no more to do with the 
 burials than your honour — there is no act done by them 
 that amounts to an ouster. 
 
 Now, although we cannot discover where, or by whom 
 this disseisin took place, if therb Was a disseisin of any 
 body, it is not pretended to be of thb trustees— and as this 
 act was done by fAair authority, we cannot have com- 
 mitted a trespass against their possession. The trustees 
 are called conspirators, and my excellent friends, William 
 Yardley and others, are supposed by the opposite party, 
 to have incurred the heaviest punishment — they are not 
 alarmed— our orthodox friends will find, that theyhavc 
 gone far enough already — they thank the counsel, howev- 
 er, for the hint, and will hold themselves in readiness for 
 an attacki We are told but five or six have signed the 
 paper — do they mpan to object, tliat a majority is neces- 
 sary ? In the deed, there is no such provision — they hold 
 per my andper tout. Each has an undivided right, and 
 all have a joint possession. If I am right in my conclu- 
 sion, that there has been no actual ouster, it follows, of 
 course, that the trespass must have been against our own 
 possession, which is an absurdity. 
 
 Suppose, however, that I am wrong — that they have 
 convinced you of an actual oustpr — the time when — the 
 
104 
 
 persons by whom, and the possession against which it 
 was committed — yet, what is better settled, than that the 
 disseizee may enter upon the possession of the disseizor. 
 He who has possession, has-a right against all the world, 
 except against him who has the title andright of entry. 
 
 ■ 9 Viner'230. Right A. § 2. The disseizor has only the 
 nak«d possession, because the disseizee may enter and 
 evict him; but^ainst all other persons, the disseizor has 
 right, and in this respect only, can he be said to haye the 
 right of possession; for in respeottb' the disseisor, " he 
 has no right at all— ^but when a descent is cast, the dis- 
 seizor has ^'us possessionis, because the disseizee cannot 
 enter upon his possession and evict him, but is put to his 
 real action, because the freehold is cast upon the heir." 
 
 16 Viner 457. Poss. F. § 3. "He that has possession, 
 has right against all, but himihathas the very right." 
 
 Is it nai every day's practice, where lines of land are 
 in dispute, for the party claimihg right to cut a tree, or 
 do .some act of that kind, to evidetj,ce his entry, thus in 
 action of trespass, presenting to the court no other ques- 
 tion but that- of title? I am not to be . understood, as 
 saying, that every character of entry is legal — it may 
 be attended by such circumstances offeree as would sub- 
 ject the parties to indictment. 
 
 [Court adjourned until to-morrow afternoon, at 3 
 o'clock.] 
 
 Jitne nth. 
 
 Mr. KiTTERA resumes his argument. 
 
 We have reason to feel so much 'indebted to your 
 honour, for the patient hearing you have given to the 
 case, that I will hasten as quickly as possible to the 
 close of my argument. 
 
 I trust, I have satisfied you, that we have continued 
 the only possession, of which such property is capable — 
 I will not say, without interruption — but without such 
 an interruption^ as against the. cestui que trust amounts to , 
 a disseisin, or actual ouster — and as regards the trustees, 
 
io5 
 
 not only without interruptibn of any kind, but with an 
 express acknowledgment of their rights of entry and pos- 
 session. If in these positions I am correct, upon con- 
 ceded ground, there is an end of their case. If I am in 
 error, as to all the positions that I have dttempted to 
 maintain — and you shall be satisfied that there was an 
 actual ouster, which continued to exclude us up to the 
 time of the entry in question — then other considerations 
 are presented. That the person disseized, has the right 
 to enter, and if he does it peaceably, he does it lawfully, 
 is agreed vby ouf opponents^ But, says the gentleman, 
 there prevails a common error, that the disseizee may 
 enter by force. He will find that this common error is 
 not quite as absurd as he supposes it. He admits, that 
 at common law the disseizee might (enter by force; but 
 argues, that this right was restrained by the statutes of 
 forcible entry and detainer. Would it not seem then to 
 follow, from his own premises, that such degrees of force 
 might be used as these statutes do not prohibit? 
 
 The statutes provide for restitution — it forms a part of 
 the judgment oi) <ionviction: — so -that if the force be less 
 than that for which a conviction under the statutes 
 might be had, the party continues in possession. 
 
 4 Johns. 1 50. Hyatt vs. Wood— Is a case, in which 
 you will find all-liielawupGln this suBjectcollected — there, 
 force was actually used, and yet the entry was justified 
 by the court. 
 
 What degree of force may be used, I will not tite the 
 judge by considering; because we deny force of every 
 character. It is against-the principles of my clients to 
 commit any — and there is no evidence to show that the 
 whole proceeding was not cond\icted peaceably. 
 
 The'act of the defendants has bean called a forcible 
 entry and detainer. Suppose it was; does it follow, that 
 defendants charged are to be bound over to keep the 
 peace? As the'presiding judge of a criminal court, you 
 
 14 
 
l06 
 
 would have your hands full— it would be equally incon- 
 venient and unjust— after his case is -but partially heard, 
 and prejutlged, the party is to bear the odium till trial, 
 and then' suffer from the injury it Necessarily produces. 
 Such is not, and ought not to be the law--the proper 
 rule is to be found, laid down by the late Chief Justice 
 Tilghnian, in the case of Commonwealth vs. Duane, 1 
 Bin. 103. " I am of opinion, that it will be mostagree- 
 ■&h\e to the spirit of the constitution — ^^not ,to demand 
 surety for good behaviour be/ore conviction." 
 
 It is a forcible entry and detainer, say they. Forcible 
 entry and detainer are distinct offences against the 
 statute. The disseizee may be guilty of a forcible entry 
 — hut he cannot be guilty oi sl forcible detain&r, after a 
 peaceable entry. The accusation, then, they mean to 
 support, is a forcible entry» Where is the evidence of 
 this forcible entry ? Not a particle of testimony has been 
 submitted by them, to, -show when — by whom — under 
 what circumstances, the entry was made. The only 
 proof is from our witnesses, who say that the yard 
 Was entered by an open gate. We have indeed heard 
 strange doctrine from' the counsel, upon the subject of 
 forcible entry — he seemed to think, that if a man, in an 
 occasional absence from his own house, should h^ive his 
 door locked upon him, he eould not break it open.> Here, 
 there is not even the raising of a latch. Having thus 
 quietly the pedis possessionem — if there be any thing ta 
 complain of, it surely cannot consist in the entry ; but I 
 have shown, that there can be no forcible detainer, where 
 there is a peaceable. en try, with right of possession. So 
 that it would seem unnecessary to follow the counsel 
 further. Let us see, however, what are the legal qualities 
 of either offences, 
 
 4 Black. 148. A forcible entry or detainer is " com- 
 mitted, by violently taking, or keeping possession of. 
 
107 
 
 lands and tenements, with menaces, force, and arms, and 
 without authority of thclaw." 
 
 The technical language of the indictment is, that the 
 defendant, « with force and arms, and a strong hand, 
 uiTawfully, violently, forcibly, and injuriously, did ex- 
 pel, remove, and keep out." * 
 
 1 Rufesel, ^13. " A man, who breaks open the door's 
 of his own dwelling house, or of a castle, which' is his 
 own iirheritance, but forcibly detained from him by one 
 who' has the bare custody'of it, cannot be guilty of a 
 forcible entry and detainer, within the statutes." 
 
 1 Russel, 41^. "A forcible entry must regularly be 
 with a strong hand, with unusual "weapons, or with the 
 menace of life or limb: it must be accompanied with 
 some circumstance of actual violence Or terror; and an 
 entry, which has no other force than such as implied by 
 the law in every trespass, is not within the statutes." 
 
 When this very violent, tumultuous, and forcible entry 
 was made, who were present? Mrs. Stokes was in the 
 hbuse, but itistead of bringing her to give an account of 
 the transaction, they examine her husband, who, at the 
 time, was absent. So far from this lady being alarmed, 
 opposing or objecting to what was doing, we find her in 
 a friendly manner conversing with them; in fact, aiding 
 them in a work which her good- feelings taught her was 
 proper. And pray what was the conduct of Mr. Stokes, 
 who appears to be an intelligent and well disposed man, 
 upon his return? Does he bluster about his right to- pos- 
 session, and objeet to, much more, resist the work? Not 
 at all. He did nothing, but what he considered'to be his 
 duty, and he did not consider it his duty to interfere; ho 
 did indeed say, that he would inform the committee, and 
 I presume he did so; but that was all. He had no desire 
 to go further. You find him with them in the yard, sit- 
 ting and conversing upon the niost friendly terms — nay, 
 sir, although he told the committee, even they do not inter- 
 
, 108 
 
 fere. A seif-constituted committee took the matter into 
 their holy keeping; for when the .convocation took place 
 at Mr. Binney's office, you find present but one individual 
 of the committee of eight, 
 
 There were numbers present, we are told— numbers are 
 sometimes evidence of force; but never^ when you explain 
 why numbers went. A work yvas to be dpne, which re- 
 quired the presence of all who were there — they came to. 
 labour, not toftght. They entered, says the counsel, with 
 spades and picks — where he deri\^ed his knowledge I can- 
 not say' — biat if they all marchfeJ in, witheach a pick or 
 spade upori his, shoulder, allow me to say, there would be 
 nothing so very novel fn the appearance. Had the spades 
 and picks been swords and pistols, then, indeed, the exhibi- 
 tion would have been of a martial character; but as it was, 
 the presence of the tools only prove that they were to be 
 used for what they were designed. ■ There would be more 
 reason for indicting every funeral, for their entry was in 
 greater numbers, and, iii almost every instance^ after a 
 lock was taken from the gate. 
 
 They rely, however, upon the evidence Df Jeremiah 
 WMlits, who has performed so conspicuous a part in this 
 transaction. ' ' . ' ; 
 
 [Mr. Kittefa here stated the evidence of J. Willits, 
 and remarked at large upon it. J 
 
 Finding themselves entirely foiled, in making this a forci- 
 ble entry, they next call it a riot. I again say, let them take 
 the usua:l course, a,nd if they think it a,iriot, have the par- 
 ties tried. But we are told, that they do not wish the 
 defendants bound over for a riot. We expect nothing 
 from their tender mercies; they know that a warrant was 
 issued by the Mayor, charging a riot; and after a hearing, 
 he decided that there was no riot, and yet required surety 
 of the peace. 1 Russel, 350. " A riot is a tumultuous dis- 
 turbance of the peace, by three persons or more, assembling 
 together of their own authority, with an intent mutually to 
 
109 
 
 assist one another against all who shall oppose them, in thq 
 execution of'some enterprise of a private nature, and after- 
 wards actually executing the same in a violent and turbulent 
 manner, to the terror of the people, whether the act 
 intended were of itself lawful or unlawful." 
 
 It would be improper to consume time to show from 'the 
 evidence, that there does not exist in this case a single 
 ■ingredient of riot. 
 
 While, the counsel adfnitted, as far as regards this case, 
 that Green street was a regular Monfhly Meeting, his 
 effort was to produce the impression, that at a future and 
 more proper time and place, they could show that it was 
 not.' What time arid place so suitable as this? We deny 
 that they can ever show it — the Quarter has no power to 
 set up, or lay down, a Monthly Meelin',';. What better 
 evidence can we have, than the opinion of those who are 
 members of the Society? Out of 130 Meeting Houses, 
 100 are of the pa^ty whose pretensions we justify. la 
 no instance where the others form even a small mi- 
 nority, _ have they been disowned; in no instance have 
 they been denied the rites of burial. On the very day 
 when the- imprisonment of the defendants took place in 
 Philadelphia, we are told that the Friends of New- York, 
 overwhelming, as it has been shown they were — 1000 to 
 250, offered to give to the minority their share of the 
 estate. Heire they say, all or p,one; our respectable op- 
 ponents claim to have ,all th& p'^operty and all the 
 religion too. 
 
 Suppose, however, that in all these matters, upon which 
 we have enlarged, perhaps unnecessarily, they are in the 
 right, and we are in the wrong. The application is to bind 
 over to keep the peace. I will not examine into that class 
 of cases, in which courts have sometimes exercised the 
 extraordinary power of holding to good hehaviour; because 
 that is not the application here: and the counsel tells you, 
 that although such words are in the Mayor's commit- 
 ment, they were put there by the mistake of that officer. 
 
110 
 
 Sui:ety,to keep the peace, is usually upon individual 
 application.' By the act pf L700, Find. 777*, this seems 
 to be reqlijred. , 
 [Reads the act, -and remark^ upOn.it. } 
 It is a little remarkable that we can find nobody will- 
 ing to. take upon himself the honour of this prp^eculion. 
 Active as some of them are known to have been, they 
 all bpg tXf be excused from having arty thing to do with 
 it. Even Jeremiah Willits is willing modestly to retire 
 from the distinction it, is likely to confer upon him. The 
 first day the public officer was here, but he soon and very 
 properly abandoned it, leaving it in the hands of private 
 counsel/ Surety of the peace, without any body demand- 
 ing it! You shall keep the peace, says the Mayor, 
 towards Samuel Stokes; but Samuel says he wants 
 no such surety^; that he is afraid of nobody; that he never 
 asked it, and is surprised to find his name made use of. 
 You are told that si|nilar«ats may be done— ^by whom? 
 Does it follow, by these workmen? Others may be em- 
 ployed, and the change may lead you to bind over, not 
 only, all Green street Meeting, but all workmen. disposStl 
 to be employed by them. The conversation of the 
 negro man, detailed by Jeremiah, is giv&n, as another 
 reason; it amounts to nothing:' but to send Jeremiah to 
 this Negro family, to collect idle conversation in the 
 street by the black man, in order to affect the liberty of 
 these respectable brethren, is descending very low in- 
 deed. Remarks of their counsel before the Mayor, are 
 assigned. as a reason for binding them over. It is said the 
 counsel told the Mayor' he would advise them to do the 
 same thing again. I do not recollect what was said 
 befdre that officer, but I- should think there would be 
 more reason for binding over the lawyer, for what he 
 said, than his clients. Mr. Wurts has told you, that he 
 would stake his head that I would give such advice to 
 
Ill 
 
 nobody but Friends. The gentleman sets but little value 
 upon tiiat head of his, if he would subject, it to any such 
 chance; it wouWbe in great danger; no, it would be in | 
 no danger at all, for I wpukl not allow a hair of it to be 
 hurt^— but he may be assured I would oniy abstain from 
 the opinion, to ^ave to the community so valuaMe'a 
 commodity as the article stated. 
 
 We only require, say they, that the'defenjdants should 
 st?ind up, and say that they will not commit a breach of 
 the peace: and what reason have they to object to it? I 
 fancy that if-'Some unfriendly feeling should lead to the 
 same application against the cpynsel; if he should be 
 talcen into a magistrate's office, and told just to stand up, 
 ■and enter into security to keep the pbace, he would be 
 very apt to think of good reasons for objecting to it, 
 Our clients consider it an act of high-handed oppression, 
 which their duty to themselves and society, and more 
 especially their own society, forcibly calls upon them to 
 resist. 
 
 Wo have often asked, without reply, who sustiains this 
 proceeding? Does the little assemblage of orthodox 
 Friends, who first met at their counsel's ofiice, take upon 
 themselves all its responsibility ? Or do they claim, by 
 virtue of general powers, to act for the four' Monthly 
 Meetings, and for all" who are called orthodox in this 
 Yearly District ? If they are authorized, it is a pretty 
 high assumption oT power; and if they are, their authority 
 ought to have been shown, in order that the' odium of 
 the proceeding should, by the public, be attached to 
 all such Friends as had a hand in it. There are to be 
 found in all numerous bcJdies, a fevv who imagine, from 
 their fortune^ their talents, or their vanity, that their 
 weight is not to be counterbalanced by numbers, and 
 the same feeling of self-importance that led them to rule, 
 vyill lead them to resist, when they are told to rule no 
 longer. 
 
113 
 
 I have i^owr submitted such remarks as I thought this 
 question called for; and, in a word, what is it? A religious 
 society of Friends, conlposed of men, respected and. be- 
 loved in this community, and richly deserving the high 
 jDlace they hold in public opinion, being the owners of 
 a grave, j'ard, which they have always used,^are rudely 
 and violently, and on accountof religious disputes, barred 
 from entering it; the bodies of their dead are degraded, 
 and the feelings of the living butraged; in the peaceful 
 assertion of their rights against the wrong doers, they 
 are unlawfully imprisoned; and you are called upon to 
 say Vhether t'hose who did the wrong shall be aided by 
 the criminal process of the country, to effect whatever 
 objects of a. private kind they have in view.' 
 
 Speech of Charles J- Ingersoll. His 
 Anxious ta understand correctly the case to be argtied, I 
 premise a sugsfestion, which our opponents will notice or not, 
 as they think proper, respecting the kind of security they 
 require. Mr. Wurts said yesterday, that the. application to 
 the Mayor was for security to keep the peace, and intimated 
 that the Mayor had fallen into a mistake in the warrants, 
 which demand security for good behaTioui*. There is 
 some distinction between these securities: that for good be- 
 haviour being grantable in cases where a recognisance to 
 keep the peace cannot be obtained; and the security for good 
 behaviour is more easily forfeited , than security for the 
 peace. The distinction is explained by C. J. Tilghman in 
 Duane's case in first Binney. 1 can hardly suppose that the 
 Mayor confounded them; but as the newspapers have made 
 , me say what might infer censure of that very excellent 
 magistrate, I take this occasion to deny the expression 
 reported, which must have been misconceived, froto the 
 difficulty of hearing in a crowded assembly like this. Our 
 opponents, not noticing my desire to be set right in this parji'- 
 cular, I must treat the case as presented by the warrants, an 
 application for security for good behaviour. 
 
113 
 
 This is the first attempt in Pennsylvania to apply legal 
 force to conscientious differences, and therefore a proceed^ 
 ing of the greatest importance. Being an eff6rt by mem- 
 bers of the society of Friends to imprison one another for 
 religious disputes, it must occasion surprise throughout 
 America. And is it not to be apprehended that in Europe it 
 will be pleaded as an apology for governments controlling 
 reKgion; seeing, as it will be said, that after a few years ex- 
 periment here, even this remarkable society could not go- 
 vern themselves, but appealed to legal restraint? At all 
 events, it will mark an epoch in ecclesiastical history. 
 Posterity will b* made acquainted with it, as with the cele- 
 brated trials of the seven bishops and William Penn ; and the 
 name of the jadg6 presiding on the occasion will be trans- 
 mitted, with his decision, to remote places and peri6ds. 
 
 I propose to consider, tirst, the policy, secondly, the 
 constitutionality, thirdly, the legality of the application ; di- 
 viding the latter point into" a view, first, of the right of per- 
 sonal liberty; secondly, of property. As the learned Judge 
 is master of the subject, I shall not offer more than the (Jut- 
 lines of an argument — casting the seeds, apd leavingthem to 
 fructify in his better understanding. 
 
 The first position I address concerns that judicial faculty, 
 well known in the administration of our law as legal discre- 
 tion. In the year 1360, the English statute of 34 Edward 
 III. ordained, that in every county of EnglaHd there shall be 
 assigned for keeping,the peace, one lord, and with him three 
 or four of the most worthy in the county, with some'4earned 
 in the law, who shall have power to restrain offenders,- 
 rioters, and all other barrators, and to inquire of all those 
 that have been pillors and robbers in the parts beyond the 
 sea, and be come^igain, and go wandering, and will not labour 
 as they were wont in times past, and to take of all them that 
 be not of good fame, where they shall be found, sufBcient 
 surety and mjiiriprise of their good behaviour towards the 
 king and his people, to the intent that the people be not by 
 
 15 
 
114 
 
 such rioters or rebeU troubled nor endamaged, nor the 
 peace blemished, nor merchants nor others passing by the 
 highway disturbed, nor put in the peril which may happen 
 of such offenders. Subsequent statutes «f Elizabeth, James, 
 and Mary, empower English justices of the peace to enforce 
 these restraints on persons who disturb any licensed preacher, 
 on unlawful fishing or hunting, on such as neglect to go to 
 church for a whole month, and such as steal deer or conies. 
 Whether any of these statutes, or a common law to the same 
 effect, is in force in Pennsylvania, may be doubted. The 
 Judges of the Supreme Coyrt,in 1808, reported the statute 
 of Edward as in force here. But our own act of assem- 
 bly of 1700, makes adequate provision for binding to the 
 peace ; and the act of 1806 is positive, that where a remedy 
 is provided, or duty enjoined, or any thing directed to be 
 done by any act or acts of assembly of this commonwealth, 
 the directions of the said acts shall be strictly pursued, and 
 no penalty shall be inflicted or any thing done agreeably to 
 the provisions of the common law. Dr. Franklin, in the 
 memoir of his -life written by himself, declares, that in re- 
 moving to America, the colonists did not carry with them 
 the English statutes then existing ; for if they did, the Puri- 
 tans must have been subject there to' the same grievous act 
 of conformity, tithes, spiritual courts, &c. which they meant 
 to be free from in going thither : and in vain would they 
 have left their native country, and all the conveniences and 
 comforts of its improved state, to combat the hardships of a 
 new settlement in a distant wilderness, if they had taken with 
 them what they meant to fly from, or if they had left a 
 power behind them capable of sending the same chains after 
 them, to bind them in America. The existence of the power 
 thus alleged and denied, I neither affirm nor contradict ; but 
 content myself with questioning the sound legal discretion of 
 exercising it in this or any such case. In the case of the 
 Commonwealth against Duane, in 1804, when it Was attempted 
 to exercise it over the press, the late Chief Justice Tilgh- 
 
113 
 
 man, after great deliberation, with the attention of the whole 
 community drawn to his decision, not only refused to apply 
 it, but declared that it is most agreeable to the spirit of our 
 constitution nerer to exercise it before conviction. All wise 
 and virtuous magistrates will shrink from this tremendous 
 power, which, if it exists, is common to not less than two 
 thousand judges and justices in Pennsylvania. The Judge 
 has but to put forth his hand, says Mr. Wurts, and stay this 
 controversy by salutary restraint. True: he has but to 
 stretch it out, and inflict his fiat on what that gentleman calls 
 the infirmities gf human nature. Yes, nearly all of them fall 
 under this formidable authority. Exercise it freely, and not 
 the prisons, nor the prison yards, will contain a tithe of the 
 unconvicted who may be condemned without trial to indefi- 
 nite imprisonment. Every body, for any scandalous or quar- 
 relsome behaviour, is liable to it. All habitual drunkards 
 and evesdroppers, all who sleep by day and go abroad by 
 night, all who keep suspicious company, (a large field for 
 arbitrary pursuit,) all such as are generally suspected of" be- 
 ing robbers, all authors of obscene books, all who haunt 
 bawdy-houses, all who keep women of bad fame in their own 
 houses^ all lewd persons, (a long catalogue,) all who without 
 visible means live extravagantly, (also a numerous part of 
 the community,) all seditious persons who excite to disobey 
 the law, all who speak words tending to disturb or deter jus- 
 tices or constables in exeoaiting their, offices, all who speak 
 contemptuously to any justice of the peace, though not in the 
 execution of his office, are obnoxious to these exactions, and 
 to indefinite imprisonment for not submitting to them. To 
 speak contemptuously of any member of the squirearchy of 
 Pennsylvania incurs it ; yet w^io can fail to do otherwise if 
 he speaks at all of some of the quorum invested with this 
 power ? What a convenient engine for political partisans ! 
 During the late war, when many deemed it right to paralyze 
 the government of their country, why was it not put in exe- 
 cution? During the present party heats, what is to prevent 
 
116 
 
 s 
 
 both sides from fastening it on their antagonists? All re|gious 
 enthusiaste, bishops, elders, and clergymen, may avail them- 
 selves . of it to imprison one aiiother.. Nay, not onl^r the 
 press, the church, and the state may be struck down by it, 
 but the sanctuary of the domestic castle, which no sheriff 
 with his posse can enter without a, warrant, is open to this 
 invasion : any .one of our two thousanB tyrants has but to put 
 forth his hand, on the impulse of any disloyal wife, to impri- 
 son her husband — of any unmanly husband, to imprison his 
 wife — nay, of any parent to imprison a child, of any child 
 to imprison a parent. No age nor sex, is exempt from this 
 tremendous police. ^11 active, and, prominent Quakers, of 
 both sides, are exposed to it. Any malicious or mischievous 
 oath or affirmation will ^iva it effect: and unless the person 
 conscientiously forbidden to consent to a recognisance, find 
 that Security which he cannot in conscience furnish, such 
 person must go to jail, and remain there ; for no habeas cor- 
 pus or course of law will take him out. What will become 
 of Jeremiah Willets, whose excitement was so alarming that 
 he meditated blows ? — for to anticipate a blow is to mean 
 one too. / What will the law require by way of security from 
 Israel CjJpe, and the other headlong Friends, whose passion? , 
 were pitched so high as to rebuild the wall pending this pro- 
 ceeding? And let me ;add, that the excuse attempted is a 
 great aggravation. As they had ordered it before the writ 
 of habeas corpus was taken out, they did not countenance it 
 forsooth : they could not, would hot wait. They did not re- 
 gard the dignity or supremacy of the law. Their temper 
 did not permit them to think even of the Judge, whose arm 
 they urge him to put forth to imprison the objects of their 
 animosity. What should that Judge exact as adequate secU' 
 rity to keep the peace, and be of good behaviour, from those 
 fanatics who locked the gate of the burial ground in the face 
 of a funeral approaching to enter it for interment? whose 
 high wrought anger would not suffer the dust to be quietly 
 mingled with the dust on that mournful occasion! 
 
117 
 
 That such a power exists in Englaad, I may agree -. and 
 that it may be found compatible with their qualified freedom. 
 But 1 deny the sound discretion of exercising it in this free and 
 tolerant community. The race of blind monsters, of those 
 adversaries that go about like roaring lions to devour, has 
 not, it i$ to be hoped, been transplanted hither at all. If it 
 has, the Judge now on the bench is hot the man to encour- 
 age them in their ravages, to incite them to perplex and 
 scourge a peaceful and happy commonwealth with intolera- 
 ble restraints and cruel punishments. Stretch forth your 
 red right arm! Yes: and fire the temples of worship, the 
 mansions of state', the homes of domestic happiness ! Per- 
 haps you have the power. But what discreet Judge will 
 exercise it ? No discretion, in a single magistrate, without 
 trial by jury, will assume such power and provoke such con- 
 sequences. Sound discretion imperiously dictates forbear- 
 ance and abstinence. It is better, if need be, even to risk 
 the peace than to stifle the liberty of the state. The nature 
 of the case — a religious difference in opinion — requires that 
 force ^hould not be applied to it. Even in political contrp- 
 versy,'the effort of Chief Justice M'Kean, a man strong in 
 resolution and supported by large numbers, to compel Cob- 
 bett to give security to be of good behaviour, a man odious 
 to the people, convulsed the commonwealth. Chief Justice 
 Tilghman shrunk from a similar effort in the case of Duane, 
 not from hasp fear, but just, judicious apprehension of con- 
 sequences. , For what are they ? The present warrants re- 
 quire good behaviour until the Mayor's Court now in Session : 
 and unless until means during,, which is a constructive and 
 questionable doctrine, they are already extinct. At all events, 
 they are moribund — about to expire. Will you renew them ? 
 Increase the sum, and pro.long'the term exacted? You must, 
 to keep the peace effectually. It would only provoke and 
 irritate to stretch out this powerful hand, unless it be done to 
 the purpose. Adequate security must be taken, of all dan- 
 gerous men, for an indefinite length of time, till this con- 
 
118 
 
 troversy ends or subsides. And when Vvill that be ? Not till 
 the parties to it are all laid in those burial places which they 
 now contend for. Not while they lire will the quarrel 
 close : and imprisonment for life must follow, if any imprison- 
 ment is to be effectually applied. 
 
 I therefore deny the sound discretion of the requirement, 
 the legal expediency, the sound policy, of exercising such a 
 power in such a case in this commonwealth. The madness 
 of party cannot be quenched ; it is but aggravated by legal 
 coercion. But the dielirium of religious intolerance is only 
 to be made infinitely worse by it. No magistrate can cure 
 it by confinement. It must be let alone to waste itself. No 
 previous censor for the press. No inquisitors for religion. 
 
 In the second place, I question the constitutional power of 
 the magistracy to demand security for the peace or good 
 behaviour, when passions run high from religious differences. 
 The genius of American institutions is self-government : per- 
 fect equality, and absolute toleration. Not the toleration of 
 one established creed which' suffers others to be, but equality 
 of all, and the organic inability of government to meddle 
 with any. In vain, said Franklin, did Puritans (and we may 
 add Quakers) leave their native country, and all the conve- 
 niences and comforts of its improved state, to combat the 
 hardships of a new settlement in a distant wilderness, if they 
 took with them what they meant to fly from, tithes, spiritual 
 courts, and chains. And when that exemplary Judge, the late 
 Chief Justice Tilghman, declared it to be contrary to the 
 spirit, he might have said, and to the letter, of the constitu- 
 tion of Pennsylvania, to exercise such a power before con- 
 viction as that which requires security for good behaviour 
 from political or religious enthusiasts. The third section of 
 the ninth article declares,^ that all men have a natural and 
 indefeasible right to worship Almighty God according to the 
 dictates of their own consciences ; no man, of right, can be 
 compelled to attend, erect, or support any place of worship, 
 or to maintain any ministry, against his consent. No hu- 
 
119 
 
 man authority can in any case whatever control or interfere 
 with the rights of conscience. 
 
 What is meant by the third section, where it mentions Al- 
 mighty God ? and the fourth section, where it adds, that no 
 man who acknowledges the being of a God, shall be disqaalified 
 from oflSce ? What but the present, and all similar controver- 
 sies ? This is not a modem misunderstanding. It began sis- 
 teen centuries ago, in the first ages of primitive Christianity, 
 with what was called the Mystic Theology, fostered and em- 
 bellished, says a classical authority, by the luxuriant fancy of 
 Origen. The question of internal word and inward light 
 divine was agitated by Fox, Barclay, Fisher, Penn, and Keith, 
 in the first stages of the Quaker faith, and distracted the 
 Friends of Pennsylvania as much in the last and preceding 
 centuries as now. When the constitution was iVamed, such 
 differences, and all others of a religious character, were ne- 
 cecessarily to be provided for ; and ho one can ponder the 
 remarkably abstemious language of that instrument in the 
 phrases I have referred to, without perceiving that deism, 
 among other things, was in view. 
 
 Now that the restraint solicited of the Judge on this occa- 
 sion, that the restraint imposed by the Mayor is the act of 
 human authority, is unquestionable ; and does it not interfere 
 with the rights of conscience? It destroys,'as far as it qan, 
 at least it interrupts and fetters men's natural and indefeasi- 
 ble right to worship Almighty God according to the dictates 
 of their own consciences. It compels them to support places 
 of worship, and maintain ministries against their consent. It 
 trenches upon, if it does not trample down, every clause in 
 the constitution providing for that religious freedom, which, 
 if not altogether unconfined but. in the conscience, is not what 
 that instrument promises. 
 
 Nor is there the least danger of confusion or anarchy. 
 Every church, says Chief Justice Tilghman, in the case of 
 Riddle against Stevens, 2 Sergeant and Rawle's Reports, 
 page 543, and he reiterates the doctrine in the case of 
 
120 
 
 St. Mary's chupch, 7 vol. of those reports, page 534, every 
 church has a discipline of its own. It is necessary that it 
 should be so; because without rules and discipline no body 
 composed of numerous individuals can be governed. But, 
 he adds, this discipline is confined to spiritual affairs. It 
 operates on the mind and conscience, without pretending to 
 temporal authority. No member of the church can be fined 
 or imprisoned, but admonished, reproved, ejected from the 
 society — or may voluntarily retire from it. Under these 
 restrictions, the Chief Justice concludes religious discipline 
 may produce much good without infringing on civil liberty. 
 But what is civil liberty, if religious difference may take it 
 away ? What matters it whether men are fined or imprisoned 
 for their conscientious conduct, directly by order of the 
 church, or indirectly by order of a magistrate on the com- 
 plaint of the church? Ex cathkdra, or exforo, wherever the 
 bolt comes from, the blow is the same, and the method of 
 wielding it but little different. 
 
 Again : consider all the kindred clauses of the constitution ; 
 that which declares that trial by jury shall be inviolate ; 
 that which secures persons, houses, papers, and possessions 
 from unreasonable searches and seizures ; that which allows 
 no man to be deprived of life, liberty, or property, unless by 
 the judgment of his peers or the law of the land — they are all 
 at war with this proceeding. It denies the inestimable bless- 
 ing of trial by jury to the accused, of the sympathies and 
 knowledge of his' peers for his protection under prosecution ; 
 it deprives him of liberty and property, possibly of life, con- 
 trary to the law of the land, unless we have naturalized the 
 most arbitrary and odious parts of English criminal law ; it 
 subjects persons, houses, and possessions . to unreasonable 
 searches and seizures. It throws Pennsylvania back upoa 
 the twelfth century and the iron code of English intolerance, 
 and subjects Quakers here and now to be treated with the 
 barbarous cruelties inflicted on the Jews then and there. 
 
 This is the first attempt of the kind in Pennsylvania. In 
 
121 
 
 nl) the bitter feuds of the Roman Catholics, Lutherans, Pres- 
 bjrterians. Baptists, Methodists, Africans, and others, which 
 have been, or are now, before the courts of justfce, if I mis- 
 take not, this violation of personal freedom and constitutional 
 Immunity never was attempted. Law, liberty, discretion, 
 the constitution, christian charity, and Christianity, is part of 
 the common law which came with our ancestors at least in 
 as full and clear measure as the statute of Edward, protest 
 and protect against such compulsion. It violates the consti- 
 tution of man as much as the constitution of this state. It 
 is a violent and incredible contravention of that article in 
 the published dilfeipline of the Yearly Meeting of Friends, 
 held in Philadelphia, which declares, that if any member 
 thereof, disregarding the gospel order prescribed by our 
 discipline, shall arrest or sue at law another member (not 
 being under such a necessity so to do, as may satisfy the 
 overseers, or other solid and judicious Friends of the meeting 
 to which the latter belongs,) he or she in so doing doth depart 
 from the peaceable principle we make profession of; and if, 
 on being treated with by the Monthly Meeting to which they 
 belong, they cannot be prevailed with to withdraw the suit 
 and' pay the costs thereof, they should be disowned. You 
 shall not sue or arrest for a debt, says this discipline. No 
 Judge shall keep any man in prison, for a debt, without strong 
 presumption of fraud, says the constitution. But you must 
 arrest and imprison for religious difference, argues this pro- 
 ceeding; and put what its advocate deems the salutary 
 restraints of the law on those who cannot consent to its 
 exactions, but must go to prison, and stay there indefinitely, 
 or violate their faith. A debtor may hardly be kept there by 
 any power in the law : but a pious Quaker, who quakes at 
 the name of the Lord — which is the meaning of the denomi- 
 nation — but owes nothing to any but his Creator, may and 
 should be laid under penal, obligations to keep the peace, 
 and behave well to other Quakers who think him wrong in 
 his faith. Who, let me not be deemed impertinent for ask- 
 
 16 
 
122 
 
 ing, who are the overseers that instigate this fatal subversion 
 of the discipline of Friends, this violation of the constitution of 
 this state, this revolution of the nature of man, who are these 
 stiff-necked and hard-hearted high priests? My colleague 
 called loudly for their names, without an answer. If 1 had any 
 of that luscious waj of discourse ascribed by Bishop Burnet 
 to William Pent>, I would make use of it to treat with such 
 solid and judicious Friends of the meeting, if any there be, to 
 dissuade them from these Vindictive and destructive measures, 
 disgraceful and ruinous to the church, and pernicious to the 
 commonwealth ; which are the succedaneam for transient 
 rage, but the preliminary to lasting sorrow and shame. To 
 them, as I know them not, I cannot address this expostula- 
 tion. But to a young and emulous Judge, let me respectfully 
 suggest that Coke, Camden, and Marshall are immortalized 
 by the calm and steady resistance of judicial -wisdom to the ^ 
 torrent of enthusiasm and rage, sometimes regal and some- 
 times popular, which discredit and undermine empires. Em- 
 pires have been desolated. Christianity began with smaller 
 seeds than this prosecution. The wind is easily sown : but 
 then comes the whirlwind to be reaped. , 
 
 Lastly, I am to consider the complaint on the foot of mere 
 municipal law: First, with a view to the question of personal 
 liberty, and secondly, to that of property. The argument of 
 the application contemplates it altogether as a matter of 
 private property, which. I deem a subordinate, as well as a 
 mistaken apprehension of the subject. As a question of per- 
 sonal liberty, it is more interesting in the eye of mere muni- 
 cipal law. But the constitutional is much higher ground: 
 thai of legal discretion, 1 think the loftiest of all — and such 
 a case ought to be settled, if it can be, on the broadest prima- 
 ry principles. 
 
 My colleague having fully and ably discussed the legal in- 
 quiry, I shall stand excused for any more than a very sum- 
 mary examination of it, particularly as regards the right of 
 
123 
 
 pt'Opertj' involve<l. In all these apparently religious contests 
 there is probably too much feeling for mere property. 
 
 In this instance, the affair vvas done, all was over, in peace 
 and by permission, before even remonstrance was made. If 
 Stokes was the tenant, as contended, his wife, in his absence, 
 who represented him, gave permission for all that was done. 
 She assisted to get a scythe, to cut the grass with. She fur- 
 nished a pitcher of water, to slake the thirst and sustain the 
 strength of the men at work. Her husband, when he came, 
 gave at least tacit consent, for he made no objection ; if he 
 was not actively consenting by supplying Middleton with 
 victuals, which*was equivalent to rewarding him for the 
 work. Stokes never complained. He only informed those 
 he deemed his superiors of what was doing'or done, and re- 
 ceived their orders in return. Even they never forbade the 
 work. To this moment no interdict or complaint is in proof. 
 All was done as usual, without disturbance, violence, threat, 
 or opposition. No one was put in terror. Stokes earnestly 
 affirms he was not; and his wife's alarm was only because 
 she was alone, without her natural protector, her husband, 
 not because the accused did or said any thing to terrify her. 
 The apprehensions of third persons, not present, are mere 
 speculations which the law will not accept instead of the 
 personal fears of the party aggrieved. The act of 1700, 
 about binding to the peace, is altogether personal in its pro- 
 visions to the complaining individual: Whosoever shall 
 threaten the person of another, says that act, to wound, kill, 
 or destroy him, or do him harm in person or estate, and the 
 person so threatened shall appear and attest that he believes 
 that he is in danger — are the provisions of that act, and of 
 the law. The English authorities are expressly so. The 
 apprehension of a stranger cannot induce the arrest of a sup- 
 posed offender. Messrs. Randolph, Allen, and LippinCott's 
 apprehensions are unavailing. They were not present: 
 what can they fear? Nothing but remote and contingent 
 
124 
 
 results, not proximate or immediate. Mr. Randolph was of 
 that aacred band who took up arms to vindicate his country 
 from oppression — to fight for that religious liberty he helped 
 to conquer and now enjoys. He is not given to apprehensions. 
 But if he were, it is in vain to put him in fear till the conta- 
 gion can be taken by Stokes. Jeremiah Willits' affirmation 
 of what Edmund Shotwell said as to the dust, is the only 
 shade of doubt in the case. But as Willits owns that he did 
 not think at the time that Shotwell intended to strike, and 
 does not now apprehend that he ever will, this trivial doubt 
 is dispelled. The orthodox African says that the heretic 
 African told him they would put up the gate again. Surely 
 Israel Cope and his instruments have done much more. All 
 thatMessrs. Randolph, Lippincott, and Allen, affirm is, to their 
 apprehension, that the same thing will be done again, and 
 lead to violence. But as the thing done was harmless and 
 lawful, its repetition cannot be contrary to law. The act of 
 1700, which, if not our only law, at least affords the best 
 key to, whatever the law is, calls for wounding, killing, and 
 destroying, hurting in body or estate, as the exigencies to be 
 guarded against, of which there was nothing like on this 
 occasion. After all, the whole affair turns on motive, as Mr. 
 Wurts acknowledges. Now, what was the motive ? What 
 was said or done implying a bad mind or criminal intent? 
 Was not the reason assigned for putting up a western gate, 
 that disturbances might be avoided at the eastern gate? 
 The expression of Shotwell as to the dust, taken with his ac- 
 tions at the time, at most are equivocal ; and the law will 
 not strain or torture them to presume violence. No : not 
 against Quakers, says Mr. Wurts, because they are a superior 
 sort of men, better than all others ; and indeed it is remark- 
 able how conspicuously free they mostly are from those in- 
 firmities of human nature which the law guards against by 
 surety of the peace and for good behaviour, drunkenness, 
 debauchery, extravagance, sedition, lewdness, and idleness. 
 
125 
 
 But for that very reasoD, is the argument, because they pro- 
 fess and practise peace on earth and good will to man ; be- 
 cause they strive harder than others to subdue the infirmities 
 of our nature, they should be held to bail as rebels, robbers, 
 pillors, drunkards, barrators, and whoremongers. Shotwell 
 uttered a taunt, it is urged, against him : and so he might ; 
 for the law is perfectly clear, that for any words, for calling 
 Willits liar, rogue, rascal, or the like, no security can be 
 demanded, nor reason for it inferred, unless the instant ten- 
 dency was to break the peace, which Willits disclaims and 
 disproves. A taunt is not a threat, much less an assault — 
 still less a battery : and I insist, as a lawyer, that even a Qua- 
 ker, If that be his taste, may indulge in ataunt with impunity 
 in this free country. He displayed the red flag of defiance, 
 adds the attack on the taunt, which is a ready figure, if you 
 will, but a very incorrect one in its present application-. — 
 When sharply questioned as to his right, Mr. Shotwell calm- 
 ly answered by asserting an owner's right, which, if it be the 
 display of any flag at all on the wall, appears to me to be 
 that of white-robed peace. If, however, Edmund Shotwell 
 were guilty of menace or violence, I hardly need expose the 
 injustice of the argument which makes all the rest, even the 
 coloured men, who did the humblest duties, answerable and 
 criminal, from the misconduct of him alone. 
 
 A mere trespass, even if this were a trespass, will not an- 
 swer the case required by the law for this proceeding: and 
 with respect to Jand, as contradistinguished from personal 
 trespass, it is a familiar principle, to be found in all our 
 books, that even a trespass on land does not incur the liabili- 
 ty for binding over for the peace or good behaviour. 
 
 The law respecting private property appears to me to be 
 misapplied to this public burial-ground. The trust deed of 
 1818 gave the trustees possession and title, not for them- 
 selves, but their constituents, the five churches. During 
 pine years they held undisturbed possession. Since the dis- 
 
126 
 
 putes of the last thirteen months, burials there have continaed 
 much as usual, as to all questions of practical right and ac- 
 tual occupation, though certain self-created superintendents 
 interposed obstacles as to the manner of gaining admission. 
 Mr. Wurts said that the wall was always scaled, and the lock 
 always broke. That is not the case in proof. Sometimes 
 it was so, but often, if not mostly, the dead were buried there 
 as usual — and were taken through' what he calls the strait 
 and narrow gate. Stokes had possession, not of the burial 
 ground, but of the house and garden, and of all as tenant, not 
 of any committee, or even the trustees, but of the owners, 
 who are the five meetings. The recent leases cannot affect 
 Or change the original and established right. The stream 
 cannot be turned upwards by dams of this kind. Thus the 
 illustration from the doctrines of forcible entry, of riot, and 
 of conspiracy, which have been assumed, are all inapplicable ; 
 for there was neither private right nor possession of the 
 burial ground. Besides, there must be force, private posses- 
 sion, and assertion of it, for forcible entry, none of which are 
 in proof. There must be hurtful weapons and terror for a 
 riot, of which there is no evidence. To turn implements of 
 mechanic arts, such as spades and pickaxes, into hurtful 
 weapons, because they mcey hurt, without any proof of de- 
 sign to use them as weapons, would be violating all the be- 
 nignant injunctions of the law. A tumult where cannon hap- 
 pened to be, might as well be turned into a riot, and a twen- 
 ty-four pounder into a hurtful weapon, to make it a riot. 
 To mention the accused as conspirators is, to say the least 
 of if, a bold and enterprising imputation. To suppose that 
 these persons, of peaceable habits and plain garbs, conspire 
 to commit crimes when they confer concerning the worship 
 of their Creator, and the burial of their dead — to clothe them 
 with the livery of a penitentiary, as convicts of high crimes — 
 to suppose all this, in order to infer from it a design to break 
 the peace, and the consequent necessity of binding them by 
 
127 
 
 peaal obligations to keep it, may be charactecistic of aa ar- 
 rogant inquisition, but is in consonance with neither law nor 
 christian charity. 
 
 From whom do such unsparing accusations come? Who 
 are the accusers? Undivulged, unacknowledged I The 
 Judge is not yet informed, by any testimony, even that the 
 meetings, or any one of them, allege a right or discipline 
 to lay down that of Green street. It is the surprising conces- 
 sion of the complainant's case, that it is not necessary to sub- 
 mit that proof on, this occasion. The prosecutors, whoever 
 they may be, have not, for aught that is proved, even the 
 authority or sanction of any meeting, or any act. What has 
 been done, whatever it was, was the unauthorized act of un- 
 known individuals. And who are they? An insignificant 
 minority! Such is the uncontradicted proof by Mr. Parker^ 
 their own witness. The law looks tq majoritiy as the test of 
 right in such controversies; for what other can it have? Noi- 
 thing short of divine inspiration can enable a court or Judge, 
 to ascertain which side is right in the interpretation put on 
 an article of faith. There is no l-egal standard but that of 
 numbers. Let me, without irreverence, remind the Judge 
 that the question between the Trinity and Quaternity was 
 carried in council by a majority of a single vote, and myriads 
 have acquiesced in the sanction. 
 
 But all they ask, says the argument, 18 nothing more than 
 good men should be ready and wiMing to grant, a simple pro- 
 mise to behave well and keep the peace. All that the ar- 
 mies of Rome were sometimes asked to do was to walk un- 
 der two planks, made into what was called a yoke,' and 
 thousands laid down their lives rather lihan submit to it. All 
 that a slap in the face requires from a gentleman, is the 
 death of the giver of it. It is a principle that is in questions 
 like the cup of tea which freed this hemisphere, whose 
 light is now shining in Europe, and piercing into Africa and 
 Asia. A treatise has been written by a Hindoo on the »ery 
 
128 
 
 subject in <5uestion among Friends, which is said to hate 
 made numerous converts in India. America and Europe 
 teem with it. It is the principle of faith that the accused 
 contend for; the principle that made a martyr of Stephen, 
 the principle that made a saint of Paul. Like the fishermen 
 and tent-makers of primitive days, the mechanics implicated 
 in this prosecution must and will cling to their faith. They 
 are ready to submit to the law, bonds, stripes, imprisonment, 
 death ; but they cannot forego their faith. They stand by a 
 principle, that cannot be capitulated— a principle that cannot 
 be coerced. 
 
 Arraigned before the Mayor on charges of riot and assault, 
 it was acknowledged that no proof appeared to substantiate 
 those charges. Being thus acquitted as accused, they were, 
 nevertheless, recognised for their good behaviour ! Whether 
 any Judge will hold them under such circumstances, is the 
 question. 
 
 SPEECH OF MR. JOSEPH R. INGERSOLL. 
 
 This is not an application made by the parties who have 
 sustained injury, and fear a repetition of it. They have 
 discharged their duty to the public and themselves, by ask- 
 ing of the Mayor the interposition of his authority, which 
 was readily and effectually interposed. There the matter 
 would have rested, but for the petition which calls upon 
 this Judge to rescind the direction of the Mayor, by dis- 
 charging from voluntary custody the individuals who have 
 broken the peace. Thus called forward, the original com- 
 plainants appear, and exhibit the reasons why the appli- 
 cation for an absolute discharge should be denied. 
 
 The petitioners having attempted, in vain, to succeed by 
 shutting the door to all inquiry, now mainly rely on the 
 influence of the cry of persecution which has been raised. 
 
129 
 
 Against such an appeal, neither popular feeling nor judicial 
 integrity is always proof. The,refu8al of the Jate chief 
 justice to demand surety for good.behaviour, on a memora- 
 ble occasion, has been adverted to. But ihe friends of that 
 virtuous magistrate, who for three-and-twenty years of 
 official conduct was unstained by the reproach of voluntary 
 error, never rested his claims to eminence upon that de- 
 cision. The torrent of public prejudice was too strong for 
 him to stem: and the event adds nothing to the loftiness 
 of his personal character, or the purity of his judicial fame. 
 If there has been persecution, it mustbe manifested in 
 the recent i-mpflsonment, or in the supposed denial of right, 
 which induced4hebreakingof the wall. The imprisonment 
 was purely voTuntary. Fastidious and morbid must be that 
 sensibility, which refuses to meet ordinary complaints in 
 the orditiary way. As well might one held to bail in a 
 civil suit, complain of persecution, while he refuses the 
 proffered suretyship of a friend. If not voluntary, why 
 was it acquiesced in for five days, when the same means 
 which terminated it at la«t, would have had the same effect 
 at the beginning of the struggle ? All that was desired was 
 a simplepromise to Iceep the peace — and this was refused ! 
 The plea of conscience never was putin before the Mayor. 
 It never was thought of; except in the argument of counsel. 
 It-'has no foundation now. No one seriously believes that 
 the pledge to keep the peace was refused, because such a 
 pledge is, under ordinary circumstances, a violation of the 
 rights of cori,science. These petitioners are men of truth : 
 and they refused the pledge, because they knew they must 
 break it — as they have unhesitatingly declared that they 
 would do the like again. There is no persecution, then, in 
 the imprisonment, which was voluntarily acquiesced in, and 
 voluntarily continued; and there is no violence offered to 
 conscience, in the pi'oceeding, or it would as effectually 
 have prevented an appeal to the law, to procure an enlarge- 
 
 n 
 
130 
 
 ment, as it is said to have done submission tti the law, 
 which would have prevented confinement altogether. 
 
 As little justice is there _in the suggestion, that there has 
 been persecution, in denying to a particular set of indivi- 
 duals, the privilege of interment in this cemetery. On. the 
 contrary, it ha^ been uniformly extended in the freest man- 
 ner. On no occasion has the gate been closed at the ap- 
 proach of a funeral. And the venerable gentleman on my 
 left, (Edward Randolph,) anxiously and kindly endeavoured 
 to conquer the unnatural scruples which strangely predo- 
 minated in a moment of affliction, by prepak-ingand oflfering 
 an order, which was scornfully refused. 
 
 All that has been suggested, by the members of Green 
 street is far short of that. There is no evidence that a 
 single order from their committee has been refused. We 
 may conjecture that such an order would not have been 
 obeyed. But until the experiment was made, the proceed- 
 ing complained of is one, not only of lawless violepce, but 
 wanton aggravation; because it oppose%an evil anticipated 
 by idle fancy, and not merely magnified by the misconcep- 
 tions of an erring judgment. 
 
 Of what did these persons complain ? That theiij rights, 
 say they, were infringed. But what sort of rights were 
 they, to the redress of which was applied this sovereign 
 and heroic remedy ? Not of possession — for it never ex- 
 isted, was not wanted, and from the nature of the tjii^g 
 was impracticable. Possession is si^rrendered by all par- 
 ties to the silent tenants of the grave. The claim is incor- 
 poreal in its character; it is a mere privilege, a right of 
 way for particular purposes ; and therefore not susceptible 
 of manual possession. It is less even than that. It is not 
 the mere right of interment which they allege to have been 
 denied — for to that they knew they were perfectly welcome. 
 But it was the right to inter, under their own orders. 
 Granting, for the sake of the argument, that such right 
 existed, and that it had been disturbed, or denied ;— it 
 
131 
 
 would onlj Tullow, that thef might reaasurne it, as it had 
 been previpusly enjoyed. It coifld extend no farther than 
 to the use of the same gate in the same manner as before. 
 But this could never justify reprisals by the assumption 
 of a new and different right, to be exercised in a new and 
 diflferent manner. The right to a gate on the east, be it 
 ever so unequivocal is not maintained by making or forcing 
 a gate on the west. And hence one of the grounds of 
 justification re-sorted to, consisted in showing that the new 
 gate was wanted, not as a substitute for, but in addition to 
 the old. 
 
 T^ie evidence of the petitioners has made it iinnecessary 
 for me to enter very minutely into questions of discipline, 
 and the consequent regularity of the proceeding by which 
 the Green street Meeting was laid down. But it is a mis- 
 take to suppose that there is not full proof of the fact. 
 Charles Allen declares that the " Quarterly Meeting laid 
 down Green street ; and the minute was accordingly made 
 that the persons appointed by that meeting ceased to be 
 members of the committee of superintendence." It is 
 fundamental to the discipline of the society, that Monthly 
 Meetings may be laid down. If they are aggrieved, an 
 appeal would.Jie from the Quarter, to the Yearly Meeting, 
 for redress : fqr subordination of meetings is a vital prin- 
 ciple. It extends from preparative to monthly ; from 
 monthly to quarterly; from quarterly to yearly. Besides, 
 it is in evidence that the individuals claiming to be mem- 
 bers of that committee had undergone the penalty of dis- 
 ownment, and, therefore, ceased to be members of the 
 society at all. And the efficacy of disownment, until re- 
 versed on appeal, no one will hesitate to concede. Still, 
 if the four Philadelphia meetings had separated themselves 
 from the fifth, while the latter refused to accede to the 
 separation, we must have opened the book of discipline! to 
 exhibit, where it undoubtedly will be found, authority for 
 thus terminating a close and intimate connexion. But if 
 
132 
 
 tht separation has been sought and perfected by the fifth, 
 and rendered absolute on their part, even before the asso- 
 ciates have moved with regard to it, the body so sepatating 
 itseir is at least denied the privilege of gainsaying the 
 regularity and operation of its own conduct. It is proved 
 by a zealous adherent, that Green street renounced the 
 upion. It went much farther. It assumed a new allegiance, 
 and affiliated itself in close, affectionate, and irreconcila- 
 ble adoption, with another and a distant quarter. The 
 very existence, of right to this grave yard in the Green 
 street Meeting, depends on its union with the other four. 
 This claim has been traced by the opening counsel of the pe- 
 titioners, to its source ; and he admits and proves it to flow 
 only from the deed of sixth of second month, 181 8. Thatdeed 
 gratuitously incorporates a meeting without the city bounds 
 into fellowship with those within. It does so at a large expense 
 of land and money, and (except in the satisfaction of diffusing 
 the principles and multiplying the members of the society) 
 without an equivalent. As long as they should remain 
 united, however, subject to the control of the habits and 
 doctrines — influenced by the examples and precepts, which 
 for considerably more than a century had preserved the 
 Philadelphia meeting, pure in faith and upright in conduct, 
 there was no danger in the affiliation. Had it been con- 
 templated that instead of one harmonious body acting and 
 worshipping in affectionate brotherhood, there might at any 
 time, by a small infusion of bad passions, be produced the 
 total separation of a part, to the scandal of the whole, the 
 deed of trust would never have been executed. Hence,''it 
 provides emphatically for the five Monthly Meetings, inclu- 
 ding Green street. That society, or rather that little section 
 of the same general society, was received kindly and gra- 
 tuitously. But as it received protection and pecuniary aid, 
 it formed a contract of allegiance and fidelity, and united 
 devotion, to the same habits of discipline, and conduct of 
 business, together. 
 
133. 
 
 This meeting has chosen to cut SsuDiler the bond of 
 unibn, and with it, all the rights and privileges to which 
 the union gave birth, and which can have no existence 
 without it. The agreement — uniform practice — the nature 
 of the joint property, and the operation of the joint con- 
 cerns, as well as the deed of trust, all contemplate coex- 
 isting rights. The whole system is perverted by an attempt 
 (except by general consent) to disunite them. As well 
 might a single township separate itself from the county of 
 which it forms a part, and reserving all its original ad- 
 vantages, superadd the inconsistent ones arising from the 
 union with another. Is it supposed that the benefits 
 extended to Green street Meeting, as one of the five 
 Monthly Meetings of Philadelphia, can be divided and ex- 
 tended to infinity among the new and numerous associa- 
 tions which it may think fit to form ? Frankford, it seems, is 
 already in great part identified ; can this joint property be 
 made to belong to all the world, if one-fifth of the joint 
 interest should desire it, against the wishes and to the total 
 subversion of the enjoyment of the remaining four? ' 
 
 It is not a new prinoiple in the law, which regulates thtf 
 effect of this proceeding. If the right to separate exist'at 
 all, the separation cannot be partial. Various relations are 
 known to the law, in which the denial of allegiance, or 
 fidelity, is the relinquishment of all the advantages which 
 had before subsisted, and might have been retained. Let 
 a tenant by indenture deny the title of his landlord — 
 attorn to a stranger — or otherwise withhold the respect 
 which the contract implies, and he tei'minates a lease of 
 the longest nominal continuance. Let an agent throw off 
 his loyalty to the principal, \fy setting up opposing inte- 
 rests of his own— or, as has been decided, even by withhold- 
 ing the information which he ought to disclose to his con- 
 stituents, and all the counter liabilities are cancelled in a 
 moment. It is not pretended thut a meeting can at the 
 same time belong to two quarters. As Green street has 
 
134 
 
 become a part of the Abington District, aud may, as it 
 asserts, exercise its privileges under that association — it is 
 imposing no hardship, when it seeks to continue at the 
 same time the enjoyment of former privileges, that it 
 should adopt, in form at least, the regulations of (he body 
 which it has abandoned. 
 
 The Green street Friends are resolved, however, to ex- 
 ercise their su[^osed privileges in their own way. They 
 accordingly appointed a committee, of whom Edmund 
 Shotwell and Joseph Lukens, two of the petitioners, are a 
 part. It is not the least extraordinary circumstance of the 
 case, that this committee has acted in direct violation of 
 the instructions by which they claim to be justified. They 
 are directed by the minute (22d 5 mo. 1828,) to ask the 
 aid of the trustees, and to act under their direction. Now 
 it will be recollected that there are fifteen trustees — ten of 
 whom were never applied to at all; and of the three spe- 
 cially appointed for Green street, two, namely, Joseph 
 Rakestraw and John Lancaster, are passed by without 
 notice or application — and five only, of the whole number, 
 are selected for authority and advice. Was this a compli- 
 ance with either the spirit or the letter of the minute ? It 
 is scarcely necessary to discuss the relative strength of a 
 majority, where a difference of opinion prevails. The 
 principle, however, is a sound one, which gives authority 
 to. the sentiments of the greater number in every body, 
 where, in its constitution, some other rule is not provided. 
 But where the sanction of a body is to be received, and it 
 is not consulted either individually or collectively, but a 
 small — a very small minority — and that a packed one too 
 — is subjected to the formality of consultation — it is a sorry 
 evasion, which never can fortify or excuse misdeed. They 
 were directed to consult the trustees. That they have ne- 
 glected to do so, does not diminish the effect of the admission 
 of the authority of the trustees. They have disregarded that 
 authority, and violated their instructions to respect it, and 
 
135 
 
 thus are doubly deprived of the jugtification to which the; 
 deemed it necessary to resort. The very permission of the 
 five is founded on a fallacy. It is dated the 23d of the 5th 
 mo. 1828, and speaks of Green street "with the other 
 Monthly Meetings of Philadelphia." I thought it had been 
 proclaimed and gloried in, that Green street was no longer 
 a Monthly Meeting of Philadelphia, but of Abington. The 
 feeble protection of this small minority fails, for it is ex- 
 tended upon a representation which is erroneous in point 
 of fact. 
 
 It will thus appear that the act of violence was the act 
 of strangers: ptTlliated by no necessity — justified by no 
 continuance of joint and equal rights; excused by no au- 
 thority which might seem to possess a superintending con- 
 trol—every ground fails them the moment it is assumed. 
 Still the act was to be done, and if justification sjjiould be 
 wanting, impunity at least might be hoped for, in the pacific 
 bearing of those whose rights were to be trampled on, and 
 whose feelings were to be derided. I do not mean to con- 
 test the right — extraordinary as may seem the exercise of 
 it — ^to refuse permission always within reach, and to forego 
 advantages, which to ask was to command. We naturally 
 inquire, to what end is sullenness indulged i Yet the passive 
 indulgence of it only hurts the patient, and is the gratifica- 
 tion of a'humour in which he cannot justly be restrained. 
 Every one who chooses to be unamUble, may shut himself 
 up in his own bad feelings, and neither extend nor receive 
 the kindnesses which give charm to social life. Active 
 duties to our neighbour are not enforced by the provisions 
 of the municipal law. There, however, indulgence ceases, 
 and the law will not permit the exercise of a fastidious and 
 overweening selfishness, to the destruction of the peace of 
 the commonwealth. Shut yourself up, if you will, and ex- 
 change no kindnesses, receive and reciprocate none of the 
 courtesies of society. But do not, at the peril of restraint 
 at least, burst asunder locks, and doors, and walls, which 
 
136 
 
 are generally as strong as bars of adamant. It was reserved 
 for members jof a society which professes to renounce all 
 ceremony, to become the slaves of an absurd and empty 
 punctilio ;.to exhibit a scrupulous adherence to form, among 
 the professed contemners of all formality. Not a form or 
 a punctilio that broods in sullen silence over real or imagi- 
 nary wrongs,' but one that breaks out into open violence, and 
 threatens and assails property and personal safety. The 
 laws have no voice, if under such circumstances they are 
 not heard' to speak. The line is clearly defined which 
 separates rights of conscience from encroachments made 
 under a false conception of its dictates. A member of the 
 meeting has a right to refuse military contributions, and 
 to ask legislative protection from any obligation to meet 
 them. It is the privilege of conscience. But if a morbid 
 sensibility,' which is a misguided and erring conscience, 
 were Jo prompt to the assassination of one who should 
 peaceably endeavour to collect militia fines, or to levying 
 of war against the legislature that should refuse the desired 
 protectior) — this sickly substitute for conscience would 
 form no apology for crime. Enjoyment of one's own is the 
 invaluable privilege of freemen. But the common law, 
 and the great declaratory charter of liberty, has imposed 
 on this enjoyment the necessity of respecting the rights of 
 others. It is an error to suppose that the law has been now 
 for the first time appealed to, to correct the errors of a 
 badly regulated conscience. When violence and fury 
 were introduced among the dissentiuns of the German 
 church, indictment and conviction were the consequence. 
 Our Roman Catholic brethren,. too, suffering their zeal to 
 overflow, in a spot like this, splemnized and sanctified by 
 the ashes of their kindred, were brought to recollection by 
 the salutary interposition of the penal law. That position 
 is not sound which assumes as insulting the demand of a 
 pledge to keep the peace. Are we threatened with a 
 similar demand in rieturn ? Let the effort be made, and I 
 
137 
 
 answer fur the cheerful compliance of my excellent friend*. 
 Their whole deportment is a pledge of peace. The re- 
 ligion they profess, the garb they Wear, the language they 
 utter — all their thoughts and all their actions, speak for 
 them a devotion to the ciuse of peace. Let them be asked 
 to confirm by express declaration pledges so unequivocal, 
 and they will pronounce a prompt amen. A similar argu- 
 ment, urged by Sir William Draper, was triumphantly re- 
 futed by his skilful antagonist. Take the Decalogue; 
 propose (said Junius) to a virtuous man, the question of his 
 violation of eaqh commandment, and the inquiry may per- 
 haps discompose the gravity of his muscles, but would 
 little affect the tranquillity of his conscience. 
 
 I have said that the nature of the claim made by the 
 Green street Meeting, rendered unimportahtan inquiry as to 
 possession. The ivhole conduct of its members, however, is 
 at variance with every thing like possession. Why the con- 
 stant recourse to violence — the repeated breach of locks — 
 and the climbing over, and finally breaking down the wall — 
 unless because they were without the possession, which 
 would have prevented these acts of irruption and invasion ? 
 In the circle of history and fiction, I recollect but a single 
 instance where the possessor entered his own premises by 
 the means of scaling ladders ; and that was to protect them 
 from savages and wild beasts. . TJlie scaling laddef- is the 
 peculiar instrument of offensive war. It immortalized 
 Alexander of Macedon, at the taking of Oxydrace. It has 
 always accompanied besieging armies when bent upon a 
 furious onset, and stirred up to desperation, by the alter- 
 native of victory or death. 
 
 In whom do they allege possession to have existed for 
 their benefit? Not in the committee specially appointed 
 by the minute of twenty-second of May, for it had no being 
 until that day. Not in the committee of interments, for 
 they have nothing to do but to grant permits. Not in the 
 two members of the conimittee of superintetidence, for th«^y 
 
 18 
 
138 
 
 had eeased to act as early at least as the first of January, 
 , 1828, when the lease was made without their concurrence 
 to Samuel Stokes ; not in Samuel Stokes himself, for his 
 authority was derived esclusively from the remaining eight. 
 Without the fact of voluntary alienation, then, their inva- 
 sion is without excuse. But give them a joint right of 
 property and possession, and they are still breakers of the 
 peace. No one of the several meetings in full communion 
 could set up its separate pretensions, to the exclusion of a 
 general control. If so, where would the mischief end? 
 Each meeting, or each section of the committee, may by 
 similar pretences have a gate of its own, or twenty gates. 
 Nor will the various views of the various meetings limit 
 the evil : for each individual member.on the same principle, 
 has a right to act arbitrarily for himself. While one de- 
 termines to pull down, another may determine to keep up; 
 and a confusion worse than that of Babel is invited ; which 
 can be allayed only by recurring to the sober sense of 
 order, which governs all things human and divine. 
 
 If undefined rights exist, this is not th&way to test them. 
 My colleague has correctly stated, that ejectment or par- 
 tition might have afforded a remedy. They would presup- 
 pose the existence of corporeal claims. But if the alleged 
 privilege be/ as I have stated, in the nature of a franchise, 
 and if it be any thing, it is merely a right of way — then the 
 remedies for its disturbance, as it is technically called, are 
 perfectly defined. If the obstruction be a nuisance, abate 
 it. If you require the aid of law, bring your assize, which 
 is now recognised to be in full force in Pennsylvania: or 
 if a less summary proceeding will answer, institute an ac- 
 tion on the case for damages. 
 
 No remedy, however adequate, no path, however plain, 
 is satisfactory to the parties, except the one of force. To 
 this they have needlessly resorted ; and it is to be decided, 
 whether they are to be indulged in the act, and encouraged 
 to a repetition of it. The law delights in the exercise of 
 preventive justice, wherever it is attainable. It is a pro- 
 tection against a host of crimes. In England, Jet one col- 
 
"139 
 
 Icct half a dozen of hig friends, to pull down a house, and 
 b/ statute (1 Geo. 1. c. 2.) it is felony of death. To guard 
 against mischiefs to the public, and to restrain the indivi- 
 dual from exposing himself to condign punishment, the law, 
 both here and there, extends its arm where injury is ap- 
 prehended to person or estate. Surety of the peace is 
 resorted to, says Blackstone, "where there is probable 
 ground to suspect misbehaviour." In the exercise of a 
 sound discretion, can there be a doubt of the application of 
 these salutary principles to the parties now in custody ? 
 Apprehensions are expressed by sober men. Submission 
 to aggression, ^ays a venerable witness, may provoke a 
 repetition of it. Samuel Stokes, and Jeremiah Willits, 
 and John Lippincott, and Charles Allen, severally testify 
 to their belief that these acts will be repeated at any and 
 every jiazard. But why recur to the apprehensions of 
 others, when you have the threat of the parties themselves, 
 made and repeated in private, and ratified and promulgated 
 by their counsel before the Mayor? All that can be neces- 
 sary, is to ascertain whether these acts which they take 
 pride in promising to act again, are in their nature illegal, 
 and such as ought to be prevented. Can outrages* moire 
 absolute be conceived P If all the rest were equivocal, an 
 assault and battery on Jeremiah Willits is in clear and 
 perfect proof. Edmund Shotwell had done nothing in the 
 shape of work, except by way of example, to encourage the 
 persons employed. He was quietly seated inside the wall 
 when Willits came. At the moment of inquiry for the 
 names of the labourers, he started up, seized a pickaxe, 
 as an instrument of offence, and not of labour, — hurled de- 
 fiance, like the knights of old, by the proclamation of his 
 name, and rudely drove the bricks against the person of 
 Willits. The injury was aggravated by the insult which 
 accompanied it: as it has been to-day by the derision which 
 this assembled multitude has united in bestowing on a most 
 respectable man. It had been more becoming, if the asso- 
 ciates of the petitioners who have thronged to witness this 
 inquiry, had not from the first moment, with one consent, 
 
140 
 
 converted this temple of justice into a theatre of noisy 
 merriment and sport. Willits continued to stand in the 
 same position, and the assault was repeated with equal 
 evidence of scorn and insult. Had the assailant met 
 with a temper as violent as his own; or had he met 
 any temper which was not subdued by principles which 
 nothing could shake, the result would have been a scene 
 of tumult, not perhaps free from bloodshed. ' It is of 
 little consequence that these proceedings were conduct- 
 ed with comparative quiet. Thanks to the forbearance 
 of the injured, thanks to the dexterity of the assailants, 
 who seized a moment that would be free from interruption, 
 and speedily accomplished their work, it escaped the full 
 extent of public scandal, which might have been the conse- 
 quence. Protesting, however, thatbreaking down a wall is 
 necessarily an act of violence, it withdraws nothing from 
 the dignity of crime, that it is perpetrated in silence and 
 secrecy. I draw no invidious comparisons to the injury of — 
 many :of them — respectable men. But the blow of midnight 
 murder is inflicted with a noiseless arm. The dark assas- 
 sin steals towards his design with steps unheard by mortal 
 ears. 
 
 These petitioners are not upon their trial. If they were, 
 every doubt both as to motive and action would operate, in 
 their favour. Now, every doubt resolves itself against 
 them. It is not punishment, but precaution that is sought: 
 not retributive, but preventive justice, by which they are 
 arraigned, They have chosen to place themselves in a 
 situation which they say may be innocent, but which, 
 therefore, may be otherwise. ' If innocent, they do biit 
 confirm the profession of their faith, and the assurance of 
 their characters, by a promise to respect the one, and to 
 preserve the consistency of the other. If otherwise, the 
 public Will be guarded from the peril of commotion, and 
 the parties themselves will have reason to rejoice that they 
 are arrested at the beginning of a mad career. 
 
 It is much to be deplored that this respectable sqciety, 
 now convulsed and torn asunder by internal feuds, has al- 
 ways shunned the anticipating protection of the law, in the 
 
141 
 
 arrangement of its property. Had a charter been obtained 
 .in the usual mode, the present difficulties, if not altogether 
 obviated, would at least haye been shortened in their dura- 
 tion : for a single election would have put to rest the con- 
 troversy as to the control of property. Confidence in each 
 other has been so entire, reliance so absolute, that the or- 
 dinary precautions against the passions of men have been 
 neglected, and they have been found to swell in the bosom 
 of this peace-breathing communiiy . Happily, the evil is not 
 yet entirely beyond control. An opportunity is now pre- 
 sented to check its growth, and to prevent its recurrence, 
 by the warniqg voice of salutary admonition, uttered with 
 the impartiality of a stranger, and with the sovereign au- 
 thority of the law. 
 
 DECISION OF JUDGE KING. 
 
 To the writ issued in this instance the keeper of the 
 prison returns, that he detains the relaters "in pursuance 
 of certain annexed commitments," issued by the Mayor 
 of the city of Philadelphia, and dated the fourth day pf 
 June, 1828. These commitments state the defendants to 
 have been charged before the Mayor, "on the affirmation 
 of Samuel Stokes and others, with having committed, 
 with others, a breach of the public peace, by forcibly 
 pulling down a part of thewall of Friends' Western Burial 
 Ground in said city, and required to give bail iov future 
 good conduct and behaviour towards the said Samuel 
 Stokes, the tenant in possession, as well as to all the good 
 citizens of the commonwealth." The personal recog- 
 nisance of Shotwell, Lukens, and Middleton, in the sum 
 of ^500, without other security, and bail in $20 from 
 the other defendants, was required by the mayor ; which 
 being refused, they were committed until the "next 
 Mayor's Court." A minute and laborious investigation 
 of the facts which led to this commitment, has been gone 
 into before me, and I am now called upon, not to deter- 
 mine whether the original requisitions of the committing 
 
142 
 
 magistrate can be sustained, but whether, under all the 
 circumstances disclosed on the hearing, the relaters should 
 not be called on to enter into recognisance to keep the 
 peace. For the correct understanding of the grounds of 
 my decision a brief recurrence to some of the leading 
 facts becomes necessary. I do not contemplate going very 
 minutely into the voluminous testimony in the cause, 
 but will content myself with condensing so much of it as 
 appears to me material. 
 
 For several years past, the Quarterly Meeting of the 
 Society of Friends, of Philadelphia, consisted of five 
 Monthly Meetings, viz. the Northern District, the South- 
 ern District, theEastern District, the Western District, and 
 Green street Monthly Meetings, all springing from the 
 old Philadelphia Meeting, and harmoniously organized 
 from time to time, as the increase of local position of 
 members rendered expedient and necessary. On the 
 second day of February, 181S, certain real estate, among 
 which was a lot on Schuylkill Seventh and Mulberry 
 street, since known as the Western Burial Ground, was 
 purchased for the common use of the five monthly meet- 
 ings; and was, for that purpose, vested in fifteen trustees, 
 three of whom were chosen and appointed by each 
 monthly meeting. Subsequently, this lot was designat- 
 ed as a burial place for the common use of the five monthly 
 meetings; a wall was erected around it, and it was in 
 other respects prepared for the decent reception of the 
 dead. Inside of the inclosure, a suitable mansion was 
 erected for the dwelling place of a superintendent, and 
 other arrangements made, comporting with convenience 
 and security. In order to the preservation and regulation 
 of this beautiful cemetery, a committee of two persons 
 was appointed by each of the five monthly meetings, who 
 formed an aggregate body of ten, and from time to time 
 devised and executed such measures as were accordant 
 with the objects of their appointment. In addition to 
 
143 
 
 their representation in the committee often, each month- 
 ly meeting appointed what was called a burial committee, 
 under whose orders the bodies of deceased Friends were 
 interred in the Western Burial Ground. These com- 
 mittees of the respective monthly meetings for granting 
 orders, or as they have been termed throughout this dis- 
 cussion, burial committees, were distinct and independei^t 
 bodies, having no sort of connexion with each other, or 
 with the joint committee of ten ; and the orders of each of 
 them were always, until the happening of recent events, 
 recognised and obeyed by the superintendent, or person 
 in charge of the burial place. Under this simple and 
 efficient organization, every thing- proceeded with the 
 harmony and peace which, until recent and ever to be 
 deplored events, have always characterized the principles 
 and practice of this primitive people. Each of these com- 
 mittees exercised undisturbedly their respective func- 
 tions, neither controlling nor controlled by each other; 
 never coming into collision, because they moved in dif- 
 ferent spheres. So decided seems the sentiment as to 
 their mutual independence, that Samuel Stokes, the su- 
 perintendent, considers that the directions of the com- 
 mittee of t^n would not be sufficient to induce him to 
 disobey the orders of the burial committee of a regular 
 monthly meeting. About a year since. Green street 
 monthly meeting is said to have been " laid down," or, 
 in other words, deprived of its functions as a monthly 
 meeting, by the Philadelphia Quarter, and its members 
 united to the Northern District meeting. The regularity 
 of this alleged laying down; its efiFect on the separate ex-/ 
 istence of Green street monthly meeting, as a monthly 
 meeting ; and its operation on the equitable interest in 
 this burial ground, secured by the trust deed, have rather 
 been hinted at than discussed; being treated with'entire 
 propriety, as questions referrible to other tribunals, and 
 in a different and less summary form of proceeding. In 
 
144 
 
 point of fact, however, Green street monthly meeting 
 has never admitted the correctness of the doings of the 
 Philadelphia Quarter, and has gone on as a monthly 
 meeting as if no such proceedings were ever had. That 
 meeting being in the de facto exercise of its functions, 
 and the regularity and effect of the alleged laying down 
 on the spiritual and temporal concerns of the meeting, 
 not being submitted to my decision, I cannot consider 
 Green street monthly meeting in any other light than 
 as one of the five monthly meetings, which are cestui 
 que trusts, the parties among others for whose use the 
 Friends' Western Burial Ground is held by the trustees. 
 Since the period, however, of the alleged laying down, 
 the two members of the committee of ten, appointed by 
 Green street meettng, have not been recognised by the other 
 members of this committee, or suffered to participate in 
 their proceedings. Except in a few instances, the orders 
 for the interment of its deceased members, given by their 
 burial committee, have been disregarded by the superin- 
 tendent of the burial ground, acting under the supposed 
 authority of a majority of the committee of ten: the gate 
 has been closed against approaching funerals of its late 
 members; and in order to their interment, the Friends of 
 Green street have found it necessary to enter the inclosure 
 by means of ladders, and force the fastenings from the 
 gate. It is correct here to remark, that no such mea- 
 sures would have been necessary, had the Friends of 
 Green street consented to receive orders from the burial 
 committee of the Northern District meeting, to which, by 
 the alleged laying down, they were supposed to be at- 
 tached, which orders were always in readiness for themj 
 and, on one occasion, such an order was actually tender- 
 ed to the family of a deceased member of Green street 
 meeting, and rejected. The ground of the refusal of these 
 orders, by the members of Green street meeting, was, that 
 the receipt of them, from the Northern District meeting, 
 
145 
 
 involved an admission of the regularity of the doings of 
 the quarterly meeting, which' they have steadily and 
 firmly resisted. 
 
 At the outset of these difficulties^ Johnf Chapman held 
 the .place of superintendent of this burial place under the 
 committee of ten. By an arrangement between him and 
 Samuel Stokes, the latter came into the possession of the 
 dwelling house; and on the 1st day of Jan. 18^8, eight of 
 the committee of ten, being all the members of that body 
 except the two representatives of Green street meeting, 
 leased the dwelling house to Samuel Stokes, and entered 
 into an agreement with him as to the terms and condi- 
 tions on which he should thereafter exercise the duties of 
 superintendent of the burial ground. One of the stipula- 
 tions in his lease of the dwelling house is, " that he 
 would not permit the dwelling or abiding on the premises 
 of any other person or persons than his own family, 
 without the consent of the committee." A stipulation 
 in the other agreement ^relative to the execution of his 
 duties as superintendent, engages that he will bestow on 
 the burial place "all the, labour and attention necessary, 
 or proper, for the fulfilling of the uses and purposes 
 for which the said burial ground was appropriated." 
 
 The subject of their burial ground naturally excited 
 the attention of Green street meeting; add on the 22d of 
 May last, a committee was appointed by that nleeting> 
 " to ask such aid of the trustees as the necessity of the 
 case might require, and who were authorized to carry into 
 effect, under tlieir 'direction, such measures as might be 
 deemed needful, to secure to them their rights as a month- 
 ly meeting," in this particular. In pursuance of this 
 authority, the committee thus appointed requested and 
 obtained pegjiyssion of five of the trustees, ^' to put a 
 gate in the wall of the burial ground, in Cherry street, 
 and if necessary erect a house for a tenant ; or take any 
 other measures that might secure to the meeting the ri^t 
 
 19 
 
146 
 
 of interment, in conformity with a deed of trust, recog- 
 nising a common right with the other monthly meetings 
 of. Philadelphia; it being understood that the Friends 
 of all the othef monthly meetings should enjoy the pri- 
 vilege of entrance equally with the Friends of Green 
 street." The appointment of this committee was never 
 commumcated'to the other fen trustees; nor were they 
 in any respect consulted. on the subject; nor did they in 
 any way give their assent to the permission thus given 
 by the minority. It is also proper to observe, that this 
 is the first known instance of any interference by the 
 trustees with the burial ground — the control and manage- 
 ment of it being always heretofore exercised by commit- 
 tees, appointed by the five monthly- meetings. The 
 trust however is joint, and the necessity for the consent 
 of a majority is not stipulated by the deed, however it 
 may be implied. 
 
 On the 21st of May last, Edmund Shotwell, one of 
 this committee, Charles Middleton, Joseph Lukens, and 
 Joseph Townsend, two of the committee of ten, being 
 the Green streetrepresentation in that committee, together 
 with divers .workmen, repaired to the western burial 
 ground, in order to erect the contemiplated gate. They 
 entered the ground through a small gate, leading to the 
 dwelling house, which was not locked, in the most peace- 
 able, orderly manner; proceeded to the western wall, 
 and after carefully cutting the ripe grass, so as to do as 
 little injury as possible, commenced the work, A space 
 was broken in the wall, of sufficient extent to receive a 
 gate, corresponding in size with the eastern gate, and 
 when the work was completed, tliey as quietly left the 
 premises. — Mr. Stokes was absent when the relators 
 entered the burial place, but shortly afterwards returned, 
 and found them engaged as I have described, and stated 
 to them nothing, as I understand, except <' that he would 
 inform the committee.^' Subsequently to seeing the 
 
147 
 
 committee, he was directed to tell them to desist. He 
 did 80, but they paid no attention. He says his family 
 was alarmed gn account of his absence, not from any 
 apprehension they had of injury from the relaters, from 
 whom, he says, he has " not the least reason to believe 
 his person or estate is in danger;" and he seemed anxious, 
 on his examination, «not to be understood^as a prosecutor, 
 nor in any other light than as a witness. He however 
 declares, that he can rec&gnise no other authority' over 
 the burial ground than that of the committee who ap- 
 pointed him; and th9t had he been at home, he should 
 have considered i^ his duty to have objected to the entry 
 of the relaters. Except in one particular, the gate was 
 completed without tumult, confusion, or even excitement, 
 and progressed to conclusion, as if the authority for its 
 erection had' been without question. The occasion I 
 allude to is this: While Edmund Shotwell (who is a 
 mechanic,) and the others were pulling down the 
 wall, Jeremiah Willits, a member of the Northern Dis- 
 trict Meeting, but hltving no other connexion toith, 
 possession of, or authority over, the premises, came 
 and inquired the names of certain workmen, which were 
 given to him. , Wiiile WilMts was speaking to the meo, 
 Shotwell, who at the moment of his arrival was not ac- 
 tually at work, got upon the wall close to which Willits 
 was standing, said his name was "Edmund Shotwell," 
 and with a hammer or pick commenced throwing some 
 bricks from the wall, which fell on Willits'sfeet, observ- 
 ing to the latter, that he had better get out of the way 
 or he would get dusted. ' The-wall was then down near 
 to the ground. WiH^,says, he does not believe that 
 Shotwell intended to strike him, but that he intended to 
 taunt or insuU him. 
 
 He also sayslie is under no fear of injury in person or 
 estate from Shotwell, or any of these defendants. Va- 
 rious respectable witnesses have been examined, who. 
 
.148 
 
 while they all disclaim any kind of personal apprehen- 
 sion of the'defendants, say, ^hat unless they are restrained 
 they believe they will repeat their conduct; and two of 
 the defendants, viz. Jos. Lukens andone of the labourers, 
 have been heardvto express strong intimations of this 
 kihd. During the pendency of the inquiry before me, 
 the gate erected By the <relaters has been removed) and 
 the breach, made in the wall to receive it filled up; part 
 of the materials for which were on the grouad before the 
 hearing actually commenced, and piost probably before 
 the issuing of the writ of Habeas Corpus. This summary 
 may appear tedious, but an anxiety that every material 
 fact should be embraced, has. extended it to a greater 
 length than was originally contemplated. 
 1 The prosecutors insist that the recognisance to keep 
 the peace should be continued, and contend that the facts 
 in evidence prove, ftrst: That the conduct of the relatera 
 on the 31st of May, in entering the Friends' Western 
 Burial Ground, breaking the wall,and erecting the gate on 
 Sixth street, was a forcible entry; that being done by more 
 than three persons, it was a riot; and that the commission 
 of these crimes by the relators, and the subsequent intir 
 mations of some of them, afford a well-grounded appre- 
 hension of future violations of the public order, if the 
 relaters are not recognised to keep the peace. It is to 
 be understood that such surety was all that was demanded 
 of the committing magistrate, or now required of me; no 
 proceeding preparatory to an indictment for forcible entry 
 or riot being instituted or cpntemplatejl. 
 
 For the correct application of the testimony to these 
 grave charges, and in order.to te^t^e soundness of this 
 application for surety of the peace,' whj^h it will be per- 
 ceived is consequential to their existep,ce, it is necessa- 
 ry to understand what cpnstitutes, in a legal, point of view, 
 forcible entry and -riot, Blackstone defines forcible 
 entry as "an offence against the /ij<J/i<;, peace, which is' 
 
149 
 
 committed by viohntly taking or keeping possession of 
 lands or tenements with menaces, forces, and arms, and 
 without authority of law,'* 4 vol. 14T. Viner adopts a 
 definition the character of which is more decisive. "For- 
 cible entry," says that author " is if one or niore per- 
 sons come weaponed to a house or land, and violently 
 enter; orthey ojfyr violence to any possessed; or if they 
 forcibly and furiously expel 'another out of his posses- 
 sion," 1.3 vol. 1§0.' The spirit and reason of any law 
 may be well collect^i from the times and -emergencies 
 that gave it existence, and afford sure Jights in guiding 
 to the conclusion whether new cases as they arise are 
 embraced in the decrees of the lawgiver. 
 
 At the common law, a party who had the lawful right 
 of entry on land, might recover his possession from a 
 wrong doer by fotqe. ■ Our old books speak of a certain^ 
 respite which was given to, the desseizee (according to 
 his distance and absence,) in whichJit was lawful for him 
 to gather force, arms, and fripnds, and throw the desseizor 
 out of his wrongful possession. 13th Viner, 399. In a 
 rude and boisterous age, when might was right, and a 
 proud and powerful feudal notiility paid but a doubtful 
 homage to a feeble sjbvereign, such a right could not fail 
 to be abused, arid hence disputed possessions were oftener 
 settled by belted knight and bucklered yeoman, than by 
 coifed sergeant and ermined judge. Thepublic calamities 
 produced by such a state of things led to the statute of 
 5th Richard 2d, which forbid thenceforth entrys " with 
 a strong hand, or with a multitude of people, but only in 
 lawful and easy manner." Our provincial act of assem- 
 bly of 1700 supplies' this statute, and directs, that " who- 
 ever shall violently and forcibly 6nter the house or 
 possessions of 'another, should be punished as a breaker 
 of the peace." The objects of the statutes against forcible 
 entry must not be misunderstood. They never were in- 
 tended to facilitate th« restoration of private righfsj or 
 
ISCf 
 
 afford prompter remedies than the ordinary actions of 
 ejectment aiid trespass ; but had in view ecEcliisiveJg/ the 
 preservation of the public peace. It isin the maintain- 
 ance of this great pillar of the social system that the com- 
 monweallh interferes,. having no other interest in mere 
 conflicts between contending parties for property, that 
 would induce her to interpose between, them the public 
 law. When therefore the public peace has not been in- 
 fracted, the party who complains of a violation of hispos- 
 sessian, must resort to the ordinary tribunals of civil 
 jurisdiction. It is undoubtedly convenient for one party 
 toenlistthe strong arm of the commonwealth in his quar- 
 rel, but that has never been deemed a sufficient reason 
 for her interference on all occasions, when wrongful en- 
 tries have been made, The Suggestions I have thrown 
 out are much better, and certainly, more authoritatively 
 expressed by our Supreme Court, as long since as 1795, 
 in Respubliea vs. Devore, 1 Yeatiefe'SO 1 . " The statutes 
 of forcible entry and detainer," say the court, " were 
 made for very wise and good purpasee, when the spirit 
 of the times was very diflferent from the ipres^pt. The 
 rights of property are more respected and regarded, and 
 we are induced to flatter ourselves?that the necessity of 
 recurring to law only, for the redress of priv*ate or pub- 
 lic injuries, is now obvious to every one. These statutes 
 are still bepeficial, but in a variety of instances ihe^ 
 have been prostituted' and abused. Their proiiisidns, 
 which formerly were' construed liberally, should re- 
 ceive a strict construction frotn Ike change of circurn- 
 sktnces." The practical application of these principles 
 in that court, is well exemplified in a manuscript case, a 
 full note of which is in my possession^ I allude to the 
 case of the Commonwealth vs. Thomas W. Morris, George 
 Vaux, Joseph Reed, and others, an indictment for forcible 
 entry, tried before the present Chief Justice, at Nisi Prius, 
 in 1S20. In that case, one Fox entered on an uninclosestf 
 
151 
 
 lot in&>'uth stjteetj near Eighth street, unier a claim of 
 title, ' ': < . . ■ ' =-' 
 
 He fenced the lot rotmd^'partly filled if up,^it being 
 low, and either loaned, or made a,donation of part of it 
 to a third person, for t-fie purpose' of erecting a meeting 
 house for public worship, the erection ef wiiich was ac- 
 tually commenced. The 4efendanit8 claimed under one 
 Hill, who hadfipen in qui«t -possession for thirty years 
 and upwards. /They went to thci ground early in the 
 morning, forcibly broke dovwn the fence with axes, and 
 erected a building. on the premises, in which they placed 
 a tenant. Whilfe they were thus engaged, Fox' came on 
 the lot, and protested against their proceeding. On the 
 trial, he swore, that" he felt himself in danger of personal 
 violence from the defejylajSrts, whose demeanor, according 
 to his description, was of a very different character from 
 that of these relaters. In charging, the jury, that in :this 
 case no forcible efitry was committed,' Judge Gibson said, 
 among other things, according to the note I retain, that 
 " CQurts,*now say, that where the object is to take a short 
 cut at pqagflssJQn, they will not cpuntenance forciible en- 
 tries..' Mere civil suits„ihust not be turned into criminal 
 prosecutions. The f^arty wlio institutes the prosecution 
 must have been in quiet and peaceable jjossession, not a 
 mere scraTiibHng jpossession. , Otherwise, theparfy last 
 turned iybd is not protected .by the statutes, of forcible . 
 entry." Under his charge ^nd recommendation, the de- 
 fendants were, acquitted, an^ I; believe the prosecutor 
 mulct into costs. A"'' y^' Fox's entry on the lot, fencing 
 it ro1iind,and commencement "of building, looks very much 
 like what the^counsel for, tl\e prosecution calls an ouster*. 
 
 The party then, who hopes to succeed in such a prose- 
 cution, must have a quiet, peaceable, and actual, not a 
 mere scrambling ^possession, and the entry must be ac- 
 companied by actual force or intimidation. Again,. it is 
 not every actual possession that is adequate for this pur- 
 
153 
 
 poae, for a man who breads open the door of his own 
 dwelling house, or a castle, whichls his inheritance, but 
 ioToWAy detained from him by one who claimsthe bare 
 custody of if, cannoUbe guilty of forcible entry..! Rug- 
 sel 413. 3 Bapon Ak 255, ' 1^ Hawk. eh. 64. sec. 23. 
 The riot charged in argument, is a consequence of the 
 entry being forcible; 'for a: forcible entry by, three or 
 iriore is a riot. Hence the (^e&tion of riotJiere, is de- 
 pendfent on that of forcible entry; the latter must beesta- 
 bli^ed before the former has ahy existence. 1. The 
 operation of these legal principles on the application be- 
 fore me for surety of the peace will be readily perceived. 
 The opening counsel for the prosecution, placed his case 
 on the ground, that Green street meeting had been ousted 
 of any possessory rights it might have formerly possessed 
 in this burial place, by the doings oi" the committee of 
 ten: that being thus actually ousted and dispossessed, 
 and exclusive possession being in other hands, the entry 
 of the 31st of May, by the authority .of that meeting, and 
 the minority of the trustees, was..forcible and^riotpus. 
 Assuming, the entry to be forcible and Tiotous, security 
 of the peace is demanded to prevent future aggressions. 
 His colleague went somewhat further, and denied' that 
 Green street, and of consequence" all the other meetings, 
 had ever any other right in this burial ground than a right 
 of way, and consequently it could h?ve no possession. It 
 is in these assumptions that the weakn.ess of the prose- 
 cution lies. The facts of the case, and the principles of 
 law arising in it, exhibit that whether the entry of the 
 31st of May is within the statutes of forcible entry, is a 
 point of much nicety, involving the splution of impor- 
 tant propositions of law and fact. The intelligent coun- 
 sel who so ably opened for the pVosecution saw, that 
 unless he could establish peaceable possession in his 
 clients, and force in the entry of the relaters, he could 
 
133 
 
 not expect to obtain surety of the peace against future 
 repetition. 
 
 fte, therefore, to use his own figure, considered the 
 evidence of force in the entry to be as " clear as the sun 
 in the firmament." It should indeed be so, to authorize 
 a judgn to usurp the functions of a court and jury, and to 
 decide, first, that a crime, accompanied with a breach of 
 the peace, has been committed, and that the pa*ty charged 
 should be coerced under pain of imprisonment to give 
 surety against its future repetition. I view the law and 
 facts of the case.very differently, and, while I give' no 
 decided opinion on either, consider I should not stand on 
 safe ground if I should act as if both were ascertained by 
 due course of procedure. The relaters, before I should 
 demand surety of the peace from them on the assumption 
 that they are forcible enterers and rioters, have the legal 
 and constitutional right of having that vital question 
 determined by a jury of their peers. The argument, 
 that a demand of surety of the peace is a more mild and 
 merciful proceeding'than a prosecution by indictment, is 
 more specious than solid. In effect, it gives to a single 
 magistrate, a power which pertains only to a court and 
 jifry, and in sufcsfanee, deprives the accused of what is 
 his most inestimable right, the trial by jury. I would 
 ask the advocates of this doctrine, what is to limit the 
 magistrate, or subsequently the court to which surety- 
 ships are returnable, either as to the length of time for 
 which they shall be continued, or the amount of bail by 
 which they shall be rendered effectual. Moderate bail 
 and the party's recegnisance, is only demanded in this 
 instance by a mild and humane magistrate, but under 
 less auspicious circumstances a different requisition might 
 be made, and the citizen deprived of his liberty without 
 " the judgment of his peers," or, as I believe, « the law 
 of the land." This doctrine is not novel. " Surety of 
 the peace," says Dalton, page 366, " ought not to be 
 
 20 
 
154 
 
 granted on account of a past beating, unless there be fear 
 of future danger: the remedy in such case being by ac- 
 tion orJndictment." Hovv much stronger is this case 
 where the evidence renders it doubtful, whether a public 
 offence, a private injury, or any wrong has been done, 
 from that put by this ancient author, where the act is ne- 
 cessarily criminal, and the threat to repeat it, a threat to 
 commit a certain crime. 
 
 The Mayor's Court of the city is now in session, and 
 the grand jury not discharged. If it is desired to have 
 a ju(Jicial decision on the character of this entry, let a 
 bill of indictment be submitted lb, that body. By cer- 
 tiorari, such a bill would be removed to the Supreme 
 Court, and the judgment of that dignified tribunal be- 
 tween these parties ascertained. If Jeremiah Willits 
 feels himself personally aggrieved by Edmund Shotwell, 
 the courts of the commonwealth are open to him. But 
 until the guilt of these defendants of the crimes imputed 
 to them, is duly substantiated, I cannot, under the circum- 
 stances of this case, demand of them a surety which can. 
 never be justly called for on the mere assumption of their 
 guilt. On the whole, I am compelled to differ from what 
 I ffave no doubt was the sincere and conscientious judg- 
 ment of the Mayor, and accordingly refuse to call on 
 the relaters to give surety to keep the peace. No other 
 requisition being made of me, they are discharged, and 
 at liberty to go where they please. 
 
 NoTK. — The reporter of the preceding pages, to silence the im- 
 putations of prejudice, deems it proper to inform his readers that 
 the speeches of counsel have all been revised by their respective au- 
 thors; and though by this, they may have lost a little of their interest 
 in the estimation of superficial minds, no doubt they have acquired 
 a degree of substantial accuracy, which will more than compensate 
 for tiiis trifling loss; and when the character of the subject is taken 
 into consideratron, it is believed few will regret, that some of the 
 «ft'ervescenceof the occasion, which at the time delighted the fancy, 
 lias .subsided in favour of argument, which alone can reach the judg- 
 ivienf. 
 
INDEX. 
 
 Introduction, ....... 
 
 Permission from Trustees to enter the Burying Ground, 
 
 Affirmation of Jeremiah Willits, .... 
 
 Warrant issued by the Mayor, 
 
 •Opening of the Coui-t, &c. &c. .'■ . 
 
 Copy of Mittimus, 
 
 Names of Counsej, &c. ., 
 
 Openingremarks Dy Mr. John Wurts, 
 
 ' „ „ Mr. Kittera, 
 
 „ „ Judge King, .... 
 
 „ „ Mr. Kittera, .... 
 
 „ Mr. Wurts, "... 
 
 „ „ Mr. Kittera, . . . , 
 
 „ „ Mr. Job. R. IngersoU, 
 
 „ „ Mr. Chas. J. IngersoU, 
 
 » „ Judge King, .... 
 
 Samuel Stokes, a{Hrmed on the part of prosecution, 
 
 Jeremiah Willits, „ 
 
 Edward Randolph, „ 
 
 John Lippincott, „ 
 
 Charles Allen, „ 
 
 Richard Parker, „ 
 
 Joseph Parker, „ 
 
 Timothy Paxson, „ 
 
 Jereniiah Uowser, (colodred man) „ 
 
 Opening Speech by Mr. Eli K. Price, for the prisoners, 
 Joseph Warner, affirined on the part of prisoners. 
 Minutes of Green street Monthly Meeting, 
 Application of Committee, for the aid of the Trustees, &c. 
 Compliance of "Kcustees with the request of Committee, 
 
 Joseph Townsend, affirmed^ 
 
 Jonathan Guy, „ 
 
 Richard Satterthwaite, 
 
 Joseph Townsend, recalled, 
 
 Samuel Stokes, ,, 
 
 William Yardley, affirmed ' . ' . 
 
 Speech of Mr. Wurts, . « - - 
 „ Mr. Kittera, . 
 
 „ Mr. Chai-les J. IngersoU, 
 
 „ Mr. Joseph R. IngersoU, 
 
 decision of Judge King, 
 
 Paoe 
 
 3 
 8 
 9 
 10 
 13 
 ib. 
 14 
 ib. 
 15 
 16 
 17 
 ib. 
 18 
 19 
 21 
 23 
 
 ib. 
 33 
 37. 
 40 
 41 
 42 
 ib. 
 49 
 51 
 
 52 
 56 
 ib. 
 57 
 ib. 
 58 
 61 
 63 
 65 
 66 
 67 
 
 68 
 
 93 
 
 112 
 
 128, 
 
 141 
 
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