The court imposed fines on several persons summoned as jurors, for their non-attendance, and adjourned the *267trial of the indictment till 10 o’clock on the 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 determine upon.
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, Benjamin, proved the rules as contained in their constitution printed in 1805, and afterwards reenacted. He also testified 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 defendant’s counsel at first objected to its being given in evidence as such ; but in the course of the examination thought proper to admit it.
It was farther 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; via. for having more than two apprentices, 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 deserted by all the workmen of the society. This had been in some instances effect*268ed by means of what they called a strike against the shop¡ anc^ the offending member was then termed a scab, and wherever he was employed no others of the society were ah°wed 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 masters. There were one hundred and eighty-six members, and about as many journeymen who were not mém-> Bets, but all the best workmen were of the society. 'Bern jamiu, 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 voluntarily into the society, and also, that on the Question for a general 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 becomes a law, and the contraveners of it are scabbed. Edward Whitess had worked for Corwin & Aimes, about four 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 society, which, with the multiplicity of the fines, determined him to leave it, and change his occupation, and take to cramping boot legs. He hard, while a member, acted as sexton to a church, for which he had sixt}?- dollars yearly. This prevented his attendance, and occasioned him sometimes 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 *269Voluntarily 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 discharge him, for which the body struck against him. On cross-examination, he admitted he had contributed some money towards carrying on this prose» cution.
James Britton confirmed this testimony, and said, that after he had instructed his apprentice, whose work was , . . . „ . . . . , , Ins chief support, (he himself being in years,) he was deprived 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 witHesses on the part of the prosecution, as from other witnesses whom they should call,
• . lst. That long ago, prior to the strike or turn out, there was a combination of the masters for the express r . 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 combinations; and further, that the masters were now in combination for the purpose of this prosecution.*
This was objected to and overruled, upon the ground J 3 1 ° that the misconduct of the masters would be no justifica*270tion of the defendants. It was then offered as evidence in mitigation, but the court said, that if there were cir» cumstanees merely in mitigation of the sentence, they would come more properly in affidavit in case of convic» tion.
2d. The defendants attempted to show, that the wages and rates contended for, and demanded by, the journeymen, were reasonable, and no higher than to afford them a bare maintenance.
This evidence was not received, because none had appeared on the part of the prosecution, to show, that unreasonable 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 this was refused also, upon the former ground, that the misconduct of the masters would not justify a conspiracy or illegal combination in the journeymen.
The court having, in the morning, intimated, that it would sit till twelve o’clock, rather than adjourn, defendants’ counsel were called upon to sum up, and Mr. Sampson, pursuant to arrangement with Mr. Golden, commenced.
Mr;S. observed, that the difficulties under which he laboured, were beyond his force, and he was conscious that entering upon an argument of such a nature, under such disadvantages, 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 [alluding to his argument upon a prior hearing of this case] was addressed to a court of law, and founded upon the law, supposing all the facts charged in the in*271dictment 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 England was to govern this case. He was aware how far the doctrines of the English law upon this head had unfortunately 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 disentangle 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. ¡3. farther 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 impossible now, at candle light, with sight so fatigued, and faculties so exhausted, and in a state of health 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 correcting 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. Tho many books already referred to, and now produced by the opposite counsel, seemed to forewarn him that they meant to renew the learned efforts of the former contest, and many ofthem referred 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 *272but from vague recollection or repetition of his former argUment¡ or reference to. tlie printed report. [Mr. S. in refer™g to his former argument, read the authorities from the printed report, but omitted much the greater part, from unwillingness to 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 adjourned till the following day at ten o’clock.]
Mr. Golden followed Mr. Sampson, and re-examined the principles of the law, and the leading authorities; reasoning upon them, and applying them to the case with great discrimination and ability. Admitting all the cases cited againt 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 admitted that the object of the conspiracy was not criminal, there ought to be an end of the prosecution. And the doctrine 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 tacón spire to do an unlawful thing, and was an unlawful -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. contended 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 innocent and harmless, and would be so considered by 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-received and settled definition of crimes, by which they *273were 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 speak the will and voice of the people. Beyond this definition there can be no crime, and it is impossible to draw the re_ fusal 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 defendants in any criminal case.
Mr. Griffin first summed up on the part of the prosecution. The law having been already so fully discussed,, and the necessary limits of this report rendering it necessary to compress the account of the trial, on which the facts were few, and of no great interest or novelty, noth-; ing more can be given than the outlines of the summing up.
To the authorities cited by the counsel for the prosecution on the former argument, Mr. Griffin added the following : Rex v. Rispal, 3 Burr. 1320, the remarks of Lord Mansfield and Justice Yates, on the subject of conspiracies, in Virtue v. Lord Clive, 4 Burr. 2475, 6, the observations of Justice Grose on the same subject, in Rex v. Mawbey et al. 6 D. & E. 636, and the cases of Rex v. Hammond et al. 2 Esp. 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.Iaw ; 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 *274of 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 eulogim could be Passe(^ uPon the common law of England than the flourishing and happy situation of the nation where that code prevailed; if the people of England, with all their grievances, 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 inquisition 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 England?” Why is it, that “they touch that country and 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 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 Brazil or Mexico, countries towards which nature had been perhaps more lavish of her favours ? It was the principles of the common law which our ancestors brought with them, which first prompted them to assei’t 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 *275was 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 eonvulsion 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 ordisorder, 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 incurring ruin or unmerited disgrace; and to the real impoverishment which he must undergo, and to the gvils heaped upon all who befriend him—to all this was added, the opprobrious epithet of scab. If an individual master refused obedience to their laws, or fell under the displeasure of the society, a stroke was directed against him. And, though the stroke was not a corporal wound, it was a cruel and ruinous infliction, from which he could have no relief, unless the law provides one. He was proscribed without remorse, and outlawed without mercy.
If the master workmen in general happened to offend this society, a general cessation of labour amongst the members of their own body was decreed, to which 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 man*276ner of work'; but it was a Sabbath not of rest, but of veilgeanc6) 0f desolation, and of suffering. Mr. Griffin urged then a variety of other topics with great strength and effeet, 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 coercion, the wages and the will of others; his charge against them was not that they chose and determined for what employers they would or .would not work, but that thfey 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 interference in their concerns to which it was impossible for the sufferers to oppose any resistance;
Mr. Emmet closed the prosecution. Before he began,' Mr. Sampson cited a passage from Reeve’s History of the Common Law, to show that besides the ordinances to which he had adverted, all to be found in Keble’s Statutes', there was a special jurisdiction and particular laws touching the staple of wool, and that the charge of conspiracy agaii^t 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 thaj 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 would go no higher into antiquity. If his learned friend chose to do so, he might now mount up Jacob’s ladder, of which 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 *277were adjudged, one, where after conviction a new trial was refused, and another, when on demtirrer to evidence judgment was for the defendant; on 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 applicable to the cases of Benjamin and Whitess, both of whom had entered voluntarily.
Mr. Emmet declared that it was not his intention to advert 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 adversaríes, whenever they turned upon abstruse deduction from the antiquities of the law. He neither blamed the counsel nor the jury in this respect; both had tried to do their duty, and he could not withhold his admiration of the research and ingenuity of his friend, who had shown such force of learning and industry. But it was plain that it was but 1 a hour in vain; for it never couldbe expectedfvom most intelligent jnyoys, that ever were empannelled. tliqt, they should,. _ULJthe_incidcntal,.dischai~se^ofmi^-dutv^f¿-> which they had no previous course of preparation, iollowing the ablest and clearest logician through a range of arguinent which it must have cost a practised and educated lawyer so much time and tronble to compose. It vvhat never was required of any jury; and it was not within their province, 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 undoubted power when they chose to exert it, deciding upon law and fact, yet that was a right or ■power which a discreet jurv would never assert but in. *278cases where the strongest exigencies required them to do 1T,, . , . 7 , . , ,. so. i. here were indeed occasions, when important 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 upon 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 intuitive, and that law, which comprehends the rules of all men’s actions, can never from its nature be so simple as that some difficulties must not at times arise in the exposition 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 ogives, is essential. As- well might a lawyer think himcsilf-qualified-without-a-ny- previous ^education, to be a mer"chant, afarmgry eran- artist,asan-y of those to -be a lawyei'-cAnd this plainly appca-rcdTo me in the course of the sumTriing up -on-the-other-side.- Where, it turned upon the. facts in evidence,rT-saw the- jury giving an attentive-ear; -where ifcw-as-geireraT reasoning," I could mark them lis--tening-wit-h patience ' where it wasrirumour and fancy,-! .-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 induction which did credit to the industry and reasoning powers 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*279ed 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 with progressive improvement, which alone is elugium 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 Britorús case, and drew a lively and pathetic picture of the sufferings of an 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 advocate 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 J J indicted and convicted.
His address was suchas the reporter would willingly lay before the public, did the limits prescribed to him admit 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 hon-our 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 itself, to the prejudice of other persons; the other where the act done, or the object of it, was not unlawful, but unlawful means* were used to accomplish it. As to the first, there could be no doubt that a combination to do an unlawful act was a conspiracy. The sec*280ond depended on the'common principle that the goodlless 0f tj;le en(f xvould not justify improper means to ohiain If> therefore, in the present case, the defendants had confederated either to do an unlawful act, to the in-Jur7 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,
Much has been said as to the application of the.comtnon law of England to the case. The absurdities of the ancient common law, and also of the statute law of Eng-had been exhibited in the strongest light. It was well lcnoffii, that many of the ancient rules of the com-]aw- 0n this and other subjects had been exploded or become obsolete, and that little of the mass of absurditjes complained of by the defendants’ counsel, remained . r . - " . , _ . in force even m England. In this state the court could not j^g 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 secul'ing 10 them many of their highest privileges, apd they often appealed to .that law in support of their rights, and agajnst arbitrary extension, of power by the British J n ' it parliament. The constitution of this state had also express]y adopted it, and declared, that such parts of the common law of England, and the statute law of England anc[ Great Britain, and of the acts of the legislature of th.e c°l°2y °f New York, 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 *281egislature of this stats- shall from time to time make concerning 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 inference could be drawn from that, as-until lately such precedents had not been-preserved, and no printed reports of adjudged cases had been published.
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 evidence, that the society of journeymen, of which the defendants 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 xvho were not members, "and through them on the master-workmen, and all were coerced to submit, or else the members of the society, which comprehend the best workmen in the city, were to slop the work of their employers. One of the regulations even required that every 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 determined on any measure, it found no difficulty in carrying it into execution. If its ordinary functions failed, it enforced obe*282dience by decreeing what was called a strike against a particular shop that had transgressed, or a general turn out against all the shops in the city, terms which had been exP^a^neci by the witnesses, and were sufficiently understood. ‘ These steps were generally decisive, and compelled 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 opinion of the court, within one of the descriptions of the offence which has been given.
The jury retired, and shortly after returned a verdict against the defendants.
The sentence was then passed by his honour the May- or, 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 object of the court was rather to admonish than to punish ; but an adjudication upon the subject being now soletnnly had, it was recommended to them so to alter and modify their rales and their conduct, as not to incur in future the penalties of the law.—They were fined each one dollar, with the costs.
In Fries case, which was for treason, the jury rode into the country with an officer during the trial.
It has repeatedly decided in this court, that one conspiracy cannot juslify another. In the case of the People v. Trequir et al. vol. i. p. 146. which was a case of conspiracy of the journeymen hatters, Mr. Price, their counsel, offered to prove a conspiracey among the master hatters, and that the association of the journeymen was merely to counteract the combination among the masters. The court refused to hear the evidence, and the defendants were convicted.
The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or even a lawful act for an unlawful purpose. The offence is complete when the confederacy is made; and any act done in pursuance of it, is no constituent part of the offence. 3 Mass. Rep. 329. Ante, v:1, p. 223.
Journeymen confedrefusing to work, unless for certain tm^indicted fora conspiofibn’ce°r eonsists in the conspinng, refusal, and conspiracies are illegal, although' the subject matlawful8Mod li, 320. A racy to°doP a lawful act to an unlawful end is a crime though no act be done, in thereof!*6"0^ Mod. 32i. coUected^ol8 i. p. ISO, 151.