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 Digitized by the Internet Archive 
 in 2019 with funding from 
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 https://archive.org/details/trialofjourneymeOOjour 
 
TRIAL 
 
 OF THE 
 
 JOURNEYMEN CORDWAINERS 
 
 OF THE 
 
 CITY OF NEW-YORK; 
 
 FOR 
 
 A CONSPIRACY TO RAISE THEIR WAGES; 
 
 WITH 
 
 THE ARGUMENTS OF COUNSEL AT FULL LENGTH, ON A 
 MOTION TO QUASH THE INDICTMENT, THE VER¬ 
 DICT OP THE JURY, AND THE SENTENCE 
 OF THE COURT. 
 
 REPORTED BY WILLIAM SAMPSON, ESQ. 
 
 ONE OF THE COUNSEL IN THE CAUSE 
 
 JYETV-YOItK. 
 
 Printed and Published by I. Riley . 
 1S10. 
 

 -» 4 . 
 
 DISTRICT OF NEW-YORK, ss. 
 
 ’{)E IT llldMEMBERED, That on the fourth day of October, in the 
 _£J? thirty-fifth year of the Independence of the United Slates of Ame¬ 
 rica, isaac Riley, of the said district, hath deposited in this office 
 the title of a book, the right whereof lie claims as proprietor, in the 
 words following, to wit : 
 
 “ Case of the Journeymen Cordwafners of the city of New-York ; with 
 “ the arguments of counsel at full length, on amotion to quash the indict- 
 “ ment, the verdict of the jury, and the sentence of the court Reported 
 “ by William Sampson, Esq. one of the counsel in the cause.” 
 
 Ix conformity to the act of the Congress of the United States, en¬ 
 titled, “ An act for the encouragement of learning, by securing the copies 
 “ of maps, charts and books, to the authors and proprietors of such copies, 
 “during the times therein mentioned;” and also to an act, entitled, “An 
 “act, supplementary to an act, entitled, an act for the encouragement of 
 “learning, by securing the copies of maps, 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.” 
 
 CHARLE*: CLINTON, 
 
 Clerk of the District of New-York. 
 

 '-,v. 3 y 
 
 
 
 ADVERTISEMENT. 
 
 THE publisher has been induced to procure a copy 
 of this interesting trial , and offer it to the American 
 public , as at once a useful , amusing and interesting 
 work. It is highly important to all Artizans and 
 Mechanics , as well employers as workmen; and 
 it is hoped that it may be thought well worthy the 
 perusal of the gentlemen of the bar. Rut neither in 
 point of instruction or amusement , is it foreign to any 
 class of readers , as it will be found to contain much 
 legal history , with the attractions of novelty , fancy 
 and humour. 
 
 ? ' /' 
 
 LAW LIBRARY 
 

 4 * 
 
 
 
 
 * 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 CASE 
 
 
 . OF THE 
 
 JOURNEYMEN CORDWAINERS 
 
 OF THE 
 
 CITY OF NEW-YORK. 
 
 THE bill was found at the court of general ses¬ 
 sions of the peace, holden in and for the city and 
 county of New-York , at the city-hall of the said city, in 
 the month of December , in the year of our Lord one 
 thousand eight hundred and nine, and filed on the 12th 
 day of December , 1809. 
 
 Present, 
 
 The Hon. De Witt Clinton, "A 
 
 Mayor of the city of New-York ; f Justices of 
 
 Peter A. Mesier, Esq, [ the Sessions. 
 
 Thomas Carpenter, Esq, j 
 
 The indictment being of great length , the following 
 abstract , which includes all the substantial parts of it , 
 is judged sufficient for the understanding of-the argu¬ 
 ment. 
 
 A 
 
 LIBRARY 
 
2 
 
 The People of the State of New-York 
 against 
 
 James Melvin, William Abernathy, Thomas Ba¬ 
 ker, Henry Vane, James Glass, Daniel Allen, 
 John Gibson, Samuel Browning, Henry Bogert, 
 Robert Baird, John Newland, William Co¬ 
 sack, Robert Lambert, Terence Murray, Pa¬ 
 trick McLaughlin, James M‘Ninch, Wright 
 McFarland, William Beach, James Read, John 
 Daly, George Read, John Morehouse, John 
 Gillen, and Nehemiah Bradford. 
 
 The first count states, that the defendants, being 
 workmen and journeymen in the art, mystery, and 
 manual occupation of cordwainers, on the 18th October , 
 1809, &c. unlawfully, perniciously and deceitfully de¬ 
 signing and intending to form and unite themselves into 
 an unlazvful club and combination , and to make and or¬ 
 dain unlawful by-laws , rules and orders among them¬ 
 selves, and thereby to govern themselves and other work¬ 
 men in the said art , and unlawfully *and unjustly to ex¬ 
 tort great sums of money by means thereof on the day 
 and year aforesaid, with force and arms, at, &c. to¬ 
 gether with divers other workmen and journeymen in 
 the same art, &c. (whose names to the jurors are yet un¬ 
 known,) did unlawfully assemble and meet together, 
 and being so, &c. did then and there, unjustly and cor¬ 
 ruptly conspire, combine, confederate and agree to¬ 
 gether, that none of them , the said conspirators , after 
 the said 18 th October , would work for any master or 
 person , whatsoever , in the said art , mystery and occupa¬ 
 tion , who should employ any workman or journeyman , or 
 other person in the said art , not being a member of the 
 
3 
 
 said club or combination , after notice given , &c. to dis¬ 
 charge such workman, &c. from the employ of such 
 master, &c. to the great damage and oppression not 
 only of their said masters, employing them in said art, 
 &c. but also of divers other workmen and journeymen 
 in the said art, mystery and occupation, to the evil ex¬ 
 ample, &c. and against the peace, &c. 
 
 2d Count has the same general averments, and states 
 that the defendants, designing and intending to form 
 and unite themselves into an unlawful club and combina¬ 
 tion-, and to make and ordain unlawful and arbitrary by¬ 
 laws, rules and orders among themselves, and thereby 
 to govern themselves in, (as in the first count,) and un¬ 
 lawfully and unjustly to exact and extort great sums of 
 money by means thereof, &c. did unlawfully assemble 
 and meet together, and being so met together, &c. did 
 then and there, unjustly, See. conspire, combine, con¬ 
 federate and agree, that none of the said conspirators , 
 after the said day , &c. would work for any master 
 or person whatsoever , in the said art , &c. xvho shall em¬ 
 ploy any workman , &c. who shall , thereafter , infringe 
 or break any or either of the said unlawful rules , orders 
 or by-laws. Concluding as above. 
 
 3d Count. That the defendants conspired, &c. not 
 to work for any master or person who should employ any 
 workman , &c. who should break any of their biy-laws , 
 unless such workman , &c. should pay to the club such 
 sum as should be agreed on , as a penalty for the breach 
 of such unlawful rules , orders or by-laws , and that they 
 did , in pursuance of the said conspiracy , refuse to work 
 and labour for fames Corwin and Charles Aimes , because 
 they , C. and A. did Employ one Edward Whit ess, a cord- 
 wainer , (alleging that the said E . TV. had broken one of 
 
such rules and orders, and refused to pay 2 dollars , &c. 
 as a penalty for breaking such rules and orders ,) and con¬ 
 tinued in refusing to work, Sec. for C. and A. until the 
 said C. and A. discharged the said E. TV. &c. Sec. 
 
 4th Count. That they (the defendants) wickedly, and 
 intending unjustly, unlawfully, and by indirect means, 
 to impoverish the said Edward Wliitess, and hinder him 
 from folloxving his trade, did confederate, conspire, See. 
 by -wrongful and indirect means , to impoverish the said 
 E. IV. and to deprive and hinder him from following his 
 said art, Sec. and that they, according to the said un¬ 
 lawful, Sec. conspiracy, Sec. indirectly, unlawfully, Sec. 
 did prevent, Sec. the said E. TV. from following his said 
 art. Sec. and did greatly impoverish him. 
 
 5th Count. That the defendants did conspire and 
 agree, by indirect means, to prejudice and impoverish the 
 said E. TV. and prevent him from exercising his trade. 
 
 6th Count. That the defendants, not being content to 
 work at the usual rates and prices for which they 
 and other workmen and journeymen were wont and ac¬ 
 customed to work, but falsely and fraudulently con¬ 
 spiring, unjustly and oppressively to augment the wages 
 of themselves and the other workmen, Sec. and unjustly 
 to exact and extort great sums of money for their la¬ 
 bour and hire in the said art, mystery. Sec. and did 
 meet, Sec. and being so met, Sec. did unjustly and cor¬ 
 ruptly conspire, &.c. that none of them should, after the 
 said 1 8th October, work at any lower rate than 
 S3 75 for making every pair of back-strapped boots, 
 
 2 00 Suwarrow laced boots, full clammed, 
 
 1 75 for laced boots in front, 
 
 2 37 1-2 for footing back-strap boots, 
 
 3 25 for footing Suwarrows, 
 
 1 25 for bottoming old boots, 
 
I 
 
 5 
 
 On account of any master or employer, to the great da¬ 
 mage not only of their said masters, &c. but of divers 
 other citizens, &c. 
 
 7th Count. That the defendants falsely and fraudu¬ 
 lently conspired, &c. unjustly and oppressively to in¬ 
 crease and augment the wages of themselves and other 
 ' workmen , &c. and unjustly to exact and extort great 
 sums for their labour and hire , &c. from their masters 
 who employ them , did assemble , and being so assembled , 
 did conspire , &c. that they , and each of them , &c. would 
 endeavour to prevent , by threats , and other unlawful 
 means , other artificers, &c. in the said art , &c. from 
 working , &c. at any loxver rate than , &c. (setting out the 
 prices in the preceding count, and concluding likewise.) 
 
 8th Count states the design to form themselves into a 
 club, as in the three first counts, and to assemble unlaw¬ 
 fully, and that they did assemble, and being so assem¬ 
 bled, conspired and agreed, that none of them should 
 work for any master who should have more than two 
 apprentices , to learn the said art , at one and the same time. 
 
 9th Count charges a conspiracy, by indirect means to 
 prejudice and impoverish the following persons, who are 
 all master shoemakers, and prosecutors of the indict¬ 
 ment : 
 
 Israel Haviland , John Mills , Timothy Wood , John 
 Peshine , Oliver H. Taylor , William Troxvd , Isaac Mi- 
 nard , Samuel Mabbatt , Thomas Lexvis , James Corwin , 
 John I. Vanderpool , Christian Covenhoven , William Kid¬ 
 ney , Thomas Benton , David Law , jun. Abraham Mer- 
 ril, Charles Lee , Thomas M'-Kinley , James Jarvis , 
 Charles Aimes , William Benton , and Pe/rr P. Sprain - 
 ger. 
 
6 
 
 Saturday , December 16. 
 
 The defendants, being in court, pursuant to their re¬ 
 cognisances, were called upon to plead. Sampson , on 
 their behalf, asked leave to peruse the bill, which was 
 granted. After a short consultation with Golden , also 
 of counsel for the defendants, he gave intimation that 
 they should move the court to quash the indictment. 
 The day being far advanced, Monday morning was ap¬ 
 pointed for the hearing of the motion. 
 
 Monday , December 18. 
 
 This day Sampson opened the motion, as follows :— 
 
 May it please this honourable court. The indictment 
 we now move to have quashed contains nine distinct 
 counts, each affecting to charge the defendants with a 
 substantive crime of conspiracy ; yet we maintain, that, 
 taken in the entire, it contains nothing to which we 
 should be put to answer, either in law or fact. And we 
 appeal to the discretionary power of the court, to save us 
 from the hardship of pleading or demurring to facts, 
 which, though proved, or admitted, could produce no 
 legal result. 
 
 We understand, from the counsel for the prosecution, 
 that they mean to support the indictment, without re¬ 
 ference to any statute, but abstractedly upon the princi¬ 
 ples of the common law. On the other hand our posi¬ 
 tions are these : 
 
 That by the common law, in England, such com¬ 
 binations were never held to be conspiracies. 
 
 That even though they had been, they never were so in 
 this country, either by statute or common law. 
 
 3 
 
1 
 
 That in England such indictments lie only in virtue 
 of the statutes regulating the wages and labour of the 
 workmen, called Statutes of Labourers. 
 
 That such statutes were never in force in the United 
 States of America , not when they were colonies, and 
 certainly not since. 
 
 That the crime of conspiracy is defined by a statute 
 declaratory of the common law, as well in this state as 
 in England , and that under that definition, no such in¬ 
 dictment as the present can be maintained. 
 
 That negative usage, from the first settlement of this 
 country to the present time, is sufficient evidence to 
 show, that the law never authorised such a proceeding. 
 
 The definition alluded to is entitled “ A Defnition of - 
 Conspirators and takes in the three kindred offences 
 of conspiracy, champerty, and maintenance, which make 
 a common tide in all the ancient books, all partaking of 
 the same nature, and punished as crimina falsi, with the 
 villanous judgment. 
 
 The English statute is in these tvords : “ Who be 
 conspirators and who be champertors :f Conspirators be 
 they who do confederate, or bind themselves, by oath, 
 covenant, or other alliance, that every of them shall aid 
 and bear the other falsely and maliciously , to indite, (2) 
 or falsely to maintain pleas ; (3) and such as cause 
 children within age to appeal men of felony, whereby 
 they are imprisoned, or sore grieved ; (4) and such as 
 retain men in the country, with liveries or fees, for to 
 maintain their malicious enterprises ; and this extend- 
 eth as well to the takers as the givers. (5) And stewards 
 and bailiffs of great lords, which, by their seigniory, of- 
 
 • 33 Edtv. I. slat. 2. an. dom. 1304. | Vid.Keble, stat. n. GO. 
 
8 
 
 fice, or power, undertake to hear or maintain quarrels, 
 pleas or debates, that concern other parties than such 
 as touch the estates of their lords, or themselves.(6) 
 This jinal ordinance and definition of conspiracy , was 
 made and accorded by the king and his council, in his 
 parliament, the 33d year of his reign. 
 
 (7) And it was further ordained, that justices assign¬ 
 ed to the hearing and determining of felonies and tres¬ 
 pass, should have transcript thereof. 
 
 (8) Champertors be they that move pleas and suits, or 
 cause to be moved, either by their own procurement, or 
 by others, and sue them at their proper costs, for to 
 have part of the land at variance, or part of the gains.” 
 
 It appears from the 7th section, that this definition 
 applied as well to criminal prosecutions as to civil. It 
 was, therefore, the universal definition of conspirators 
 and conspiracy. 
 
 Immediately after follows dm statute of champerty, 
 restraining pleaders, attorneys, bailiffs of great men, 
 &c. from corrupt bargains and oppressive acts, of which 
 the fourth section is in these words : 
 
 “ (4) Our lord the king, at the information of Gilbert 
 Roxvberrij , clerk of the council, hath commanded, that 
 whoever will complain himself of conspirators , inventors 
 and maintainers of false quarrels , and partakers thereof 
 and brokers of debates , that Gilbert Thornton shall cause 
 them to be attached by his writ ; and that they be before 
 our sovereign lord the king, to answer unto the plain¬ 
 tiffs by this writ following : Rex vie salutem , &c. 
 
 From this it appears how far those have straggled 
 from the common law principles, who have supposed, 
 that a combination of men, to regulate their immediate 
 and proper interests, was included in that odious accu¬ 
 sation bv the common law. 
 
9 
 
 The earlier statutes made in pari materia , antecedent 
 to this final definition of what should and should not 
 be conspiracy, all warrant the same principle, and all 
 turn upon falsehood, oppression by false charges, or cor¬ 
 ruptly meddling with concerns not their own: for in¬ 
 stance : 
 
 “ None shall commit champerty for to have the thing in 
 question.”* 
 
 This title is sufficiently explanatory. 
 
 “ Penalty for buying the title of lands depending in 
 suit.” f 
 
 This was to prevent the chancellor, treasurer, justices, 
 great lords of the king’s council, and such as had power, 
 from taking churches, advowsons of church lands, and 
 other bribes, for the corrupt abuse of their power, and. 
 perversion of law and justice. 
 
 “ The remedy against conspirators , false informers , 
 and embracers of juries .’’j: 
 
 This empowered justices of assises to take inquest 
 without writ, and do justice without delay, upon conspi¬ 
 rators , false informers , and evil procurers , of dozens, 
 assises, inquests, and juries. 
 
 And next is that final definition, already cited, of 
 which Lord Coke speaks in these terms. 
 
 | “ This, which was in truth the 21 Edw. III. is enti¬ 
 tled a definition of conspiracy, and is in affirmance of the 
 common laiv.Ӥ 
 
 The counsel opposed to us are able counsel, and can 
 do much ; but to bring the case of the journeymen cord- 
 
 *3Edvj. I.C..15. 113 Edw. I. c. 49. $ 22 Ediv. I. c. It. §2/rcsf.5G2. 
 
 B 
 
10 
 
 wainers of New-York within this definition of conspira¬ 
 cy, upon the principles of the common law, I think is 
 more than they can do. 
 
 But what will they say when I read to them a similar 
 definition by a statute of our own, made with a full view 
 of all the English cases and statutes from the time of 
 Edward I. and before it, where our legislators, after 
 weighing them all, thought the best thing they could 
 do was to go back to the old common law definition, 
 and re-enact it ; and thereby get rid at once of all 
 the bad precedents with which the English books 
 abound.* 
 
 The declaratory statute of New-York is, as close as 
 circumstances would permit, a transcript of the English 
 final definition, “ Reddendo singula singulis it is the 
 same law. It only omits what respects great lords, and their 
 men in livery, and such other mischiefs as were suppo¬ 
 sed for ever banished from this land. I leave this statute 
 open for the perusal of the gentlemen, with this one re¬ 
 mark, that, when all the English statutes were repealed 
 in mass, this protecting law was adopted and enacted. 
 
 It is scarcely more necessary to say, that a definition of 
 what shall be conspiracy is a declaration of what shall 
 not be so, than that the line of circumference shows as 
 well what is contained within a circle as what falls with¬ 
 out it. The acts here charged fall without, and not with¬ 
 in, the definition. 
 
 We have, therefore, for our maxim, that, uhi nulla lex , 
 ibi nulla transgressio. We have also for us a definition, 
 from high authority, of crimes and misdemeanors. 
 
 Laus JV*. F. v. t. p. 343. sess. 24. c. S'. 
 
11 
 
 “ A crime or misdemeanor,” says Sir William Black- 
 stone, “ is an act committed, or omitted, in violation of 
 some public law, either forbidding or commanding it.”* 
 Let me then ask, where is the public law that prohibits any¬ 
 thing, or commands any thing, which these defendants 
 are charged with having committed or omitted ? The 
 silence of our statutes, the silence of our records, shows 
 that there is none; and the definition in affirmance of 
 the common law, shows that there could be none ; and 
 that even in England , there never was any other than those 
 statutes of labourers, which it is not pretended ever were 
 of force in this country, and which are all repealed if 
 they ever had been in force here. 
 
 Yet from the frequent recurrence of those statutes in 
 the English law books, and of the cases growing out 
 of them, has all the fallacy arisen. By too great fami¬ 
 liarity with foreign law books, and too little attention to 
 our own constitution and laws, we are often led into er¬ 
 ror, not considering how unsuitable these foreign laws 
 may be to our condition. For instance : the English 
 code and constitution are built upon the inequality of 
 condition in the inhabitants. Here all are in one degree, 
 that of citizens ; and all equal in their rights. There 
 are many laws in England which can only be executed 
 upon those not favoured by fortune with certain 
 privileges; some operating entirely against the poor. 
 There one man is sovereign, and all others his subjects. 
 Here no man is subject, and no man lord or master. 
 Why should we, then, take lessons of prosperity or feli¬ 
 city from other countries. If they do not take them 
 from us, let us at least remain contented with our own in- 
 
 * 4 Com. s. 
 
12 
 
 stitutions, and wean our affections from such as are of 
 no kin nor profit to us. 
 
 But how strangely are men the creatures of education 
 and habit. At the same time that we have shaken off 
 the supremacy of the English law, we imbibe its errors 
 with our mother’s milk. And the remarks of the pro¬ 
 found and perspicacious Adam Smith , are realized here 
 as in Great Britain. There, he observes, the master 
 tradesmen are in permanent conspiracy against the work¬ 
 men ; so much so, that it passes unobserved as the na¬ 
 tural course of things, which challenges no attention. 
 Even so we see it here. These masters enter without 
 fear into a sordid combination to oppress the journey¬ 
 men ; and if the workmen meet in opposition to them, 
 they forthwith sound the alarm, and spread the cry of 
 treason and conspiracy. 
 
 The difference, however, is, that in England there are 
 statutes to warrant such prosecutions. Here there never 
 were any such. There, there are precedents : here, there 
 are none. But those precedents in England are not 
 founded on the common law, but by statute, and in 
 counteraction of it : and the proof is, that not one such 
 case is to be found in any book of reports, treatise, abridg¬ 
 ment or tables, till the passing of the statutes of labour¬ 
 ers, which gave rise to them ; and the first of Avhich was 
 in the reign of Edw. III. And I call upon my adversa¬ 
 ry, that great legal antiquarian, my learned countryman, 
 who lives amongst the old fathers of the law, who es¬ 
 tranges himself from his friends, his w r ife, and lawfully 
 begotten children, to haunt with such musty companions. 
 
 I call upon him who spends his mornings with Sir George 
 C'rohe, and Sir Harbottle Grimstone , and his evenings 
 with the Mirror of Justice , and Javaise of Tilbury , to 
 
13 
 
 tell me of any case of this nature prior to those statutes. 
 If he cannot show when it was attempted, then it never 
 was attempted. I challenge him now to do it, and I put 
 the issue of this motion on the chance. 
 
 And what were those statutes out of which these pro¬ 
 secutions grew ? They were the lineal descendants, the 
 lawful and immediate issue, 'of pestilence and public ca¬ 
 lamity, and they do not hide their origin ; for by them, 
 and their consequences, the most useful class in England 
 is rendered the most miserable, and grows poor as its 
 oppressors grow rich. Throughout the habitable word, 
 luxury, vanity, and even fancy, is satiated by the pro¬ 
 ductions of their industry ; but, like the worm that spins 
 its bowels, and perishes in the act, so they whose hands 
 impart to the tissue its lustre and its hue, to flatter the vo¬ 
 luptuous and the gay, pine themselves and decay in ob¬ 
 scurity and want. And a late tourist has too justly re¬ 
 marked, that, from poverty and pain, the workmen in 
 certain manufacturing towns in England , exhibit the 
 strange phenomena of green hair and red eyes!* 
 
 It is these statutes, and the prosecutions grounded on 
 them, that drive the artizan to emigrate as often as he 
 can escape from the laws which make his country his 
 prison, and has intelligence enough to know that there 
 is a better. It is owing to that system, that, in a nation 
 expending thirteen millions sterling yearly upon instru¬ 
 ments for the destruction of men, one million out of nine 
 are beggars receiving alms ! !! And are these the bene¬ 
 fits the prosecutors are now, for the first time, about to 
 visit upon our happy community ? 
 
 Mr. Reeves in his valuable history of the English law, 
 thus introduces these statutes : 
 
 Espriellu’s Letters. 
 
u 
 
 “ The next parliamentary regulation relating to the 
 clergy, was statute 36 Edzu. III. stat. 11. c. 28. which was 
 occasioned by the late plague that had depopulated the 
 church as well as the laity. The priests having from 
 thence taken occasion to make high demands for their 
 services, certain limits were fixed by statute for the at¬ 
 tendance of parish and other priests.”* 
 
 He then passes from the priests to the labourers, who, 
 it seems, were no better after the plague than the 
 priests. “ This public calamity having thinned the lower 
 classes of the people, servants and labourers took occa¬ 
 sion to demand very extravagant wages. An ordinance 
 was therefore made by the king and council, to whom it 
 was thought properly to belong, as an article of police 
 and internal regulation, especially as the parliament were 
 prevented from sitting by the violence of the plague. 
 This ordinance was afterwards made an act of parliament, 
 and constitutes the statute 23 Edw. III. 
 
 Mr. Reeves then concludes with this remark : “ The 
 contents of this statute are worthy of notice, as they are 
 the frst provisions of the sort , and the foundation of the 
 system to which the community were subject for many 
 years after.’’'’ 
 
 Thus, whether we judge of these statutes by their ori¬ 
 gin or their effects, they may be useful lessons to warn us 
 from the adoption of similar wickedness and folly. 
 The sequel will show how one false principle generates 
 a multitude of others. “ Because it was found,” adds 
 the author, “ that people would not sue for the forfeiture 
 against servants and workmen taking more than the 
 above-mentioned wages, it was afterwards ordained, 
 
 Reeves's Hist. Eng. Law, r. 2. p. 387. 
 
15 
 
 that such forfeiture should be assessed by the king’s ojji- 
 cers .”* The moral then is this : the latvs were oppres¬ 
 sive : the people revolted against them : and arbitrary 
 courses were invented to enforce them ! 
 
 “ In the 25th year of the king, the commons complain¬ 
 ed, in parliament, that the above ordinance was not ob¬ 
 served, wherefore a statute was made ordaining further 
 regulations on the subject. It was enacted, that carters, 
 ploughmen, and other servants, should be allowed to 
 serve by the year, or by some other usual term ; and not 
 by the day. All workmen to bring their implements 
 openly into town, and there be hired in a common place, 
 and by no means in a secret one. Certain prices were 
 fixed for a day’s work of mowers, reapers, and others. 
 Servants to be sworn twice a year, before the lords, 
 bailiffs, stewards, and constables of every town. And 
 those who refused to take such oaths, to perform the 
 work they engaged for, were to be put in the stocks, by 
 the above officers, for three days or more, or to be sent 
 to the next gaol, there to remain till they would justify 
 themselves-” 
 
 “ Artificers who absented themselves from their work 
 were to be branded with a hot iron on the forehead, with 
 the mark of the letter F. to denote the falsity they had 
 been guilty of in breaking the oath by which they had 
 bound themselves, according to the former statute to 
 serve.”f 
 
 Were the gentlemen aware of this history when they 
 brought forward this prosecution ? Would they intro¬ 
 duce into this country, any part of a system, under which 
 men were baited like wild beasts ,* their limbs put in the 
 
 Reeves's Hist. Enff. Lait> } v. 2. p. 39fi. 
 
 t 34 Ed ; i \ IIT. c. 16. 
 
16 
 
 stocks ; their souls put to the torture, that they might be 
 forced to swear against their interest and their conviction, 
 on pain of branding, dungeoning, pilloring, ear-cutting, 
 and nose-slitting. Much better did those lawgivers them¬ 
 selves deserve branding with the letter F. for making 
 such laws. If perjury was committed, it was they who 
 were guilty, and deserved to suffer for it, for, in such 
 case, 
 
 “ ’Tis he who makes the oath that breaks it, 
 
 Not he that from compulsion takes it.” 
 
 Further: “ A servant, labourer, or artificer, who had 
 absented himself, might be demanded by the mayor or 
 bailiffs of the place. If they refused to deliver him up, 
 they might go before the justices of labourers. This was 
 to prevent such fugitives from being harboured, and to 
 interest all persons in the execution of this statute.” 
 
 So here we find, that neither the secresy of retreat, 
 the charity of his fellow-creatures, nor the benignity of 
 the magistracy, was a refuge to the victim, against the 
 cruelty of his pursuers. 
 
 “ In the following reign,” continues the author, “ these 
 statutes were confirmed with additions. The lower orders 
 of people were, in consideration of law, servants, la¬ 
 bourers, artificers, and beggars.”* This classification is 
 surely not American ! 
 
 “ It was now enacted, that no servant, either man or 
 woman, should depart at the end of his service, out of 
 the hundred, rape, or wapentake, where he dwelt, to 
 serve or dwell elsewhere, unless he brought a letter pa- 
 
 * "5+ Eiko. HI. r. 3. p. 169. 12 Rich. II. c. 3. called slat, of Canterbury 
 
17 
 
 tent , containing the cause of his going or the time of his 
 return, under the king’s seal. Persons harbouring such 
 wanderer, not having a letter, were to be fined by the 
 justices if they harbour him more than one night.” 
 
 “ And, to prevent disorders, it was ordained, that no 
 servant, labourer, or artificer, should carry a sword, ex¬ 
 cept in time of war, or when travelling with his master ; 
 but they might have bows and arrows, and use them on 
 Sundays and holidays. And they were required to leave 
 all playing at tennis or foot-ball, or other games called 
 quoits, dice, casting of the stone kails, and other such 
 importune games. This is the first statute that prohibi¬ 
 ted any sort of games or diversions.” 
 
 “ In the time of Henry IV. it was complained, that 
 notwithstanding the statute of Canterbury , ordaining that 
 no person who worked in husbandry till twelve years of 
 age should be permitted to be put to any mystery or 
 handicraft, yet the children of many persons, having no 
 land or rent, were bound apprentices to crafts, in towns 
 and boroughs, for the pride of clothing, and other evil 
 customs that servants do use within the same. To prevent 
 which, none should put his son or daughter apprentice 
 to any craft or labour within a city or borough, except 
 he had land or rent to the value of twenty shillings per 
 annum, at least, but he should put them to other labour, 
 as his estate required, on pain of one year’s imprison¬ 
 ment. All labourers and artificers are annually to be 
 sworn at the leet, to observe the statutes relating to their 
 wages, and if they refused, to be put in the stocks three 
 days. To facilitate this it was provided, that every town 
 
 c. 
 
18 
 
 or seignory, not having stocks, was to be fined a hun¬ 
 dred shillings.”* 
 
 Thus we find that tOAvns had subsisted without stocks, 
 as in this our own happy country, till these mischievous 
 laws and persecutions rendered them essential, and made 
 it penal to be without stocks. 
 
 These statutes were continued in England, with addi¬ 
 tions and alterations, from time to time ; but history 
 shows how they were always abhorred, and consequent¬ 
 ly difficult of execution. 
 
 “ In the time of Hen. VI. it appears that masons 
 used to hold confederacies and meetings, to concert 
 schemes for opposing the statutes of labourers. To 
 prevent the effects of them it was enacted, that any one 
 causing such chapiters or congregations to be assembled, 
 should be judged guilty of felony."] 
 
 Still, the more obnoxious those laws became to human 
 feelings, the more difficult it was to execute them ; and 
 we find that in the reign of Elizabeth , if not more tender, 
 more wise, than her predecessors, they were all re¬ 
 pealed. 
 
 The repealing act is entitled, 
 
 “ An act containing divers orders for artificers, labour¬ 
 ers, servants of husbandry, and apprentices.]" 
 
 After reciting that a great number of statutes stand 
 in force presently on the subject, it proceeds : “ yet 
 partly for the imperfection that is found in sundry- of the 
 said laws, and for the variety and number of them, and 
 chiefly for that the wages and allowances limited and ra¬ 
 ted in many of the said statutes, are in many* places too 
 
 • / 
 
 *12 Rich. II. c. 3. p. 223. 7 Hen. IV. c. 17. 
 
 t 5 EH:, c. 4. 
 
 f 3 Hen. VI. c. 1. 
 
19 
 
 small, and not answerable to this present time, respect¬ 
 ing the advancement of prices of all things belonging to 
 the said servants and labourers, the said laws cannot, 
 without the great grief and burthen of the poor labourer 
 and hired man , be put into good and due execution.” 
 
 Yet had the execution of these laws been all along en¬ 
 forced “ to the great grief and burthen of the poor labour¬ 
 ing and hired manand the poor hired man was all 
 along forced to swear to them, or else be put two nights 
 and three days in the stocks, and the rest of his life-time 
 in gaol; and whoever was moved by pity to harbour 
 him, was declared a malefactor for his sake. Was this, 
 or was it not, warring against humanity, against Christian 
 charity, and the religion of an oath. By this statute, 
 too, the justices were to fix the wages of workmen, and 
 whoever gave more, as well as he who took more, than 
 they fixed, was imprisoned; and those bred to arts w r ere 
 to be put in the stocks two days and one night if they 
 refused to work at husbandry ; and both men and wo ¬ 
 men were compellable to work one-half of the year from 
 five in the morning till eight in the evening, and the 
 other half of the year from twilight to twilight, that is, 
 as long as they could see. 
 
 If we begin to adopt these stupid acts of oppression, 
 we shall find it difficult to stop. There are others of the 
 same family, so connected in kind, that they hang 
 together like tape worms—you cannot take one but you 
 must pull all with you. 
 
 There is one regulating what persons of every degree 
 should eat, on what particular saints’ days they should 
 have sauce to their meat, and of what their sauce should 
 be made ; and the reason given is, that “ the English 
 used moie meat than any other people, which not only 
 
20 
 
 hurt their souls, but left less for them to give the king 
 when he had need of it.”* 
 
 There are others as fantastical, called statutes of ap¬ 
 parel, prescribing, according to the condition of each 
 man and woman, of what form and stuff their coats or 
 petticoats should be. 
 
 One enacts, that no hat shall be above twenty pence, 
 nor cap above two pence. f 
 
 Another, that wearing silk on hat or bonnet, gilt 
 scabbards, hose, shoes, and spur leathers, shall be three 
 months imprisonment and forfeiture, &c4 
 
 Another, that all persons above seven years old shall 
 w r ear caps, or forfeit three shillings and four pence to the 
 king, except maids, ladies, and gentlewomen of twenty 
 marks lands, and lords, knights, &c.§ 
 
 Before we borrow from such a code, let us examine, 
 from good evidence, what was the spirit of old times, 
 and what progress human reason had made when the 
 principles we are about to adopt first took their rise. 
 
 I have now my finger on a statute which is precious in 
 that view. It is unfortunately in that fearful jargon 
 called law French , which modern men cannot pronounce 
 for fear of dislocating their jaws. I would as soon crack 
 so many butternuts as pronounce so many words of it. 
 I shall, therefore, humbly beg leave of the court to read 
 some passages in English. 
 
 It is thus entitled : 
 
 “ What kind of apparel men and women of every de¬ 
 gree are allowed to wear , and rvhat prohibited .”** 
 
 * Statutum de cibariis utendis, 10 Edit). III. f 4 Hen. VII. c. 9. 
 
 i t'Phil. & .Mary. § is Eliz. c. 19. ** 3 Eda. IV. c, 5. A. D. 1443. 
 
21 
 
 “ It is ordained and established, that no person of the 
 degree of a valet, or under that degree, at the feast of 
 Saint Peter, called the chains, which shall be in the year 
 of our Lord one thousand cccclxi. shall use nor wear 
 in array for his body, any bolsters, nor stuffs of cotton, 
 wool, or cadas; nor other stuffing in his parer point, 
 upon pain of forfeiting to the king for every offence, 
 vi. s. viii. d. No knight under the estate of a lord, no 
 esquire, gentleman, nor other person, to use nor wear at 
 the feast of All Saints, which shall be in the year of our 
 Lord one thousand cccclxv. any gown, jacket, or cloth, of 
 such a length.” (See p. 22.) The court will excuse me 
 from saying, for the present, of what length. “ Nor wear 
 at the said feast of Saint Peter any shoes or boots having 
 pikes passing the length ef two inches, upon pain of for¬ 
 feiture to the king for every default forty pence. If any 
 cordwainer make any pikes of boots or shoes after the 
 feast of St. Peter, contrary to the ordinance, he shall like¬ 
 wise forfeit to the king for every default forty pence.” 
 
 Here is is another, entitled, “ A repeal of all former 
 statutes touching the excess of apparel.”* It is fortu¬ 
 nately in English. 
 
 It recites, “ that, for the non due execution of the 
 former laws, the kingdom had fallen into great miserie,” 
 and enacts, “ that no person, of whatever degree, estate 
 or condition that he be, shall wear any clothes of goide 
 or silke, or purple coloure, but only the king, the queene, 
 the king’s mother, the king’s children, his brother and 
 sisters, upon paine of forfeiture for every default xx. li. 
 And that none under the degree of a duke shall weare 
 any cloth of goide of tissue, under xx markes. And 
 
 * 22 Echv. IV. C. 1. 
 
 0 
 
22 
 
 none under the degree of a lord shall weare plaine cloth 
 of golde, upon paine to forfeit for every default x 
 markes. And none under the degree of a knight shall 
 weare any velvet in their doublets nor gownes, nor un¬ 
 der the same degree weare any damaske nor satin in 
 their gownes, but only esquires for the king’s body, up¬ 
 on paine to forfeit for every default xl. s. And that no 
 yeoman of the crowne, nor none other shall, under the 
 degree of esquire or gentleman, weare in their doublets 
 damaske or satin, nor gownes of chamlet, upon paine to 
 forfeit for every default fourtie shillings. And no servant 
 of husbandrie, nor common labourer, shall weare in their 
 clothing any cloth whereof the broad yard shall pass the 
 price of two shillings ; nor suffer their wives to weare 
 any clothing of higher value than is' before limited to 
 their husbands. Nor shall they suffer their wives to weare 
 any veile or kercheffe whose price exceedeth twentie 
 pence.” 
 
 What would our merchants in Broadivay and Maiden- 
 Lane say to such fashions. Our wenches would not 
 buy such veils or kerchiefs to wear on washing days. 
 
 “ Nor shall they weare any hosen whereof the paire 
 shall passe eighteene pence, upon paine of three shillings 
 and four pence.” 
 
 If our ladies were not to exceed that price for their 
 hose, they must go bare legged. 
 
 The ordinance then gives the pains and forfeitures to 
 the king, to be employed in the expenses of his honoura¬ 
 ble house. So the more there was of law-breaking the 
 better for the king's house. “ But paines and forfeitures 
 in and for the premises within the county palatine of 
 Chester , shall be to my lord the prince ; and within 
 
23 
 
 Examshire , to the archbishop of York, and his successors ; 
 and within the bishoprick of Durham , to the bishop of 
 Durham , and his successors.” Thus every little vanity 
 of the women was forty pence clear gain to the bishop 
 and his successors, of the see of Durham , “ after the 
 feast of the epiphanie next coming, but not before.” 
 And if the words that follow were of any other man than 
 king Edzvard the fourth, I might scruple to utter them ; 
 but what was fit for that gallant prince to decree, I should 
 not be too fastidious to utter, nor this hounorable court 
 disdain to give ear to. 
 
 “ And it is ordained d enacted, by the authority 
 aforesaid”—that is, of king Edward the fourth—“ that 
 no manner of person under the estate of a lord shall 
 weare from the said fe. t any gowne or mantell, unlesse 
 it be of such length thac (he being upright) it shall cover 
 his privy members and his buttocks, upon paine to for¬ 
 feit to our sovereign lord the king for every default 
 twentie shillings.” 
 
 The rigour of this ordinance is, however, tempered by 
 some exceptions, and has, among others, this proviso : 
 “ provided that the same act be not prejudicial to master 
 John Gurthorpe, the deane of the king’s chappel.” Thus 
 master Gurthorpe , though under the estate of a lord, was 
 not so far prejudiced by the act but that he might stand 
 upright, and show himself gratis to the king, which no 
 other man else could do under twenty shillings a time ; 
 and why ? Because master John was the king’s dean ! 
 and the king would charge him nothing. 
 
 If the gentlemen for the prosecution ask to what pur¬ 
 pose I read such statutes, I will tell them. It is to mo¬ 
 derate their enthusiasm for old English laws and orcli- 
 
24 
 
 nances, and to render them better contented with the in¬ 
 stitutions and usages they have. 
 
 Still if there were no worse laws than these masque¬ 
 rading regulations, distinguishing the community, like 
 the Hindoo casts, we might laugh at their absurdity ; 
 but the laws against artisans in England are of a more 
 cruel nature. 
 
 The hardship, for instance, of makingyw.s^ce',?, who ne- . 
 ver laboured, the judges of the poor man’s labour, its 
 intensity and its remuneration, is not equitable. They 
 are not, in that respect, treated as free agents ; they are 
 not judged by their peers. The qualifications of those 
 English justices are no qualifications for arbitration of 
 s’uch kind. They may be “ most sufficient knights and 
 esquires, with freehold, copyhold, or customary estate 
 they may be “ of the peace and the quorum.” They may 
 be loyal men to church and state ; but such will be too apt 
 to scorn a leather apron. It is not with their back to the 
 fire, and their belly to the table, that they can perceive 
 the poor man’s wants. When they have eat their capon, 
 and swallowed their sack, with their reins well warmed, 
 and then turn round to take their nap, with their backs to 
 the table and their belly to the fire, they are not the bet¬ 
 ter qualified to judge the poor man’s case. Sir Guttle 
 may calculate, that if the lean rascals were to feed well, 
 they might wax as fat as gentlemen. And justice Droxv- 
 sy might conclude, that, as there was but a time for all 
 things, if the handicrafts got more time to sleep, there 
 would not be enough left for gentle folks. If jus¬ 
 tice Testy has the gout, and his shoe should pinch, it 
 would be reason for putting all the ragamuffins in the 
 stocks. This may be exaggeration : Perhaps it is : but 
 if there be any truth in it, let it go for what it is worth. 
 
25 
 
 There exists at this day a law in England that arti¬ 
 ficers in foreign countries, not returning within six 
 months after warning given them by the British ambas¬ 
 sador where they reside, shall be deemed aliens, and for¬ 
 feit all their lands and goods, and be incapable of any 
 legacy or gift. By it the industrious man, whose only 
 crime is the possession of some useful art, and having 
 transported himself to a country where, instead of groan¬ 
 ing under taxes and tithes, he might enjoy the fruits of 
 his labour, and the blessings of equal laws, is subject to 
 be remanded, like a prison-breaker, by an ambassador, 
 sent amongst us, possibly for the purpose of debauch¬ 
 ing our people, insulting our government, and planning 
 our destruction. 
 
 Other statutesf inflict fine, imprisonment, pillory, and 
 ear-slitting, upon such as encourage any artisan to seek 
 a better lot; and this they call “ seducing artisans .” 
 
 I recollect, in my native city, a strong instance of 
 this kind. At Londonderry there was a passage across 
 a river, as inconvenient as either of our ferries. The 
 desideratum was a bridge. The honour of the achieve¬ 
 ment was reserved for Mr. Lemuel Cox of Boston. He 
 brought with him a few chosen workmen, and employed 
 a number of the poor labourers of the country. They 
 learned from their American fellow-labourers how much 
 better industry was rewarded in the western world. 
 They addressed themselves to their honourable employ¬ 
 er. He was not guilty of seducing them, nor they of 
 being artisans. He was put in prison. His innocence 
 was manifest, and he was released ; but such was the 
 envious return for the greatest benefit that city ever 
 knew. 
 
 * Stat. 5 Geo. I. c. 27. f 5 Geo. I. c. 27. 23 Geo. II. c. 13. 14 Geo. Ill, c, 71, 
 
 D 
 
26 
 
 Shall we, then, second the intention of the oppressor i 
 Shall we, by such prosecutions, drive from our hospi¬ 
 table shores those who increase our stock of industry, 
 population, and revenue ? Shall we too hunt the wan¬ 
 derers like frighted birds, that find no twig unlimed, no 
 bough to light upon ? Shall we, without law or prece¬ 
 dent, and in the teeth of a non-usage, as old as the an¬ 
 nals of our country, rake up the embers of the English 
 common law to find a pretext for doing what never was 
 done before, and never should be done ? 
 
 If we do this we must do more. We must also make 
 statutes of labourers : for these persecutions will thin the 
 artisans here as the great plague did formerly in Britain . 
 Like birds of passage, no longer warmed by a genial 
 sun, the instinct of their nature will warn them to de¬ 
 part. Unless restrained by bolts or penalties, they will 
 flock together, even on the house tops, and take their 
 flight no man knows where ; not like the summer swal¬ 
 lows for a season, and to return again; but like the vital 
 breath, which, when it quits its earthly residence, leaves 
 it for ever to decay and moulder, and returns no more. 
 
 The avarice of the Patricians drove the people of 
 Rome to the mons sacer. Who is the people-hating Ap- 
 pius Claudius that would do so here l And if it be 
 done, which of these sleek and pampered masters, will it 
 be, Mr. Corwin , or Mr. Minard , that will take upon him 
 the office of Agrippa , to cajole them with a parable, how 
 he is all belly, and they all members ; how his vocation 
 is to eat and repose, theirs to work and starve. 
 
 Let not these allusions be thought foreign to the point. 
 It is by taking larger views of things that we master the 
 little fidgeting spirit ot circumstance. Such considera¬ 
 tions are antidotes to those occasional spasmodic affec- 
 
27 
 
 tions in the law, which it is important to cure in their 
 incipiency, lest they turn, as in Great Britain , to a 
 chronic malady. 
 
 This prosecution goes professedly upon principles of 
 common law ; and I have shown an ancient definition of 
 the crime in affirmance of the common law, to which it 
 is repugnant. I have shown the same statute re-enact¬ 
 ed in this state coeval with its constitution. I have shown 
 negative usage in England down to the passing of the sta¬ 
 tutes of labourers, and here as ancient as the history of 
 America , and as uninterrupted as the blessings that have 
 showered upon this land. I shall now show, that though 
 the common law of England should warrant such a pro¬ 
 secution, it does not follow that it should prevail here. 
 And to this end, it will be necessary to take a view of 
 the principles which govern the adoption of the laws of 
 a mother country into new settlements. 
 
 The substance of all the authorities in the English 
 books, upon the head of transplanting the English law 
 into new countries, is concisely stated in Peere Williams's 
 Reports.* There the master of the rolls is reported to 
 have said, that the lords of the council had determined, 
 upon appeal to the king and council from the planta¬ 
 tions— 
 
 “ 1st. That if there be a new inhabited country found 
 by English subjects, as the laxv is the birthright of 
 every individual , so they carry their laws with them, and, 
 therefore, such new found country is governed by the 
 laws of England; though, alter such country is inhabited 
 by the English, acts of parliament made in England , 
 without naming the foreign plantations, will not bind 
 
 * 2 P. IVina. p. 75. 
 
28 
 
 them ; for which reason it has been determined, that 
 the statutes of frauds and perjuries, requiring three wit¬ 
 nesses to a devise of lands, does not bind Barbadoes. 
 
 “ 2dly. Where the king of England conquers a coun¬ 
 try it is a different consideration ; for the conqueror , by 
 saving the lives of the people conquered , gains a right 
 and property in such people , in consequence of which he 
 may impose upon them what he pleases .” 
 
 I shall not investigate the latter clause, nor inquire how- 
 far the Dutch inhabitants became the property of king 
 Charles by reason of his “ saving their lives. yy How far 
 such doctrines, in a limited monarchy , are constitutional; 
 how far they are humane, in any circumstance, I leave 
 to others. But, as the English settlers were encouraged 
 by the promises of a domestic legislature and a constitu¬ 
 tion, they were not the property of the king, and they 
 had still their birthright. Now a birthright means some 
 indefeasible advantage, or it means nothing. Where it 
 is said, that new settlers are entitled to the English laws 
 as their birthright, it cannot be intended that they should 
 be encumbered with such law-s of the mother state as 
 would be noxious and oppressive, and utterly repugnant 
 to their new condition. 
 
 The authority of Sir William Blackstone upon this 
 head is strongly pronounced. He says, “ these notions 
 of the law of England being ipso facto in force in a new 
 country, as the birthright of the settlers, must be under¬ 
 stood with many and very great restrictions. Such co¬ 
 lonists carry with them only so much of the English law 
 as is applicable to their own situation, and the condition 
 of an infant colony : such, for instance, as the general 
 rules of inheritance and protection from personal inju¬ 
 ries : the artificial refinements and distinctions incident 
 
29 
 
 to the property of a great and commercial people: the 
 laws of police and revenue, such, for instance, as are en¬ 
 forced by penalties : the mode of maintenance for the 
 established clergy : the jurisdiction of the spiritual 
 court ; and a multitude of other provisions are neither 
 necessary nor convenient for them , and therefore are not 
 in force. What shall be admitted, and what rejected ; 
 at what times, and under what restrictions must be deci¬ 
 ded in case of dispute, in the first instance, by their own 
 provincial judicature, subject to the revision and con¬ 
 trol of the king and council.”* 
 
 I shall adventure no further on this subject. It is 
 enough for me that our judges are free to determine 
 what parts of the common law shall be adopted, and 
 what rejected. Formerly, the provincial legislatures of 
 the colonies could do it, subject to the revision and con¬ 
 trol of the king of England and his council. Our inde¬ 
 pendent judges will now decide without any such control. 
 I shall, however, call to my aid a short passage from a 
 very useful domestic historian, in treating “ of our laws 
 and courts .” 
 
 “ The state of our laws opens a door to much contro¬ 
 versy. The uncertainty with respect to them renders 
 property precarious, and greatly exposes us to the arbi¬ 
 trary decisions of bad judges.”! 
 
 Let it be remembered this was written when the 
 judges were appointed by a foreign influence, and our 
 benches not filled as they are now, by judges who pos¬ 
 sess the people’s confidence. 
 
 “ The common law of England is generally received 
 together with such statutes as were enacted before we 
 
 * 1 Com. p. 10". 
 
 f Smith’s Hist. J\”. F. c. 6 . p. 202. 
 
30 
 
 had a legislature of our own. But our courts exercise 
 a sovereign authority in determining what part o the 
 common and statute law ought to be extended ; for it 
 must be admitted that the difference of circumstances 
 necessarily requires us in some cases to reject the deter¬ 
 mination of both.” 
 
 Judge Tucker , a writer worthy of his country, states, 
 that all parts of the common law and statutes of England , 
 which from their inapplicability had never been brought 
 into practice, during the existence of the colonial govern¬ 
 ments, must, from the dissolution of those governments, 
 be regarded not only as obsolete, but as incapable of re¬ 
 vival. , except by constitutional or legislative authority, 
 having no longer even a potential existence , founded up¬ 
 on that theory of British laws, extending to the remotest 
 extremity of the empire : for the connection once bro¬ 
 ken, he considers, that theory at an end ; and, therefore, 
 such as never had obtained authority from usage and 
 custom, he holds destitute of every foundation upon 
 which any supposed obligation could be built. This he 
 considers the natural consequence of the revolution , and 
 the correspondent changes in the government; unless, 
 he emphatically adds, “ we suppose that the laws of En¬ 
 gland , like those of the Almighty Ruler of the universe, 
 carry with them an intrinsic obligation upon all mankind ; 
 a supposition too gross and absurd to require refutation.”* 
 
 Several of the state constitutions, with the same inten¬ 
 tion as ours, have used a more definite expression, and 
 instead of saying that such parts of the English laws as 
 were theretofore in force , should continue to be so, till 
 repealed, &c. they have used the term “practised onf 
 
 * 1 Tuck. Bine!:. Jlp'j. p. 406. 
 
31 
 
 extinguishing, without more form, all such obsolete or 
 incongruous parts as had not been found applicable to 
 the necessities of their condition; such as during two 
 or three centuries, or since their first origin as a colon) 7 , 
 had never been called into activity. 
 
 In vain, otherwise, would our constitution have repealed 
 the statutes. In vain have consigned to oblivion so many 
 remnants of antiquated folly, if ever and again some un¬ 
 substantial spectre of the common law were to rise from 
 the grave in all its grotesque and uncouth deformity, to 
 trouble our councils and perplex our judgments. Then 
 should we have, for endless ages, the strange phantoms 
 of Piets and Scots, of Danes and Saxons , of Jutes and 
 Angles , of Monks and Druids, hovering over us like 
 “ ravens o’er the haunted house,” or ghosts 
 
 “ That inglorious remain 
 Unburied on the plain.” 
 
 In vain would this country advance in commerce, arts and 
 industry ; in vain science and philosophy make then- 
 abode among us ; in vain propitious heaven designate 
 with a favouring hand our station on the globe, and dis¬ 
 tinguish us by freedom and prosperity, if we mar our 
 own destiny by such servile adherence. 
 
 A century ago, when the independence of this nation 
 had never been imagined, when it was ruled as a colony 
 by a despotic governor, two presbyterian clergymen were 
 arrested by Lord Cornbury for preaching in an illegal 
 conventicle.* They were brought to trial, and the pro¬ 
 secution was founded upon the idea that the acts of con- 
 
 * Vide the case of Mr. Hampton and Mr. Kcmmie , Smith’s Hist. N. Y. 
 
 p. 126, 
 
32 
 
 formity and uniformity were in force, and that the queen’s 
 church supremacy was to govern in the colony as in the 
 mother country. The jury refused to find a special ver¬ 
 dict at the desire of the prosecutor ; but acquitted the de¬ 
 fendants. The matter was there dropped, and no such 
 prosecution has ever since been attempted. But that 
 which might have been before the revolution, vexata 
 questio , is now surely past all doubt. Why was that pro¬ 
 secution then defeated ? Because what was law in En¬ 
 gland was not then taken for law in the colony. Yet those 
 statutes were law in England before the settling of this 
 country ; and the queen’s supremacy was held part of 
 the common law. But it required two things: first, 
 that it was law in England; and, secondly, that it was 
 useful or expedient to be adopted in the new country. 
 
 The more I reflect upon the advantages this nation has 
 gained by independence, the more I regret that one thing 
 should still be wanting to crown the noble arch—A na¬ 
 tional code. 
 
 I lament that the authors of the revolution, wearied 
 with toil and human waywardness, should, on the very 
 threshold of perfect redemption, have failed, like the 
 fabled poet of antiquity,* by looking back, and suffered 
 the object of their long and ardent cares to relapse again 
 into the empire of Pluto , and themselves to sink at length 
 breathless and spent under the burthen of the common 
 law. 
 
 Much, it is true, was done. A nation was rescued 
 from colonial dependence ; her citizens from prerogative, 
 monopoly, and privilege ; religion purged horn intole¬ 
 rance ; and a constitution was founded on the sacred 
 
 * Orpheus. 
 
33 
 
 rights of man. They might well exclaim, sat patria , 
 who had done so much, and having done so much, per¬ 
 haps, have thought it beneath their high achievements 
 to stay and strip the dead. They might think it wiser 
 to trust to peaceful posterity and tranquil times to per¬ 
 fect their great work. Why, then, do not those who 
 live beneath the shade which they have planted, gene¬ 
 rously answer to their intentions, and fulfil their great 
 designs ? 
 
 I have said that there was no American precedent for 
 this indictment, unless it were imported from Great Bri¬ 
 tain in this present year, and I hold in my hand a mi¬ 
 nute report of a similar case in Philadelphia , where the 
 law was fully and ably discussed at the bar, and where 
 it appeared, ex concessis , that no such precedent existed 
 in America. The only opinion as yet to sanction it is 
 that of a single judge, Mr. Levy , the recorder of Phila¬ 
 delphia. Before that becomes precedent and law, I shall, 
 without personal disrespect, canvass, with due freedom, 
 the doctrines he lays down to the jury as law. He first 
 warns the jury against the arguments of counsel, as be¬ 
 ing but appeals to their passions, and then reminds them 
 that such combinations will enhance the price of their 
 own boots, touching, I think, himself upon a very sordid 
 passion. Boots, he says, are articles of first necessity. 
 I cannot there agree with him. When I think how ma¬ 
 ny patriarchs have reached the blessed abode of their 
 fathers, and never worn boots, how many serjeants have 
 trod the thorny mazes of the common law, and worn no 
 boots, and how many poor poets have bestrode the fiery 
 courser of the muses, and had no boots, I cannot think 
 them things of such necessity. But equal justice is of 
 
 E 
 
34 
 
 first necessity, and when that is given for the sake of 
 boots, boots are too dear. 
 
 His honour said it was improper to inquire whether 
 or not the application of the common law to our con¬ 
 cerns would operate as an attack upon the rights of man. 
 But surely if it did so, and that could be shown, it would 
 be repugnant to our constitution ; and, if it would, the 
 constitution must prevail above the common law of a 
 foreign country ; then whether it be, or be not, an attack 
 upon the rights of man, is the very fittest thing to be 
 inquired into. The argument of the learned judge, I 
 think, is, upon that ground, a petitio principii. 
 
 Again; he is reported to have said, that it was indiffer¬ 
 ent whether the prosecution arose from good or bad mo¬ 
 tives ; whether the traversers’ intentions were to resist 
 oppression, or to demand extravagant compensation. If 
 he had said this upon the ground that in neither case a 
 public prosecution would lie, it might have been true ; 
 but when his charge went to convict, it appears too like 
 confounding all right and wrong, to make no distinc¬ 
 tion between a prosecution founded in honesty, and one 
 founded in corruption; or between the acts of defend¬ 
 ants, whether founded in extortion or self defence. 
 
 He admits, however, that a single journej T man may 
 refuse to work, but many journeymen, jointly, must not- 
 How a solitary poor workman shall resist a wealthy and 
 powerful combination of masters I know not. There 
 seems to be mockery in the idea. If the sense of indi¬ 
 vidual weakness is the cement of all human society, what 
 have journeymen done that they should be put out of the 
 pale of human society? Must they be scattered like the 
 sheaf of rods, to be more easily broken ? 
 
35 
 
 His honour states next, that a great number of the pro¬ 
 secutions in his court are brought forward from impro¬ 
 per motives. The compliment is not flattering to his 
 suitors; but that is immaterial to the question here. 
 
 The great principle upon which I rely he lays down as 
 fully as we could v/ish ; but then he draws from it a 
 quite opposite conclusion. He says, “ when the demand 
 is considerable, and the work well done, the price will 
 be high, and vice versa. So that to make artificial re¬ 
 gulations is not to regard the excellence of the work or 
 quality of the material.” I ask, then, why call in the 
 law to make artificial regulations ? Why not let the 
 thing naturally regulate itself ? It seems as if folly had 
 this privilege, to be seen only at a distance, and be invi¬ 
 sible when it stares us in the face. We can see well 
 enough the ridicule of the old priggish ordinances we 
 have read from the statutes at large, which fashioned 
 men’s gowns, and women’s fardingales, by act of parlia¬ 
 ment. We have laughed at the short mantle of Dean 
 Gurthorpe . Others after us will laugh at our solemn 
 arguments of this day. We might as well prevent pa¬ 
 rents from conspiring to marry their children, indict 
 landlords for refusing to let their house at the usual 
 rents , or merchants from following the rates of the mar¬ 
 kets. We never should have had such notions, but that 
 we are in the habit of borrowing the fashions of our 
 thoughts like those of our dress, from a foreign na¬ 
 tion. 
 
 Pains and penalties ought not to be for nothing. Eve¬ 
 ry restrictive law is more or less an evil. To inflict 
 punishment without sufficient cause is to be a wrongdo¬ 
 er ; and the onus of showing the necessity lies upon the 
 actor. 
 
fhe next argument of the learned judge is drawn ab 
 inconvenienti. “ When a master receives a large order 
 from abroad he cannot say how far it will be h s advan¬ 
 tage to accept it, because, if the w orkmen hear of it, 
 they may make a sudden jump in advance of their la¬ 
 bour.” Well! if the master receives an advantageous 
 order, much good may it do him. But if he makes a sud¬ 
 den jump into a coach and country seat, why shall not 
 the poor journeymen jump after him into a clean shirt 
 and whole breeches ? 
 
 The recorder did well to state the sufferings these 
 turns out occasioned ; but he would have done still better 
 not to have decreed the triumph to the aggressor. No body 
 of men will inflict upon themselves a greater evil to cure 
 a small one, the very violence of the remedy gives the 
 measure of the grief. 
 
 41 Whether the confederacy is to benefit themselves 
 by raising their wages, or to injure those who will not 
 join them, the rule of law,” says his honour, “ equally 
 condemns them.” I think such principles rob the law of 
 dignity and efficacy. They are unnatural, indiscrimina- 
 ting, and harsh, and tend to make the law feared, but 
 not respected ; for 
 
 J\'emo quod, timet amat. 
 
 As to the danger of the community going barefooted, I 
 do not think it alarming. It will be a specious pretext for 
 wearing out old shoes. The coblers will rejoice ; and 
 some sly merchant will import a cargo from France or 
 England. Muzzle but these prosecutions, and then, be¬ 
 fore we have gone long slipshod, the masters and the 
 
37 
 
 men will have come to an agreement, founded, like all 
 bargains, on reciprocal need ; the one giving as little as 
 he can give, and the other taking as much as he can 
 get. Then will all go on quite well ; there will be neither 
 life lost nor bone broken ; and no germs planted of a 
 race of future artisans with gray hair and red eyes. 
 
 The eulogium of the learned judge upon the common 
 law is, to my judgment, something exaggerated, when 
 he likens it to the divine system of providence. “ It is 
 in the volume of the common law,” he says, ‘‘that we 
 are to seek for the far greater number, as well as the 
 most important, of the cases that come before our tribu¬ 
 nals. That valuable code has ascertained and distin¬ 
 guished with critical precision, and with a consistency 
 that no fluctuating political body could or can attain, not 
 only the civil rights of property, but the nature of all 
 crimes from treason to trespass.” 
 
 When such arguments are used to induce a conviction 
 of a great portion of the American citizens, it is the du¬ 
 ty of their advocate to speak out honestly. At the time 
 when the common law had its origin, no part of which time 
 could be since theheginning of the reign of Rich. I. called 
 in law time of memory, and that is about six or seven hun¬ 
 dred years ago, no property existed under any of the modi¬ 
 fications which now regulate it. There was no commerce, 
 few arts, and little circulation ; t so that if we were to 
 look into “ that volume ” alone, we should not find a 
 rule to square with any transaction of our lives. If, 
 therefore, it be like divine providence, divine provi¬ 
 dence has long abandoned us. And were we now to 
 adopt the usages of those times, we should be like mas¬ 
 queraders upon the present stage of society. Touching; 
 
38 
 
 shoemakers certainly we should find no laws, for lord and 
 lad}', knight and esquire, all went barefooted ; and, pos¬ 
 sibly, whoever lived in the days of the Druids , might 
 have counted the ten toes of her majesty the queen. 
 Therefore, if we can find no usages touching the matter 
 nearer at hand, it is useless to look for them so far. 
 
 In the old volumes of the common law we find knight- 
 service, value and forfeiture of marriage, and ravish¬ 
 ments of wards ; aids to marry lords’ daughters, and 
 make lords’ sons knights. We find primer seisins, es- 
 cuage, and monstrans of right: we find feuds and subin¬ 
 feudations, linking the whole community together in one 
 graduated chain of servile dependence : we find all the 
 strange doctrine of tenures, down to the abject state of 
 villenage, and even that abject condition treated as a 
 franchise. We find estates held by the blowing of a 
 horn. In short, we find a jumble of rude undigested 
 usages and maxims of successive hordes of semi-sava¬ 
 ges, who, from time to time, invaded and prostrated each 
 other. The first of whom were pagans, and knew no¬ 
 thing of divine law ; and the last of whom came upon 
 the English soil towards the decay of the Roman em¬ 
 pire, when long tyranny, and cruel ravages, had destroy¬ 
 ed every vestige of ancient science, and when the pan¬ 
 dects, which shed the truest light that ever shone upon 
 the English code, lay still buried in the earth. 
 
 It is of this divine law that lord Coke gravely and very 
 quaintly says, “ the common law was that which was in 
 England before any statute was enacted. It is grounded 
 upon the general customs of the realm ; includes in it 
 the law of God, and the principles and maxims of the 
 law. It is founded upon reason, is the perfection of rea¬ 
 son, acquired by long study and experience, and refined 
 5 
 
39 
 
 by learned men in all ages.”* It must be confessed my 
 lord Coke did not tie himself down by too precise a defi¬ 
 nition. Such phrases are sooner made than compre¬ 
 hended, in which the teacher has the advantage of the 
 learner. Blackstone says, “ with regard to the aborigi¬ 
 nes of our island, the Britons , we have so little handed 
 down to us with certainty, that our inquiries must be 
 fruitless and defective. However, from Ccesars account 
 of the ancient Druids in Gaul , in whom centered all the 
 wisdom of the western parts, and who were sent over to 
 Britain (that is, to the island of Mona or Anglesea ) to 
 be instructed, we may collect a fexv points which bear a 
 great affinity to some of the modern doctrines of our En¬ 
 glish law ; particularly the very notion itself of an oral, 
 unwritten law, delivered down from age to age by cus¬ 
 tom and tradition merely, seems derived from the prac¬ 
 tice of the Druids , who never committed any of their in¬ 
 structions to writing, possibly for want of letters. Since 
 it is remarkable, that in all the antiquities, unquestiona¬ 
 bly British , which the industry of the moderns has dis¬ 
 covered, there is not, in any of them, the least trace of 
 any character or letter to be found.”f 
 
 Thus was this divine system delivered down by the 
 Druids , who, after possessing all the learning of the 
 western parts, were sent to perfect their studies in Mona , 
 and there became so learned that they could neither read 
 nor write ! 
 
 After touching upon other of their wise practices, 
 such as burning their women for petty treason, our au¬ 
 thor continues : “ The great variety of nations that suc¬ 
 cessively broke in upon and destroyed both the British 
 
 * Co. Lit. 97, 142. 
 
 f 4 Com. 40S. 
 
40 
 
 inhabitants and constitution, the Romans , the Piets , and 
 after them the various clans of Saxons and Danes, must 
 necessarily have caused great confusion and uncertaintv 
 in the laws and antiquities of the kingdom, as they were 
 very soon blended and incorporated together ; and, there¬ 
 fore, we may suppose mutually communicated to each 
 other their respective usages, so that it is impossible to 
 trace, with any degree of accuracy, when the several mu¬ 
 tations of the common law were made, or what was the 
 Original of those several customs we at present use, by 
 any chemical resolution of them to their first and compo¬ 
 nent principles. We can seldom pronounce that this 
 custom v'as derived from the Britons ; that was left be¬ 
 hind by the Romans ; this was a necessary precaution 
 against the Piets; that was introduced by the Saxons, 
 discontinued by the Danes , but afterwards restored by 
 the Normans. 
 
 “ A further reason may be also given for the variety 
 and of course the uncertain original of our ancient esta¬ 
 blished customs, even after the Saxon government was 
 firmly established in this island, viz. the subdivision of 
 the kingdom into a heptarchy, consisting of seven inde¬ 
 pendent kingdoms, peopled and governed by different 
 clans and colonies. This must necessarily create an in¬ 
 finite variety of laws, though all the colonies of Jutes , 
 Angles, Saxons, and the like, originally sprang from the 
 same mother country, the great northern hive which 
 poured forth its warlike progeny, and swarmed over Eu¬ 
 rope in the sixth and seventh century.”* 
 
 Now here is from the pen of the most passionate and 
 eloquent eulogist, who had a professor’s chair and a sala- 
 
 * i Com. 4) • 
 
41 
 
 ry for praising the common law, an account of the true 
 ancestry of this divine system. All I can say of it is this, 
 that the same panegyric will apply totidem verbis to the 
 institutions of our red brethren, the Iroquois. The league 
 of the live nations is similar to that of the heptarchy. 
 Blackstone here tells us that the Saxon heptarchy was 
 composed of Jutes , Saxons , Anglo-Saxons , and the like ; 
 all sprung from the great northern hive, that poured forth 
 its warlike progeny. The historian of the five nations* 
 tells us, that they consisted of so many tribes, or nations 
 joined together by a league or confederacy, like the uni¬ 
 ted provinces, and without any superiority the one over 
 the other. This union, he adds, has continued so long 
 that the Christians know nothing of the original of it : 
 the people in it are known by the English under the 
 names of Mohawks , Oneidas , Onondagoes , Cayugas , and 
 Senekas. Here, then, is an ancestry fairly worth that of 
 the great northern hive. The one had their Michell- 
 Synoth , or Witena-Gemot; the other their sachems and 
 counsels, of whom the historian thus speaks : 
 
 “ Their great men, both sachems and captains, are ge¬ 
 nerally poorer than the people, for they affect to give 
 away and distribute all the presents or plunder they get 
 in their treaties or war, so as to leave nothing to them¬ 
 selves. There is not a man in the ministry of the five 
 nations who has gained his office otherwise than by me¬ 
 rit ; there is not the least salary or any sort of profit 
 annexed to any office to tempt the covetous or sordid. 
 Here we see the natural origin of all power and authori¬ 
 ty amongst a free people.”! 
 
 * The Hon. Cadwallader Golden, p. 1. f Ibid, p, 2, 
 
 ? • 
 
42 
 
 “ The five nations think themselves, by nature, supe¬ 
 rior to the rest of mankind, and call themselves Ongue 
 
 honwee .” 
 
 Ongue honwee then say I, and away with your old 
 barons, kings, monks, and druids, your Michell-Synoth , 
 and your JVitena-Ge?not. If we look to antiquity the 
 red men have it. If we regard duration, they have it 
 still more, for the Piets and the Britons have long 
 ceased to dye themselves sky-blue. The Indian paints 
 himself for war even to this day. The one scalps the 
 enemies of his tribe ; the others burned their own wo¬ 
 men. The Saxons conveyed their lands by sod and twig; 
 the Tuskaroras by the more elegant symbols of beaver 
 and a belt. 
 
 When Christianity found its way among the descend¬ 
 ants of the northern hive, some little learning was intro¬ 
 duced, but little it must have been, when the bare wri¬ 
 ting of a man’s name would save him from the gallows. 
 That was the venerable privilege of their clergymen. 
 He who could read in a book needed neither clerical 
 gown nor shorn crown, for it was presumed one so quali¬ 
 fied could be nothing but a priest.* 
 
 Under this divine system, then, the commandment of 
 God, ‘‘ thou shalt not kill” stood thus amended: thou 
 shalt do no murder, unless thou beest a clergyman. 
 
 How does this adopt itself to our sentiments of reli¬ 
 gion ? How would our clergy, whose only immunity is 
 the purity of their lives, spurn at such a privilege P 
 
 A statute, comparatively old, says, “ no person which 
 shall be found guilty of petty treason, wilful murder, 
 robbing of churches, wilful burning, &c. shall have his 
 
 * * Hate's P. C. v. 2. p. 523, &c. 
 
 / 
 
43 
 
 clergy, unless he be of the orders of subdeacon or 
 above.”* How do our purer notions of religion tally 
 with this monstrous distinction, that the higher the spi¬ 
 ritual charge the greater the impunity for crime. 
 
 A Jew or a Turk had not clergy , but a Greek or an 
 alien had.f 
 
 A bastard or a blind man might have it if he could 
 speak Latin congruously. 
 
 A nun being within the immunitas ecclesice had it. 
 
 But a wife had it not, and, therefore, if she committed 
 manslaughter with her husband, he was privileged, but 
 not she !j: Nuns alone of all the fair sex were privi¬ 
 leged to kill men, or, in other words, were within the 
 church’s immunity ; no other ladies could, by any in¬ 
 tendment of law, be taken for clergymen. 
 
 Cicero wondfered how two soothsayers could look each 
 other in the face. I wonder how the two learned ex¬ 
 pounders of the common law opposed to us can do so 
 without laughing. 
 
 When Blackstone employs his elegant pen to whiten 
 sepulchres, and varnish such incongruities, it is like the 
 knight of La Mancha extolling the beauty and graces of 
 his broad back’d mistress winnowing her wheat or riding 
 upon her ass. 
 
 There was once an hypocondriac who fancied he was 
 pregnant with something that would astonish all posteri¬ 
 ty. In vain his best friends remonstrated with him ; 
 their expostulations only irritated and aggravated his 
 malady ; but his skilful physician judged it wiser to com¬ 
 ply with his humour; and having chanced to find a 
 
 * 23 Hen. VIII. cited 11 Co. Hep. 29. b. 30 a. 
 t Hale’s P. C. v. 2. p. 393. $ 1 Hale’s P. C. 40. 
 
44 
 
 hedgehog, presented it to the patient as the fruit of his 
 travail. He pressed the urchin with transport to his bo¬ 
 som, and felt that it was prickly. He kissed it, and 
 found its jegs ; he looked at it, and acknowledged that 
 it had some rough and uncouth features ; but he loved it 
 because it was his own, and his fond prayer was, sweet 
 babe, may you live for ever —estc pcrpetua ! 
 
 The enemies of the common law, says the recorder of 
 Philadelphia , when they attack the common law, single 
 out some detached branch of it, and declare it absurd 
 and unintelligible, without understanding it. If tins be 
 so, I think it is not the worst generalship ; all enemies 
 attack each other in the weakest part of their lines. I do 
 not profess to attack the common law, though I have no 
 superstitious reverence for it, and think there are other 
 systems as good. But since it is the common law 
 which is set on to trample down my clients, I have re¬ 
 solved to take the bull by the horns. It is said that no 
 man who does not understand the whole of it is fit to 
 judge of any part of it. If that be so, I think it will 
 have its privilege of clergy, for there lives not a judge 
 upon earth who is entitled to cognisance of it. Lord 
 Coke , who inked more paper with it, and bestowed more 
 time and study upon it, than perhaps any other, exclaims, 
 that ever with increase of knowledge cometh increase of 
 doubt. He also says, that in its fictions consist all its equitv. 
 He that is to judge of it then must not increase his learn¬ 
 ing, for that would increase his doubts, and render him 
 as it were, a Doctor Dubitantium. And he must addict 
 himself to fiction to comprehend its equity. When he 
 has done this he will have the qualifications that belong 
 to knave and fool. 
 
45 
 
 Let us examine it in its most essential parts, and 
 what is it ? What ever could have been the wisdom of that 
 law which decided upon the life and death of man by 
 blasphemous appeals to miracles ; by fire and water or¬ 
 deal ; by the choak bread and the holy cross; and which 
 decided upon property by venal champions ; by thumps 
 of sand bags, and the cry of craven ? How does this ac¬ 
 cord with our principles and institutions, which do not 
 admit of fighting cocks for money, much less men ? 
 
 Why did our constitution repeal the English statutes, 
 and declare that nothing of the common law, repugnant 
 to that constitution, should remain, if antiquated barbari¬ 
 ties were still to be revived and visited upon us ; and if 
 we are not to be allowed even to inquire whether they are 
 attacks upon our rights or not ? We should then be worse 
 off than the English people are ; for many of the old com¬ 
 mon law doctrines are abrogated by English statutes, but 
 in which the colonies were never named, and with which 
 the colonial legislators never meddled, not supposing 
 them to have had force of law on this side the At¬ 
 lantic. Our case would be singular on the earth. Our 
 judges might then unlearn all they had studied of na¬ 
 tional or congenial institutions, to make themselves 
 proficients in Mercian lage and Dane lage. They 
 might study more majorum in hollow trees and caverns, 
 till they forgot to read or write, and became Druids at 
 common law. 
 
 When is it that we shall cease to invoke the spirits of 
 departed fools ? When is it, that in search of a rule for 
 our conduct, we shall no longer be bandied from Coke 
 to Croke , from Plowden to the Year Books, from thence 
 to the dome books, from ignotum to ignotius , in the in¬ 
 verse rati© of philosophy and reason ; still at the end of 
 
46 
 
 everv weary excursion, arriving at some barren source 
 of grammatical pedantry and quibble. 
 
 How long shall this superstitious idolatry endure ? 
 When shall we be ashamed to gild and varnish this arbi¬ 
 trary gathering of riddles, paradoxes, and conundrums, 
 with the titles of wisdom and divinity ? When shall we 
 strike from the feet of our young and panting eagle these 
 sordid couplets that chain him to the earth, and let him 
 soar, like the true bird of Jove , to the lofty and etherial 
 regions, where destiny and nature beckon him ? 
 
 Those who framed the constitution under which we 
 live did not abolish all the common law, and they did 
 right, because in that, as in other systems, there is al¬ 
 ways something to approve, and use had sanctioned it. 
 They did not pursue it through all its complex details, 
 for that would have been endless and impossible : 
 but they abolished all the English statutes, and by 
 a general clause, abrogated all of the common law that 
 should prove in contrariety with the constitution they 
 established. In Philadelphia , the recorder says, you 
 shall not even inquire whether the act in judgment is or 
 is not an attack upon the rights of man. But the constitu¬ 
 tion of this state is founded on the equal rights of men, 
 and whatever is an attack upon those rights is contrary 
 to the constitution. Whether it is or is not an attack 
 upon the rights of man, is, therefore, more fitting to be 
 inquired into, than whether or not it is conformable to 
 the usages of Piets , Romans, Britons, Danes, Jutes, An¬ 
 gles, Saxons, Normans, or other barbarians, who lived in 
 the night of human intelligence.—Away with all such 
 notions. 
 
 Shall all others, except only the industrious mechanic, 
 be allowed to meet and plot ; merchants to determine 
 
47 
 
 their prices current, or settle the markets, politicians to 
 electioneer, sportsmen for horseracing and games, ladies 
 and gentlemen for balls, parties and bouquets ; and yet 
 these poor men be indicted for combining against starva¬ 
 tion ? I ask again, is this repugnant to the rights of 
 man ? If it be, is it not repugnant to our constitution ? 
 If it be repugnant to our constitution, is it law ? And if 
 it is not law, shall we be put to answer to it ? 
 
 If it be said, they have wages enough, or too much 
 already, I do not think any man a good witness to that 
 point but one who has himself laboured. If either £f 
 the gentlemen opposed to us will take his station in the 
 garret or cellar of one of these industrious men, get a 
 leather apron and a strap, a last, a lap-stone and a ham¬ 
 mer, and peg and stitch from five in the morning till 
 eight in the evening, and feed and educate his family 
 with what he so earns, then if he will come into court, 
 and say upon his corporal oath that he was, during that 
 probation, too much pampered or indulged, I will con¬ 
 sider whether these men may not be extortioners. 
 
 The principal authority relied on in Philadelphia , was 
 a passage from Hawkins , and I am bound to say, that 
 that authority was grossly mistaken. It was adduced to 
 show that these men were indictable at common law. 
 The passage is thus : “ It seems certain that a man may 
 
 not only be condemned to the pillory, but also be brand¬ 
 ed, for a false and malicious accusation ; but since it doth 
 not appear to have been solemnly resolved that such of¬ 
 fender is indictable upon the statute, it seems to be more 
 safe and advisable to ground an indictment of this kind 
 upon the common law, since there can be no doubt that 
 all confederacies whatsoever, wrongfully to prejudice a 
 third person, are highly criminal at common law; as 
 
48 
 
 where divers persons confederate together, by indirect 
 means, to impoverish a third person ; or falsely and ma¬ 
 liciously to charge a third person with being the father of 
 a bastard child, or to maintain one another, in any mat¬ 
 ter, whether it be true or false.”* 
 
 Now the whole of this passage, when understood, 
 shows the contrary of what it was cited for. The author 
 ratifies the common law definition of conspiracy and 
 maintenance, and justly observes, that all indictments for 
 false and malicious conspiracies, (for of such only he is 
 tljen treating,) are more safely laid at common law, and 
 that for such false and malicious accusations men may 
 be branded. “ False and malicious accusations of this na¬ 
 ture are indictable,” he adds, “ rather at common law than 
 under the statute ; and it does not appear to have been 
 ever solemnly decided, that such false and malicious ac¬ 
 cusations are indictable under the statute.” 
 
 Was it not a perversion of this author’s meaning to 
 suppose that it applied to a confederacy of mechanics for 
 the regulation of their own concerns ? What has their 
 case to do with the doctrine of false and malicious accu¬ 
 sations ? And as to what he says of divers persons con¬ 
 federating by indirect means to impoverish a third per¬ 
 son, or falsely charge a third person with being father of 
 a bastard child, or to maintain one another in any matter, 
 whether true or false; has not this a manifest reference 
 to the crimes of false conspiracy and maintenance, as al¬ 
 ready defined, and which being crimina falsi , subjected 
 the party to be branded for the falsehood P What has all 
 that to do with the wages of tradesmen ? 
 
 1 Harvh. P. C.'e. 72. p. 191. Leach's edit. 
 
49 
 
 The notion that confederating to do any thing indirectly 
 tending to impoverish a third person, is indictable at com¬ 
 mon law, is so puerile a mistake, that I feel distressed to 
 be under the necessity of exposing it. Surely, if men 
 were indicted for conspiring to build a steam boat, which 
 would indirectly impoverish some third person, for in¬ 
 stance, the master of a passage vessel, the absurdity 
 would be very glaring ; or if it was to set up any ma¬ 
 chinery that would be the means of underselling others. 
 
 Hawkins's words must, therefore, be taken secundum 
 subjectam materiam , and according to the context. They 
 will then be consonant to old authorities, and the law- 
 will be rescued from so absurd a position, as that all 
 men who joined in any thing of which the effect might be 
 the incidental diminution of the gains of a third person, 
 should be therefore guilty of the crime of conspiracy, 
 and be liable to branding. 
 
 A slight and a very slight acquaintance with law phra¬ 
 seology, or with the popular idiom of one or two cen¬ 
 turies past, will suffice to clear away any difficulty which 
 the term indirect may occasion, if taken in its present 
 vulgar acceptation. 
 
 Rectum , in Latin , is synonymous with jus , and means 
 law or right j and was anciently used even for the accu¬ 
 sation or trial.* A man who had reversed his outlawry, 
 or who stood at the bar, and was unaccused, was said to 
 be rectus in curia , or rectum esse. Directum , which has 
 the same root, means the same thing, and has been cor¬ 
 rupted by the French into the word droict , or droit , and 
 in the English , by merely throwing away the Latin ter- 
 
 * Bract, lib. S. 
 
 & 
 
50 
 
 initiation, makes direct. The privative particle in , in¬ 
 verts the sense, and it becomes indirect , which, in the old 
 law phrase, meant nothing but unlawful; as we find 
 the word droit in all our law French books means law, 
 and is the generic term for law in France at this day. 
 
 The word droict, which is equivalent to the English 
 direct, is thus defined in our old law language : “ Droit 
 est ou Von ad chose qui fuit tolle d'outer per tort , le chal¬ 
 lenge on le claim de lui qui doit avoir ceo , est terms 
 droit. 5 '# 
 
 And the words direct and indirect , are to be found 
 generally used in that sense by authors of no very great 
 antiquity. 
 
 Johnson defines the term indirect to mean, wrong, im¬ 
 proper, not fair nor honest ; and indirection he explains 
 to be dishonest practice, but observes that it is not now 
 in use.f 
 
 Shakspeare makes Brutus say to Cassius y 
 
 “ By heaven, I had rather coin my heart, 
 
 And drop my blood for drachmas, than to wring 
 From the hard hands of peasants their vile trash 
 By any indirection." 
 
 Wringing from their hard hands by indirection , means 
 certainly by wrong, and not by circuity, or by devious 
 consequence, as the modern acceptation would import. 
 
 Thus has the sense of this author been perverted ; and 
 as nothing multiplies like error, so has this mistake found 
 its way into many book manufactories, but can always be 
 traced back to this single source. And, although itjnay 
 
 * Termes tie let'. 
 
 f Johnson's ])ict. folio. 
 
51 
 
 have had some influence upon the decision of a few very 
 modern cases, yet there is no adjudged case where any act 
 has been held indictable as a conspiracy at common law , 
 whereof the essence, or corpus delicti , has not been false¬ 
 hood, oppression, or unlawful maintenance, in some sort 
 or other ; though, perhaps, not always as exactly as the 
 law requires, falling under the definition by the statute 
 Edw. I. and by our own statute. There are many exe¬ 
 crable cases to be found in English books upon this 
 very subject of conspiracy, as well in the star chamber 
 as out of it. There, if the gentlemen look for prece¬ 
 dents, they may find them, where the same wretch* has 
 been alternately triumphant accuser and degraded cul¬ 
 prit, eulogized and reprobated by the same judge,f exe¬ 
 crated and honoured, whipped and caressed, pilloried and 
 pensioned. Yet with all the strange and odious things to 
 be found in English cases of conspiracy, there is no pre¬ 
 cedent of such an indictment as this, unless it be under 
 some statute made expressly on the subject. 
 
 If Hawkins had thought workmen indictable for com¬ 
 bining to regulate their wages, he would, with his usual 
 precision, when treating so minutely on the subject, have 
 said so, and have given his authority for saying so. His 
 silence on the subject is conclusive that he never even 
 had such an idea, and that there was no such authority. 
 
 Another paragraph was cited, from what is called 
 Leach’s Hawkins , which paragraph Hawkins never 
 wrote, nor could have written, viz. • t that all confederacies 
 are unlawful, though the object of them be lawful.” The 
 case from which this strange sentence is borrowed is that 
 of the journeymen taylors of Cambridge , in the 7th year 
 
 Titus Oates. 
 
 f Scrogg's. 
 
52 
 
 of Geo . I. The death of queen Anne, and the acces¬ 
 sion of George, happened in 1714. The case must have 
 been decided about 1721. Serjeant Hawkins's entire 
 work, in two folio volumes, was published in 1716.* 
 This passage is in the first volume. It is not to be found 
 in the folio editions, but is interlarded in small tvpe in 
 the new editions, which, unfortunately, contain more of 
 what Hawkins did not write than of what he did. If the 
 venerable serjeant were to return upon this earth, I think 
 he would look twice at some of those note-mongers, who 
 had conspired with the booksellers falsely to charge him 
 with being the father of such spurious offspring, and 
 placarded the fair monument of his learning and in¬ 
 dustry -with such obscenities. The book from which this 
 queer doctrine has been extracted is, moreover, the -worst 
 book of English reports under which the shelf groans.f 
 It is a book with two names, and equally condemned by 
 either. 
 
 Its character is to be found in Sir William Burrow's 
 Reports, given not only by that judicious reporter, but 
 also by Lord Mansfield, and his brethren. 
 
 In one case he calls it “ a miserable bad book, entitled 
 Modern Cases in Law and Equity. 
 
 In another, he says, that when 8 Mod. -was cited, “ the 
 court treated that book with the contempt it deserved, 
 and they all agreed that the case was wrong stated.”^ 
 
 See, then, upon what crutches this lame cause hobbles. 
 
 Haxvkins, (I don’t mean Leach's Hawkins, but Hawk 
 ins's Hawkins') refers by the letter (c) to three cases 
 
 * 1 Jlaivlc. P. C. c. 72. s. 2. n. 2. Leach's edit; 
 
 •j- S .Mod. sometimes called . Modern Cases in Lais anil Equity 
 4 1 Burr. 3S6. § 3 Burr. 1326. 
 
53 
 
 »nly for the doctrine of conspiring to impoverish by in¬ 
 direct means. And as Hawkins was only compiling 
 from books of reports, and only digesting and arrang¬ 
 ing the law he found there, it is, after all, the authorities 
 he vouches that are the law, not his book, which is but 
 the index to them. To these cases then let us resort, 
 and if they be clear we get rid of all ambiguity. 
 
 Rex v. Kimberly and Mary North,* was a false con¬ 
 spiracy to extort money by falsely accusing the party of 
 being the father of a bastard child. The only question 
 was, whether the mere conspiring, without carrying the 
 conspiracy into effect, was a completion of the crime, or 
 whether there must be a manifestation of the guilty in¬ 
 tention by some other overt act; but it was held that the 
 false and malicious intention , being the gist of the offence, 
 was manifested by the very act of conspiring , which was 
 of itself a sufficient overt act. What was there of indi¬ 
 rect means in that case, if indirect be meant to express 
 any thing else than unlawful P 
 
 Rex v. Alderman Sterling and others ,f was an ex offi¬ 
 cio information and concerned the king's revenue. Six¬ 
 teen or seventeen brewers, of London , were indicted for 
 making orders that no beer called gallon beer should be 
 sold but of a certain price. This order was averred to 
 have been made with a view to impoverish the king’s 
 excisemen, and bring them into hatred and contempt 
 with the people, and. to excite the people to mutiny and 
 sedition, and to pull down the excise house, and to de¬ 
 prive the king of 118 , 000 /. rent, which he had by the tax 
 upon this beer. The jury found them guilty of meeting 
 and consulting to impoverish the excisemen , and of nothing 
 
 * 1 Lev. 62. 
 
 t Ibid. 125. 
 
54 
 
 more. It was moved, in arrest of judgment, that if any 
 injury was done it was to be remedied by civil suit, and 
 the excisemen being private individuals, that no public 
 prosecution could be maintained. The judges so far 
 admitted this as a general principle, but distinguished 
 between this and other cases; because, they said, it con¬ 
 cerned the king’s revenue, and was therefore a public 
 offence. The principle of the decision seems truly 
 to have been this, that “ reges habent longas inanus” 
 Be that as it will, this cases proves clearly, that my in¬ 
 terpretation of Hawkins's text is right; for if all confe¬ 
 deracies by direct means to impoverish a third person , 
 were guilty, there could have been no doubt in this case 
 upon the special finding, and no room for the distinction 
 drawn by the court, nor for any argument at all, whereas 
 the court adjourned several times to hear further argu¬ 
 ment, and to have further deliberation. 
 
 This was the case referred to from the “ miserable bad 
 book” by the title of The Tub-women v. The Br eivers of 
 London. It seemed to puzzle the counsel in Philadelphia , 
 and it puzzles us no less, to divine who these same tub- 
 women could be. 
 
 The solution of the difficulty may be this: there 
 was formerly in the exchequer a barrister called the tub- 
 man, who w r as a king’s counsel, and had precedence. It 
 might have been his duty to file this information ; and 
 the cause, v r hich would improperly have been entitled 
 The Tubman v. The Brewers , was still more so by this re¬ 
 porter, whom the court of king’s bench state to have been 
 a mistater of cases, called TheTub-women v. The Brewers. 
 It was about gallon beer. Gallons and tubs have some 
 affinity, gallons being but the diminutive of tubs, sic cani- 
 bus catulos similes sic matribus hcedos. And between tub- 
 
 3 
 
55 
 
 men and tub-women there is but a syllable. A reporter 
 so ignorant of men and things might mistake, as was his 
 habit, and send forth the case in his report with this 
 whimsical title. 
 
 The same case is related in Keble's Reports ,* where 
 the various adjournments are stated, and the arguments 
 on each day. The judges either did not well understand 
 each other, or I do not well understand them. There 
 are many confused dicta through the case, and I leave it to 
 my learned adversaries to make what use they can of them. 
 
 The other cases referred to by Hawkins are for the 
 purpose of showing that a conspiracy is of itself a crime, 
 though never followed up to its execution. As they 
 turn avowedly on the common law, I should wish, if I did 
 not fear to fatigue the court with an argument already 
 from necessity too long, briefly to run over the matter of 
 them, in order to show more fully how they all fall un¬ 
 der the definition of conspiracy at common law, on which 
 we rely, and how remote they are, one and all, from the 
 nature of the present charge ; falsehood and malice will 
 be found to be the ground of every one of them ; or else 
 maintenance of other men’s quarrels, for the purposes of 
 oppression. 
 
 [It being now three o’clock, and the court obliged to 
 attend the sittings of the board of common council, the 
 argument was adjourned till the following morning.] 
 
 Tuesday , December 19, 11 o'clock. 
 
 The counsel proceeded briefly to examine the cases in 
 the margin of the folio editions of Hawkins , referred to 
 in the passage cited. 
 
 *' 1 Keb, 350. 
 
 # 
 
56 
 
 Arundel v. Tregono,* was an action against a single 
 defendant for a malicious indictment for stealing a bushel 
 of wheat, and no question about conspiracy. The only 
 question was, whether the court would intend what was 
 not averred, that the justices had authority, and were of 
 the oyer and terminer. 
 
 Throgmorton's casef was similar, the question being 
 whether they appeared to be justices of assise ; for if 
 they had no authority the party was never in jeopardy, 
 and nothing being done to put the accused in danger, it 
 was argued upon as merely an inchoate offence. 
 
 The poulterers’ case:): is a leading one, and referred to 
 throughout all the bo’oks. It therefore demands parti¬ 
 cular notice. 
 
 A number of poulterers in London had conspired to 
 indict one who had married a poulterer’s widow, of 
 robbery, and to have him, by such false and malicious 
 charge, arraigned, adjudged, and hanged. The bill was 
 ignored under the direction of the court, who heard and 
 perceived the falsehood of the testimony. The conspi¬ 
 rators were indicted, overt acts were stated, such as pro¬ 
 curing divers warrants of justices to forward their false 
 conspiracy, &c. The argument in arrest of judgment 
 was, whether the bill being returned ignoramus, the party 
 accused was legitimo modo acquietatus , having not been 
 acquitted on a trial. But what is most to our purpose is 
 the note by Lord Coke§ at the conclusion. 
 
 “ Nota reader. These conspiracies punishable by law 
 before they are executed, ought to have four incidents. 
 
 “ 1st. It ought to be declared by some manner of prose 
 cation. 
 
 * Teh. 11C. f Cro. r.liz. 56. («) Leach's edit, i 9 Co. 55. b. § Fo!. 50 b. 
 
57 
 
 u 2dly. It ought to be maliciously for unjust revenge . 
 
 “ 3dly. It ought to be a false conspiracy against an 
 innocent man . 
 
 “ 4thly. It ought to be out of court voluntarily.” 
 
 How unlike are these words to the intemperate, incondite 
 notion held to be law in Philadelphia . It is evident that 
 Lord Coke considered himself bound by that definition on 
 which we rely, and which he had, in another part of his 
 writings,* stated to be in affirmance of the common law. 
 
 The Seignior Grey de Groby’s casef is stronger still for 
 us, to show the ancient sense of the courts touching con¬ 
 federacies. It was, nevertheless, a star chamber case, 
 and a rigorous one. A number of tenants of the manor 
 combined to petition the king for redress in a matter 
 where they claimed a right, and gave to one Perkins their 
 names on carte blanche , to draw the petition according 
 to the best of his judgment. They claimed a custom that 
 the lord should be compellable to make an estate for life 
 to the eldest son of the deceased tenant. The court de¬ 
 creed that the complaint was not censurable, because 
 made without force , and to the king , who had power to 
 redress . It was lawful, they held, as far as the claim of 
 custom, or common, because each had an interest for 
 himself ; but the combination to claim tenure was main¬ 
 tenance, they said, because the tenure of one was not the 
 tenure of the other. Now this applies favourably to our 
 side of the case, for each journeyman has an interest for 
 himself. They have used no force ; and they have made 
 their griefs known only to their kings , the masters, who 
 had power to redress ; and what they sought was nothing 
 
 * Vide sup. f Moore, 788. 4 Jcie. I. 
 
 H 
 
58 
 
 false nor malicious; nor were their means unlawful or in¬ 
 direct. 
 
 The next is an erroneous reference, there being no 
 such case in the page nor book referred to.* 
 
 Rollers Abridgment f is the most conclusive of all that 
 the present indictment cannot be supported upon princi¬ 
 ples of common law. I have searched Brooke and Fitzher- 
 bert , where there is not an instance of any conspiracy, 
 except such as fell under the definition given by statute 
 Edrv. I. all turning upon false prosecutions or corrupt 
 maintenance. Rolle , who compiled his Abridgment a 
 century later, under the head of Indictment , and title 
 Conspiracy , makes five subdivisions or sections. 
 
 1st. He gives the definition by the statute Ediv. I. on ' 
 which we rely entirely. 
 
 2d. “ If two or more confederate together, that each 
 of them shall maintain the suit of the other, whether the 
 matter be false or true , although they do nothing in con¬ 
 sequence, for such confederation is forbidden by the law. 
 
 2 7 Ass. fol. 139. b. adjudge. 
 
 3d. “ Also, if men confederate bv oath in the same 
 manner , as above, a fortiori , they shall be indicted for 
 that.” 
 
 4th. The fourth section relates to false affidavits in 
 chancery. 
 
 5th. If one swears, or procures another to swear, that 
 a thing is true of his own knowledge, and it be proved 
 that he did not know it to be true, he shall be indictable, 
 though the thing happen to be true. 
 
 This is all Rolle says of conspiracy ; and from this it 
 is clear that nothing is conspiracy at common law in 
 
 * 1 Jilod. 1S5, 18G. f 2 Roll Mr. 77. tiu Conspirators, pi. 2 and 3. 
 
59 
 
 which falsehood is not the principal ingredient. And the 
 villanous judgment which followed every conviction, 
 and which was the appropriate punishment of the crimi- 
 na falsi , makes it clear, that wherever labourers or arti¬ 
 sans have been indicted, it has been under the statutes, 
 not at common law. 
 
 I have read this title through in English , in order not 
 to shock the ears of the court. I shall, however, beg 
 leave to repeat the second section in the original dialect, 
 and to point out the misconstruction of the text in which 
 the fallacy has originated. 
 
 “ Si deux confederate ensimul chescun de eux a main- 
 tainer Pauter lequel lour matter soit voier ou faux com¬ 
 ment que ils mistont riens in ure encore ils poent estre in¬ 
 dict de ceo , car cest confederation est defendu par la ley." 
 27 Ass. fol. 139. b. 
 
 Instead of translating the words “ lequel lour matter 
 soit voier ou faux ,” so as to express the true sense, viz. 
 whether the matter be right or wrong, the book-makers 
 have overturned the author’s meaning, and made that ap¬ 
 pear unnatural, which, in the ancient language of the law, 
 is most clear and reconcileable to the whole range of prece¬ 
 dent authorities. This section is nothing, in truth, but 
 a corollary to the statutes of maintenance, and signifies 
 merely that when two or more confederate to support 
 each other falsely , or, which is the same, without regard 
 to the truth or falsehood of the matter, then that confe¬ 
 deracy is punished by the law, even though it has not 
 been carried into effect. How vitious and absurd, then, 
 is that interpretation, that says, all confederacies, whether 
 to do good or bad, are highly punishable at common- 
 law. 
 
60 
 
 The next authority is The Kingv. Harrison and others.* 
 There the indictment was for conspiring to charge one 
 with the keeping of a bastard child, and bring him into 
 disgrace ; and it was held, that the false contrivance to 
 defame the person, and cheat him of his money, was an 
 offence, though the scheme had not been carried into 
 effect. 
 
 The King v. Tracy, f was an indictment against a jus¬ 
 tice for putting a man in irons to extort money from him 
 by false charges. 
 
 In The Qiteen v. Bestf which was a false conspiracy 
 to charge a man with a bastard child, the true distinction 
 was taken. It was held lawful to conspire to bring an 
 offender to justice ; but guilty to prosecute him, right or 
 ■wrong; and it was debated and doubted whether to 
 charge him falsely with a mere spiritual offence was con¬ 
 spiracy. What, tljen, becomes of the foolish saying that 
 all confederacies are punishable, whether to do right or 
 wrong ; for such, it not the words, is the principle as¬ 
 serted in Philadelphia. 
 
 Such ate the authorities referred to by Serjeant Hawk¬ 
 ins , whose silence alone would be an argument against 
 any such indictment as this, and yet his name is surrep¬ 
 titiously used to countenance such absurdities. 
 
 If there be a few modern cases more lax, and where 
 the principle has been shaken, it may be in some mea¬ 
 sure owing to these very corruptions, because as law 
 works are in general compilations, an error soon mul¬ 
 tiplies, and that which has but one single source, and 
 that in ignorance or mistake, being copied and transcri¬ 
 bed, and interlarded into the writings of good and cor- 
 
 * 1 Vent. SOS, 304. f 6 .Mod. 178. 
 
 4 fj. Mod. 185. 1 Sulk. 172. 2 Lord Jtaym. 1167. S. C. 
 
61 
 
 rect authors, does often deceive, and at length takes the 
 imposing title of an authority. 
 
 I shall examine a few of the modern cases of conspi¬ 
 racy at common law. They will show that deceit is al¬ 
 ways essential ; that in some sense or other they are all 
 tinctured with the crimina falsi. 
 
 The King v. Brissac and Scott * was a false conspira¬ 
 cy between the captain and purser of a man of war to 
 cheat the king by false certificates, and the various acts 
 of fraud are distinctly averred. 
 
 Rex v. Watson, f was an information for a false agree¬ 
 ment corruptly to charge the parish by giving a soldier 
 10/. and a fat hog to marry a poor woman. The defend¬ 
 ants being overseers of the poor, there also the overt 
 acts set out showed deceit, falsehood and corruption. 
 
 Rex v. John and Mary Sprog'gf The jury found 
 the defendants guilty of falsely indicting Walter Gilman 
 of forging a stamp. The averment in the indictment 
 was, that the defendants did wickedly and maliciously 
 conspire to indict the prosecutor, without addin falsely, 
 and that according to the conspiracy, combination and 
 agreement between them, before had, they actually did, 
 falsely , wickedly, and maliciously, without any reasona¬ 
 ble or probable cause, indict him., and the indictment is 
 set out. The falsehood was pretty fully made appear ; 
 yet the argument in arrest of judgment was, that it 
 should have been averred, in the first instance, that they 
 did falsely conspire, &c. and, afterwards, that in conse¬ 
 quence of that false conspiracy, they did falsely indict. 
 The court adjourned from time to time, to consider up¬ 
 on this doubt, which I think is pretty strong proof how 
 
 * 4 East, 171. 
 
 f 1 Wilson, 41. 
 
 t 2 Eitrr. 993. 
 
62 
 
 Essential the falsehood is to the charge of a conspiracy, 
 and without which they never would have been indicta¬ 
 ble in any shape. 
 
 The liberty I take in protesting against this undiscri- 
 minating adoption of the common law, will appear less 
 adventurous if it be considered, that a great portion of 
 the British empire, though governed by one monarch, 
 and represented in one parliament, has not thought pro¬ 
 per to adopt any part of it. The Scotch , less favoured 
 than the English in soil and climate, and other physical 
 advantages, yet, as moral beings, are surely not inferior, 
 and out of their mountains and their moors come men 
 able to assume and maintain stations in the intellectual 
 world before unoccupied or unclaimed. If the common 
 law were like the divine system how could this be ? 
 Would not those who were formed under its luminous 
 auspices as far transcend all others as truth excels error ? 
 for laws and religion are the fountains of education, 
 from which national character is derived. But the Scotch , 
 when broken by unsuccessful rebellion, and the disastrous 
 chances of war, were brought to surrender their inde¬ 
 pendent monarchy, their philly-beg and kilt, but never 
 would consent to the laws or religious establishments of 
 England. If, then, so important a portion of the Bri¬ 
 tish island can do so well without any part of the com¬ 
 mon law, can it be necessary for us superstitiously to 
 adopt every part of it ? 
 
 The Irish had the common law forced on them. Their 
 melancholy history is now well understood. And from 
 the scintillations of exalted genius which emanate from 
 the ruins of Ireland , it may be imagined what a mass of 
 excellence lies brutalized and benumbed by vitious in¬ 
 
 stitutions. 
 
63 
 
 The Irish had an ancient code which they revered. It 
 was called the law of the judges, or the Brehon laxv. What 
 it was it is difficult to say ; for with the other interesting 
 monuments of that nation’s antiquity, it was trodden 
 under the hoof of the satyr that invaded her. 
 
 Sir William Blackstone in treating of the subjection 
 of the Irish to the English laws, has had need of all his 
 flexibility, and the authors he refers to are chiefly inte¬ 
 rested or official calumniators. After slightly touching 
 upon the conquest, and planting , (by which planting is 
 meant, settling new adventurers upon the tombs of the 
 slaughtered,) he says, the inhabitants are, for the most 
 part, descended from the English , which is a mistake, 
 for one half of them do not use the English language, 
 even at this day. “ King John” he says, “ went over, 
 carrying with him many able sages of the law, and 
 there, by his letters patent, in right of dominion of 
 conquest, ordained, that Ireland should be governed by 
 the laws of England .” King John was a vile king. 
 He murdered his brother’s first born, and made a foot¬ 
 stool of his neck for the servant of a pope ; and if we 
 judge of his sages by himself, we can believe nothing 
 good of them. It is curious, that the same author, in 
 the same page, says, that the same laws which king' 
 John and his sages then ordained, had before been 
 sworn to under Henry II. at the council of Lismore; 
 yet so much were they detested, that afterwards Henry 
 III. and Edward I. were obliged to renew the injunc¬ 
 tion. “ And,” adds the author, “ at length, in a par¬ 
 liament holden at Kilkenny , 40 Edw. Ill under Lionel , 
 Duke of Clarence , then lord lieutenant of Ireland , the 
 
 1 Com. 101. 
 
64 
 
 Brehon law was formally abolished, it being declared to 
 be indeed no law , but a lewd custom, crept in of later 
 times." What they meant by a lewd custom, crept in of 
 later times, I know not; but the statutes of Kilkenny , 
 which came after it, are, of all laws that ever were en¬ 
 acted, the most atrocious; and lewd, indeed, must the 
 custom be, that was not ill exchanged for them. 
 
 No wonder that the “ wild natives?' even in the days 
 of Elizabeth , still kept and preserved their Brehon law, 
 of which its enemies are constrained to say, “ that it 
 was a rule of right, unwritten, but declared by tradi¬ 
 tion from one to another, (like the common law,) in 
 which, oftentimes, there appeared a great show of equity, 
 though it was repuguant both to God’s laws and man’s.”* 
 What happened in Ireland must happen here, if we 
 acknowledge ourselves subject to the common law of 
 England. Whatever statutes have modified the common 
 law in England to the exigencies of the times, not 
 having force in this country, we should have the laws of 
 the Tudors , and the Stewarts , unless we adopt something 
 like Poyning's law, acknowledging our inferiority to 
 the English , and making their laws our laws. The 
 Irish , at one time, could make no laws in their parlia¬ 
 ment, that were not first certified under the great seal of 
 England; so that the laws were made first, and the par¬ 
 liament held afterwards, to enact them.f Is not this ve¬ 
 rifying the saying ol Marquis Beccaria , that the judi¬ 
 cial system of every country is two or three hundred years 
 behind its progress in civilization. Are we bound to 
 tins by any, and what necessity l 
 
 * Edm. Spencer's Suite of Ireland, p. 1513. Ed. Hughes. 
 
 t 4 Just. 353. 
 
65 
 
 From the books I see in court, I presume precedents 
 will be quoted of English indictments of similar nature, 
 concluding as at common law ; and from that it will be 
 argued, that combinations of journeymen are indictable 
 at common law. But the answer to that is very ob¬ 
 vious. The offence may be by statute, and by statute 
 alone ; and yet the indictment as at common law is the 
 proper form. 
 
 When an offence is created by statute, and the statute* 
 gives no particular penalty, the indictment not only may, 
 but must, be laid at common law, and a general judg¬ 
 ment will be given, as of a misdemeanor at common 
 law.* Such precedents, therefore, cannot prove, that 
 such combinations were ever supposed to have been in¬ 
 dictable by virtue of the common law, otherwise than 
 as contraventions of the English statutes, which surely 
 have no force with us. 
 
 In an Irish workf of great authority, which has been 
 several times printed in England , there is a passage 
 which very clearly illustrates this position. “ If any 
 tradesmen, artificers, labourers, or servants, shall com¬ 
 bine and conspire not to work at rates, fixed by the jus¬ 
 tices, this is a misdemeanor at common law, and punish¬ 
 able with fine and imprisonment.” The fixing of rates by, 
 the justices is, by virtue of the statutes of labourers in 
 force in Ireland , being fixed by statute. The combining 
 to violate that statute is an offence indictable as at com¬ 
 mon law, but would be no misdemeanor without the 
 statute. In Rex v. Crisp, \ which was for a statutable 
 conspiracy, the indictment has this averment in the body 
 
 * Rexv. Smith, 2 Doug. 441. f Bofton’s Justice, lib. 2. c. 5. $ 24 
 * Trent. P. C. S2- 
 I 
 
G 6 
 
 of it; “ contra leges et statuta hujus regni anglice ” and 
 yet concludes as at common law, viz. contra pacem. 
 
 Through all the counts of this indictment, it is to be 
 remarked, that there is but one overt act stated, which 
 can, in any sense, be held criminal, and that is con¬ 
 spiring to refuse to work unless under certain condi¬ 
 tions. I should like to know what law compels a man 
 to work upon terms not advantageous or agreeable to 
 him. As to those counts which contain no overt act, 
 but merely charge the defendants with conspiring to im¬ 
 poverish by indirect means, and impoverishing by indi¬ 
 rect means, I scarcely think them worth an observa¬ 
 tion. They have all the kinds of uncertainty which 
 renders an indictment a nullity. I shall, however, leave 
 the indictment to be analyzed by my learned colleague, 
 who will do more justice to the subject. The observa¬ 
 tions which the novelty and importance of this cause 
 have drawn from me, having, on mere preliminary to¬ 
 pics, gone to too great lengths, a few general remarks 
 shall close what I have to say. 
 
 Every conspiracy must be a trespass, that is, an ille¬ 
 gal act 5 but every trespass is not an indictable offence, 
 but, in most cases, the remedy is by civil action. The 
 only injury that can be complained of, if there be any, 
 must be of a private nature, whether it be to JVhitess 
 or the masters. For instance, where servants or ap¬ 
 prentices are seduced, there the remedy is by civil ac¬ 
 tion, not by indictment.* 
 
 Before the mutiny act in Engla?id, soldiers bound to 
 serve the king in his wars, might quit his service, un- 
 less jlagrante hello ; but the masters here seem to think 
 
 ' 3 Burr. 1321. 
 
67 
 
 the journeymen bound to serve them through life, for 
 whatever wages they choose to grant them. The one 
 party must, in that case, be more than kings, and the 
 other less than subjects. 
 
 Whitess had become one of their society, and agreed 
 to their regulations. They are charged with combining 
 not to work with Whitess (for such is the substance of 
 it) till he should pay the fine he had agreed to pay, for 
 breaking their rules and orders. What is there indicta¬ 
 ble in all that, supposing it ever so true. That they 
 will not work for the employers who employ him. What 
 is that more than saying they will not work along with 
 him who is not contented to abide by them. 
 
 I think the law of Solon applies to this case, which 
 declared, that in times of public division no man should 
 be neutral. That law has, perhaps, more wisdom than 
 appears at first view. It tended to obviate the evils 
 of deception and dissimulation. It prevented matters 
 from being carried to extremity, as it gave each party a 
 clear knowledge of its own strength, and furnished a mea¬ 
 sure by which the success of the struggle might be fore¬ 
 seen, and useless contest avoided. But how is it here ? 
 Whitess violates the rules and ordinances, to the ob¬ 
 servance of which he had bound himself. He goes to 
 the adversaries’ camp, and because they will not go with 
 him they are indicted. If all the masters were on one 
 side, and all the workmen on the other, the contest must 
 soon end sufficiently to the advantage of the employers. 
 If the majority of the workmen were content with their 
 wages, the majority would be harmless ; but if an indi¬ 
 vidual will seek to better himself at the expense of his 
 fellows, when they are suffering privation to obtain 
 terms, it is not hard that they leave him to his employ- 
 
68 
 
 crs ; and the most inoffensive manner in which they can 
 show their displeasure, is bv shaking- the dust off their 
 ieet, and leaving the shop where he is engaged. If they 
 do this without violence or fraud, without breach of the 
 peace, disorder or violation of any contract, duty, or 
 moral obligation, it is burlesque to call that a conspira¬ 
 cy indictable. 
 
 If it be clear, from all these authorities, that such in¬ 
 dictments are not conformable to our laws or constitu¬ 
 tion ; that none such were ever known in England till 
 the time of the statutes of labourers; and that none 
 such were ever prosecuted to judgment in America , be¬ 
 cause there never were any such statutes ; then I shall 
 conclude with the words of judge Tucker, an author 
 worthy of confidence, “ that neither the law of England , 
 nor that of any other country, can have any obligation 
 in this state ; and that no offence created by statute in 
 England can, for that reason, be deemed an offence 
 against the United States; and that all statutory offences 
 against the laws of England, are therefore only to be re¬ 
 garded as offences in that kingdom, and not as having any 
 existence either in the state of Virginia , or in the United 
 States .” The same may surely be said of New-Tork, 
 where the whole body of the English statutes has been 
 at once repealed, and where the statutes which created 
 the offence here indicted, never were in force at any 
 time. 
 
 I have only now to apologize to the court, for the un¬ 
 avoidable length of my argument, to return my thanks 
 for its patient indulgence, and to commit my clients to 
 its protection ; leaving to my learned associate to com¬ 
 plete the argument which I have left so imperfect. 
 
69 
 
 Mr. Golden, I cannot in justice to myself omit on 
 this occasion to state that my enagements in the other 
 court, which is now in session in another part of the 
 Hall, has been such during the very few days which 
 have elapsed since this indictment was presented, that it 
 has been utterly impossible for me to pay so much atten¬ 
 tion to the subject under consideration, as from its na¬ 
 ture would be requisite for a satisfactory discharge of 
 the task I am now about to perform ; but so far as my 
 clients are concerned, they can have no cause to regret 
 that I am not so well prepared as I might have been, 
 because the ability, industry, wit and ingenuity of the 
 counsel with whom they have done me the honour 
 to associate me, has not left it possible, as I think, to add 
 much to what he has said in support of their cause. 
 
 To ensure a favourable decision from the court on our 
 motion to quash this indictment for a conspiracy, I shall 
 think it sufficient to establish these two principles as law ; 
 
 1st. That a conspiracy to do any act, is not indictable 
 unless the act to be done is unlawful ; and, 
 
 2d. That it must appear upon the race of the indict¬ 
 ment that the act to be done is unlawful ; or, according 
 to an authority to which I shall by and by refer the court, 
 whatever circumstances are necessary to show the act 
 unlawful must be set out, which indeed is but a corol¬ 
 lary from the first proposition. It will follow that if the 
 indictment which is now before the court, does charge the 
 defendants with a combination or confederacy to do an 
 unlawful act; or if the indictment does not show that 
 the act which it charges them with having conspired to 
 do was unlawful, the indictment must be quashed. 
 
 As to the first principle which I have mentioned, it 
 appears to me a self-evident proposition, and I shall not 
 
70 
 
 attempt to offer any argument to support it until I hear 
 that the counsel opposed to us mean to deny it. If they 
 do they must intend to maintain its converse, that is to 
 say, they must endeavour to establish that every combi¬ 
 nation or confederacy, to do a lawful act, is an offence. 
 It seems to me that it is only necessary to advert to 
 what would be the infallible consequences of adopting 
 such a principle to show its absurdity". If a conspiracy, 
 whether to do right or wrong, be unlawful, the parties to 
 every association would be offenders ; all our religious, 
 benevolent, charitable, and political societies would be 
 violations of the law. And I do not know why upon 
 this principle carried to its extent, men who unite their 
 means and exertions for mercantile gain, would not be 
 criminals. 
 
 The numerous counts in the indictment will, for the 
 purposes of the argument which I am about to offer, ad¬ 
 mit of a classification ; and I shall consider them under 
 the following arrangement:—The first, second, third 
 and eighth counts may form one class; the fourth, fifth 
 and ninth counts form a second class ; and the sixth and 
 seventh counts will have a separate consideration. 
 
 The 1st, 2d, 3d, and 8th counts have each a similar 
 recital, by which the offence charged in each of these 
 counts against the defendants, is introduced. This reci¬ 
 tal states that the defendants, intending to form a club, 
 and to make illegal by-laws, and to extort money, did 
 conspire. 
 
 It is to be observed that here is no charge against the 
 defendants. This recital is mere matter of inducement. 
 It is not said that they conspired to form a club, or to 
 make illegal by-laws, or to extort money ; but on the 
 contrary, the conspiracy is charged to have taken plage 
 
 o 
 
 O 
 
71 
 
 subsequently to these intentions, which, from aught that 
 appears on the indictment, were harboured by the de¬ 
 fendants, separately and individually, before the con¬ 
 spiracy was formed. Nor is it stated that the conspira¬ 
 cy was for either of these illegal purposes, if they were 
 illegal, but for totally other objects. It cannot be con¬ 
 sidered, I think, that the defendants are to be put to an¬ 
 swer these recitals as criminal accusations, because there 
 is nothing in the recitals which charge any thing against 
 the defendants as an offence. On the contrary, all that 
 is said in the recitals is but to introduce the charge of 
 conspiracy which immediately follows the recital in each 
 count. 
 
 But let us suppose the matter contained in the recitals 
 was put in the form of a charge in the most positive and 
 direct manner. As, for instance, if the indictment had 
 said, that the defendants did intend to form, a club. 
 First, let me ask, is an intention of any kind, though it 
 be to commit ever so atrocious an offence, punishable 
 by the common law P I think I may venture to answer 
 that it is not. Then much less can an intention to form 
 a club be so. And however immoral it may be in an 
 individual, or any number of individuals, to have an in¬ 
 tent to pass illegal by-laws, or to extort money, it is an 
 immorality for which they are not answerable to any 
 human laws. 
 
 Another objection to this part of the indictment is, 
 that if the public prosecutor had intended to make this 
 intent to pass illegal by-laws, and to extort money, a 
 part of the substance of his charges against the defend¬ 
 ants, he should have set out in his indictment what ille¬ 
 gal laws they did intend to pass, that the court might 
 see that they were illegal ; and he should also have sta- 
 
* ' 
 
 72 
 
 tecl by what means they did intend to extort money. If 
 there was a direct charge that the defendants did pass 
 illegal by-laws, and that they did extort money, the in¬ 
 dictment could not be supported without a specification 
 of the laws passed, and of the means of extortion, as I 
 shall by and by show to the court when I come to con¬ 
 sider the counts which I have arranged in a second class. 
 Certainly, then, this charge of an intent, and that introdu¬ 
 ced by way of recital only, can never be sufficient. 
 
 I think it will appear from what I have said, that in 
 these recitals there is no crime sufficiently charged 
 against the defendants. And I beg the court to observe, 
 that the recitals are entirely independent of w r hat may 
 be called the substantial parts of the indictment. As 
 they can in no manner assist the charge of conspiracy, 
 so neither can they derive any support from that charge. 
 The recitals, and the charge of conspiracy, are as little 
 connected as if they formed separate counts. Indeed, 
 the recitals are in opposition to the charges ; for the re¬ 
 citals imply that the defendants intended to do one thing, 
 and they are charged with having conspired to do an¬ 
 other. They intended to form a club to make illegal by¬ 
 law's to extort money, and they conspired not to work in 
 the same shop with one who w r as not a member of their 
 society ; nor with any one who infringed their rules, un¬ 
 til he paid his fine ; nor with any master who employed 
 more than two apprentices. 
 
 Dismissing the recitals to these four counts, I shall 
 proceed to an examination of the direct charge contain¬ 
 ed in each, with a view to show that the acts which it is 
 said the defendants conspired to perform are not illegal 
 acts, and therefore a conspiracy to do these acts is not 
 indictable. 
 
73 
 
 The first count charges, that the defendants conspi¬ 
 red and agreed that they would not work with any jour¬ 
 neyman who was not a member of their society. The 
 second, that they would not work with any one who in¬ 
 fringed their by-laws. The third contains the same 
 charge, with the addition that they would not work with 
 an infractor of their laws till he paid a fine. And the 
 eighth count charges, that they would not work for any 
 master who employed more than two apprentices. 
 
 Here let it be observed, that the defendants are not 
 charged with having conspired to do any act, much less 
 an unlawful act. The agreement among them, as the 
 indictment states, is not to act. Now will it be said 
 that it would have been unlawful for these defendants or 
 any other set of men, to have come to a resolution, or 
 to an agreement, if you please, that they would net 
 work at all ? Let us know where is the law that savs a 
 man once a labourer shall for ever remain so ; nay, that he 
 shall for ever labour. There is no such tyrannical rule 
 in this country. And if men may resolve that they will 
 abandon their trade and live idle, why may they not 
 make a qualified resolution of this nature ? Why may 
 they not say that they will only work under circumstan¬ 
 ces agreeable to themselves ? 
 
 But to examine the substances of the charges in these 
 respective counts more particularly. So far from ha¬ 
 ving been any thing illegal or immoral in the conspiracy 
 or agreement to which these defendants were parties, 
 the court will find that their confederacy, and the rules 
 which they adopted, were not only legal but highly me¬ 
 ritorious. 
 
 Like most other societies of the same nature, the jour¬ 
 neymen shoemakers’ society is a charitable institution. 
 
 K 
 
74 
 
 They raise a fund, which is sacred to the use of their 
 helpless or unfortunate members, and to the relief of the 
 widows and orphans of their departed brethren. Their 
 by-laws are, each member shall contribute to this 
 fund. And to induce every one to join the society, 
 while by his labour he may make something to spare for 
 their fund, they refuse to work with any one who is so 
 wanting in charity as not to join them. And as a 
 sanction to their laws, they have also declared that they 
 will not work with any who shall break their by-laws, 
 that is, who shall refuse to pay his dues, till he has paid 
 a fine. Who will say that an association of this nature 
 is illegal ? What human laws can presume to punish acts, 
 which, according to the laws of God are deserving of 
 rewards even in heaven ? or can it be said that the reso¬ 
 lution not to work for a master who employed more than 
 two apprentices, was unpraiseworthy r ? The masters 
 were in the habit of crowding their shops with more ap¬ 
 prentices than they could instruct. Two was thought 
 as many as one man could do justice by^. The journev- 
 men shoemakers therefore determined to set their faces 
 against the rapacity of the masters, and refused to work 
 for those who were so unjust as to delude with the pro¬ 
 mise of instruction which it was impossible they could 
 give. In England , the legislature has interfered on this 
 point,, and has by statute limited the number of appren¬ 
 tices which certain tradesmen may T take. 
 
 It is to be observed, that neither of these counts charge 
 that the design of the defendants was to raise their wages. 
 And though it should be admitted that a conspiracy to 
 raise their wages would subject the defendants to an in- 
 
75 
 
 dictment, yet I doubt if any authority can be found to 
 support an indictment for charges like these. 
 
 The 4th, 5th, and 9th counts form another class, my 
 objections to which I shall proceed to submit to the 
 court. 
 
 The 4th count charges, that the defendants, intending 
 to injure E. W. conspired, by wrongful and indirect 
 means to impoverish him, and hinder him from follow¬ 
 ing his trade, and that they did, in pursuance of their 
 conspiracy, indirectly hinder him from following his 
 trade. 
 
 The 5th count varies from the fourth only in this, 
 that it does not charge that the defendants effected the 
 design of their conspiracy. And the 9th count is simi¬ 
 lar to the fifth, except that it charges that the conspira¬ 
 cy was to injure, by indirect means, certain master work¬ 
 men who are named. 
 
 Now it may well have been that the defendants in¬ 
 tended to injure the persons named in these counts, by 
 indirect, vet by perfectly lawful means. If they had 
 agreed that they would work better or cheaper than the 
 persons named, this would have been an indirect means 
 of injuring them. If they had combined in the inven¬ 
 tion of some improvement of the cordwainer’s art, 
 which should have entitled them to a patent, this would 
 have given the defendants a monopoly which could not 
 fail of being an indirect means of injuring all who were 
 not sharers in it. If they had agreed to increase the 
 number of master workmen in our city by inducing 
 those who are now settled elsewhere to take their abode 
 with us ; or, if the defendants had agreed that they 
 would no longer work as journeymen, but establish them¬ 
 selves as masters.—All these would have been indirect 
 
76 
 
 means of impoverishing and injuring other persons en¬ 
 gaged in the trade. But will it be said that indirect 
 means like these would be unlawful means ? I am sure 
 it will not. It follows, then, that the defendants are not 
 charged by either ot these counts, with a conspiracy to 
 do an unlawful act. 
 
 But if we should say that by the terms wrongful, 
 wicked, and indirect means, are to be intended unlawful 
 means, then there remains the important objection, that 
 the indictment does not specify the necessary circum¬ 
 stances to show that the intended means were unlawful. 
 
 In Hale's History of the Pleas of the Crown , it is 
 said, that an indictment is nothing else but a plain, brief, 
 and certain narrative of an offence committed by any 
 person, and of the necessary circumstances that concur 
 to ascertain the fact and its nature.* 
 
 In Bacon's Abr. tit. Indictment , G. where the court 
 will find a number of authorities quoted to the same 
 point, it is said that an indictment must expressly allege 
 every thing material in the description of the substance, 
 nature, and manner of the crime ; for no intendment 
 shall be admitted to supply a defect of this kind. 
 
 Again, in the same book, (iibi supra ,) it is said that 
 the whole fact ought to be set forth with such certainty 
 that it may judicially appear to the court that the in- 
 dicters have not gone upon insufficient premises. 
 
 Conformably to these principles, it has been decided, 
 
 “ that an indictment of perjury, not showing in what 
 “ manner , and in what court, the false oath was taken, is 
 “ insufficient.” So in The King v. Mason, f it was adjudg¬ 
 ed, that an indictment, charging the defendant with ob¬ 
 taining money by false pretences, was insufficient, as it 
 
 * 2 Hale's It. P. C. 169. f 2 Term Step. 5S1. 
 
77 
 
 did not show what the false pretences were. In the 
 case of Rex v. Munonf an indictment for procuring a 
 note by false tokens, was held bad, because it did not 
 specify what the false tokens were. 
 
 The idea of indicting these defendants upon these ge¬ 
 neral words, it is very probable has been taken by the 
 person who drew this indictment from an expression in 
 Hawkins's Pleas of the Crown , which I have no doubt 
 will be often quoted by the adverse counsel ; for I be¬ 
 lieve no precedent for such an indictment can be pro¬ 
 duced. Serjeant Hawkins f says, that a person may be 
 punished for confederating “ by indirect means to im¬ 
 poverish a third person.” But does it follow that by 
 these general expressions, Hawkins meant to say that 
 the confederacy would be unlawful, though the propo¬ 
 sed indirect means were lawful ? Much less can it fol¬ 
 low that he intended to say that it was not necessary 
 to specify the means in the indictment. Suppose there 
 were a statute which enacted, that to impoverish an¬ 
 other by indirect means, should be a crime, would it 
 not be sufficient to pursue in the indictment the words of 
 the statute, and to omit in an indictment in such a sta¬ 
 tute what were the indirect means to which the defend¬ 
 ant had resorted ? 
 
 If general charges of this nature could be supported, 
 no man put to answer them would know from his accusa¬ 
 tion how to prepare for his defence ; for he might not learn, 
 till he heard it from the mouths of his accusers on his 
 trial, what were the circumstances alleged against him. 
 
 Reserving any further observations on these counts of 
 the second class till I have had the pleasure of hearing the 
 learned counsel concerned for the prosecution, I shall pro- 
 
 * Sir a. 1127 . 
 
78 
 
 ceecl to submit to the court some remarks on the sixth count. 
 Supposing it to be unlawful for tradesmen to conspire 
 to raise their wages, let me beg the court to remark that 
 there is no such charge against the defendants in this 
 count. The charge is of a very different nature. It is, 
 that they agreed that they would not work under certain 
 prices. Now let me ask, if these persons had agreed 
 not to work at all, is there in this country a law to 
 compel a man to work if he chooses to remain idle ? 
 What law is there to punish the lazy lawyer, the negli¬ 
 gent merchant, or sleepy parson ? If there be none for 
 persons of these classes, by what authority can you 
 punish the idle shoemaker? And if a man may lawfully 
 determine to live in idleness, why may he not make qua¬ 
 lified his resolution not to work but on certain condi¬ 
 tions ? Why is it not lawful for him to say I will work 
 if you will pay me at a certain rate, but if you will not 
 do this you must go without my work ? There is no 
 law in this country, and I believe I might say there is no 
 law on earth, which denounces as illegal such conduct. 
 There is, therefore, no charge in this count to do an ille¬ 
 gal act; but objections which have been made to other 
 counts again occur as applicable to this. In the language 
 of an authority I have quoted, “ the circumstances neces¬ 
 sary to constitute the imputed crime are not set out.” 
 One of these circumstances is, that the defendants were 
 not content to work for usual wages. Yet there is no 
 specification of what the usual wages were, nor is it shown 
 that the prices which they had limited for themselves 
 were over these usual wages. It will not, I presume, be 
 contended that it would have been a crime if the defend¬ 
 ants had agreed that they w r ould be content with less 
 than the usual rates. How does it appear, then, that their 
 
79 
 
 prices were not below what was the customary compen¬ 
 sation ? We must recollect that the authorities to which 
 I have already referred the court, show, that in an in¬ 
 dictment, nothing is to be taken by intendment. It is 
 worthy of remark, that the framer of this indictment 
 was so conscious that he was not charging the defend¬ 
 ants with a conspiracy to do an unlawful act, that he has 
 departed from the usual phraseology in this respect, and 
 omitting the word unlawfully, has contented himself with 
 alleging that the defendants wickedly and corruptly 
 conspired. 
 
 I have said that this count does not expressly charge 
 the defendants with a conspiracy to raish their wages; 
 and that no such charge can be made out by implication ; 
 and that of course the allegation that they would not 
 work under certain prices, cannot amount to a charge 
 that they intended to raise their wages above the usual 
 prices. But I shall admit, for the sake of argument, that 
 this indictment does contain, in legal form, an accusation 
 that the defendants did unlawfully conspire to raise the 
 price of their labour above what were the customary 
 wages at the time of the conspiracy. And this will 
 bring us to an important consideration ; because I shall 
 contend, and I hope to satisfy the court, that neither by 
 the common law of England , nor by the laws of this 
 country, was such a conspiracy punishable; for by 
 neither the one nor the other would it be a conspiracy to 
 do an illegal act. 
 
 A. conspiracy to do an act which is forbidden by the 
 law, is a conspiracy to do an illegal act, and therefore 
 such a conspiracy is a crime. And every indictment for 
 such a conspiracy must be an indictment at common 
 law, and not an indictment upon the statute ; because the 
 
80 
 
 conspiracy is a common law offence; the statute only 
 giving to the act to be done that unlawful character 
 which is necessary to make the conspiracy illegal. 
 
 It is only on this ground that conspiracies to raise 
 wages are indictable at common law in England. For 
 1 1 believe I may venture to assert, that no instance of an 
 indictment for a conspiracy of this nature can be found 
 that was prior to the statutes passed in England for re¬ 
 gulating the wages of her craftsmen. 
 
 I have traced these statutes for regulating wages as 
 far back as to the beginning of the fourteenth century, 33 
 Edzv. I. Other statutes on the same subject were pass¬ 
 ed in the reigns of Rich. II. Edw. III. and of Elizabeth , 
 vid. Keb. stat. 69. 2 Reev. Hist. Eng. Lazv , 388, 389 
 
 4 Burns's ynst. 164. 
 
 These statutes, or some of them, made it unlawful, not 
 only for an individual craftsman to ask or receive more 
 than a specified price for his labour ; but it made it also 
 illegal for an employer to give more than at the esta¬ 
 blished rates. According, then, to the principles for 
 which we contend, it having become by statute an illegal 
 act for one or more individuals to raise their wages, a 
 conspiracy to do that act became an offence punishable by 
 the common law of England. 
 
 There is not an authority in the English books which 
 is not consistent with this principle. The case of The 
 King v. Wise , in 8 Mod. whether it be a good or bad au¬ 
 thority, so far from being against us, is in our favour; 
 because, it appears from the report of that case, that the 
 indictment was grounded on the statute, though it con¬ 
 cluded at common law. The text of Hazvkins, and the 
 notes upon it, are all reconcileable to this doctrine, as 
 are also all the authorities which are quoted in Hazvkins 
 to support the principles he there lay r s down. 
 
81 
 
 In the Crown Cir. Comp, page 257. at the foot of an 
 indictment at common law for a conspiracy ,among work¬ 
 men to raise their wages, is given, in a note, the statute 
 on which the indictment was founded ; thereby manifest¬ 
 ing, I think, that the author of that book thought that 
 no such indictment could have been supported without 
 the statute. 
 
 In Douglas’s Reports , 424. The King v. Smith and 
 others , is the case of an indictment for obstructing the 
 execution of powers granted by statute for making a 
 horse-towing path on the River Thames , which it is de¬ 
 cided need not, and ought not, to conclude against the 
 form of the statute, on the ground that any s thing done 
 , in contravention of a statute is an illegal act, and as such 
 punishable at the common law. 
 
 It is in vain, therefore, for the gentlemen, to show 
 us English precedents for conspiracies to raise wages, 
 concluding at common law, or to cite to us authorities 
 which say that such indictments may be maintained. 
 We admit all this. But we say, that without the En¬ 
 glish statutes, which make the act which is the object of 
 the conspiracy illegal, no such indictments could be sup¬ 
 ported in the English courts. 
 
 But a second position which I have taken, and which 
 I shall now attempt to support, is, that a conspiracy of 
 this nature may have been criminal by the common law 
 of England , independently of her statutable provisions, 
 yet that that part of her common law was never in force 
 in this country. 
 
 I presume that I may take for granted, that this coun- 
 try, when it was settled by our English ancestors was to 
 be considered, in relation to the parent state, as a desert 
 and uncultivated country, claimed by right of occupan- 
 
 T. 
 
82 
 
 t v only. And that the laws of colonization which ap¬ 
 ply to emigrations from a parent state to such a country, 
 were applicable to those who first planted themselves on 
 these shores as subjects of the English monarchy. For 
 if this were to be considered as a conquered country, 
 our common law would be the customs of the Mohawks, 
 or of the Dutch ancestry ; or if this were a ceded coun¬ 
 try, we should have the act of cession or treaty to ap¬ 
 peal to, to ascertain what laws were thereafter to govern. 
 
 If we are to be considered as the representatives of 
 colonists, claiming by right of occupancy, our ancestors 
 brought with them only “ such of the laws of the parent 
 “ state, as were applicable to their own situation, and the 
 “ condition of an infant colony.” 
 
 If it were part of the common law of England , when 
 our ancestors emigrated to this side of the Atlantic , that 
 workmen should not combine to raise their wages, who 
 can say that this was a part of the common law which 
 our forefathers brought with them ? Will it be contend¬ 
 ed that such a rule was applicable, to their situation, ol¬ 
 io the condition of an infant colony ? No man will con¬ 
 tend, I think, that a law of this kind can be beneficial in 
 a society, until its members become numerous, and its 
 arts and manufactures have arrived to a state which they 
 can only attain after they have progressed through 
 ages. The infant colony, then, established by our an¬ 
 cestors, was not governed by the law now attempted 
 to be enforced, if it were a part of the English com¬ 
 mon law. And if it was not the law of the colony in 
 its infancy, no such law could afterwards be imposed 
 on the colonists by the customs or usages of the 
 mother country. And it certainly has not been by any 
 legislative act either of the parent state, or of the colony. 
 
83 
 
 That the whole of the common law of England is no 
 in force in this state, cannot be denied. The constitu¬ 
 tion of the state adopts a part of the common law only. 
 By the thirty-fifth section of the constitution, it is de¬ 
 clared, that such parts of the common law of England , 
 as made a part of the colonial law on the 19th of Aprils 
 1773, should be law in this state. Now, then, we call 
 upon the adverse counsel to show us that this common 
 law of England, which they would now enforce here, 
 was ever a part of our colonial law. To satisfy the court 
 that it was so, they should have shown that at some time, 
 it had been enforced. But although hundreds of years 
 have passed, there is no instance of an attempt to en¬ 
 force such a rule. There is not even a tradition of 
 there having been a prosecution of this nature. Can it 
 be believed, that combinations of this kind have not be¬ 
 fore existed ? And can there be stronger evidence that 
 this was never a part of the colonial or common law of 
 the state, than that no such prosecution under the juris¬ 
 diction of our courts has ever before been heard of? 
 
 I have had an opportunity of examining the re¬ 
 cords of the criminal proceedings of our tribunals for a 
 great number of years back. I have found an informa¬ 
 tion which was preferred in the year 1741, against cer¬ 
 tain bakers, for combining not to bake bread but on cer¬ 
 tain terms. This indictment, however, concludes con¬ 
 trary to the form of the statutes. And it appears that 
 no judgment was ever rendered upon it, so that it can¬ 
 not be appealed to as an authority on either side ; or if 
 it is in favour of either, it must be the defendants, be¬ 
 cause it appears that the crime there charged was laid as 
 an offence against some statutes, and not as an offence at 
 common law. 
 
84 
 
 I have applied these-observations'to the sixth count, 
 because this is the only count on which the question, 
 whether it be unlawful for workmen to raise their wages, 
 can arise. I must detain the court a few minutes longer 
 with some observations on the seventh count, which is 
 the only one that remains to be examined. 
 
 This count must follow the fate of the sixth count, 
 because every objection which has been made to that 
 count, applies to this. But there are some other objec¬ 
 tions to this count which I will briefly notice to the court. 
 The charge is, that the defendants conspired and agreed 
 that they would endeavour, by threats, to injure E. W. 
 and prevent his working. It is not said that the de¬ 
 fendants would prevent E. W. from working ; nor is it 
 stated what kind of threats were to be made use of. 
 It is not stated that their resolution to threaten E. 
 W. was ever communicated to him, or that he ever 
 knew any thing about it. How, then, could this resolu¬ 
 tion injure him ? If there be any force in the rule, that 
 whatever circumstances are necessary to constitute the 
 crime must appear, certainly this count, when tested by 
 this rule, must be bad. 
 
 Finally, there is one objection which applies to this as 
 well as to some other of the counts, which is, that it 
 does not appear with sufficient certainty, who were to be 
 injured by the conspiracy. This objection arises out of 
 a rule which is laid down in Haxvk. P. C. c. 25. s. 71. 
 
 “ that not only the defendants, but all other persons 
 “ mentioned in the indictment, must be described with 
 “ convenient certainty.” The last-mentioned counts aver, 
 that the conspiracy was to injure the defendants’ mas¬ 
 ters, or other citizens. Let me ask, who are the defend¬ 
 ants’ masters ? Will the court recognise any set of men 
 
85 
 
 as the masters of these defendants ? No : They are poor, 
 honest, labouring workmen, it is true, but not slaves. 
 
 I have taken up more of the time of the court with 
 this discussion than I expected to have done. But I will 
 not further trespass on their patience by any long apolo¬ 
 gy for having done so. 
 
 Riker , District Attorney, for the prosecution. 
 
 May it please the Court, 
 
 Two days have been consumed in , argument by the 
 defendants’ counsel. We shall not require so many 
 hours. 
 
 Our positions are these : 
 
 1. That the common law is the same in this country 
 as in England , with no other exceptions than those spe¬ 
 cified and declared. 
 
 2. That by the common law of England , the conspira¬ 
 cies stated in the indictment are criminal. 
 
 3. That the counts are good both in form and sub¬ 
 stance. 
 
 But even if they were not so, this motion ought not to 
 prevail. Indictments for conspiracy are never quash¬ 
 ed. For "his, I refer to the case cited from 8 Mod. 321. 
 although. I do not mean to rely upon that book generally 
 as the highest authority, nor to press it much upon the 
 court. 
 
 If one count alone in an indictment be good, though 
 all the rest be bad, the court will not quash the bill. 
 Nor is the court bound in any case, ex debito justicice 
 to quash any indictment, but will in this case use its 
 sound discretion.* 
 
 *Doug. 703. Grant v. Astle. 3 Boc, .Ur, tit. Indictment, page 573. letter 
 It. 4 Hawk. 83. 
 
 3 
 
86 
 
 If there be a doubt, it is the soundest course not t« 
 quash an indictment, as it precludes investigation, and 
 prevents a decision in the last resort. 
 
 As to the general question of the adoption of the 
 common law, my argument is this : The province of 
 New-Tork was a conquered and ceded country,* and it 
 is not disputed that in such case the ancient law remains 
 until changed by the new sovereign.j All that is incum¬ 
 bent upon us is, to show that that was done, and that in 
 place of the former laws of the colony, the common 
 law of England was established, and fully and entirely 
 adopted. 
 
 To prove that the common law of England was so 
 established as the law of the colony of Nexv-Tork, I rely 
 on the evidence of the journals of the assembly.:): 
 
 The patent to his Excellency the Governor, (page 5.) 
 contains a grant of the common law of England , and 
 every defect or imperfection of their law was to be sup¬ 
 plied by recurrence to, and adoption of, the laws of En¬ 
 gland.^ 
 
 As to what one of the counsel for the defendants has 
 urged with so much wit, vivacity, and subtilty, touching 
 the unfitness of the common law, I appeal to the very 
 authority of those fathers of our revolution w hose shades 
 he has invoked. In that great act wherein we justify our 
 revolution, thev are so far from complaining in terms of 
 invective against the common law, that they set it forth 
 as their best birthright; and their loudest complaint is 
 that they were deprived of its valuable protection and its 
 
 * 5 /lame’s Ever, c G4. p 5. 
 
 t 1 Jila. Com. 108, 109. Coiop. 204. Campbell v. JlalL 
 
 4 1 Journal of Assembly, p. 5. 
 
 § Laivs of New-York, by Bradford, 1091. p. 15, 16. 
 
87 
 
 beneficial provisions ; and if that privation was so great 
 an evil as to be a valid cause of a war and a revolution, 
 we must conclude that they entertained a very different 
 sentiment respecting it from that of the counsel who 
 has appealed to them. 
 
 Since, then, the sovereign can legislate in a ceded or 
 conquered country, the patent of the King, according to 
 the authority of Lord Mansfield , is conclusive.* 
 
 The constitution of the state of Nexv-Tork runs thus : 
 “ And this convention doth further, in the name and by 
 “ the authority of the good people of this state, ordain 
 “ and declare , that such parts of the common law of En- 
 “ gland and Great Britain , and of the acts of the legis- 
 “ lature of the colony of Nexu-Tork , as together did form 
 “ the law of the s,aid colony on the nineteenth day of 
 “ April , in the year of our Lord one thousand seven 
 “ hundred and seventy-five, shall be and continue the 
 “ law of this state, subject to such alterations and pro- 
 “ visions as the legislature of this state shall from time 
 “ to time make concerning the same.” 
 
 And this convention doth further ordain, “ that the 
 “ resolves or resolutions of the congresses of Nexv-Tork , 
 “ and of the convention of the state of Nexv-Tork , now 
 “ in force, and not repugnant to the government esta- 
 u Wished by this constitution, shall be considered as ma- 
 “ king part of the laws of this state ; subject, neverthe- 
 “ less, to such alterations and provisions as the legisla- 
 “ ture of this state may from time to time make concern- 
 “ ing the same.”f 
 
 In the body of this section, are these exceptions, viz. 
 u that all such parts of the said common law, and all 
 
 * Co-wp. 204. f Latv-s of Nene-York, p. 15. s. 35. 
 
88 
 
 “ such of the said statutes and acts aforesaid, or parts 
 “ thereof, as may be construed to maintain or establish 
 “ any particular denomination of Christians, or their 
 “ ministers, or concern the allegiance heretofore yielded 
 “ to, and the supremacy, sovereignty, government or 
 “ prerogatives, claimed or exercised by the king of Great 
 u Britain , and his predecessors, over the colony of New- 
 “ York and its inhabitants, or are repugnant to this 
 “ constitution, be, and they are hereby abrogated and 
 “ rejected.” 
 
 The only cases, then, in which the common law shall 
 not prevail are here defined ; but from these very excep¬ 
 tions it results that all the principles of the common law 
 which are beneficial to the public, are in full force. And 
 which of them can be more so than those which go to 
 preserve the community from such combinations as 
 would, if permitted, lay the community at the mercy 
 of the conspirators, by enhancing the price at their will 
 of the necessary articles of life. 
 
 This conspiracy, unnaturally to force the price of la¬ 
 bour beyond its natural measure, is as dangerous as any 
 kind of monopoly, and if it be tolerated, as well may 
 regrating, forestalling, and every other pernicious com¬ 
 bination. 
 
 Suppose all the bakers in New-York were to refuse to 
 bake till they received an exorbitant remuneration. Sup¬ 
 pose the butchers should enter into a similar combina¬ 
 tion, and if there be impunity for these, why shall not 
 all other artisans do likewise ? What will become of 
 the poor, whose case the counsel takes so feelingly to 
 heart ? The rich will, by their money, find supplies ; 
 but what vvill be the sufferings of the poor classes ? 
 
89 
 
 Suppose that some rich speculators, acting upon simi- 
 lar principles, should, in a cold winter, combine to pur¬ 
 chase up all the wood, and refuse to sell it but at an ex- 
 travagant advance, should we have no law to protect the 
 poor against such oppression ? And would it be argued, 
 that without an express statute the law could furnish no 
 remedy. As such acts would be against the public good, 
 and immoral in a high degree, they would therefore 
 fall under the animadversions of the general law ; and as 
 offences against the whole community, be subject to pub¬ 
 lic prosecution. 
 
 There are duties which every man owes to the socie¬ 
 ty of which he enjoys the benefits and protection, which 
 never can be detailed, but must be regulated by acknow¬ 
 ledged principles of judicature. A baker, therefore, who 
 lives by the supply of the public, shall not abuse that 
 public by a sudden interested and malicious withholding 
 of his ordinary supplies ; but though it were otherwise, 
 and that every individual was permitted, as far as in him 
 lay, to distress his fellow-citizens, yet if he combines with 
 others to do so, he is guilty of a distinct and well defi¬ 
 ned offence, that of an unlawful conspiracy, for which 
 he is indictable and punishable. 
 
 We are as far as the defendants’ counsel from saying 
 that when any man finds his trade unprofitable, or prefers 
 an ther occupation, or another course of life, he is not 
 master of his own will; nor that he would in such case 
 be indictable. 
 
 Mr. McNally* imputes great part of the distresses of 
 the poor in Ireland to such combinations, which shows, 
 that they who would prevent them, are more the friends 
 than the oppressors of the poor. 
 
 * JiPNaJhfs JiKt. title Combination, p. 3.83. 
 
 M 
 
90 
 
 In Jacob's Law Dictionary ,* the same doctrines as 
 we contend for are laid down in an elementary manner as 
 settled law ; and it is there said that the statute 2 and 
 3 Edxv. VI. c. 15. which is made against such combina¬ 
 tions is still in force, but is seldom resorted to in this 
 case ; the proceedings being usually by indictment for 
 conspiracy. 
 
 In the Crown Circuit Companion ,f there is a prece¬ 
 dent of an indictment for a conspiracy to raise wages. 
 It is at common law, and in page 280. there is a note 
 subjoined, which says, that an indictment may be drawn 
 from that form on the statute, by pursuing the words of 
 it and concluding contrary to the form of the statute 
 in this case made and provided ; which shows the of¬ 
 fence to be indictable either on the statute or at common 
 law. 
 
 The authority of Hawkins\ goes further, and says, 
 that though these acts be offences against the statutes, yet 
 the form of the indictment must be at common law. 
 
 So in The King v. Harris ,§ it was held that the de¬ 
 fendant was punishable by a common law indictment for 
 the breach of orders made by the king and council ; 
 those orders being pursuant to an act of parliament. 
 
 In The King\. Waddington the charge was engross¬ 
 ing and forestalling hops. There were several statutes 
 referred to on the subject of engrossing, all of which 
 were then repealed ; and it was held that the repeal of 
 those statutes only left the offence as it was at common 
 
 * Word Conspiracy. t Dog'. C. C. p. 279. 
 
 i JIutvIc. C. b. 2. c. 25. s. 116. p. 71. § 4 JJurnf. & East, p. 202. 
 
 ff 1 Host's Rep. p. 147. 
 
91 
 
 law, and that upon general principles of immorality and 
 public detriment, it was an indictable offence. 
 
 Blackstone,* treating of offences against public trade, 
 says, that buying up large quantities of corn or other 
 dead victuals, with intent to sell them again, must of 
 course be injurious to the public, by putting it in the power 
 of one or tAvo rich men to raise the price of provisions at 
 their own discretion. And so the total engrossing of any 
 commodity with intent to sell it at an unreasonable price, 
 is an offence indictable and finable at the common law, and 
 the general penalty for the three offences of engrossing, 
 regrating, and forestalling, (the statutes respecting them 
 being all repealed by 12 Geo. III. c. 71.) is, as in other 
 minute misdemeanors, fine and imprisonment at the dis¬ 
 cretion of the court. Now, as there is no difference in 
 the principle, whether it be to raise the price of provi¬ 
 sions or of other necessary articles by undue means, it 
 is in vain to argue that they are not equally punishable, 
 at the common law. 
 
 The crime of which the defendants stand indicted, is 
 well defined by Christian in his notes to the Commentaries , 
 where he says, “ Conspiracy is a confederacy to injure an 
 “ individual, or to do acts which are unlawful or preju- 
 “ dicial to the community.”! 
 
 The case of the Cock Lane Ghost,\ shows this still 
 stronger. For there the conspiracy was to injure an¬ 
 other by a mere phantom, which could have no reality. 
 
 The case of The King v. Kimberly and Many North,§ 
 shows further, that conspiracy itself is an offence, though 
 no other act be done but that of conspiring merely. 
 
 Mr. Riker then cited a number of precedents to the 
 various points of his argument, which will be found in 
 
 * 4 lit Com 158, 159- f 4 III. Com. 136. Christian's note 4. 
 
 t LI. Lep. 348. § 1 Lev. 62. 
 
92 
 
 the argument of Emmet , who took similar ground. 
 In the case of The King v. Eccles , reported in a note 
 bv the compiler of the Crown Circuit Assistant,* there 
 was an indictment for conspiracy by indirect means , to 
 impoverish one H. Booth , and to deprive him of the exer¬ 
 cise of his trade as a taylor. It was moved in arrest of 
 judgment that the charge was tco general , because it did 
 not specify any particular act, nor state by what means 
 the conspiracy was effected : but the court held that it 
 is not necessary to set out the means ; the means of the 
 conspiracy are evidence; conspiracy is the gist of the 
 charge ; and even to do a thing which is lawful in it¬ 
 self, by conspiracy is unlawful. The means are imma¬ 
 terial, if there was an illegal combination. 
 
 Mr. Colden has not, in stating the various counts in the 
 indictment, given them their full effect. One of them, 
 for instance, states, that the defendants compelled Cor¬ 
 win to discharge Whitess until he should have paid a 
 fine imposed upon him. The counsel have given no rea¬ 
 son why, if there be even one count good, the whole in¬ 
 dictment should be quashed. 
 
 Macklin’s casef was an indictment for conspiring to 
 ruin the prosecutor in his profession as an actor. 
 
 In the same book:): is a precedent against serge wea¬ 
 vers, for refusing to work for a master who had employ¬ 
 ed a man contrary to certain rules entered into by con¬ 
 spiracy. 
 
 In the precedent given by Wentworth ,§ no other overt 
 act is laid of any of the imputed charges than the mere 
 act of conspiracy itself. The facts stated, and which 
 will be proved in this case, are of a nature more hurtful 
 to trade and to the public, than anv set forth in the print¬ 
 ed cases or precedents. Such for instance is that of 
 
 * C. C. -2ss. p. 123. t C. C. 159, 160. $ lb. p. 133. § 4 Went. 100 
 
93 
 
 binding themselves not to work for employers who should 
 have more than two apprentices; and regulati"g the 
 work and wages of shoemakers and others, and impo¬ 
 sing restraints and regulations too violent to he endured. 
 
 In this precedent, the fourth count is the same as the 
 last in the present, and concludes “ to the prejudice of 
 “ divers masters,”* &c. 
 
 Another indictment against curriers ,f contains counts 
 exactly similar to those which the counsel here would 
 have quashed for insufficiency. 
 
 Why then arraign the common law with so much in¬ 
 vective, or why dispute its principles when they are so 
 beneficial and protecting ? Why not give them efficacy 
 in this country, when their tendency is to the public 
 good ? We have hitherto been happy and safe under the 
 administration of the common law. And those who fra¬ 
 med our constitution upon the downfal of British su¬ 
 periority and empire, still found nothing more advanta¬ 
 geous to establish as a code than the ancient common law. 
 Guarded with the exceptions of what alone was excep¬ 
 tionable, the doctrines of supremacy and prerogative, and 
 any other principles, if such it contained, repugnant to 
 our constitution, certainly, the restriction of illegal 
 combinations to raise the price of articles of necessity, 
 is as congenial to our constitution as any other parts of 
 the common law. 
 
 Let not Sampson then apply his force, blindly to pull 
 down a temple which it has required so many ages to build 
 up. Let it stand and flourish until its rights become 
 obnoxious or pernicious ; until something more venera¬ 
 ble or more sacred can be subscituted in its stead. Our 
 constitution has established it subject to such alterations 
 
 * Went. 112 . | lb. 120 . 
 
 5 
 
94 
 
 as it shall be found to require. If alterations become 
 necessary, let them be duly considered and adopted, 
 but let not the whole fabric be shaken or destroyed. 
 
 Mr. Emmet. I shall briefly dismiss a considerable 
 part of the argument offered on the other side ; not for 
 any deficiency of respect to the counsel from whom it 
 has proceeded, or to the learning and research which he 
 has displayed ; but because I do not consider it entirely 
 relevant to this cause, nor properly addressed to this 
 court. To the legislature, or a convention, the observa¬ 
 tions we have heard upon the absurdities of the common 
 law, and the impropriety of its being received as a part 
 of our legal code, might be correctly made if they were 
 in truth well founded ; but they appear to me extremely 
 misplaced when offered to a court, the judges of which are 
 bound and sworn to administer justice according to that 
 common law, and who certainly have no authority to 
 shake the foundations of the system under which they 
 themselves are constituted. Lest, however, I should be 
 thought by my silence to acquiesce in the justice of these 
 observations, let me ask the learned counsel how he 
 proposes to fill the void which would be created in our 
 jurisprudence by the entire and indiscriminate abrogation 
 of the common law ? Has he digested a better code, and 
 is he prepared to submit it to the world ? If he has, I 
 shall for one willingly take it into consideration ; but 
 most assuredly I shall not, without the most obvious and 
 certain benefits, be induced to part with that to which 
 our habits of thinking, reasoning, and acting are peculiar¬ 
 ly formed, to which our institutions are all adapted, and 
 upon the improvement of which and the application and 
 the fitting of it to the constitution and wants of socie¬ 
 ty, the wisdom, industry and talents of the ablest, most 
 
95 
 
 judicious and upright men have been laboriously, uncea¬ 
 singly and immemorially employed. If there be in any 
 other state or country a disposition to abandon the com¬ 
 mon law, and try the experiment of creating a new code 
 of civil conduct ; let them take the lead ; I will not 
 rashly follow. If, indeed the experiment should suc¬ 
 ceed, and a greater portion of justice and social happi¬ 
 ness be the result, this state, I hope, will be ready to 
 adopt it ; but until then we shall best consult our inte¬ 
 rests if we adhere to what we know and to what has been 
 perfected by successive adjudications, filtered through 
 successive generations, and purified from its original in¬ 
 congruities ; which, however, have been erroneously 
 brought forward and exposed in this discussion as if they 
 had actual existence and effect. Indeed, the learned 
 counsel has done more ; he has raked through the statute 
 books for every extravagant absurdity or folly that the 
 ignorance or weakness of our forefathers may have pla¬ 
 ced there ; and he has endeavoured to fix them as a stig¬ 
 ma on the common law ; with what propriety I shall not 
 stop to inquire, but shall take the liberty of observing that 
 no advantage can accrue to the community, from gene¬ 
 ral satires on the law of the land, delivered in a court of 
 justice. 
 
 It is also insisted upon, that many parts of the com¬ 
 mon law of England were never adopted here ; and 
 from the supposed uncertainty of what may not have 
 been adopted, it is endeavoured to deduce an argument 
 that so much relates to conspiracies of this description. 
 The weakness of this reasoning is obvious ; but in truth 
 there is no uncertainty as to what parts of the common 
 law have been adopted, and what rejected. The consti¬ 
 tution has spoken on this subject. In the 35th article it 
 
96 
 
 is “ ordained, determined and declared, that all such parts 
 u of the commorrtaw as may be construed to establish or 
 “ maintain any particular denomination of Christians or 
 “ their ministers, or concern the allegiance heretofore 
 “ yielded to, and the supremacy,sovereignty, government, 
 “ or prerogatives claimed or exercised by the king of Great 
 “ Britain and his predecessors over the colony of Ncw- 
 u York and its inliabitants, or are repugnant to that consti- 
 “ tution, be, arid they are hereby abrogated and rejected.” 
 Th ese are the only exceptions. In every other respect, 
 the common law which could have been applied on the 
 19th of April, 1 775, to any transaction within this colo¬ 
 ny, if the case calling for its application had then occur¬ 
 red, is now in force. No matter whether any such case 
 had actually presented itself, or whether such application 
 of the law had then been made ; the only point to be consi¬ 
 dered is, whether, if it had occurred, there was any thing 
 arising out of the colonial situation of this country which 
 would have rendered the common law of England inap¬ 
 plicable to such a case. In illustration of this I may be 
 permitted to state what I have been informed of on 
 very respectable authority. It is to be observed that by 
 the same article of the constitution, such parts of the En¬ 
 glish statute law as formed part of the law of the colo¬ 
 ny on that day, are continued as the law of this state. 
 Under that provision Mr. Jones , since the Revolution, 
 took, for the first time, the defence of twenty years ad¬ 
 verse possession in an ejectment, although it had never 
 been done or thought of while this country was a colonv. 
 But, nevertheless, the defence, when urged, was admit¬ 
 ted, because it might have been applied and used before 
 the 19th of April , 1775. Although at the first settling 
 of the colony, or in its infant state, the common law 
 
97 
 
 may have found no subject upon which particular parts 
 of it could operate, yet it was the birthright of the 
 colonists as a permanent rule of justice, which, at every 
 new period of advancement and progress, would adapt 
 itself to the rising exigency. If no precedent could be 
 produced of such an indictment as this antecedent to the 
 revolution, (which however, the counsel on the other side 
 have themselves disproved by the production of an ori¬ 
 ginal record,) that might be attributed to the paucity of 
 manufactures and manufacturers, which rendered such a 
 combination almost impossible and unknown ; as in truth 
 it was in England for centuries. But the opposite coun¬ 
 sel must go further, and show that if it had occurred, 
 there was something arising out of the colonial situation 
 of the province, to render the common law inapplicable 
 to the punishment of such an offence. This has not been 
 attempted. 
 
 It is, however, contended, (and this is the last in- 
 trenchment of my adversaries on their grounds of ob¬ 
 jections,) that even in England this is not an offence at 
 common law, but only growing out of particular statutes. 
 It, therefore, becomes my business to show that this po¬ 
 sition is unfounded. The learned counsel, in support of 
 it, seem sometimes to contend, that there is no case of 
 conspiracy at common law, but where it is accompanied 
 with the crimen falsi; as falsely prosecuting in a court of 
 justice, or falsely imputing to a third person something 
 infamous or injurious to him. That there are conspira¬ 
 cies of this kind is certain, and the appropriate punish¬ 
 ment affixed to them shows that they are of a very ag¬ 
 gravated nature. They induce an infamous punishment, 
 
 by which the convicted person becomes disqualified from 
 
 ft 
 
93 
 
 giving evidence in a court of justice. There are, however, 
 also conspiracies not infamous, in which the object to be 
 accomplished is only the wrongful injury of a third person. 
 An instance of this occurs, very apposite, though appa- 
 rentlv somewhat trivial it is to be feared, in the case of The 
 King v. Cope , where several were indicted for a conspiracy 
 to ruin a card maker , by causing grease to be put into 
 the paste, which had spoiled the cards. But to advert to a 
 more important and atrocious case—that of The King v. 
 j Delaval et a/, depends on the same principles of private 
 injury and public police and morality. There an infor¬ 
 mation was granted against Sir Francis Blake Delaval 
 and others , for a confederacy to assign over Miss Cately , 
 then an apprentice to a musician., by her own consent, for 
 the purpose of prostitution. The case before the court 
 is also very intimately connected with public police and 
 prosperity ; and surely the argument cannot be favour¬ 
 ably received, which, if pushed to its full extent, would 
 prove that a crime so enormous and profligate as that 
 of Sir Francis Delaval and his associates, is unpunish¬ 
 able by our law. Many other cases might be quoted, 
 which, with those I have already mentioned, and those 
 I shall of necessity cite in the course of my observations, 
 clearly establish that the crimen falsi need not enter into 
 conspiracy, as a common law offence. There is another 
 and much more comprehensive description of what con¬ 
 stitutes that offence, which we, on behalf of the prose¬ 
 cution, derive from Hawkins's Pleas of the Crown,* 
 where that learned author lays it down that w there 
 “ can be no doubt but that all confederacies whatever, 
 “ wrongfully to prejudice a third person, are highly crimi- 
 nal at common law ; as where divers persons confederate 
 
 Vo). 3. b. 1. c. 73. p. 131. 
 
99 
 
 together by indirect means to impoverish a third per- 
 “ son,” &c. To this I add a fortiori , and what follows 
 from all the cases, that a donspiracy wrongfully to preju¬ 
 dice the public, is also highly criminal. In the editor’s 
 note on this passage of Hawkins , it is stated as flowing 
 from the principle laid down in the text, that journeymen 
 confederating and refusing to work unless for certain 
 "wages, may be indicted for a conspiracy, notwithstanding 
 the statutes which regulate their work and wages do not 
 direct this mode of prosecution, for the offence consists 
 in the conspiring, and not in the refusal; and all conspi¬ 
 racies are illegal although the subject matter of them may 
 be lawful. For this is cited 8 Mod. 11 . and 320. and the 
 opposite counsel triumphantly remark that the note is Mr. 
 Leach's production, and 8 Mod. most despicable authority. 
 The true consideration, however, is, whether the inference 
 in the note is fairly deduced from the principle in the 
 text, and whether that principle be in itself correct. As 
 to the principle, it seems to me indisputable. Even if it 
 rested only upon the authority of Hawkins , it would 
 rest upon the first authority in the Crown Laxv , and one 
 which will not mislead any judge who adopts it. But 
 he also cites different authorities which support his po¬ 
 sition, and strongly bear upon this case. The most 
 important is that of Rex v> Sterling and seventeen 
 others.* That was an information against them, that 
 they, with divers other brewers , &c. did factiously and 
 unlawfully assemble themselves and conspire to impove¬ 
 rish the excisemen, and gave orders that no small beer, 
 called gallon beer, should be made, &c. This conviction 
 was supported, inasmuch as the conspiracy tends to the 
 public , because it concerns the king’s revenue ; and also, 
 
 * 1 Lev. 125 . 1 Sid- 174 . 1 Keb. 6 > 0 . 
 
100 
 
 inasmuch as it being averred and found to be factiously 
 and unlawfully done, that well enough explains what 
 kind of impoverishment is intended. To this case it is 
 objected, that it was decided for the prosecution, on 
 account of the king’s revenue, and that it is founded on 
 a Star Chamber decision, which in itself pollutes the 
 authority. As to the first objection, the king’s revenue is 
 only mentioned as indicating the manner in which this 
 conspiracy tended to the public , which was one of the 
 principles adopted ; the other was, that a conspiracy un¬ 
 lawfully to impoverish the excisemen, is also criminal. 
 Thi s case, therefore, shows, that either a conspiracy un¬ 
 lawfully to prejudice ether individuals, or the public at 
 large, is an offence. As to the Star Chamber decision, 
 that only went to one point hereafter to be considered, 
 that an overt act need not be done to complete the offence, 
 which is likewise supported by the authority of 9 Co. 
 the Poulterers’ case and many other decisions ; but I must 
 also observe that although the summary and arbitrary 
 mode of proceeding in that court has rendered it justly- 
 odious, yet some of the best authorities we have in our 
 reports, particularly in Coke's Reports , are Star Chamber 
 cases. 
 
 The principle, then, which Hawkins lays down, and 
 for which we contend, is fully supported by authority, 
 and indeed has never till now been called in question. 
 I shall, however, beg to refer those who wish to draw a 
 line of distinction between English and American law on 
 this subject, to 3 Wilsons Lectures , 118. where, treat¬ 
 ing of the law as it is in this country, he says, by 
 that law (the common law) “ all confederacies what- 
 “ ever, wrongfully to prejudice a third person, are high- 
 “ ly criminal.” The principle then being settled, let us 
 
101 
 
 examine whether Mr. Leach's inference from it in his 
 note be just. He cites 8 Mod. against which an outcry 
 is raised on the authority of Burrow. That there 
 are many cases defectively reported in that book is cer¬ 
 tain : but there are also many others the correctness of 
 which has never been doubted. It is relied upon by the 
 very latest writer on Crown Law, and that where he lays 
 down the nature of conspiracy in a manner very applica¬ 
 ble to our case. 1 East's Crown Law , 462. “ An indict- 
 “ ment lies wherever either the conspiracy is entered in- 
 “ to for a corrupt and illegal purpose, or for the use of 
 “ unlawful means to effect a legal purpose, although such 
 “ purpose be not effected.” In the case of The King v. 
 The yourneymen Taylors of Cambridge f the doctrine is 
 broadly laid down; and in support of it is vouched the 
 case of The Tub women v. The Brewers of London , 
 which has puzzled not only the opposite counsel, but 
 those who in a neighbouring state have examined this 
 question, to know where that case is to be found, or 
 what it means. My learned friend, however, has set¬ 
 tled into the belief that it means the case of The King v. 
 Alderman Sterling and others , already commented upon. 
 In this I concur, though not for the reasons he assigns. 
 For it having been tried and decided in the King's Bench , 
 the Tubman of the Court of Exchequer could have no¬ 
 thing to say to it ; and even if he had, I do not see why its 
 being conducted by an officer called the Tubman of that 
 court should entitle it to be called the Tub women's case. 
 The truth, I presume, is, that the small beer called gal¬ 
 lon beer, mentioned in the report as being sold to the 
 poor, was hawked about as similar beverages are in 
 many countries, and sold in the streets by women, who, 
 from their occupation and the vessel in which was con- 
 
 * 9 Mod. n. 
 
102 
 
 tnined the article they sold, were called Tub xvomen. 
 And when the brexuers of London combined not to make 
 or permit any more such beer to be made, by which the 
 occupation of these women was ruined, it is very pro¬ 
 bable that their interest and activity against the brexuers 
 made them conspicuous personages in the cause, and 
 procured that name to the case. Be that, however, as it 
 may, the case of The King v. Sterling undoubtedly 
 contains the principle that supports the case in 8 Mode> n, 
 that anv conspiracy to do a wrongful act, tending to pub¬ 
 lic injury, or the impoverishment of third persons, is 
 indictable. But it is not on the authority of 8 Modern 
 or the Tub women's case alone that the particular appli¬ 
 cation of that principle is founded. In Hawk. b. 2. c. 
 26. (vol. 4. p. 85.) the author, speaking of informations, 
 and when they may be granted, recites, among other of¬ 
 fences, “ conspiracies to impoverish a certain set of law- 
 “ ful traders and if an information lies, inevitably an 
 indictment will. In 12 Mod. 248. (case 427.) Anonymous , 
 leave was given to file an information against several 
 plate button makers for combining by covenants, not to 
 sell under a set rate. Per Holt , C. J. “ It is fit that all 
 “ confederacies by those of a trade to raise their rates, 
 “ should be suppressed.” In Bolton's Justice, (which 
 the learned counsel has cited, and the authority and ac¬ 
 curacy of which I willingly admit,) vol. 2. p. 16. it is 
 laid down that any such conspiracy is an offence at 
 common law, notwithstanding there are statutes to ena¬ 
 ble justice to fix those rates, and punish any one exact¬ 
 ing more. In 1 Keb. 650. (the report of Rex v. Ster¬ 
 ling u) it is laid down by Hyde , C. J. that the very con¬ 
 spiracy, without an overt act, to raise the price of pep¬ 
 per, is punishable, or of any other merchandise. In 
 
 9 
 
103 
 
 the Liber Assisarum , 27 Edw. III. p. 138, 139. there 
 is set down a list of the matters to be inquired of by the 
 inquests of office in the King’s Bench , and among others, 
 different conspiracies. The 19th article runs thus: 
 “ Also of merchants, who by covin and alliance among 
 “ themselves, in any year put a certain price on wools , 
 “ which are to be sold in the country, so that none of 
 <L them will buy, or otherwise pass in the purchase of 
 t£ wools beyond the certain price which they themselves 
 “ have ordained, to the great impoverishment of the peo- 
 “ plef &c. Here is an authority pretty nearly as an¬ 
 cient as any that the most profound researches of the 
 learned counsel have discovered, which does not depend 
 on either the plague or the statutes of labourers, which 
 marks a conspiracy to raise the price of an article of mer¬ 
 chandise as an indictable crime, independent of any sta¬ 
 tute ; for I challenge both my learned adversaries, to 
 find any statute or ordinance bearing upon this offence. 
 This authority is dependent in all its parts on the com¬ 
 mon law, and puts the gravamen on its true footing, 
 “ the great impoverishment of the people.” Wool is 
 mentioned only because it was one of the most import¬ 
 ant articles of merchandise in those days, and for a 
 particular illustration, in the same way as pepper is spe¬ 
 cified in Keble; but the principle is of universal ap¬ 
 plicability. This authority is, I think, perfectly conclu¬ 
 sive ; but I must, before I dismiss this point, allude to 
 the record brought into court by one of the opposite 
 counsel. It is an information against journeymen ba¬ 
 kers for a conspiracy not to bake till their wages were 
 raised. On this they were tried and convicted before 
 the revolution; but, as the counsel says, it does not ap¬ 
 pear that any sentence was ever passed, from which he 
 
104 
 
 ( 
 
 concludes that judgment was arrested. This undoubt¬ 
 edly is a non sequitur. The criminal may have become 
 penitent, and the object of the prosecution having been 
 obtained, judgment may never have been moved for; 
 besides, it is well known that those records have been in 
 such confusion that no one can tell what has happened 
 in almost any cause. But if judgment was arrested, let 
 me point out the fault in the information on which it 
 may have happened. It concludes against the form of 
 the statute, whereas it should have concluded at com¬ 
 mon law, even if there had been a colonial statute regu¬ 
 lating that subject, which does not appear. The gentle¬ 
 men themselves allow and claim the benefit of this doc¬ 
 trine ; and indeed it is settled on the same principle as 
 governed the case of The King ■ v. Smith,* which they 
 have cited, that where powers are created by statute, it 
 is an offence at common law to obstruct the execution of 
 
 them, and such an indictment ought not to conclude 
 against the statute. On account of this defect, perhaps, 
 judgment was never had ; but the learned counsel, by 
 relying on this record, admits that his clients’ case is si¬ 
 milar to that of the bakers’, and contends that such a 
 combination on their part is not indictable. Observe, 
 
 then, and let me illustrate the doctrine he maintains. 
 Suppose the bakers of this city were to combine not to 
 bake a loaf of bread till some demands, as to the assize, 
 were complied with ; and that the butchers were at the 
 same time to combine not to sell a pound of meat till 
 some object of theirs should be gained, what would be 
 the consequence ? A misfortune worse than pestilence 
 W'Quld instantly befal the city. And are we to be told, 
 that not only the individuals of those classes of men. 
 
 * Doug. 441. 
 
105 
 
 to whom, in the general distribution of employment, 
 society has confided the care of providing for its most 
 important wants, may singly abandon their duty ; but that 
 those classes en masse , without any intention of perma¬ 
 nently relinquishing or changing their occupations, but 
 merely as a measure of extortion from the necessities o i 
 others, for private interest, may lawfully conspire together 
 to inflict the most terrible calamities on the community ; 
 and this is called the mere exercise of individual rights, 
 and the toleration of it is considered as sound political 
 economy ! But no .—Individual rights are sufficiently se¬ 
 cured by letting every man, according to his own will, 
 follow his own pursuits, while public welfare forbids 
 that combinations should be entered into for private be¬ 
 nefit, by the persons concerned in any employment con¬ 
 nected with the general welfare ; in which combinations 
 they would make common cause against the community 
 at large; and in which the individual rights of those in 
 the combining classes, who may wish to be industrious, 
 are most grievously violated ; because, if they were per¬ 
 mitted to follow their pursuits, it would tend to relieve 
 society from the extortions of the conspirators. These 
 combinations are an infringement of that tacit compact 
 which all classes reciprocally enter into, that when the}' 
 have partitioned and distributed among them the differ¬ 
 ent occupations conducive to general prosperity, they 
 will pursue those occupations so as to contribute to the 
 general happiness ; and they are therefore at war with 
 public policy. But when it is further considered that 
 they are always accompanied with compulsory measures 
 against those of the same class or trade, who would willing¬ 
 ly pursue their occupation with industry and tranquillity, 
 
 they are most tyrannical violations of private right, and 
 
 o 
 
106 
 
 inevitably lend to the unjust impoverishment of multi¬ 
 tudes, either of those against whom the confederacy is 
 directed, or of those who are forced into it, or devoted 
 by it, for exercising their own individual rights, and re¬ 
 fusing to cooperate with the unlawful association. 
 
 The authorities already laid before the court cannot 
 be strengthened by additional references. I shall, how-* 
 ever, quote one more author, because his name and cha¬ 
 racter are familiar to some of the persons indicted, who 
 now hear me, and may therefore tend to convince them 
 that they have offended against the laws and policy which 
 must be maintained in every well regulated state. The au¬ 
 thority I allude to is I\P Nailyas Justice of the Peace.'* “At 
 “ common law , all confederacies and combinations wrong- 
 “ fully to prejudice any person, or the public, are offences 
 “ punishable by indictment. Combinations among masters 
 “ and workmen of various descriptions, have been pro- 
 “ ductive of the most serious consequences to the trade 
 “ and manufactures of Ireland , have been recognised 
 “ as unlawful by the legislature, and are punishable by 
 “ several acts of parliament. It is a melancholy truth 
 “ that repeated combinations to regulate trade and 
 “ advance wages, have raised the home manufactures 
 “ to so enormous a price, that most articles, whether 
 “ for use or ornament, are now imported from En- 
 “ gland or from Scotland, to the great impoverishment 
 “ of this country, and to the ruin of the artificers 
 “ themselves, who, from necessity, the result of their 
 “ own illegal conduct, are forced to abandon their 
 “ native land, the most productive in the world, where 
 “'-they might have lived in ease and plenty, to seek a pre- 
 “ carious subsistence in Great Britain or America .” In 
 
 * Vo! 1 p. 38S. tit. Combivati'm. 
 
107 
 
 this passage I freely acknowledge the writer has not set 
 forth what are the most important causes of the languish¬ 
 ing trade and manufactures of Ireland; he dare not do 
 it, for they are connected with the jealousies and oppres¬ 
 sions of its tyrant and its rival, and with the general mis¬ 
 rule of that ill-fated land. But what he has set 
 forth is so far true, that such combinations have impe¬ 
 ded in that, and must in every country impede and in¬ 
 terfere with its manufacturing prosperity. 
 
 Much has been said about the villanous judgment 
 as if by this prosecution it was intended to revive and 
 enforce that horrible punishment ; but the counsel on 
 the other side well know that this is a groundless in¬ 
 sinuation. The villanous judgment is now in every case 
 obsolete ; but according to the best authorities, it never 
 could have been inflicted on such an offence as this, and 
 most undoubtedly it never tvas. Hawkins* expresses his 
 opinion that the villanous judgment could only be inflict¬ 
 ed when a conspiracy was formed to accuse another of 
 some matter which might touch his life ; and he expressly 
 says, the contraiw has never been decided. Where the con¬ 
 spiracy is accompanied with the crimen falsi , it is subject 
 to an infamous punishment, including pillory ; and the 
 person convicted is disqualified from giving evidence in a 
 court of justice. But where the confederacy is unaccom¬ 
 panied with that crime, and is only calculated to prejudice 
 a third person or the public, the punishment is merely 
 fine and imprisonment, without any such disqualification 
 or infamy. And permit me to observe, that the correct¬ 
 ness of this gradation in the punishments, is calculated to 
 wipe away the imputations of folly and injustice, which 
 have been very improperly cast upon our common law, 
 
 * P C. p. 2. s. 1. e. 72 b 9. p. 125. 
 
108 
 
 i now proceed to the examination of the more parti¬ 
 cular and technical objections to this indictment, which 
 I do under great disadvantage, as business in another 
 court unfortunately detained me there during the greater 
 part of the argument of my learned adversary, who 
 chiefly occupied this ground, a circumstance which I 
 doubly regret both on account of the professional inform¬ 
 ation I should have acquired had I been present, and 
 because it disqualifies me from meeting his arguments 
 with the precision they doubtless deserve and require. 
 The District Attorney has, however, discussed those ob¬ 
 jections with so much force and learning, that I shall 
 feel myself justified in being very brief. There is a 
 general remark, which, as it seems to me, renders every 
 other nearly unnecessary : this motion cannot suc¬ 
 ceed if there be anv one count good ; and there are some 
 of the counts on which I presume the court can entertain 
 no doubt—indeed all of them have been drawn con¬ 
 formably to the most approved precedents. The fifth and 
 ninth are verbatim, according to the precedent in Rex 
 v. lie tics D which the Court of King's Bench in England 
 held good on motion in arrest of judgment ; and the 
 third count has every formal requisite that was ever 
 contended for, and can only be questioned on the gene¬ 
 ral principles, that have been, I hope, refuted. Objec¬ 
 tions, however, are in fact taken to every count, and they 
 all flow more or less directly from the general proposi¬ 
 tion with which that gentleman commenced his argu¬ 
 ment ; that every unlawful conspiracy_(that is, I presume, 
 every indictable conspiracy) must be to do an unlawful 
 act, and the unlawful act must appear such on the face 
 
 * 7)oc'. C. C. .ins. i>. note 
 
109 
 
 of the indictment. This proposition, however, is not 
 correct, if by the expression “ to do an unlawful act” is 
 meant to effect an unlawful purpose. East , in the passage 
 I have already cited,* says, an indictment lies wherever ' 
 either the conspiracy is entered into for a corrupt and 
 illegal purpose, or from the use of unlawful means, to 
 effect a legal purpose , although such purpose be not ef¬ 
 fected. But even this position does not appear, accord¬ 
 ing to some authorities, sufficiently accurate ; for the very 
 act of conspiracy is held to be itself unlawful, and the en¬ 
 tering into it is using unlawful means to effect a purpose, 
 and is therefore punishable whether that purpose be law¬ 
 ful or not. This doctrine is expressly laid down in the 
 case so often and disrespectfully alluded to by the op¬ 
 posite counsel, that of The King v. The Journeijmen 
 Taulors of Cambridge .f “ A conspiracy of any kind is il- 
 “ legal, although the matter about which thev conspired 
 “ might have been lawful for them, or anv of them to 
 a do, if they had not conspired to do it.” In the same 
 book, p. 321. the proposition is a little more qualified, 
 though substantially the same : iC a bare conspiracy to do 
 “ a l aw ful act to an unlawful end, is a crime, though no 
 “ act be done in consequence thereof.” The position, 
 however, in its fullest extent, is recognised in the case 
 already cited of Rex v. Eccles.f “ Conspiracy is the gist 
 “ of the charge ; and even to do a thing which is laxvful 
 “ in itself, by conspiracy , is unlawful.' Taking the po¬ 
 sition of East , or either of those in 8 Mod. to be correct, 
 the indictment is free from the objections urged against 
 it on this ground ; for the end to be accomplished in the 
 1st, 2d, 3d, 6th, 7th, and 8th counts, unlawfully and un- 
 
 * East's Croton Lav, 46 C. + SMoJ. Tl. - tio: C C. . ? • !»?, ici 
 
110 
 
 justly to extort great sums of money bv means of form¬ 
 ing and uniting themselves into an Unlawful combina¬ 
 tion, and of making unlawful and arbitrary by-laws for 
 the government of themselves and other workmen in the 
 same trade, is most obviously unlawful; and the end to 
 be accomplished as stated in the fourth and fifth counts, 
 unjustlv and unlawfully to impoverish Edward Whitest;, 
 and to hinder him from exercising the trade of a cord- 
 wainer , as well as that set forth in the ninth count, bv in¬ 
 direct means to impoverish the master shoemakers there¬ 
 in named, are, as I think, equally unlawful. Indeed it 
 appears to me that they even fall within the rule laid 
 down by the learned counsel himself, and that a conspi¬ 
 racy to accomplish any of those purposes, is one to do 
 an unlawful act, and that the unlawful act sufficiently ap¬ 
 pears on the face of the indictment. 
 
 It is also objected to all the counts but the third and 
 fourth, that they contain no overt acts. The attorney for 
 lie district has sufficiently answered this, and the multi¬ 
 tude of precedents and cases he has produced, must be 
 considered as conclusive. But if it be true as laid down 
 in 27 Ass. 44. 9 Co. 56. b. 1 Lev. 126. 1 Salk. 174. 
 
 8 Mod. 321. and in a multitude of other places, that bare 
 conspiracy is punishable without any thing having been 
 put in use in consequence of it, or any overt act done, it 
 surely cannot be required to set forth in the indictment 
 an overt act, when one may not have been committed, 
 and when its existence is not necessary to the completion 
 of the crime. At all events, as is laid down in all those 
 places, as well as in The King- v. Eccles, conspiracy is 
 "the gist of the crime, the overt act is only matter of evi¬ 
 dence, and it is clearly settled in the case of The King 
 
ill 
 
 v. Horne ,* that whatever circumstances are necessary, to 
 constitute the crime imputed, must be set out; but that 
 any thing beyond that is surplusage and unnecessary. 
 In high treason, indeed, from the nature of the offence, 
 and for the benefit of the party accused, it is expressly 
 enacted, that the overt acts, or in other words, that the 
 nature of the evidence shall be set forth in the indict¬ 
 ment ; but that is an exception from the general rules of 
 pleading, and need not be adopted in any other case. 
 
 To the fifth and ninth counts it is also objected, that the 
 means of impoverishing Whitess , or the masters, are not 
 set forth, but expressed in the vague terms by indirect 
 means. This has been decided in England to be suffi¬ 
 cient in the case so often alluded to, of The King v. 
 Eccles,j on the principle I have just laid down ; “ but 
 “ the court held that it is not necessary to set out the 
 “ means; the means of the conspiracy are evidence ; con- 
 “ spiracy is the gist of the charge.” The bare conspira¬ 
 cy being a crime, let us suppose that in fact the thing 
 agreed upon in such a conspiracy was to impoverish a 
 person by indirect means, the detail of which had not 
 been matured or settled ; and that the very words, “ in- 
 u direct means” had been used in the agreement entered 
 into, how should this crime be stated in the indictment, 
 but according to the truth of what took place ? And how 
 can the gentleman say on this motion, but that what I 
 have stated is the very fact we shall prove ? The learn¬ 
 ed counsel, however, in support of his objection, relies 
 on The King v. Mason,If. that an indictment, charging the 
 defendant with obtaining money on false pretences is in¬ 
 sufficient, if it do not show w r hat the false pretences are. 
 
 * Comp. 6S3. f Dog. C. C.Mn. 123. ± 2D.&E.581. 
 
112 
 
 The distinction between the two eases is, after a mo¬ 
 ment’s consideration, obvious. To obtain money by a 
 mere lie, is not indictable, as “ lend me some money ; I 
 “ want to pay a debt for which I am dunned,” when no 
 such debt or dunning had any existence in fact. There 
 must be fraud or cheating, as well as falsehood in the 
 pretence. The nature of the pretence then enters as an 
 ingredient into the formation of the ofTenc ?, or (to use 
 the words of Mr. Marryatt , in his argument for the de¬ 
 fendant in the case cited) “ the pretence is of the very 
 essence of the crime , and constitutes the offence .” The 
 specific pretence must therefore be spread on the 
 record, that the court by inspection may judge whether 
 it be such as constitutes an offence. In conspiracy, on 
 the contrary, the means do not constitute the offence ; 
 that consists in the conspiracy independently of them. 
 They then are only matter of evidence, which therefore 
 need not be set forth ; but the false pretences are of the 
 gist of the crime, and therefore must be specifically sta¬ 
 ted. 
 
 I have thus discussed all the objections which occur to 
 me, lest I should seem to shrink from an investigation 
 that has been so triumphantly provoked. I must, how¬ 
 ever, suggest to the court, that indictments for conspira¬ 
 cies are never quashed ; but the parties put to plead or de¬ 
 mur, or to avail themselves of their objections in arrest 
 of judgment. This is laid down in one of the cases already 
 cited, Rexx. Edwards .* The opposite counsel treat this 
 rule as arbitrary and foolish, and indeed, deny its exist¬ 
 ence. I believe it, however, to be founded on a wise 
 principle, and not peculiarly framed for conspiracies, but 
 
 “ 8 Mod. 321. 
 
113 
 
 for a number of other offences : that principle I find in 
 Hawkins * “ yet it seems that judges are in no case 
 “ bound ex debito justicice , to quash an indictment, but 
 “ may oblige the defendant either to plead or demur to 
 “ it. And this they generally do, where it is for a crime 
 “ of an enormous public nature , as perjury, forgery, se- 
 “ dition, nuisances to the highways, and other offences 
 “ of the like nature.” It is also a rule with respect to 
 the quashing of indictments, laid down in the same case 
 of The King' v. Edxuards , “ that if the matter be doubt- 
 “ ful, the defendant must plead or demur,” or, in the 
 language of Lord Mansfield. , in Rex v. Wheatlyf “ the 
 “ indictment must be grossly bad to have the court 
 “ quash it at once.” That this indictment, if at all bad, 
 is not grossly so, and that the matter, if not clear for us, 
 is at least doubtful on the other side, must be apparent 
 to every one who reflects that our adversaries have found 
 it necessary to apply to the task they have undertaken, 
 so much talent, learning and research, and to consume 
 an unprecedented length of time in urging- and enfor¬ 
 cing their objections. 
 
 Sampson , in reply. In this unnatural effort to sus¬ 
 tain monopoly on pretence of putting down monopoly, and 
 supporting an accusation upon principles that establish 
 guilt in the accusers, the learned counsel have put on an 
 air of confidence, which shows that nothing can dismay 
 their courage. My learned countryman seems to exult in 
 the authority of his great reputation, like a giant about to 
 run his course. But in a cause strong as ours is, I fear him 
 not, though armed but with a pebble from the brook. 
 
 * Vo!. 4. b. 2. c. 25. p. 83. s. 146. f 1 Sir IV. Bl. Reg 273. 
 
 P 
 
114 
 
 However great the influence of his well-earned fame and. 
 zealous countenance, it is all but show, but shadow against 
 'substance. I might apply to him what the sententious 
 poet* said of the great Pompey, “ stat magni nominis 
 umbra." I might remind him, that on the eve of his 
 defeat, Pompey the great did crown his brows with boast¬ 
 ing laurels, and hung his tent with gaudy wreaths of 
 triumph. If I were at that happy time of life, when I 
 could go to school, I should be proud to take my lessons 
 from my learned friend ; but not such lessons as he gives 
 us now in favour of his clients ; because, I know that 
 were he in my place, he would give better reasons, and 
 better arguments, the other way. 
 
 He and his learned colleague, have arraigned me for 
 rashly censuring the sublime sources of their common 
 law. I have, it seems, blasphemed the temples of bare¬ 
 footed Druids, in arguing here for working shoemakers, t 
 have not treated with becoming reverence, the trial by the 
 corsned, wherein the life of* man, his guilt, his inno¬ 
 cence, were made to turn on his saliva! glands ; and he 
 was only innocent who could best masticate and swallow a 
 lump of dough,f and not be choked with it. I have 
 spoken disrespectfully of trial by the holy cross , a game 
 not half so fair asblindman’s buff, on the success of which, 
 death and eternal infamy awaited. I have not reverenced 
 that trial by hired bruisers, who, by thumps of sand 
 
 * Lucan. 
 
 | It was called buccella diglutienda, and was of bread or cheese. For 
 move information touching this barbarous superstition, see Sficlm. Gloss 4.39. 
 
 The form of administering this morsel by the priest, was thus: We be¬ 
 seech thee, O Lord, that he who is guilty of this theft, when the exorcised 
 bread is offered to him to discover the truth, that his jaws may be shut, his 
 throat so narrow that he may not swallow, and that he may cast it out of his 
 mouth, and not eat it. This old form called e.xorcismus panis hordcacci vcf. 
 easel is in Lindenbrogius, p. 107. 
 
115 
 
 bags were to try whose cause was holiest in the sight ot 
 God, where he alone was justified from violence and 
 malice, whose champion thumped his enemy to death, or 
 till he cried out craven: -or he who could endure such 
 thumping from sun rise to sun set, and not cry craven : 
 that also proved the innocence of him who hired the body 
 to be thumped. 1 have not spoken with religious awe of 
 cudgel playing, that ancient mode of duelling by battel, 
 when the lord or knight who had the broadest back and 
 thickest skull, was sure to turn out the elect of God, and 
 have his adversary hanged for being beat. Andy£t all this 
 was common law, and that so much, that the good citizens 
 of London were, by special charter, exempted from such 
 process. Now, if what the learned counsel says be true, 
 that all this common law rests only in abeyance—may be 
 revived and visited upon us whenever the occasion offers— 
 then he should quit his books and learn the cudgel. He 
 cannot tell how soon he may be called upon, for all of it 
 may not be yet so formally abolished as not to be again re¬ 
 vived, seeing two centuries of nonuser is not sufficient 
 evidence to show it is not law. 
 
 I have spoken rashly of that judicium dei , called the 
 ordeal; where guilt or innocence was proved according to 
 the rank of the accused, by fire or water, in person or by 
 deputy-persons of high condition , judged innocent if 
 they could hold three pounds of red hot iron in their hands, 
 or walk barefoot and blind fold over nine red hot plough 
 shares. 
 
 I have made too free with that most righteous trial, 
 where for small offences, the hand was plunged in boiling 
 water; for capital ones, the arm up to the shoulder; that is 
 to say, where a fore quarter of the man was boiled to try 
 the fact, whether the rest was good ; when he whose flesh 
 
116 
 
 couid not resist the boiling caldron, was put to death. Of 
 these and all such things, I have spoken tdo disrespectful¬ 
 ly ; because these sublime doctrines are to be found not only 
 in the laws of Ina , the Mirror , and in Bracton , but in 
 more modern works laid down as law. I know it well, so 
 late as in the reign of John , some grants are to be found 
 to bishops and to clergy of this sacred right of boiling and 
 roasting Englishmen , granted by the name of the judicium 
 ferri atque ignis.* 
 
 Now if the argument be true, that common law, how¬ 
 ever obsolete, may, when occasion olfers to call it from 
 its slumbering holes, be here revived, why not revive it all. 
 No part of it can be more obsolete, than the doctrine of 
 indicting men for trying to get wages in this free country. 
 It is more than obsolete, it never yet was done at any 
 period of our history, and it is worse than useless to do it 
 now. It is asked, have I digested any better code.—Truly 
 I have digested none at all. On my admission to this 
 bar, I took an oath, and took it with sincerity and truth, 
 to uphold the laws and constitution of this country. I 
 think I do my duty in upholding them against such doc¬ 
 trines, as would add to all the faults of youth, the dotage 
 of old age. Perhaps, if I made laws, they would be fool¬ 
 ish ones ; but there are others who could make wiser ones. 
 Not being called upon, I have made none. A man may- 
 speak of a defect which it is not his business to cure. I 
 may see a disproportion of feature in a picture or a statue, 
 and yet not be a painter or a sculptor. I may see when a 
 leg or arm is broken, although I have not skill to set a 
 bone. Though I prefer our laws to every other, I do not, 
 therefore, think them like those of Providence , but I think 
 
 Spe’.m. Gloss. 435. 
 
117 
 
 them great improvements upon the common law, said to 
 be so like that system. This surely is extolling them 
 enough. I stand entirely upon the laws of this our country 
 and the wise decisions of our own courts. I ask for nothing 
 more than that our own judges be free to exercise their 
 wisdom and intelligence, and be as little trammeled as may 
 be with antique perversity. I wish to see their judg-r 
 ments shine as lights to other nations. If foreign tri¬ 
 bunals be too self-sufficient or too ignorant to quote them 
 as authority, I esteem them not the less for that. I will 
 refer to our reported cases, and ask which are those that 
 put our jurisprudence in the most exalted point of view, 
 those liberal and reasoned adjudications on commercial and 
 maritime contracts ; those turning upon the general laws 
 of nature and nations, and of natural justice, when our 
 judges have borrowed their purer lights, not from Druids 
 nor Monks, nor from the nothern hive, but from the 
 edicts of wise princes, from the matured codes of intelli¬ 
 gent and enlightened people, the writings of learned and 
 philosophical authors, from general principles of acknow¬ 
 ledged right. Not from those crude antiquities which I am 
 blamed for censuring, but after rvhich, some learned gen¬ 
 tlemen will seem to yearn. If our judges had once pro¬ 
 nounced that such indictments as the present could be 
 supported by virtue of the common law of England , I 
 should then give my opinions vv s ith more measure ; but at 
 present I have their universal silence in my favour, and, 
 therefore, I speak boldly. The various authors cited by 
 the gentlemen, touching the passages in Haxvkins so much 
 relied upon, I have examined, and hope successfully to 
 show their true signification. I do not think our adver¬ 
 saries have given a sufficient answer to overthrow the plain 
 interpretation I have given them. I still rely on the ori- 
 
118 
 
 ginal authors for the construction I have made, and to show 
 that the true sense has been corrupted and misunderstood. 
 By reference to Rollers Abridgment, I trust I have shown, 
 that Hawkins could not mean that strange assertion, that 
 there was no difference between a combination to do good 
 and bad, between an honest combination and a false conspi¬ 
 racy to do a wicked crime. And touching combinations 
 to impoverish by indirect means, without showing any 
 thing unlawful in the means : besides that common sense 
 is shocked by such a doctrine. I flatter myself the expla¬ 
 nation I have given, will be agreeable to this honourable 
 court, as rescuing the law which it administers, from the re¬ 
 proach of folly and injustice. The gentlemen have quoted 
 a number of authorities, most of which we cited. They en¬ 
 deavoured to strengthen their case by multiplying refer¬ 
 ences ; but I refer the court once more to those authorities, 
 and I repeat w hat I have said before, that in the ancient 
 writers nothing can be found to warrant such positions, and 
 that the modern authorities are nothing more than echoes 
 of one single error; for whether it be annotations upon 
 Hawkins , commentaries upon the Commentaries , the Crown 
 Circuit Companion , the Crown Circuit Assistant, Wilson’s 
 Lectures , Wentworth’s Pleadings , Burn’s Justice , or 
 McNally, or East, or any of them, they are all founded 
 on, and all refer to, that miserable book, that alias dictus , 
 which the learned counsel has scarcely ventured to defend, 
 which the King’s Bench and that learned reporter Sir 
 James Burrow, have justly stigmatized, and w’hich I say 
 ought to be weeded out of our libraries as a very rank 
 weed which scatters its bad seeds, and has already overrun 
 the soil and choked all reason. This is the evil of all 
 paradoxes, their strangeness captivates attention, and 
 aving the attraction of the marvellous, they are seized 
 
 2 
 
119 
 
 upon as curiosities, and preferred by the idle and affected, 
 to things more simple, and more solid, more true and 
 profitable. 
 
 The gentlemen in their rounds of references, have dri¬ 
 ven us, as Tony Lumpkin drove his dear Mamma , so many 
 turns round Crackscull Common , still never quitting the 
 point he started from. 
 
 I have said that all the conspiracies mentioned in the 
 books, unless those in the “ miserable bad book”* or those 
 erroneous sayings derived from it, turn upon the evils ex¬ 
 pressed in the declaratory laws touching maintenance , 
 champerty , or false conspiracy. I do not think the cases 
 relied on though taken in their full extent and latitude, 
 3how any thing to the contrary. Two of the three cases cited 
 by Hawkins as instances, being false conspiracies, show 
 this explicitly viz. “ falsely to indict a man, or to charge a 
 “ man with a bastard and Hawkins refers to conspiracies 
 only, which are infamous, and such as subject the criminal, 
 if not to the villanous judgment, at least to infamous pu- 
 ishment, as pillory and branding ; so that, unless the 
 counsel will maintain, that our poor honest journeymen 
 are worthy to be pilloried or branded for not working with 
 Edward Whitess , (who had first entered into their society 
 and then separated from them,) the authority of Hawkins , 
 proves for them less than nothing. The third case which 
 Hawkins cites, is then the only remaining stay-rope of 
 their arguments, and it would be piteous to adopt such a 
 ease as an authority. For unless we had tubwomen or 
 tubmen, excisemen and excise houses, and above all, a 
 king who had a revenue of 180,000/. sterling of duties 
 upon small beer, we can scarcely view it as a case in point. 
 Tt is suigeneris, and anomalous. The variety of opinions 
 
 * S Mod 
 
120 
 
 amongst the judges who ruled it, the irregular finding of 
 the jury, and the peculiar reasons assigned, viz. that the 
 impoverishing the excisemen, “ tend to the public ,” and 
 affected the king’s revenue, all these considerations show 
 that it has no affinity with any other cases under the En¬ 
 glish laws, and certainly it bears in no shape upon the dis¬ 
 pute between our journeymen shoemakers here in this city 
 of Nexv-Tork , and their employers, nor shows in any 
 shape which of the two contending parties is most to blame, 
 or whether either of them. The present is a contestation 
 where one side endeavours to get as much wages for lawful 
 labour as it can ; the other, to get as much labour for as 
 little money as it can. And again I would advise all who 
 take part in politics or in elections in this country, to be¬ 
 ware ; for if it be the law that all confederacies, whether 
 the object of them be good or bad, are common law con¬ 
 spiracies, what man is innocent that ever went to an elec¬ 
 tion, or gave a vote, with others of his party, for govern¬ 
 or or president. I have shown that nothing in the English 
 law, repugnant to our constitution, or our statutes, can be 
 law, and I have argued that this prosecution is repugnant 
 to our constitution, because it is founded on the doctrine of 
 unequal rights : and that it is repugnant to our statute, 
 which defines conspiracy in terms so express, that both the 
 learned gentlemen have chosen rather to be silent on that 
 head, than to attempt an answer. They affect to speak as 
 though they had not heard us mention that statute, which 
 is of more importance to this case, of more imperative 
 authority within this city, and this state, than all the laws 
 of England , and of all the universe besides. 
 
 To show that inconvenient English laws were not en¬ 
 forced even when this country was a colony, I have cited 
 the sound theory of Judge Tucker, and also the case of the 
 
121 
 
 two presbyterian clergymen, from Smith's New-York. 
 There is indeed in the close of that same history an ac¬ 
 count of a dispute touching the erecting a court of equity, 
 by the legislative power of the colony, with the opinion of 
 Mr. John Randolph of Virginia , who censures the blind¬ 
 ness of the New-York lawyers in following a common error, 
 that the statutes of England were in force here. “ If we 
 “ wade into the statutes,” he says, “ no man can tell what 
 “ the law is ; it is certain all of them cannot bind, and to 
 “ know which, was always above my capacity.” Now, 
 Sir, yohn said right in that, but even he, with all his wis¬ 
 dom, would have given to the blind lawyers of New-York 
 a very curious code : for if the statutes of England were 
 none of them binding, and the common law was their only 
 rule, most strange results would follow. Lands would have 
 been still unalienable by deed or will; they would still be 
 burthened with the feudal tenures and all their evils ; they 
 would have had courts of chivalry, knight service, and 
 villenage, with grand and petty sergeantry, aids, ward¬ 
 ships, primer seisins and relief, and all the feudal tenures 
 and their incidents, ■which at the restoration of king 
 Charles were abolished by a single statute. My object in 
 reviewing these antiquities was to show them absurd and 
 unfit for our consideration. And further also, that even 
 by the common law the present indictment could not be 
 sustained, not even in England. The authority of Haw¬ 
 kins , I am willing to admit, is great, where it applies, and 
 is not misrepresented ; but, as Lord Mansjield said in 
 speaking of Sir William Blackstone , it is not always safe to 
 trust great names too far, for such will often be in contra¬ 
 diction with each other ; for instance. Lord Coke makes the 
 acquittal of the party accused by false conspiracy a requi¬ 
 em 
 
122 
 
 site towards indicting the conspirators, but Hawkins , in the 
 book and chapter cited, lays down the law as generally 
 applicable to all conspiracies, whether they be executed or 
 not ; in which last case there could be neither trial or ac¬ 
 quittal. “ Who shall decide when doctors disagree ?” 
 
 Let us then give to Hawkins the only rational construc¬ 
 tion his words will bear, and there will be not merely one 
 difficulty less, but none at all. And if any cases have, 
 through mistake of that authority, encroached upon the an¬ 
 cient common law, let them too go for nothing. The reason 
 given in old books why courts of justice have refused to 
 quash indictments for conspiracy, helps out our argument 
 materially, and makes against our adversaries : that is, 
 the “ enormity of the offencef which is compared by 
 the old authors to the corrupt forswearing of jurors. And 
 this being universally extended to all conspiracies, what can 
 more strongly show that by the ancient common law, none 
 were indicted for conspiracy, but those who had been 
 guilty of some enormous falsehood and corruption . The 
 penal code in England , has, from time to time, become 
 more penal, and is more sanguinary at this day than any 
 in the world: ours is tempered by a milder scale, and it 
 is all the better, as is proved by this, that fewer crimes of 
 deep atrocity are committed here, than in England. If 
 English statutes have made conspiracies of innocent acts, 
 must we therefore, who have no statutes of the kind, pro¬ 
 ceed as if we had? If English judges extend the spirit of 
 those statutes to cases not within them, must our judges 
 stoop from their dignity to follow them ? What shows that 
 in the highest of all offences indictments may be quashed, 
 is, that before the statute of William Mary*, they were 
 
 * Stat. 7. cap. 3. 
 
123 
 
 quashed for such slight exceptions as misreciting,misspelling 
 or bad latin, even in high treason : and since that statute, 
 they may be quashed, provided the exception be well and 
 timely taken in the court where the trial is to be, and be¬ 
 fore any evidence be given on the indictment. 
 
 One of the counsel cited a case from Blackstone’s Re - 
 ports ,* to show that the facts of conspiracy might be col¬ 
 lected from collateral circumstances. That I take to re¬ 
 late to the question of proof, but to have no relation to the 
 sufficiency of the indictment, upon which the court are to 
 decide, and that upon the face of it. 
 
 Mr. Riker cited Hume’s History of England ,f touching 
 conquered and ceded countries ; it does not in any shape 
 affect or alter the view we have already taken of the sub¬ 
 ject, being the same doctrine we ourselves adopt. 
 
 The argument from the assembly journals,^ that courts 
 of justice were appointed in the colony, with the same 
 powers as those in England , may be answered by the ar¬ 
 guments I have referred to, touching the appointment of 
 an exchequer.§ The same counsel argued, that, by our 
 constitution, the common law was all adopted, except what 
 was expressly, and I understood him to mean particularly , 
 excepted. I think the exception much more general, for 
 all that is repugnant to the constitution then established on 
 the broadest basis of equal rights, was excepted ; and equal 
 rights there cannot be, if these men can be prosecuted by a 
 combination of their employers, merely because they meet 
 and determine not to zvork with them for the wages they 
 are pleased to give. And we have heard of no case of con¬ 
 spiracy at common law, where the combination was merely 
 not to do what no law made it obligatory to do—most cer¬ 
 tainly there can be none. 
 
 * 1 Bloc. Rep. 392- t C. 64. p. 432. t-1 J»w\ Ass. p, 5. § Smith’s New. 
 fork, ad finem. 
 
124 
 
 The numerous references of the learned gentlemen, 
 mean no more than what a merchant does when he draws 
 his hills per duplicata, triplicata, quadruplicata, and so on, 
 they being all referable to one single case, and that, in point 
 of credit, no better than a blanke indorsement. What is it all 
 but pouring fi om vial into vial, unless it be that they have 
 shaken the bottle and raised up all the dregs that had pre¬ 
 cipitated to the bottom. 
 
 The District Attorney-General, has vouched the Empe¬ 
 ror Z eno ; he might as well have called upon all the twelve 
 Ccesars , with their diadems upon their heads, for any 
 thing we have to do with either king or Kayser. He says 
 we have lived so happily under the common law, that we 
 ought never to depart from it. He argues from the decla¬ 
 ration of independence, that the people’s chief complaint 
 was, that they had been deprived of the best benefits and 
 blessings of the common law! To be deprived of the law’s 
 benefits might be a very just complaint, and yet that law 
 might need a great reform. The revolution which changed 
 the entire form of government, from monarchy, the soul 
 of common law, to a republic, which was a stranger to it, 
 shows the sense of the whole nation upon that head, more 
 strongly than words can. There are, besides, set forms and 
 modes of speech which habit sanctions and which suit them¬ 
 selves to times and circumstances, but which are nevertaken 
 at the letter. In England, in Scotland , and in Ireland, I 
 have often heard such phrases, which meant nothing. I 
 have heard men talk of restoring the constitution to its 
 original purity, but no man ever fixed the epoch of that 
 purity. All these are words of form and custom. The 
 Cock-lane ghost gives us no apprehensions ; we admit, the 
 ghQst could never kill nor put in jeopardy the living man ; 
 but then there was a false conspiracy, falsely to impute the 
 
125 
 
 crime of murder, by making it believed that the ghost of 
 the deceased haunted the murderer’s house. That was an 
 overt act of false conspiracy to charge or to impute to an 
 innocent man the heinous crime of murder. There was there 
 that tinge of falsehood, frauds and malice, without which by 
 the common law there could be no indictable conspiracy. 
 Tlhe Kingv. Eccles* was cited to show that overt acts need 
 not be set out, because the conspiracy is the gist of the in¬ 
 dictment, and the means are but the evidence, which need 
 not be set out. I answer, that being a statutable offence, the 
 description is technical , and if it be brought by averments 
 within the statutory description it is sufficient. The other 
 precedents in the same book touching conspiracies, not to 
 work but at certain rates, or at the usual rates , are evidently 
 referable to the sta|utes of labourers and the very term 
 usual rates comes from the first statutes , occasioned by the 
 plague, when the labourers were limited to the wages 
 “ usual in the four last years.'’’’ The instance of barratry 
 relied on by the counsel, is stronger still for us, for there 
 he says, that the overt acts are never set out. True, but I ask 
 him for what reason are they not ? Because the term being 
 technical, “ communis barrator no other would suffice. 
 By that alone, the offence can be described, and seeing that 
 fh cases of barrators and common scolds are laid down as 
 exceptions, they prove the rule, that in all other cases the 
 overt acts must be set out, both that the court may see 
 what the offence is, or whether it be any, and that the par¬ 
 ty may know for what he is to answer- and be prepared to 
 defend himself against it. Now, as common scolds and 
 common barrators could not be punished for any particular 
 
 * V. C. Ass. p. 123; 
 
126 
 
 act, but merely for their general disturbance, it would be 
 idle to set out particulars when the offence is general. The 
 defendants there have notice that their general character is 
 put in issue, and if they can disprove the charge of being 
 common scolds or common barrators, no more is requisite. 
 Yet on trials for barratry, the learned counsel know that it is 
 now the settled practice not to let the prosecutor go into the 
 trial, without first giving the defendant a note of the par¬ 
 ticular matters which he intends to prove against him; for 
 otherwise, it is justly said, it would be impossible to pre¬ 
 pare a defence against so general and uncertain a charge, 
 which may be proved by such a multiplicity of different 
 instances of which the indictment furnishes no notice. 
 This substantiates the objection of my learned colleague, 
 that the precedents cited against us, particularly in 4 Went¬ 
 worth.,* although of a technical and statutable offence, do 
 minutely set out the overt act, and describe the offence 
 with great certainty, although, perhaps, in that case scarce¬ 
 ly necessary ; but here, where the indirect means ought to 
 be undoubtedly specified, they are not. Those cited from 
 the same volumef are, undoubtedly, also offences made by 
 statute. That against the carriers can be nothing else, 
 though it concludes, for the reasons given, at common law. 
 This wonderful compilation of the learned Mr. Wentworth, 
 with all its labyrinths of indexes and apologetic prefaces, 
 in which the author seems to accuse the dulness of man¬ 
 kind, for not comprehending his methods and his mean¬ 
 ings, and which has caused more nervous head-aches, than 
 tobacco or strong drink, is called a very high authority. 
 
 5 Mod. 18. 1 Lord Hay. 490. 12 Mod. 516. 2 Atk. 340. 1 Hawk. P 
 
 C. c. 81. s. 13. and vide 4 Went. p. 100. f 4 Went. p. 113. 120. 
 
 5 
 
127 
 
 Pile the ten volumes upon one and another, like w Pe- 
 “ lion upon Ossa,” it is breast high, but otherwise it is no 
 higher than the sun after he sets and leaves the world in 
 darkness. Call it deep, or call it dark, but never call it 
 high. My learned friend has argued that the common 
 law is always in abeyance, and that, whenever it chooses to 
 make an excursion from England , and pay us a visitation, 
 it is entitled to the honours of the sitting, and the rights 
 of citizenship in secula seculorum; if so, it is like the sword 
 of Democles, hanging over our heads, and we had better 
 reconcile ourselves to heaven betimes, for we can never 
 say when it may fall upon us. He says Hawkins is never 
 wrong ; I have shown an instance where he and the great 
 Lord Coke are in opposition. One must be in the wrong. 
 I give the counsel his choice, utrum lorum P The case he 
 has cited from East’s Crown Law,* is conclusive for us and 
 not for him; particularly when taken with the contents of 
 the whole chapter of which it makes a part. The title of 
 that chapter is, “ Forcible or fraudulent abduction , mar- 
 “ riage or defilement.” * Now this classification alone 
 shows the meaning of this intelligent and experienced 
 writer : and the circumspection with which he travels over 
 the ground where others have gone astray, is a fresh proof 
 of his ability and his good sense. He shows how, in an 
 indictment for a conspiracy to marry a pauper, Judge Ful¬ 
 ler held it essential that there should have been corrupt so¬ 
 licitations. In that case, too, there was such perversion of 
 all principles of justice, law, religion, and morality, that, 
 if it did not entirely fall within the definition of false con¬ 
 spiracy, it fell within the reason and principles. But how 
 unlike is that to the case of men contending for their un- 
 
 1 Easf.i C. h. 462. 
 
128 
 
 disputed right of selling their labour for the best price 
 they can. How can that be a false conspiracy ? And if it be 
 not a false conspiracy, it is no conspiracy at common law . 
 
 But the learned counsel denied my position, that nothing 
 was held conspiracy by the common law, that was not 
 crimen falsi, and he cited some cases to disprove, which, 
 I think, prove it: for although they are among those modern 
 cases, which have been more loosely decided than the an¬ 
 cient, and may not exactly and entirely fall under the defi¬ 
 nition of maintenance, or false conspiracy, or champerty, 
 yet that they sound in fraud, deceit, and corruption is 
 most undeniable, and in that differ utterly from the case in 
 hand. They are perversions of justice and right, for cor¬ 
 rupt and dishonest purposes. The present case has no 
 tincture of fraud, deceit or corruption, whatsoever, nor 
 is it tending to any act which any law or statute has 
 made criminal. The case of Sir Francis Blake Delaval, 
 was, as the counsel himself has stated, a confederacy to 
 have Miss Cately assigned (she being then an apprentice) 
 for the purposes of prostitution—a horrible perversion of 
 morals, law, and religion. Does it follow, because such 
 an offence was punished as conspiracy, that shoemakers 
 who meet to demand wages for labour, and whose utmost 
 malice goes no further than a determination not to work 
 for those that undervalue their honest industry—Is it pos¬ 
 sible to place my argument in a stronger light than by the 
 opposition of these two cases ? 
 
 The learned gentlemen cited The King' v. Cope* to the 
 same effect, and to it I gave the same answer. The 
 "charge was that of hiring a person to put grease into the 
 
 1 
 
 * Strange, 144. 
 
129 
 
 paste of the king’s card maker, in order to spoil the cards, 
 and impoverish, by such indirect or unlawful means, the ma¬ 
 nufacturer. Does this case show that I was wrong in saying 
 that ail conspiracies at common law must be infected with 
 the crimen falsi P But since our declaratory statute, I do not 
 think either of these offences could be indicted here as con¬ 
 spiracies; because it must be something_yery heinous to 
 amount to a conspiracy, which, as our statute shows full 
 clearly, differs from all other prosecutions in this, that the 
 intention is punished, though the crime be no otherwise 
 effected than by the mere determination to commit it. 
 If, indeed, the acts were executed , I think they would be 
 clearly indictable, even here, though bare conspiracy to 
 do them would not, because we have a positive statute 
 defining conspiracy, and they come not within it. 
 
 The counsel argued further from Hczvkinsf that for 
 conspiracies to impoverish a certain set of lawful traders, 
 an information would lie in England: and in an anonymous 
 case, an information was granted against button makers for 
 combining by covenants not to sell under a set rate , and 
 Holt, C. J. said, “ it is fit that confederacies by those of a 
 u trade to raise their rates should be suppressed.” This 
 is all answered by what we have already so often said; 
 that in England there are statutes against such confedera¬ 
 cies, which statutes fix the rates; and to combine, and that 
 by sealed covenants against the positive and declared law 
 of the land, was manifestly indictable. Being indictable, 
 the Court of King’s Bench take upon themselves to grant 
 an information, a practice, however, that our constitution 
 prohibits, so different is the genius of our laws. The case 
 
 * B. 2. c. 26. vol. 4. p. 85. 
 
 R 
 
130 
 
 of the brewers is also relied on very principally by my 
 learned friend, to support the meaning given (as we 
 maintain erroneously) to the text cf Hawkins. I answer, 
 its juxtaposition alone, is an argument that it was for some 
 reason considered by Hawkins , or those from whom he 
 copied , as a false conspiracy, founded in oppression or cor¬ 
 rupt maintenance of each other, through right and wrong. It 
 is a case in which the judges seemed much perplexed, and 
 by no means agreeing with, or among themselves; but 
 Hawkins was then treating specifically, of false and mali¬ 
 cious conspiracies against public justice, and therefore 
 must have meant to class that case amongst them, as appears 
 from the whole of the cases he cites, and their context. It 
 is besides a case so extraordinary and so anomalous, that I 
 do not think it necessary to argue upon it one way or other. 
 
 I had the good fortune, in citing the work entitled “ Bol- 
 “ ton’s Justice”* to have the sanction of my learned 
 friend, who certifies the merit of that book. He has him¬ 
 self relied upon it strongly. It certainly contains both 
 principles and precedents of great antiquity, and curiosity. 
 I quoted it for a purpose quite different from that of my 
 friend. I will again recur to it, to show that much of what 
 was there laid down and held good law, would now with us 
 be shocking to humanity. I shall read one only of the many 
 precedents of impeachments and convictions which this 
 valuable treatise contains ; it may serve as a sample of the 
 whole. The English title given to this precedent,! which 
 itself appears to be a transcript of a record, and is in latin, 
 is thus : 
 
 * Written by Sir Richard Bolton, ar.tl published in 16S3- 
 f Bolton’s Justice, 170. 
 
131 
 
 “For bewitching a horse, whereby he wasted, 
 “ and became worse.” Then follows the record of 
 judgment and execution. Jur. &c. present. quodS.B. 
 de C. in com. E. vidua y die , &fc. quasdam artes nequissimas 
 {Anglice vocat inchantments and charmes) apud C. 
 prced. in com. E. praed. malitiose et diabolice, in, super et con¬ 
 tra quondam equum, color, albi, pretii 4/. de bonis et catall. 
 cujusdam I. S. de C. praed. in dicto com. E. gent, existentem 
 exercuit et practicavit ; per quod idem equus diet. I. S. die 
 praed. apud C. praed. omnino pejoratus est et vastatus: 
 contra pacem diet. dom. regis , et contra formam stat. in 
 hujusmodi casu edit, et provis. Before we have any com¬ 
 ments upon this record, let us have it into plain and literal 
 English. 
 
 The jurors, &c. upon their oaths present, that S. B. of 
 C. in the county of E. widow, on the day of , in 
 the year , at the said C. in the county of E. aforesaid, 
 certain most wicked acts (called in English , enchantments 
 and charms') at C. aforesaid, in the county of E. aforesaid, 
 maliciously and diabolically, upon and against a certain 
 white horse, of the value of 4/. of the goods and chattels of 
 a certain I. S. gentleman, of C. aforesaid, on the day afore¬ 
 said, and in the county aforesaid then being, did exercise 
 and practise, by means of which the said horse of the said 
 I. S. on the day aforesaid, at C. aforesaid, greatly worsten- 
 ed (pejoratus est ) and wasted away, against the peace of 
 our said lord the king, and against the statute in this case 
 made and provided. 
 
 I have seen charming widows ; I have heard of wi¬ 
 dows bewitched ; I have heard it said of some that they 
 were ugly enough to frighten a horse ; I have read that a 
 great musician of old times could set all the bears a dan- 
 
132 
 
 cing by the charms of his music ; I have read of the duets 
 of Damon and Alphesibceus ,* that used to make the 
 cows wonder, and put the lynxes to sleep, but those 
 tales I took to be poetical fables. However, I find it now 
 a matter of record, the truth of which no man must ques¬ 
 tion, that a most wicked widow did, with her English charms 
 and enchantments, so inthral a proud, milk white steed, of 
 no less value than four pounds sterling, and being of the 
 goods and chattels of a gentleman, in so diabolical a man¬ 
 ner, that he pined and languished, and that she did this 
 barbarous deed against the peace of her sovereign lord the 
 king. I find, however, that this cruel widow did not go 
 unpunished, for her sentence is recorded in a memorandum 
 added in the margin in these words, “ judgment, a year’s 
 u imprisonment, and every quarter to stand six hours in 
 “ the pillory ! ? !” [Mr. S. here drew a picture of the con¬ 
 sternation of the unfortunate woman, who in vain denied 
 that she was a witch, until overcome by the awe of the 
 grave judges, and the oaths of the jurors, she was forced 
 to acknowledge her crime no longer deniable, and to suffer 
 her sentence amidst the reprobations and imprecations of 
 the enlightened community, who reverenced these laws 
 with stupid adoration.] 
 
 Now, will this honourable and enlightened Court for the 
 first time, institute in this country, an unprecedented pro¬ 
 secution, incompliance with such a book of precedents ; or, 
 is it possible to look but with distrust upon precedents, 
 drawn from such sources ? 
 
 My learned antagonist has, in his zeal for his clients, 
 cited McNally's Justice of the Peace , which is like the rest 
 
 * Immemor herbarum quos est mirata juvenca 
 
 Certantes, quorum stupefuche cartnine !i/nces. 
 
 Virg. Eel. 8. 
 
 i 
 
133 
 
 ©fall these compilations, a repetition of preceding ones. I 
 should have great confidence in the work of an author so 
 versed in the criminal law, as I know that gentleman to be ; 
 but I think my learned friend has cited the very worst 
 part of his hook, and that which does least credit to the 
 author, and which is of all others the least congenial to the 
 avowed sentiments of the counsel himself. From the pas¬ 
 sage he has read, it would appear, that the unhappy state 
 of the Irish people was not so much owing to bad laws, op¬ 
 pressive institutions, and foreign government, as it is 
 brought upon themselves by combinations of this nature. 
 I confess I never expected to have had this question to dis¬ 
 cuss with my honourable friend. And without going further 
 than the old tried authority he has cited, or even the modern 
 . one to which he has resorted, I could show him laws suf¬ 
 ficient to account for calamity in any country, and against 
 which charity and reason must ever be in active conspira¬ 
 cy. In Bolton'’ s justice , besides indictments for various 
 kinds of sorcilege practised upon man and beast, he may 
 find indictments against men for not coming to the church* 
 which they did not acknowledge, and quitting the worship 
 of their fathers. Others against householders for living 
 after the manner of their own country, and not'after the 
 English manner.f Another against a man for speaking his 
 own vernacular language, and not commonly using to 
 speak the English language.! Another for wearing Irish 
 apparel,§ and many others, so grotesque, so piteous, and so 
 intolerable, that it certainly was going a little far to impute 
 the misfortunes of the people of that oppressed country, to 
 the combinations of journeymen. And I think, the clients 
 can never repay with sufficient gratitude, the zeal of the 
 
 * I*. .15T. + P. 15 %. ± Ibid . § Ibid . 
 
134 
 
 learned and honourable counsel that has carried him so far 
 beyond himself. I think it, however, a duty to the fair and 
 honest name of my friend, to make his apology; the more 
 so, as I perceive he is not now present to explain for him¬ 
 self. 
 
 I have read of Cato the censor, to whom (for the best 
 features of his character, his simple integrity and his suc¬ 
 cessful eloquence) I may compare my friend, that he had 
 two mantles. The one he put on when he went to the 
 forum ; that was for splendour and parade. When he re¬ 
 tired to the bosom of his family, he slipped that off and 
 covered himself w'ith one more simple, which I shall call 
 his mantle of peace. Then in the bosom of his family, he 
 was again himself. No doubt he often did and said for the 
 clients he protected, what no private interest could ever 
 have urged him to say for himself. Such is the nature and 
 office of an advocate. To show that this is true, I shall 
 resort to no other proof than his own words. A w T ork 
 latelv given to the public under the joint names of Emmet 
 and Mac Neven , concludes with this comparison between 
 the respective conditions of this nation and that of his 
 native country. 
 
 “ The ordinary revenue alone of Ireland amounted, it 
 “ appears, in the year ending the 5th of January , 1805, 
 “ to 18,328,160 dollars and 8 cents ; which is considerably 
 “ higher than the whole income of the general govern- 
 “ ment of America , in the same period. 
 
 “ The total receipts of the treasury of the United States 
 “ were then 17,597,698 dollars and 46 cents ; but of this 
 “ sum, no more was expended for the support of the general 
 “ government, than 13,598,309dollars and 47 cents ; theex- 
 
 pense of all the state governments together is fully esti- 
 
 3 
 
 « 
 
135 
 
 u mated at about 2,000,000 dollars more. Making in tlie 
 “ entire, 15,598,309 dollars and 47 cents. 
 
 “ That is, a country enjoying greater general happiness 
 “ and a more progressive prosperity than any other in the 
 “ world, whose commercial shipping averages 900,000 tons, 
 “ whose flag is seen on every sea, whose industry is as un- 
 u bounded as the globe, whose inhabitants possess liberty, 
 “ peace, and self government, is not at this moment much 
 “ more populous than Ireland , and pays little more for those 
 “ manifold blessings than one third of what it costs the 
 “ Irish people to live subject to ignominy, disquietude, 
 “ commercial restraints, and political slavery. Such are 
 “ the advantages on one side of having shaken off the 
 “ British yoke, and such the wretchedness on the other of 
 u being under its control.”* 
 
 What the counsel has said then in the warmth of his ar¬ 
 gument, was spoken by Cato, the advocate of his clients ; 
 what is written in this book, is written by Cato , the good 
 citizen, the enemy of oppression, and the well-tried patriot. 
 Here spake the advocate, but there the man ! 
 
 The same able advocate has admitted, if I may use the 
 phrase, in commenting upon Hawkins,\ that in the cases of 
 common barrators, conspirators, &c. the law has been over¬ 
 ruled and again overruled. I say then let it now stand 
 as it should in cases of conspiracy. Let us abide by out- 
 own statutory definition, which has been enacted with a 
 full retrospective view of all the fluctuations of the English 
 law, and has carried it back to its original ground, as de¬ 
 clared by the statute of Edward III. 
 
 * Pieces of Irish History, p. 302. 
 
 + 4 Hawk. p. 29, 30. 2 Haiulc, b. 2. e. 25. p. 15S. 
 
136 
 
 >> 
 
 
 Touching the setting forth the overt acts, the coun¬ 
 sel argued, that the exceptions in cases of treason,'made 
 by the statute to protect the subject against the abuse 
 of power, are arguments, that, at common law, the 
 overt acts were not required to be set out. I might 
 readily admit all that, and our argument be in no wise 
 shaken by it. I might admit, and, to be plain, I do admit, 
 that a conspiracy to commit murder or treason, by any 
 means whatsoever, is a guilty conspiracy, because, however 
 much the humanity of the law will intend in favour of in¬ 
 nocence, it cannot intend that mdn who combine to take 
 away life, to betray their country, to rob, to accuse falsely, 
 to defraud or extort, can be any other than wicked mali¬ 
 cious and false conspirators. But before men can be judged 
 false conspirators for refusing to work till they are re¬ 
 quited, some overt acts should be shown sufficiently strong 
 to afford the inference of so heinous a crime as conspiracy, 
 which is punishable with infamy. For the very passage 
 relied on in Hawkins, shows the conspiracy he treats of 
 to be punishable with pillory and branding. Before 
 such criminality shall be intended, the overt acts which 
 constitute that crime should be made appear, as W'ell to the 
 ]ury and court, who are to pronounce and judge, as to the 
 parties who are to answer, and who require full notice in 
 order that they may know against what they are to prepare 
 their defence. Is there any thing more monstrous than to 
 call upon men to show that they did not use indirect means , 
 and yet not tell them till the moment of trial, perhaps 
 till their accusation is concluded and they called upon to 
 answer, what those indirect means were ? Where shall 
 men then find witnesses or proofs ? Is it supposable that 
 the whole community is present at all times in court and 
 ready to answer for every body accused? If the indirect 
 
I 
 
 137 
 
 means are the crime, they must not only be proved, but al¬ 
 leged. If they be alleged but not proved, the indictment 
 fails ; and as they cannot be proved unless they are first al¬ 
 leged, so it is a nullity if they be not alleged, for every pro¬ 
 ceeding must be secundum allegata et probata, and proof 
 without allegation, is no better than allegation without 
 proof. In either case the proceeding is a nullity. And 
 where no criminal matter is alleged, the Court will then 
 in justice quash the indictment, and not waste its time, 
 which is the time of the public, nor oppress the parties, 
 which is an oppression of the public, by forcing upon them 
 the expense and vexation of a trial, which can evidently 
 have no other fruit than oppression and vexation. 
 
 Suppose, says the counsel, the conspiracy was to effect 
 the object by indirect means , and no particular means 
 agreed upon, would not the Court intend, that indi¬ 
 rect means generally must be unlawful means ? This is 
 answered by what I argued in opening, where I showed that 
 indirect is nothing else in law phrase than unlawful; that 
 is, indirectum. But is it enough to put a man to an¬ 
 swer on peril of fine, imprisonment, pillory, branding and 
 infamy, or one, or all of them, to allege that he has used 
 indirect means, and not tell him what means he is accused 
 of using ? As well might he be put upon his trial upon the 
 idle formal allegation, that he was instigated by the devil, 
 and had not the fear of God before his eyes, and driven to 
 make out by evidence that he was not instigated by the 
 devil, and that he had the fear of God before his eyes ! 
 
 As to the case of The King v. Linn, which was a conspi¬ 
 racy to prevent the burial of the dead, it was an offence 
 against religion, against civilization, against law. It was 
 corrupt and a breach of the peace. Yet I do think, even that 
 could hardly be punished, consistently xvith our statute , 
 
 s 
 
./ 
 
 138 
 
 as a conspiracy, however the acts when executed might 
 be punished exemplarily in other forms ; as riots, affrays, 
 trespasses, breaches of the peace, &c. all of which are in¬ 
 dictable per se when executed, but are not strictly of that 
 complexion which would warrant an indictment merely for 
 the intention, particularly under a criminal code milder by 
 much than the English. Indeed the Poulterers'' case, so 
 much relied on, is conclusive for us upon that subject; for 
 in the note at the conclusion of it, it particularizes with 
 great care, those crimes which may be punished as conspi¬ 
 racies, although nothing be done further than the act of con¬ 
 spiracy. I shall once more repeat the express words. 
 
 “ Not a reader. These confederacies punishable by law, 
 
 “ before executed ought to have four incidents. 1. 
 u ought to be declared by some manner of prosecution. 
 
 “ 2. It ought to be malicious, as for unjust revenge, &c. - 
 “ 3. It ought to be false , against an innocent. 4. It ought 
 “ to be out of Court voluntarily.” Now if the counsel 
 who accuses me of looking only straightforxvard, w r ould 
 follow my example and look straight forward himself, I 
 think he would see before his eyes, in every authority he 
 has quoted, enough to stop his course ; but he chooses to 
 turn his winkers before his eyes, and will see only sideways 
 and obliquely. I wish he had given a direct answer, and 
 shown how this indictment contains those “ four inci¬ 
 dents .” 
 
 He cites a precedent of a proceeding against merchants, 
 touching the rates of wool, and challenges us to show any 
 statute on the subject prior to its date. I have answered 
 him by laying open the index of Keble's Statutes , which 
 l^ems with such ordinances, and therefore, his conclusion 
 that the conspiracy in that case was not by virtue of a 
 statute, but at common law, falls to the ground. 
 
 V 
 
139 
 
 The learned counsel derives from Hawkins three grada¬ 
 tions of enormity in conspiracy, and which, he argues, are 
 followed by corresponding punishment. 
 
 1st. Where the charge goes to the life ; that is, where 
 the conspiracy was by false accusation to take away the 
 life of the victim, which he says is followed by the villanous 
 judgment. 
 
 2d. Where there is fraud and deceit, there the pu¬ 
 nishment, if I understood him, is of an infamous nature, 
 and subject to branding, pillory, &c. 
 
 3d. Where it wants these ingredients, then the punish¬ 
 ment is fine and imprisonment. 
 
 To all this I answer, without binding myself to follow a 
 definition which contradicts the declaratory statutes at once 
 of England , and of our own state, that the third class 
 must mean those conspiracies or combinations for wages 
 which depend upon statutes that have not, nor never had, 
 force here. And, therefore, as the present charge can, in this 
 state, belong to none of his three classes, there is no need to 
 reply to that classification. If the masters who prosecute here, 
 be themselves indicted for conspiring to accuse , which is 
 strictly an indictable conspiracy ; or for conspiring to impo¬ 
 verish the workmen by preventing their selling their la¬ 
 bour ; or for maintaining each other , right or wrong ; or 
 simply for conspiring to monopolize the labour of the poorer 
 class; they may, perhaps, be punishable by the law they 
 would enforce against us. But for the journeymen, they 
 surely stand clear of every similar imputation ; unless the 
 Court could make laws which none but the legislature can 
 do, and this enlightened and patriotic tribunal will never 
 do what is beyond its province. 
 
140 
 
 The precedent produced by Mr. Colden , shows all it was 
 cited for, that in the only record to be found of the kind, 
 no conviction took place, or no judgment was given. I 
 think, therefore, we had better be contented with the laws 
 under which this country has so long enjoyed all its justly 
 boasted prosperity, unless offences of this kind become enor¬ 
 mous. Then let the legislature provide for them. When 
 the great merchants engross the firing of the city, let that 
 also be provided for, but let not industrious shoemakers be 
 punished through the fear that Mr. Edgar , Mr. Lenox y 
 Mr. Grade , or Mr. Clason, or any of our men of wealth, 
 may some day do an act which they never yet have done, 
 and which I venture to say none of them ever will do. 
 
 If the butchers and bakers combine, the one not to kill, 
 and the other not to bake; the}', and not the community, 
 M ill starve for that; for if we have a sheep, we will find 
 somebody hardhearted enough to kill it; and if we have 
 flour, we may have griddle-cakes ; and if the evil requires a 
 law we shall have a legislature to provide one in due time. 
 But I think it somewhat too provident to suppose every thing 
 that is possible, and use that possibility as an argument for 
 an oppressive and unprecedented accusation. The case con¬ 
 cerning Macklin , the player, was also quoted from the 
 Crown Circuit Assistant , as an indictable offence not 
 created by statute, and yet not tinctured with the cri¬ 
 men falsi. It was, however, a conspiracy to breed a 
 riot in Covent Garden Theatre , in order to force a merito¬ 
 rious actor and servant of the public off the stage, to de¬ 
 prive him, by such wicked conspiracy, of his bread, and 
 was in the nature of that branch called maintenance , being 
 a conspiracy amongst a number to maintain each other in a 
 quarrel, and in what they all knew to be wrong. It 
 
141 
 
 was malicious and oppressive, and not for any concern of 
 their own , nor in furtherance of any just interest or claim 
 by any legal ?neans , and if it was not strictly a conspiracy 
 at common law, it was as like it, as it is unlike to our case. 
 
 But once for all, I refer again to the statute of New-Tork , 
 and intrench myself within it, and also to the evidence which 
 negative usage furnishes, that this combination not to work, 
 which is a mere non-feasance , and omission of what no law 
 obliged us to do, is not indictable within this state at com- 
 monlaw. That it is noth)'-statute it is admitted ; and other' 
 "syise than by statute or at common law, it cannot be. 
 
 ccctccc 
 
 The reporter and publisher join in expressing their 
 regret, that they have not been able to give the able reply 
 of Mr, Golden . It was submitted to him for his revisal, 
 but during the great pressure of his business he mislaid it. 
 The reporter after transcribing his notes had destroyed 
 them, and the loss became irreparable. 
 
 The Court, when the argument was closed, conceived 
 the cause of such importance as to require mature consider¬ 
 ation, and after paying a handsome compliment to the in¬ 
 dustry and ability of the counsel on both sides, deferred its 
 opinion till the ensuing session. 
 
 On the next general sessions held in the month of Februa¬ 
 ry , the Honourable Dewitt Clinton , Mayor, being absent, 
 the Aldermen who heard the motion not agreeing in 
 
142 
 
 opinion, no judgment was given, and the defendants’ re¬ 
 cognisances to appear, &c. were continued over. 
 
 At the general sessions in the month of April, the 
 Mayor went out of office, and was succeeded by the 
 Honourable Jacob Radclijf; the latter not having heard 
 the argument, declared himself incompetent to deliver an 
 opinion, and the extensive calendar and the pressing neces¬ 
 sity for delivering the city prison, made it impossible to 
 allow time for a fresh argument. 
 
 The same difficulties occurred in the June sessions, and 
 it was thought expedient to appoint a special sessions on 
 the 12th July, for the final determination of the cause. 
 
TRIAL, &c. 
 
 ON Thursday , the twelfth day of July, this cause came 
 before the special sessions appointed by order of the cor¬ 
 poration of the city and county of New York, for its de¬ 
 termination. Mr. Colden appeared, together with Mr. 
 .Sampson, as counsel for the defendants. Having argued 
 the motion on their behalf before his appointment to the 
 office of District-Attorney, Mr. C. did not think himself at, 
 liberty to act on their prosecution. Mr. Griffin was ap¬ 
 pointed in his place to prosecute, and Mr. Emmet was, 
 as before, associate counsel on the part of the people. 
 
 The defendants’ counsel finding that no judgment could, 
 be given on their former arguments, declined to renew the 
 motion for quashing the indictment. It had been proposed 
 to submit the foregoing printed report of the motion, and 
 the arguments upon it, after the manner, sometimes adopt¬ 
 ed by our Courts under a press of business, of receiving 
 written arguments ; but the delays of the press, the whole 
 not be.ing yet printed, and the consideration that one of the 
 counsel (Mr. Griffin) had not been heard, and other rea¬ 
 sons to the contrary presenting themselves, that mode was 
 not adopted, and the motion being now waived, the de- 
 
144 
 
 iendants who were under recognisances, appeared by their 
 counsel, and pleaded not guilty. 
 
 On motion of Mr. Griffin, the following witnesses were 
 bound in recognisance to appear from dav to day and testi¬ 
 fy in the cause. Lewis Judson , Lucius Benjamin, Edward 
 Whitess, Oliver H. Taylor, John Wilcox, Charles Aimes , 
 Daniel Corwin, Benjamin Britain , Thomas AFCready, 
 Webby Slocum , William Frowd. 
 
 The jury precept contained twenty-four names of jurors, 
 of whom only eighteen were summoned, the remainder 
 being absent or not found. And of these there did not 
 appear a sufficient number. 
 
 The following were the Jurors sworn. 
 
 David WagstafF, 
 
 John Johnson, 
 
 James Welsh, 
 
 William L. Lawrence, 
 Augustus Nicoll, 
 
 John Ashfield, 
 
 David Cargill, 
 
 1 
 
 
 Who were on the 
 panel. 
 
 John W. Livingston, "J 
 William Brodill, 
 
 Joseph Dederer, }»' Tales. 
 
 John Queen, 
 
 Robert Graham, 
 
 As the jurors came to the book, they were asked by the 
 defendants’ counsel, whether they were master shoemakers, 
 and also, whether they were masters or employers in any 
 of the mechanic arts or trades ; but none such appearing 
 
145 
 
 they were all permitted to be sworn without further objec¬ 
 tion. 
 
 A question was put to a juror by Mr. Griffin , on be¬ 
 half of the prosecution, whether he had not made up his 
 mind upon the subject of this trial. He said he had no 
 knowledge of the particulars of this case and therefore could 
 not have made up his mind. Upon this Mr. John John¬ 
 son, another of the jurors, observed, that he had so far made 
 up his mind, that he could see no reason why journeymen 
 should not meet to regulate their own demands, as well as 
 other men. This declaration was made a ground of chal¬ 
 lenge for favour, by the prosecutors’ counsel, and the three 
 jurors first sworn, viz. James Welsh , John Ashfield , and 
 David Cargil, were sworn, to try whether the said John 
 Johnson was an indifferent juror between the parties or 
 not. 
 
 David Codzvise, Esq. counsellor at law, having been 
 seated opposite the jury box, was called and sworn to testi¬ 
 fy to the words of Mr. Johnson. The prosecutors how¬ 
 ever withdrew the challenge and the juror was sworn. 
 
 Mr. §>ueen was also challenged, for favour, and examined 
 on his voire dire. The ground of challenge to Mr. ^ ueen 
 was, that his brother, who was now absent from this city, 
 had been, during his residence here, about six months ago 
 a member of the Society of Journeymen Cordwainers, and 
 that he might still be understood to be a member; if so, 
 the penalties would fall upon him, provided the acts of that 
 body, were held to amount to a conspiracy, and for that 
 reason, his brother could not be an impartial juror. The 
 same triors were sworn. Mr. §>iieen was examined on 
 his voire dire. Two witnesses, Thomas Wilson and George 
 Gould, were examined in chief. The counsel summed up 
 
 T 
 
146 
 
 the evidence, and the triors found Mr. Queen an indifferent 
 juror between the parties he ; was accordingly sworn. 
 
 The court imposed fines on several persons summoned 
 as jurors, for their non-attendance, and adjourned the trial 
 of the indictment till 10 o’clock on'tlie following day. 
 
 The jury sworn were permitted to go at large by consent 
 of the parties; the court first admonishing them of their 
 duties, and of the necessity of shutting their ears to all 
 conversations touching the subject they were sworn to de¬ 
 termine upon. 
 
 Friday , 13th July, 1810 . 
 
 Present , 
 
 The Hon. Jacob Radcliff, Esq. Mayor , 
 
 The Hon. J. O. Hoffman, Esq. Recorder, ^Justices. 
 
 Nicholas Fish, Esq. Alderman. 
 
 On the part of the prosecution, the counsel proceeded to 
 prove the rules of the society by parol, having previously 
 given notice to the defendants’ counsel, to produce all books 
 and papers of the society, and having proved the same to 
 have been in the hands of Baker , one of the defendants, 
 who was secretary of the society. The first witness, Ben¬ 
 jamin , proved the rules as contained in their constitution 
 printed in 1805 , and afterwards re-enacted. He also testi¬ 
 fied to some additional by-laws or amendments. He could 
 not say that the printed constitution now produced was a 
 copy of the former, and the defendants’ counsel at first ob¬ 
 jected to its being given in evidence, as such ; but in the 
 course of the examination thought proper to admit it, and 
 it was read as follows. 
 
147 
 
 CONSTITUTION, &c. 
 
 WE, the Journeymen Cordwainers of the City of New- 
 York, impressed with a sense of our just rights, and to 
 guard against the intrigues or artifices that may at any 
 time be used by our employers to reduce our wages lower 
 than what we deem an adequate reward for our labour, 
 have unanimously agreed to the following articles as the 
 Constitution of our Society. 
 
 ARTICLE I. 
 
 That this Society shall consist of a President, Secretary, 
 and three Trustees, to be elected annually; and a Commit¬ 
 tee of six members, to be chosen every six months. 
 
 ARTICLE II. 
 
 The election for President, Secretary and Trustees, shall 
 take place on the third Monday in January, annually, at 
 the usual place of meeting, and they shall be respectively 
 chosen by ballot, by a plurality of votes of the members 
 present; and the Committee shall be chosen the third 
 Monday in January, and the third Monday in July. 
 
 ARTICLE III. 
 
 The President, in order to preserve regularity and de¬ 
 corum, is authorized to fine any member six cents, that is 
 not silent, when order is called for by him, and all members 
 are to address the chair, one at a time. 
 
 ARTICLE IV. 
 
 Any person becoming a member of this Society, shall 
 pay the sum of forty-three and a half cents on his admis¬ 
 sion, and six and a quarter cents as his monthly contribu- 
 
tion i and should any member, leave the city at any time* 
 and stay for the space of three months or upwards, if on 
 his return it can be proved that he has been so absent, he 
 shall still be deemed a lawful member, by paying one 
 month’s contribution. 
 
 ARTICLE V. 
 
 AH the money collected in this Society shall be delivered 
 into the hands of the Trustees, and they shall hold an equal 
 share tiU it amounts to fifty dollars ; they shall then deposit 
 it in the United States Bank, and it shall not be drawn on 
 except in case of a stand out, and then left to a majority of 
 the society. 
 
 ARTICLE VI. 
 
 The secretary shall keep a regular account of all the pro¬ 
 ceedings of this Society, and he for his services, shall re* 
 ceive one dollar per month, and twelve and a half cents for 
 each notice served on any member. 
 
 ARTICLE VII. 
 
 The President, Secretary and Committee, shall meet on 
 the second Monday in each month, to consult and propose 
 any measures they may think beneficial for the Society, 
 who shall assemble on the third Monday in each month, at 
 the hour of seven o’clock from September to March inclu¬ 
 sive, and at the hour of eight o’clock from March to Sep¬ 
 tember, and for non-attendance of President and Secretary, 
 to pay a fine of fifty cents, and any member of the Commit 
 tee to pay a fine of twenty-five cents. 
 
 ARTICLE VIII. 
 
 No member of this society shall work for an employer, 
 that has any Journeyman Cordwainer, or his apprentice in 
 his employment, that do not belong to this Society, unless 
 the Journeyman come and join the same: and should anv 
 
149 
 
 member work on the seat with any person or persons that 
 has not joined this society, and do not report the same to 
 the President, the first meeting night after it comes to his 
 knowledge, shall pay a fine of one dollar. 
 
 ARTICLE IX. 
 
 If any employer should reduce his Journeyman’s wages 
 at any time, or should the said Journeyman find himself 
 otherwise aggrieved, by reporting the same to the Com¬ 
 mittee at their next meeting, they shall lay the case before 
 the society, vrho shall determine on what measures to take 
 to redress the same. 
 
 ARTICLE X. 
 
 The name of each member shall be regularly called over 
 at every monthly meeting, and should any member be ab¬ 
 sent when his name has been called over three times suc¬ 
 cessively, shall pay a fine of twelve and a half cents for the 
 first night, twenty-five cents for the second, and fifty cents 
 for the third ; and if absent three successive meeting nights, 
 the Secretary shall deliver him a notice, and if he does not 
 make his appearance after being notified, on the following 
 meeting night, (unless.he can assign some just cause for 
 staying away,) shall pay a fine of three dollars, 
 
 ARTICLE XI. 
 
 Any Journeyman Cordwainer, coming into this city, that 
 does not come forward and join this society in the space 
 of one month, (as soon as it is known,) he shall be notified 
 by the Secretary, and for such notification he shall pay 
 twelve and a half cents ; and if he does not come forward 
 and join the same on the second meeting of the society, af¬ 
 ter receiving the notice, shall pay a fine of three dollars, 
 ARTICLE XII. 
 
 Any member of this society having an apprentice or ap¬ 
 prentices, shall, when he or they become free, report the 
 
 
150 
 
 same to the President, on the first monthly meeting follow¬ 
 ing; and if the said apprentice or apprentices do not come 
 forward and join the Society in the space of one month from 
 the time of the report, shall be notified by the Secretary, 
 and if he does not come forward within two months after 
 receiving the notification, shall pay a fine of three dollars. 
 
 ARTICLE XIII. 
 
 There shall be delivered to the President at every month¬ 
 ly meeting, a sufficient sum of money to defray the neces¬ 
 sary expenses of this society. 
 
 ARTICLE XIV. 
 
 If any member should be guilty of giving a brother 
 member any abusive language in the society-room, during 
 the hours of meeting, who might have been excluded from 
 this society by his misdemeanor, but by making concession 
 have been reunited, he shall pay a fine of twenty-five cents. 
 
 ARTICLE XV. 
 
 Every member of the society shall inform the Secretary 
 of his place of residence, and should they at any time 
 change their place of residence, they shall notify the same 
 to the Secretary on the first monthly meeting following ; 
 not complying with this, shall pay a fine of twenty-five 
 cents. 
 
 ARTICLE XVI. 
 
 Any member may propose as amendments to this const; 
 tution, new articles, or alterations of those in force, which 
 proposed amendments must be delivered to the Committee 
 in writing, who shall present the same to the Society, at 
 their next monthly meeting, and if two-thirds of the mem¬ 
 bers present concur therein, such amendment shall become 
 a part of the constitution. 
 
 4 . 
 
 
151 
 
 ARTICLE XVII. 
 
 It is the .duty of the private members to attend the meet¬ 
 ings and cooperate with its officers in promoting the wel¬ 
 fare of the society, for in doing this, they will recollect 
 they are promoting their own individual welfare. 
 
 A LIST OF WAGES 
 
 FOR THE JOURNEYMEN CORD WHINERS 
 
 IN THE CITY OF NEW-YORK, 
 
 Agreed to on the First Day of March, 1805. 
 
 Back Strap Boots, fair tops - 
 Back Strapping the top of do. 
 
 Ornament Straps closed outside on do. 
 
 Back Strap Bootees, ... 
 
 Wax Legs closed outside, plain counters, fair tops, 
 Cordovan Boots, fair tops, - 
 
 Cordovan Bootees, - 
 
 Suwarrow Boots, closed outside, 
 
 Do. inside closed, bespoke, - 
 
 Do. do. inferior work, do. 
 
 Binding Boots, - 
 
 Stabbing do. -- 
 
 Footing Old Boots, - 
 
 Foxing New Boots, - - - - , 
 
 Foxing and Countering Old Boots, 
 
 Do. without Counters, - 
 
 Shoes, best work, - 
 
 Do. inferior work, - - . „ 
 
 Pumps, French edges, .... 
 
 Do. Shouldered do. - 
 
 Golo Shoes, - 
 
 Stitching Rans, - 
 
 Cork Soles, - 
 
 JDols. CfS. 
 4 00 
 
 - 0 75 
 0 25 
 3 50 
 3 25 
 3 00 
 
 2 50 
 
 3 00 
 2 75 
 2 50 
 0 25 
 
 - 0 25 
 2 00 
 0 50 
 2 00 
 
 • 1 75 
 
 1 12 
 1 00 
 1 12 
 1 00 
 1 50 
 ■ 0 75 
 
 0 50 
 
15z 
 
 it was further proved, and not denied by the defendants, 
 that on several occasions measures had been taken to give 
 effect to their constitution, or rules, by giving notices to 
 masters having journeymen or apprentices in their employ, 
 not members of the body ; viz. for having more than two ap¬ 
 prentices, or employing apprentices other than those of the 
 members of the society; also, for employing journeymen 
 who had infringed their rules. The notice in such cases 
 was, that if they persisted to employ such persons, &c. or to 
 disregard the rules of the body, their shop should be desert¬ 
 ed by all the workmen of the society. This had been in 
 some instances effected by means of what they called a 
 strike against the shop , and the offending member was then 
 termed a scab , and wherever he was employed no others of 
 the society were allowed to work. There was a strike 
 against the shop of Corwin Aimes , but as it appeared to 
 the society that they contrived to defeat its operation by 
 privately getting their work done at other shops, the society, 
 in November, 1809, ordered a. general strike against the mas¬ 
 ters. There were one hundred and eighty-six members, 
 and about as many journeymen who were not members, but 
 all the best workmen were of the society. Benjamin who 
 testified as to this general strike, said he never knew of but 
 one general turn out. He testified that he had been fined 
 and threatened for working against the rules of the society, 
 He admitted on his cross-examination, that he came volun¬ 
 tarily into the society, and also, that on the question for a 
 p-eneval turn out, the members voted by secret ballot, and 
 that no compulsion is used, but every man votes according 
 to his inclination, the majority carries it, and then it be¬ 
 comes a law, and the contraveners of it are scabbed. Ed¬ 
 ward Whitess had worked for Convin Aimes , about four 
 
153 
 
 or five years, and had joined the society about six or seven 
 years ago. He was fined at different times, and at the 
 time of the general meeting there was a rumpus in the so¬ 
 ciety, which, with the multiplicity of the fines, determined 
 him to leave it, and change his occupation, and take to 
 cramping bootlegs. He had, while a member, acted as sex¬ 
 ton of a church, for which he had sixty dollars yearly. 
 This prevented his attendance and occasioned him some¬ 
 times to be fined. During the time he was first scabbed, 
 his employer was obliged to discharge him until he paid his 
 fine and was reinstated. He admitted that he came volun¬ 
 tarily into the society, and remained in it six or seven years. 
 
 Mr. Aimes proved that he had received several notices, 
 one to discharge Whitess , which he complied with ; another 
 to discharge a boy, an apprentice of Britton , who had 
 worked with him two or three years. Witness thought it a 
 great hardship that the old man should lose the profit of the 
 work of the apprentice he had instructed and did not dis¬ 
 charge him, for which the body struck against him. On 
 eross-examination he admitted he had contributed some 
 money towards carrying on this prosecution. 
 
 James Britton confirmed this testimony, and said, 
 that after he had instructed his apprentice, whose work 
 was his chief support, (he himself being in years,) he was de¬ 
 prived of that help by the influence of the body of which 
 he was not a member. 
 
 Thomas Lewis was also examined; his evidence was 
 not very material, being only confirmatory of the above 
 particulars. 
 
 The defendants offered to show, as well from the wit¬ 
 nesses on the part of the prosecution, as from other wit¬ 
 nesses whom they should call, 
 
 v 
 
154 
 
 1st. That long ago, prior to the strike or turn out, there 
 was a combination of the masters for the express purpose 
 of lowering the wages of the working men, and which was 
 oppressive to them ; and that their society originated in 
 the necessity of protecting themselves against such combi¬ 
 nations ; and further, that the masters were now in com¬ 
 bination for the purpose of this prosecution. 
 
 This was objected to and overruled, upon the ground 
 that the misconduct of the masters would be no justifica¬ 
 tion of die defendants. It was then offered as evidence in 
 mitigation, but the Court said, that if there were circum¬ 
 stances merely in mitigation of the sentence, they would 
 come more properly in affidavit in case of conviction. 
 
 2d. The defendants attempted to show, that the wages 
 and rates contended for, and demanded by, the journey men, 
 were reasonable, and no higher than to afford them a bare, 
 maintenance. 
 
 This evidence was not received, because none had ap¬ 
 peared on the part of the prosecution, to show that unrea¬ 
 sonable or extravagant demands had been made. It was 
 therefore held irrelevant to rebut what had not been proved. 
 
 3d. The defendants proposed to prove, that the masters 
 made an excessive profit on the labour of the workmen, but 
 that was refused also, upon the former ground, that the mis¬ 
 conduct of the masters would not justify a conspiracy or 
 illegal combination in the journeymen. 
 
 Various discussions arose touching the admissibility and 
 relevancy of evidence, how far the acts of one person should 
 preclude others ; how far, though the day laid in the in¬ 
 dictment was not material, the prosecutor should still be 
 confined to one single conspiracy under each count, and 
 
155 
 
 having once fixed the period, be held to it, and prevented 
 from wandering in evidence, so as to surprise and bsfRe the 
 defence : the more so, as the conspiracy was here laid, 
 not on divers days and times , but on a certain day. Some 
 discussions also took place, touching the proof; how far the 
 conspiracy should be first proved, before particular acts 
 against individuals ; and such other topics, as arise in 
 every trial for conspiracy, from the complex and indefinite 
 nature of the charge. All such points being of general appli¬ 
 cation and not materially interwoven with the object of this 
 report, are purposely omitted. They, however, necessarily 
 consumed much time, and the evidence was not closed till 
 eight or nine o’clock. 
 
 The Court having, in the morning, intimated, that it 
 would sit till twelve o’clock, rather than adjourn, defend¬ 
 ants’ counsel were called upon to sum up, and Mr. Samp¬ 
 son , pursuant to arrangement with Mr. Colden, commenced. 
 He observed, that the difficulties under which he laboured, 
 were beyond his force, and that he was conscious enter¬ 
 ing upon an argument of such a nature, under such disad¬ 
 vantages, was a forlorn endeavour. The evidence given, 
 did not in any shape alter the principles upon which he had 
 argued six months ago, for the quashing of the indictment. 
 That argument was addressed to a court of law, and found¬ 
 ed upon the law, supposing all the facts charged in the in¬ 
 dictment to be proved. Nothing, certainly, had come out 
 in evidence, to prejudice the defendants, for there was not 
 a single instance of violence or disorderly conduct, and it 
 was conceded, that the demands of the workmen were not 
 unreasonable or extraordinary. The single question would 
 be, as it was considered by him, whether the law of En¬ 
 gland was to govern this case. He was aware how far 
 
156 
 
 the doctrines of the English law upon this head, had unfor¬ 
 tunately given a bias to the judgment of many individuals; 
 and no doubt, some of those whom chance had arrayed to 
 sit in judgment on this cause, must be presumed, however 
 honourable and intelligent, to have imbibed more or less of 
 that opinion. The jury, it is true, are judges of law and 
 fact in criminal cases, and the arguments necessary to dis¬ 
 entangle the question from such preconceived notions, must 
 be of a nature too prolix and arduous, to be offered with 
 a fair prospect of success, to a jury already exhausted and 
 fatigued by a painful sitting, at a season when the powers 
 of mind and body languish. Mr. S. further observed, that 
 in the former argument, he had found it necessary to turn 
 over many volumes in order to show grounds for his 
 opinions, and to cite numerous cases which it would be im¬ 
 possible now, at candle light, with sight so fatigued, and 
 faculties so exhausted, and in a state of healdr so ill suited 
 to exertion, to resort to. The very circumstance of his 
 having undertaken to report the former arguments, with 
 all the tiresome labour of transcribing, compiling and cor¬ 
 recting of the press, had effaced the livelier impressions of 
 first conceptions, and must impart to what he should offer 
 the vapid insipidity of a tale twice told. The many books 
 already referred to, and now produced by the opposite coun¬ 
 sel, seemed to forewarn him that they meant to renew the 
 learned efforts of the former contest, and many of them re¬ 
 ferred to by Mr. Griffin, were not noticed till the moment 
 it was necessary for him to reply to them, when it. 
 was impossible for him to answer but from vague recollec¬ 
 tion or repetition of his former argument, or reference 
 to the printed report. [Mr. S. in referring to his former 
 argument, read the authorities from the printed report, 
 but omitted much the greater part, from unwillingness to 
 4 
 
fatigue the attention of the jury already exhausted. After 
 he had concluded, it was'thought too late to hear the other 
 counsel, and the court udjourned till the following day 
 at ten o’clock.] 
 
 Saturday , July 14th. 
 
 Mr. Golden this day followed Mr. Sampson , and re-ex- 
 amined the principles of the law, and the leading authori¬ 
 ties ; reasoning upon them, and applying them to the case 
 with great discrimination and ability. Admitting all the 
 cases cited against the defendants from the English books 
 to be of full authority, that none of them would warrant a 
 conviction. It seemed to him, that the moment it was ad¬ 
 mitted that the object of the conspiracy was not criminal, 
 there ought to be an end of the prosecution. And the doc¬ 
 trine and argument touching a conspiracy, to do a lawful act 
 by unlawful means, seemed to him a distinction without a 
 difference, an unnecessary refinement, and at best a begging 
 of the question. To conspire to use unlawful means, was 
 to conspire to do an unlawful thing, and was an unlaw¬ 
 ful conspiracy. All that he admitted freely. But when 
 that was admitted, the question, whether there had been 
 such a conspiracy, was not a whit advanced, and he contend¬ 
 ed as confidently as before, that there had not. He read 
 and commented upon the constitution of the society, and 
 maintained that all the words of coercion with which it 
 abounded, all the terms of arbitrary command, which 
 might furnish such fertile subjects for declamation, were 
 
158 
 
 innocent and harmless, and would be so considered by an) 
 candid judgment, when the undeniable truth was taken 
 into the account, that the only compulsion they used 
 was a refusal to work with those whom they considered as 
 joining in oppression against them. There was a well re¬ 
 ceived and settled definition of crimes, by which they were 
 divided into two comprehensive classes those called mala in 
 se, which were crimes against the universal laws of God 
 and nature, and those termed mala prohibita , or offences 
 against positive institutions. There must in this country be 
 statutes enacted by the legislature, which speaks the will 
 and voice of the people. Beyond this definition there can 
 be no crime, and it is impossible to draw the refusal of 
 a body of men to labour under terms disadvantageous to 
 themselves, or which they think disadvantageous to them, 
 under either branch of this definition, without more subtlety 
 than ought to be admitted in the law ; and more straining 
 than the genius of our code allows to be used against de¬ 
 fendants in anv criminal case. 
 
 * 
 
 Mr. Griffin first summed up on the part of the prosecu¬ 
 tion. The law having been already so fully discussed, and 
 the necessary limits of this report rendering it necessary t© 
 compress the account of the trial, on which the facts were 
 few, and of no great interest or novelty, nothing more can 
 be given than the outlines of the summing up. 
 
 To the authorities cited by the counsel for the prosecu¬ 
 tion on the former argument, Mr. Griffin added the follow¬ 
 ing : Rex v. Pispal , 3 Burr. 1320. the remarks of Lord 
 Mansfield and Justice Tates , on the subject of conspiracies, 
 in Fertile v. Lord Clive, 4 Burr. 2475, 2476. the obser¬ 
 vations of Justice Grose on the same subject, in Rex v. 
 Maxvbeij et a!. 6 D. E. 636. and the cases of Rex v. 
 
159 
 
 Hammond et al. 2 E.sp. Rep . 719. Rex v. Locker et al, 5 
 Esp. Rep. 107. Rex v. Salter et al. 5 Esp. Rep. 125. 
 
 Mr. Griffin applied himself very forcibly in answer to 
 the observations of Mr. Sampson , upon the common law, 
 and instead of judging it by the sharp rules of criticism, 
 desired that it might be fairly and candidly judged by its 
 effects. He drew a comparative view of the condition of 
 the English people, and the English peasantry, with that of 
 the people of the continent of Europe ; of the independence 
 of the one, and the debased and servile condition of the 
 other. Admitting that the national code was the source 
 of national improvement, manners, and civilization, as was 
 argued by Mr. Sampson , what better eul >gium could be 
 passed upon the common law of England , than the flou¬ 
 rishing and happy situation of the nation where that code 
 prevailed. If the, people of England with all their griev¬ 
 ances are so much above the servile state of boors, or the 
 debased and benighted condition of those of Spain and 
 Portugal , and other countries where the sword and the in¬ 
 quisition govern without control of law, it must be, even 
 from the argument of his opponent, that the national code 
 is more exalted and more beneficial. 
 
 Why is it, added he, that “ slaves cannot breathe in En- 
 “ gland?” Why is it, that “ they touch that country and 
 u their shackles fall ?” It is the common law which strikes 
 off their fetters, it is the common law which expands them 
 into freemen. 
 
 If England in the times of general disorder throughout 
 Europe , escaped almost singly from the devastations of 
 civil war, revolution and invasion, it was owing to the love 
 of the laws that animated the people to contend heart and 
 hand, for their precious birthright, and.to the genius of their 
 
) 
 
 160 
 
 constitution that watched over their destiny. What else 
 had protected the English people from guillotine, bastile and 
 inquisition ? What else had implanted in the United States 
 the principles of freedom which had grown up and matured, 
 and finished in their perfect independence. Why was their 
 condition even as colonies, so much above that of Brasil 
 or Mexico , countries towards which nature had been per¬ 
 haps more lavish of her favours ? It was the principles of 
 the common law which our ancestors brought with them, 
 which first prompted them to assert their independence, 
 and then in the days of trial and of strife, moderated the fury 
 of revolution, and served as sure and solid foundations of 
 future security. It was in that free and hallowed volume 
 which served as their palladium, and in which they found 
 written the first lessons of their independence. It was the 
 mild spirit of the common law that tempered the evils of 
 civil convulsion and calmed the agitated waves, and finally 
 shone forth with renovated lustre, when those storms had 
 passed away—that common law, the great magazine which, 
 supplied our state and national constitutions with abundant 
 and useful materials for their solid structure. 
 
 Mr. Griffin then argued upon the evidence, and admitted 
 that there had been no personal violence, no outrage or dis¬ 
 order, but asked if the coercive measures of the society 
 were less cruel or oppressive for that reason. He made 
 strong remarks upon the imperious and tyrannical edicts of 
 the constitution and by-laws of the society, and asked 
 whether it was possible for any workman to enjoy without 
 molestation, the indisputable rights of peace, neutrality, and 
 self-government, in his own private and particular concerns. 
 A journeyman was neither free to refuse entering into the 
 society, nor at liberty, having done so, to leave it, without 
 
161 
 
 incurring ruin or unmerited disgrace ; and ta the real im¬ 
 poverishment which he must undergo, and to the evils 
 heaped upon all who befriend him; to all this was added, 
 the opprobrious epithet of scab. If an individual master re¬ 
 fused obedience to their laws, or fell under the displeasure 
 of the society, a stroke was directed against him. And, 
 though this stroke was not a corporal wound, it was a cruel 
 and ruinous infliction, from which he could have no re¬ 
 lief, unless the law provides one. He was proscribed 
 without remorse, and outlawed without mercy. 
 
 If the master workmen in general happened to offen.. 
 this society, a general cessation of labour amongst the mem¬ 
 bers of their own body was decreed, to %vhich obedience 
 was rigorously enforced ; however much the necessities 
 of their families might require their work, idleness was 
 enjoined upon them. They were commanded to do no 
 manner of work ; but it was a sabbath not of rest, but of 
 vengeance, of desolation, and of suffering. Mr. Griffin 
 urged then, a variety of other topics with great strength 
 and effect, and concluded by what might be understood as 
 a summary of his argument. He did not complain of the 
 defendants for forming themselves into a society, but for- 
 compelling others to become members. He did not accuse 
 them of having advanced the price of their own labour, but 
 of conspiring to regulate, by measures of rigour and coer¬ 
 cion, the wages and the will of others ; his charge against 
 them was not that they chose and determined for what em¬ 
 ployers they would or would not work, but that they had 
 exercised an aristocratic and tyrannical control over third 
 persons, to whom they left neither free will nor choice ; 
 and that they employed, to effect this purpose, means of in¬ 
 terference in their concerns to which it was impossible for 
 the sufferers to oppose any resistance. 
 
 x 
 
162 
 
 Mr. Emmet closed the prosecution. Before he began, 
 Mr. Sampsoti cited a passage from Reeves's History of the 
 Common Law , to show that besides the ordonnances to which 
 he had adverted all to be found in Keble's Statutes , there was 
 a special jurisdiction and particular laws touching the sta¬ 
 ple of wool, and that the charge of conspiracy against the 
 merchants in the reign of Edward III. might have very 
 possibly been for an infringement of that code, which was 
 called the law' of the staple. So that there were two ways of 
 accounting for it, viz. by the general statutes, or by these 
 particular regulations, in neither of which it could be an 
 argument that such conspiracies were by the common law. 
 Mr. S. said he V'ould go no higher into antiquity. If his 
 learned friend chose to do so, he might now mount up Ja¬ 
 cob's ladder, of w hich one end was in this world and the 
 other in the world above. Mr. S. also cited a certified 
 opinion of Judge Scott of Maryland , in MS. where two 
 cases were adjudged, one w'here after conviction a new- 
 trial was refused, and another, when on demurrer to evidence 
 judgment was for the defendant—upon this distinction, 
 that where the party said to be injured went voluntarily 
 into the society, there was no injury done him, however 
 it might be if he was compelled. This, he said, was appli¬ 
 cable to the cases of Benjamin and Whitess , both of whom 
 had entered voluntarily. 
 
 Mr. Emmet declared that it was not his intention to ad¬ 
 vert on this occasion to a single law case, nor to open one 
 of the numerous authorities that lay upon the table, because 
 he had observed with what pain the jury had endeavoured 
 to listen to the elaborate arguments of his learned adversa¬ 
 ries, whenever they turned upon abstruse deductions from 
 the antiquities of the law. He neither blamed the counsel 
 nor the jury in this respect ; both had tried to do their duty, 
 
 \ 
 
 I 
 
163 
 
 and he could not withhold his admiration of the research 
 and ingenuity of his friend, who had shown such force of 
 learning and industiy. But it was plain that it was but la¬ 
 bour in vain ; for it never could be expected from the 
 most intelligent jurors that ever were empannelled, that 
 they should, in the accidental discharge of a duty for which 
 they had no previous course of preparation, follow the 
 ablest and clearest logician through a range of argument 
 which it must have cost a practised and educated lawyer so 
 much time and trouble to compose. It was what never 
 was required of any jury, and it was not within their pro¬ 
 vince, nor were they the worse jurors for not being deep 
 read lawyers. The constitution had appointed two distinct 
 offices. Judges had to determine questions of law, and 
 jurors to decide upon questions of fact ; and although the 
 jury in criminal cases had the undoubted power, when they 
 chose to exert it, of deciding upon law and fact, yet that 
 was a right or power which a discreet jury would never 
 assert but in cases where the strongest exigencies required 
 them to do so. There were indeed occasions when import¬ 
 ant public principles were in jeopardy, when it might be 
 used as a saving and salutary privilege ; but nothing less 
 than such occasions would warrant a jury to pronounce up¬ 
 on what no understanding, by the simple force of common 
 sense, could be equal to.- The certainty of the criminal 
 law is as important as that of the civil, and that can only 
 be preserved by leaving it to be expounded by judges, to 
 whom education and habit have rendered it familiar ; and 
 who join knowledge of its theory to the aptitude which 
 practice gives. Discreet jurors know that no science is in¬ 
 tuitive, and that law, which comprehends the rules of alt 
 
 \ 
 
 men’s actions, can never from its nature be so simple, as 
 
164 
 
 that some difficulties must not at times ^rise in the exposi¬ 
 tion of it. When they do, it is impossible to lay down the 
 rule, but from a knowledge of what has been established 
 by usage or by statute, and to do so safely, a knowledge of 
 causes and consequences, which practice only gives, is es¬ 
 sential. As well might a lawyer think himself qualified 
 without any previous education, to be a merchant, a farmer, 
 or an artist, as any of those to be a lawyer. And this 
 plainly appeared to me in the course of the summing up on 
 the other side. Where it turned upon the facts in evidence, 
 I saw the jury giving an attentive ear ; where it was gene¬ 
 ral reasoning I could mark them listening with patience •; 
 where it was humour and fancy, I saw the pleasure they 
 received, and I joined in it, for wit and vivacity will always 
 captivate and please. But when that laboured chain of in¬ 
 duction which did credit to the industry and reasoning pow¬ 
 ers of my learned friend was offered to the jury-box, I 
 could discern in their individual countenances, the truth 
 of that sentence which says, “ to questions of law jurors 
 are not to answer.” 
 
 One observation, however, touching the strictures pass¬ 
 ed upon the absurd antiquities of the common law; and I 
 am far from denying the barbarity of its origin, and that it 
 originated in dark and ignorant times. It is this : that its 
 course has been marked w r ith progressive improvement, 
 which alone is eulogium and security enough. Mr. 
 Emmet then passed to the constitution of the society, and 
 dwelt with his usual force upon several of its provisions, 
 which he represented as arbitrary and tyrannical, and going 
 to erect an imperium in imperio , and overbear the rights of 
 the citizen, and the law of the land. 
 
 " He took advantage of the hardship of Briton's case, and 
 drew a lively and pathetic picture of the sufferings of an 
 
 > 
 
 
365 
 
 inoffensive old man, and of the cruelty of exacting from his 
 employer, the hard sacrifice of his abandonment, at the 
 peril of his own destruction. He said he was not the ad¬ 
 vocate of any oppression, and if the masters had combined 
 for any purpose of oppression, or in any shape against law, 
 he would wish as much as any man that they should be in¬ 
 dicted and convicted. 
 
 His address was such as the reporter would willingly 
 lay before the public, did the limits prescribed to him ad¬ 
 mit of it; but the same reasons for which the speeches 
 of the other counsel have been abridged, must serve as his 
 apology. 
 
 The charge of the court was then delivered by his 
 honour the Mayor , to the following effect: 
 
 He observed there were two points of view in which the 
 offence of a conspiracy might be considered ; the one where 
 there existed a combination to do an act, unlawful in it¬ 
 self, to the prejudice of other persons; the other where 
 the act done, or the object of it, was not unlawful, but un¬ 
 lawful means were used to accomplish it. As to the first, 
 there could be no doubt that a combination to do an unlaw¬ 
 ful act was a conspiracy. The second depended on the 
 common principle, that the goodness of the end would not 
 justify improper means to obtain it. If, therefore, in the 
 present case, the defendants had confederated either to do 
 an unlawful act, to the injury of others, or to make use of 
 unlawful means to obtain their ends, they would be liable 
 to the charge of a conspiracy. He observed, that the 
 court did not mean to say, nor did the facts in the case 
 require them to decide, whether an agreement not to work, 
 except for certain wages, would amount to this offence, 
 without any unlawful means taken to enforce it. 
 
166 
 
 Much has been said as to the application of the com¬ 
 mon law of England to the case. The absurdities of the j 
 ancient common law, and also of the statute law of En¬ 
 gland , had been exhibited in the strongest light. It was 
 well known, that many of the ancient rules of the common 
 law on this and other subjects had been exploded or be¬ 
 come obsolete, and that little of the mass of absurdities 
 complained of by the defendants’ counsel, remained in 
 force even in England. In this state the court could 
 not be at a loss in deciding how far the common law 
 of England was applicable. Our immediate ancestors 
 claimed it as their birthright. They considered it as se¬ 
 curing to them many of their highest privileges, and they 
 often appealed to that law in support of their rights, and 
 against the arbitrary extension of power by the British 
 parliament. The constitution of this state had also ex¬ 
 pressly adopted it, and declared, that such parts of the 
 common law of England , and the statute law of England 
 and Great Britain , and of the acts of the legislature of the 
 colony of New-Tork , as together did form the law of said 
 colony on the 19th April , 1775, and not repugnant to the 
 constitution, should be and continue the law of this state, 
 subject to such alterations and provisions as the legisla¬ 
 ture of this state should from time to time mak^ concern¬ 
 ing the same, &c. No alteration having been made by 
 our constitution or laws, the common law of England, as 
 it existed at the period last mentioned, must be deemed 
 to be applicable, and by that law the principles already 
 stated appeared to be well established. No precedents, it 
 was true, of convictions or judgments upon them had 
 been produced from our own courts', but no strong in¬ 
 ference could be drawn from that, as until lately such pre¬ 
 cedents had not been preserved, and no printed reports of 
 adjudged cases had been published. 
 
167 
 
 The injury produced by unlawful combinations might 
 affect any person or number of persons, as in the present 
 case the master workmen, or the fellow journeymen of the 
 defendants, or any* other individuals. It appeared in evi¬ 
 dence, that the society of journeymen, of which the de¬ 
 fendants were members, had established a constitution, or 
 certain rules for its government, to which the defendants 
 had assented, and which they had endeavoured to enforce. 
 These rules were made to operate on all the members of 
 •the society, on others of their trade who were not mem¬ 
 bers, and through them on the master workmen, and all 
 were coerced^to submit, or else the members of the society 
 which comprehended the best workmen in the city, were 
 to stop the work of their employers. One of the regula¬ 
 tions even required that every r person of their trade, whom 
 they thought worthy of notice, should become a member 
 of the society, and of course become subject to its rules, 
 and in case of neglect or refusal, it imposed fines on the 
 person guilty of disobedience. When the society deter¬ 
 mined on any measure, it found no difficulty in carrying 
 it into execution. If its ordinary functions failed, it en¬ 
 forced obedience by decreeing what was called a strike 
 against a particular shop that had transgressed, or a ge¬ 
 neral turn out against all the shops in the city, terms which 
 had been explained by the witnesses, and were sufficiently 
 understood. These steps were generally decisive, and com¬ 
 pelled submission in all concerned. 
 
 Whatever might be the motives of the defendants, or 
 their object, the means thus employed were arbitrary and 
 unlawful, and their having been directed against several 
 individuals in the present case, it was brought, in the opi¬ 
 nion of the Court, within one of the descriptions of the 
 offence which had been given. 
 
168 
 
 The jury retired, and shortly after returned a verdict 
 against the defendants. 
 
 The sentence was then passed by his honour the Mayor , 
 who observed to the defendants, that the novelty of the 
 case, and the general conduct of their body, composed 
 of members useful in the community, inclined the court to 
 believe that they had erred from a mistake of the law, and 
 from supposing that they had rights upon which to found 
 their proceedings. That they had equal rights with all other 
 members of the community was undoubted, and they had 
 also the right to meet and regulate their concerns, and to 
 ask for wages, and to work or refuse ; but that the means 
 they used were of a nature too arbitrary and coercive, and 
 which went to deprive their fellow-citizens of rights as 
 precious as any they contended for. That the present ob¬ 
 ject of the court was rather to admonish than to punish ; 
 but an adjudication upon the subject being now solemnly 
 had, it was recommended to them, so to alter and modify 
 their rules and their conduct, as not to incur in future the 
 penalties of the law. 
 
 They were fined each one dollar , with the costs.