BOSTON 1824. Bean. the ordinance is for this cause wholly bad, and he relies on the case of Kirk v. Nowill et al. (Í Term R. 118.) to support the position. The by-law in that case was The Com'th made by a manufacturing corporation, and declared, that certain articles, manufactured in a deceitful and un"workmanlike manner, should be liable to seizure and to be forfeited. The by-law prescribed no pecuniary penalty, but created a forfeiture of the article. Whereas the act of incorporation (21 Jas. 1.) empowered them to make reasonable by-laws, and to annex to the breach a fine, or amerciament only. In directing the seizure and destruction of the article, the by-law was not pursuant to the charter, and so was wholly bad. But in the case of Player v. Vere, which has been already relied upon as decisive in favor of the defendant upon another point, the whole Court of King's Bench were of opinion, that a by-law might be good for part, although it might be bad for the residue: and it would thence follow, that so much as is good would be sustained in a court of justice, and the residue rejected. If, then, there were no other but this last objection in this case, I should have no hesitation to decide, that the ordinance is good for the penalty, but bad for the forfeiture. But as I am of opinion, that the city cannnot require from the owners of dogs going at large the payment of a sum of money for a license, it is substantially defective and invalid for this cause., .. I have come to this result with reluctance, after much consideration, and against my first impression; for the object of the by-law is both salutary and necessary. Had I finally entertained a doubt, I should have felt bound to render such judgment as would have enabled the defendant, by a bill of exceptions, to obtain the VOL. III. 11 1824. BOSTON, judgment of the Supreme Court. But all criminal suits, in the name and behalf of the commonwealth, are deThe Com'th fended at the sole risk and charge of the accused party. V. A judgment against the defendant in this case would throw on him the fine and costs, which he must pay or be committed to prison: and if he should finally succeed, to obtain a reversal of the judgment in the Supreme Court, I do not know how he can compel the commonwealth to refund the money, or to indemnify him for the personal injury which he might sustain. I consider him entitled to the benefit of my opinion in his favor. The verdict is set aside and the complaint dismissed. General Sessions, NEW-YORK, September 13, 1824. The People, V. John Moore, John Mullen, John Lowry, and Henry Bush. ASSAULT AND BATTERY. Present the Honourable RICHARD RIKER, Recorder. Maxwell, District Attorney; Sampson, Bogardus, and Emmet, Esqs. for the People. David Graham and Pierre C. Van Wyck, Esqs: for the defendants. The defendants were charged in an indictment for an assault and battery, in the following words: 1824. The People V.. Moore and others. City and County of New-York, ss. The jurors of the people of NEW-YORK, the state of New-York, in and for the city and county of NewYork, upon their oath present, that John Moore, late of the first ward of the city of New-York, in the county of New-York afore said, labourer, John Miller, late of the same place, labourer, John Lowry, late of the same place, labourer, and Henry Bush, late of the same place, labourer, on the 12th day of July, in the year of our Lord, one thousand eight hundred and twenty-four, at the eighth ward of the city of New-York, in the county of NewYork, aforesaid, in and upon the body of James Murney in the peace of God, and of the said people, then and there being, with force and arms, did make an assault, and hin the said James, did then and there, beat, wound and ill treat, and other wrongs and ‚injuries to the said James, then aud there did, to the great damage of the said James, to the evil example of all others in like case offending, and against the peace of the people of the state of NewYork, and their dignity. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John, John, John, and Henry, afterwards, to wit, on the same day and year aforesaid, in and upon the body of the said James, in the peace of God, and of the said people, then and there being, with force and arms, did make another assault, and him the said James did then and there beat, wound, and ill treat, and other wrongs and injuries to the said James then and there did to the great damage of the said James, to the evil example of all others, in like case offending, and against the peace of the people of the state of New-York, and their dignity. MAXWELL, District Attorney. The case was opened by Mr. Sampson. He observed, that this was an indictment for an assault and battery, committed in the village of Greenwich, on the 12th of July last. It had been termed a squabble, but the court would see by the evidence he should offer, that it was something more; it was an affray in which the lives of a number of people were put in jeopardy. On that day the village of Greenwich was alarmed by a new kind of celebration, unknown in this country. In this land of freedom we have not been accustomed heretofore, to witness such a celebration. If mistaken zeal and religious liberty are allowed to prevail here, in what country upon the face of the earth may it not prevail where can mankind find safety? This riot and assault and battery, was committed by a number of NEW-YORK, Irishmen. 1824. in a body They came out in the morning of the 12th they are known by the name of Orangemen carried flags and emblems of their order. They cried out for croppies-they hallooed, come out papists they cried out for king William, king George, &c. and brandished their weapons, and terror and dismay followed them wherever they went.. There is holiness in the cause of Ireland: posterity will discriminate between him that seeks blood, and the friend of mankind. You' must, gentlemen of the jury, put these illegal associations down; you must avert the arm of the sanguinary bigot who would drench your country in blood-you must convict. By permitting these unhallowed institutions, these bloody and reckless associations, which have distracted and torn to pieces the fairest country upon the face of the earth, you would strangle justice, you would murder innocence. The intention of the defendants, gentlemen, constitutes their guilt-it is your duty to search out the intention--to seek after truth. You, gentlemen, will see by the facts, who are delinquents, who has been guilty of this crime. I will prove it to you I will show it to you in broad daylight. I will state to you the facts, gentlemen. On the 12th of July, after the hearts of our citizens had been warmed by the celebration of that anniversary that had shed light upon the world--another sect--another sect, gentlemen-I do not know how, I cannot speak of them-so bloody and so stupid are they, and [Mr. Graham inquired if Mr. Sampson was opening the case of the defendants, and whether he intended to embrace other acts than those connected with the assault and battery.] Mr. Emmet replied, that Mr. Sampson could not be interrupted, unless mistating facts. 1824. By the Court. We cannot stop the counsel, unless we NEW-YORK, see something wrong. It appears by the record to be an assault and battery, but it may be necessary to state other facts to explain the facts of this case. (Mr. Sampson continued.) GENTLEMEN-If I had the mouth of the giant in the fable, I could speak at one word, all the enormity of the defendants; but I must now speak of one at a time. My character is known-I have been here twenty years, and it is some proof that I shall not talk nonsense. The village, as I said before, was disturbed by a new celebration-it was the celebration of Orangemen-they cried out for croppies, that they might attack them— United Irishmen, that they might lay them low. They cried for king William and king George. If the cry was to tear down bawdy-houses-disorderly houses—if it was to remove some nuisance, or redress some complaint, the cry would have been known-it would have been understood; but this cry was the cry of war and extermination; this cry has occasioned the shedding of human blood, from the time of king William to the present. It will stamp them with shame. It happened just before the arrival of that national guest, that has united every heart. And it is singular, that this great event should have been ushered in by the cry of these murderers. The 12th of July has been, in every point of view, disastrous to unhappy Ireland-to that country it has been a curse that has hung upon it for centuries, and has drenched it in blood. King William tried to win them to his favour. If he had heard them crying out in such a manner, he would have been ashamed of themwould have disowned them. They are enemies to the The People V. Moore and others. |