People v. Moore

The defendants were charged in an indictment for an assault and battery, in the following words :

*83ffity and County of JSTcw-York, ss. The jurors of the people of the state of New-York, in and for the city and county of New-York, upon their oath present, that John Moore, late of the first ward of the city of New-York, in the county of New-York aforesaid, 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 New-York, 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 him the said James, did then and there, heat, 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. 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 -aid 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 & 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 *84irishmen. They came out in the morning of the 12th in a body—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 forking 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 b.e interrupted, unless mistating facts.

*85By the Court. We cannot stop the counsel, unless we 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 spea'lc 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 nexv 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 xvould have been known—it would haxre 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 ex'ent 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 them— would have disowned them. They are enemies to the *86rights of the people—like pirates, enemies to all mankind. Let them celebrate the anniversary as they may, it is disloyal and odious; they disgrace George IV. by calling on him. On this fatal day they cried for war: they showed their colours. 1 have heard, gentlemen, that when Robespierre lay dead, to such a degree had the fears and apprehensions of the people been excited by his bloody acts, that as they approached him, they thought they saw his limbs move—they thought the unnatural monster was reanimated, and recoiled back in horror. Where these blood-hounds move, is horror and death—the innocent tremble with fear, and are faint with horror. The distracted mother clasps her infant to her breast, and in the agonies of her heart, as she runs, exclaims, the blood-hounds have come again— they have tracked us out!.

It would appear, Mr. Sampson said, that the prosecutor in the morning heard a gun fired; that soon after he saw a yellow flag displayed—signals of death- and destruction. He well knew their meaning—he knew what they had been in Ireland—he knew what they would be here—he knew they would begin in riot, and end in murder. He went: to the police an company with some others, and there told his story, but the officers of justice did not know the danger that was impending ; they were not familiar with scenes such as were about to be acted.

They replied to the entreaties of the prosecutor, come and tell us when they do any mischief. The peaceable catholics returned to the village—they were not disposed to violence—they struck no person, they gave no insults while the Orange flag was flying—while it was raised io provoke and insult them into violence, they *87meditated no mischief, and did none; they were not • i , armed» It would appear, said the counsel, that the prosecutor and one Cassidy went up to the Orange party and entreated them to, take down the bloody signal. They were knocked down with clubs and billets of wood, and with brickbats, and some of them almost murdered—they beat to insensibility a pregnant woman. Their object, gentlemen, was blood, and their motive, extermination.

I could, gentlemen, if sworn as a witness, detail to you such scenes. I could tell you of crimes that would draw tears from the hardest heart, but it is not agreeable that counsel should be witnesses. I do not wish to rely upon myself. I will read to you the words of an English lawyer—an extract from Plowden’s History of Ireland.

Graham. I object to reading history, It is not evidence in a case of assault and battery.

Sampson. History is evidence—the highest evidence of the facts therein stated. This point has been decided in the British Parliament. I propose to read a resolution of thirty-six protestant magistrates.

Graham. The indictment against the defendants is for an assault and battery. History can have no relation to the point in issue. Plowden is a partizan—he is under a prejudice, and it is not considered a fair history. His work has been reviewed, and is not considered authority.

Emmet. Plowden was employed by the English ministry, and wrote his history. He was an Englishmán. and went over to Ireland to collect facts for his work with a mind unprejudiced. He was selected to be their historiographer, and what he states is not his own opi*88nion. He examined the facts, and from the impressions derived from them, he threw up his commission, and wrote an independent history. But it is said that this is a case of assault and battery, and that history is not evidence. There is no magic in assault and battery that should take it out of the common rule. When the subject matter of the charge arises from history, then history is-the best evidence. For ancient facts, history has been uniformly received. How can they be authenticated but by history. You cannot cómeat them by living witnesses—you can only learn them from the records of history.. Transactions from a foreign country can only be learned from it. Plowden’s History gives a detail of the facts that took place within its period; it speaks of the body to which this sect belonged, and is the best means of proving their conduct. Plowden has been arraigned before the English reviewers, who do not know the facts he states ; they are anxious to shake off the odium that was thrown upon their country by the details of truth. The history of Ireland was never known by them. The Edinburgh Review has much of good and bad in it. It is a) weathercock test. We wish to read a public document from Plowden’s History—it is inserted there, in confirmation of the facts stated by him.

Van Wyck. I rise to protect the court as well as the, counsel. If we are to begin with Plowden and the Edinburgh Review, we shall not get through this case in a month. This is a case of assault and battery. What has history to do with it ? In this stage of the case, I apprehend they have no right to travel through Plowden’s or any other history-no ground has yet been laid for such a course of proceeding.

*89By the Court. There is no doubt history may be read in certain cases.

Graham. The counsel proposes to read Lord Gos-ford’s address to the grand jury. It is not history. The counsel can only do it on the ground that he can prove it to be true, by legal evidence. This however is an extract.

Sampson (cited Philips’ Ev. p. 338.) I have a right to read and print my speech too, and have not I a right to take part of it from Plowden’s history, or any other history I think proper ?

By the Court. We think it improper, at this stage of the case, to read history. It may be, and often is, read in evidence (the court gave an example.) If a quarrel ensued in the East Indies, between Englishmen and Americans, on the 4th of July, occasioned by the celebration of that day, it would be no doubt the right of Americans to read the declaration of American Independence upon the trial, to show the object of the festival.

Sampson. I do not wonder that they should oppose reading history ; but truth is mighty and will prevail. I shall trouble the jury no further—I shall call the witnesses—they will state to you the facts.

TESTIMONY ON THE PART OF THE PROSECUTION.

James Murney—Resides in Greenwich, and is a weaver—has resided at that place since November last. Was assaulted on the ,12th of July by the defendants. Question by Sampson. Did yon see an Orange procession that day ?

This question was objected to by Graham and Van Wyck, as it would be improper to go into the occurrences of the whole day, and as they should be confined to the assault and battery. The court said they had better go on and confine themselves as much as possible to the assault and battery. (Witnessproceeds.) vV'ent with Cassidy to the Orange party, who were carrying a flag—(they were John Moore, Henry Bush, Mullen, and Lowry)—Asked Moore if that was the Orange colours he was carrying—-Moore *90took hold of the pole with both his hands, and struck him; Witness was struck by the four defendants—felt the blows for several days—was in danger of his life—the pole was from eight to twelve feet long, and from three to four inches square. Witness had no weapon—he had a debate—that is, he defended himself. The Orangemen were armed—one of them had a carpenter’s hammer. Witness made no attempt to strike until he was struck. There were between twelve and twenty Orangemen. Their head quarters were at Green’s, McDonald’s, McKeever’s and Burges’. Witness was very much astonished and frightened at seeing ¡the Orange flag. They marched along and cried out, “ come forward you damned croppies”—they meant republicans. Witness told them they had better go to the British consul, and he would send them home. Witness had been forced to leave his country on account of Orangemen. Went to the police when he saw it—he could not make them understand it. They called out for croppies and papists. Croppy is a person not belonging to the Orange party—one who does not join in their society. They paraded in the morning about five o’clock, and he heard guns. When they knocked witness down, he saved his life by saying, “ don’t strike me, I am one of your side”—he said so to make his escape. It was about six o’clock in the afternoon when he was struck. All the defendants took part in the aggression. Witness is a catholic. They called him papist, and he said they did not know what he professed. Witness does think they were in earnest. Cautioned them to leave off, and they appeared to be angry.

Graham. A prosecutor cannot give in evidence the motives of the defendants, unless it is to show the assault and battery ; they cannot come in aggravation, unless we go into mitigatory circumstances. We are not prepared to reply to these extraneous matters.

Emmet. The trial is the time for showing the intent of the party j it ought not to be left until after the trial to be shown by affidavits.

By the Court. When the party pleads guilty, the motive then comes up by affidavit, but where there is a trial, that is the proper time to show the intent of the parties.

(Examination continued.) After witness had returned from the police, the Orangemen hauled up their colours as in defiance'—they seemed to be more bold when they saw we could get no law. They called out for M'Evoy’s men, and said they would massacre them ; defendants were part of them, but there were many others participating ; witness worked for M'Evoy. M'Evoy is a weaver, and keeps a manufacturing shop, and employs men.

(Cross examined by Van Wyck.) Was in bed at M'Evoy’s and was awakened by the guns, between four and six o’clock. Was very much frightened, and was afraid of being murdered. Would not have been frightened had it not been on the 12th of July. If Orangemen are not stopped in America, America will have cause to dread the consequences. He told others he was afraid of his life. Cannot tell the precise time he went to work. Thinks it was between six and eight o’clock. None in the shop but were aware of the guns. When he went to the police he thought the law would protect him, but it was not there, he had justice; but he could not make the law understand it. M'Evoy’s men ha¿ looms where they *91wrought. All heard the guns that were awake. Talked at breakfast about it. Morris said he saw guns at Brady’s and Waugh’s. Witness saw the Orange flag for the first time, between nine and ten o’clock, before Green’s door. It remained there, Nobody was then hurt. They stood around it in procession, and hurraed for king George. Mr. Fagan came out with his naturalization paper, and said he had sworn against all monarchs, particularly against George III. and IV. The principal reason why he was afraid and went to the police, was, that he never knew an Orange procession but blood was spilled. Witness offered to swear at the police to their proceedings. The officers could not understand the danger of the catholics. They threatened to tear the popish liver out of them.

Van Wyclc. Suppose a man was on Washington Hall, (the American flag was then flying upon it, in honour of La Fayette,) and should hurra forking George, would another person have a right to pull him down ?

Emmet. The cases are not parallel. The witness has stated that he was afraid of his life.

By the Court. The question cannot be answered.

(Examination continued.) Did not tell Cassidy to take down the pole. It was on the other side of the street from the shop. Did not go there until Cassidy went and got struck. He knew it was the celebration of the battle of the Boyne. He went to see the procession, and did not expect to be hurt. Heard Cassidy speak. He went to inquire if it was an Orange procession. N ever beard of an Orange flag in this country. He was two or three rods from Cassidy when he went forward. Heard them say they would tear his liver out, when he made his escape. There were a great many spectators by. Cannot tell how many catholics. Five or six of them were struck. The axe-handle (before the court) was taken out of the hands of Thomas Fitzgerald, by Mr. O’Neil, Mr. O’Neil is a catholic, and was pulling weapons from those who were doing mischief. The flag fell, or was tom off the pole, which Moore had. Cannot say that one of the catholic party struck a single blow. Witness made all the debate he could to save his life. Peter Fitzsimmons was left for dead on the ground when the fight ended. Witness never had any dispute before with those men. He went out to see the procession as he would the 4th of July. Went to Morris’ house; Moore and others were there. They had the flag as he thinks. M’Evoy went in, and asked for pen, ink and paper, to know their names before night, before there should be any danger. Had seen Moore and the others go in there befor M’Evoy asked witness to go in and drink. Witness and his party were standing in M’E voy’s own yard, when Cassidy went forward to see the flag. Cassidy went up and asked if the shawl was an Orange flag. Cassidy was afraid of the Orange flag. They mounted a new flag in the afternoon. Cannot tell what became of the first flag.

Bernard O’Neil lives m Greenwich. Came with Mumey to the police. Heard of the Orange business at nine o’clock in the forenoon. Saw between eleven and twelve o’clock, before they went to the police, a pole with orange lilies upon it. Saw a purple flag. Apprehended some difficulty might arise, and that oeca» *92sioned them to go to the police. Heard they were in procession, and heard a fife. Saw the yellow flag at Mr. Keever’s, about five minutes Saw Cassidy go to them, and the first thing he saw was Moore striking Cassidy, and Cassidy finally got the pole out of his possession. Did not see Murney struck. Saw the Orange party have bludgeons. Took a bludgeon from a man in the affray. Got the axe-helve from a woman who was striking a person with it.

(Cross examined by D. Graham.) Is a weaver in his own employ; lives in Hammond-street, and is-a eatholic. Henry Drake first told the witness of the procession, and Fagen advised witness to go to the police. Cassidy went with witness to see the flag, and to the police. Thinks Cassidy is a catholic. Four went to the police, and when they came back, the lilies were down, and they separated. Afterward heard a number of people say they were going to see the Orange procession; they were going to M'Evers’, to Green’s, and when about half way, they cried out here we are, damn you, come on if you dare. Cassidy then went forward, and was struck by Moore. The purple flag is a badge of their order. I have too good reason to know it. Witness has seen their certificate, called, “ purple marksman.”

Sampson. Is that one of their certificates.

Graham and, Van Wyck, objected to introducing the certificate of purple marksmen.

Sampson spoke of cause, of the riot in the theatre, wherein lord Wellington was insulted. Of sir Bradley King’s case in parliament. They asked him what was the test of his order, and he declined answering it as far as it related to “ purple marksman,” and they voted him in contempt. Why should the witness not answer ? We want the truth. But say the gentlemen, you cannot get at it by evidence. I do not believe in such a rule. There is no rule to exclude the truth.

The court rejected the evidence. They were of opinion the certificate could not be read to the jury.

It was now proposed to show the character and conduct of the Orange societies.

Graham objected to the inquiry, whether they were peaceable societies- as it would violate a well known rule of law, that consequences are not the best test of principles. The catholic would not put the catholic in the wrong, and he could call an hundred Orange-men to prove themselves peaceable.

Emmet in reply to Mr. Graham’s assertion, that they were peaceable societies, spoke with warmth of the expulsion of seven hundred innocent and unoffending inhabitants, and proposed to refer to the Irish history to prove their character.

Graham contended that they could not go into the Irish history-to show the conduct of the Orange societies ; that it would be the means of destroying their character by mere report; that they were calculated to disturb the peace, must be proved by other evidence.

The inquiry was no farther pressed.

Cicily M‘Evoy. Witness saw the affray. They called M‘ Evoy’s men papists, the affray happened at our house. Bush called out his men to fight. Hugh M‘Evoy heard firing, and said my God it is the 12th. Our men went to work. M‘Evoy’s cousin came to *93his house to get something to drink. Moore came and asked M' Evoy, if he wanted his name. The first thing was Cassidy and Daniel M'Evoy knocked down. Did not see William Lowery here during the day, but did not see them strike Murney. I was knocked down and senseless by the injury received.

(Sinclair was brought up for applauding, and was excused by making a proper apology to the court.)

It was proposed by Mr. Emmet, to ask whether he was a catholic or Orangeman, but the court would not permit the question to be asked.

Peter Fitzsimmons. Witness saw the first of the affray. Walked from where he lived, next door to M'Keever’s, with John Cassidy and Murney. Cassidy went to ask about the colours. The first thing he saw John Moore strike Cassidy over the neck or head with the polo. Cassidy drew back. Daniel M'Ex'oy caught hold of the pole, and held it some time. The fight then begun. Cannot tell who struck, and who did not. Saw Murney struck, ,but cannot say xvho did it. Saw Murney bleeding. Do not think Murney struck any body. Murney was bloody. The cut was on his head.

TESTIMONY FOE THE DEFENDANTS.

David Waugh—was down town all the forenoon, till about four o’clock in the afternoon. Witness and three of the defendants went into Morris’ to get drink. When they were there, three or four persons came. Moore had a pole with a flag on it. (Witness is indicted.) M'Evoy had a piece of paper. Three or four men came in with him. M'Evoy asked for pen and ink. Moore, Mullen and Lowry went to M'Keever’s with the colours—witness and Irving went to Green’s. The next thing he saw was Moore and his party coming peaceably from M'Keever’s to Green’s. Saw ten or twelve men coming towards them—they ran up to them. Witness saw Moore knocked down. Several gathered around and saw them fighting in the crowd, the others were knocked down towards the last of the affray. Saw Mullen and Moore knocked down before a word was said. Saw a green flag in the upper window of Moore’s house, opposite Green’s. Saw Moore’s and the green flag at the same time. Can’c say whether the green flag was up when the affray was going on—he did not see it taken down.

(Cross examined by Sampson.) Moore was standing by witnesses’ door, when witness came from down town. Witness was an Orangeman. There is such an order, in that body, as purple marksmen.

Graham. You are an Orangeman ? A. I am. What is the oath of that society ?

Sampson objected to going into the inquiry.

By the Court. You cannot go into inquiry as to the nature of this association abroad. We will allow the simple questions.

1. Was this society created for the purpose of a breach of the peace ?

4. Does it tend to a breach of the peace ?

CExamination resumed.) Witness has sat in Orange lodges in Ireland six months. The society was not instituted, nor does it *94tend to a breach of the peace. There are no Orange lodges in this city—never heard of one in the United States.

Graham. Are the Orange processions calculated to break the peace in Ireland ?

Emmet. I object to that question.

By the Court. It would be easy for an American jury to try the simple fact of assault and battery. It has. however, come out in the course of the trial, that this was an affray between two sections of Irishmen. We think the inquiry is improper The question can only be put as to the tendency this society may have here.

Sarah Morris, is the wife of Mr. Morris—lives in the village of Greenwich, corner of Amity-street and the Sixth Avenue. Witnesses’ yard adjoins Green’s. Saw the quarrelling commence on the Orange side, about five or six in the morning. Heard Ralph Irving early in the morning playing' “ Patrick’s Day” and “ Boyne Water” on his fife. Saw Mr. Brady’s little boy fire a gun off the stoop. He frequently docs so. Six or eight Orangemen were celebrating the day. They offered no rudeness to any body. Mr. M'Girn’s family cried out, “ here comes John Bull till we pick the. lick of him.” The green flag was out' of a window in witnesses’ house. The catholics said to the Orangemen, (in reference to the flag) “ there is your master”—“ touch that, damn you, if you dare.” Witness saw a bunch of lilies hanging on a pole on the other side of the street. A Scotchman named Miller, said he could not bear to hear his sbopmates (the Orangemen) so abused. Witness saw several who said they were from M’Evoy’s, come running with sticks longer than canes, and resembling axe-handles—saw that there was a riot at witnesses’house. The catholics went to Green’s and. saw the yellow flags. Witness saw the affray in the afternoon. Irving, Robert Moore and Bush, were hurt in the affray.

(Cross examined hy Sampson.) Did not see the beginning of the affray. Saw stones go in the door. Lowry, one of thé Orange-men, was much intoxicated. Don’t know whether the catholics had sticks. Did not know whether Murney said that morning “ here comes John Bull,” &c.

Robert M‘Keever, is not an Orangeman; lives at the corner of Fourth street and the Sixth Avenue. The affray happened on land belonging to Jones and Ludlow. On the morning of the 12th of July, about eight o’clock, saw a green flag from Morris’ house— heard a noise like scolding—stepped out to see what it was, and heard it was the 12th of July. Witness was sorry to see the green flag hung out. Requested to ask the people up stairs to take down the green flag. Witness then went down town for two hours, and when he came back, saw the green flag still flying. On the other side of the way was a pole with a ribbon and Orange lily tied on top. The next he saw was four or five men coming from M‘Evoy’s place towards Green’s. Does not know whether they had clubs. Saw a handkerchief on a pole at Green’s house, and Moore carried it. M‘Evoy and two or three men went to Carmine-street, and thence to the Sixth Avenue towards Morris’. Moore and the others went into witnesses’ house and asked for liquor, which witness refused. Witness advised them to go home and leave off the celebration. They were going toward Green’s, where they lived, when witness' *95saw ten or twelve men come from M’Evoy’s and meet them, and heard them say, now the flag goes down; upon which Moore was immediately knocked down. The Orangemen were three or four, and the catholics ten or twelve in number. Saw twenty men come from Cornelia-street in aid of the catholics. Could not say whether any of them had bludgeons. There were not more than ten Orangemen and about thirty catholics.

(Cross examined by Sampson,) Witness saw clubs, but don’t know who brought them there. (Mr. Sampson here showed witness the yellow handkerchief which had been used as the Orange flag, and asked him if he knew it. Witness answered that it was his wife’s. She gave it to one Young to go to a ball the evening before the 12th of July. The flag was not hung out of witness’s window. His wife did not know when she gave it, that it was intended to he used as an Orange flag. Saw the Orange ribbons stuck up after the green flag was hoisted out of Morris’s window. They were up about six o’clock in the morning. Witness first saw the Orange lily between nine and ten o’clock. Saw the green flag at eight o’clock.

(Examined by the Court.) He saw them (the Orangemen) strike nobody till they were knocked down. Did not see them strike any body at all. Does not know of stones being thrown.

TESTIMONY ON THE PART OF THE PROSECUTION.

Thomas Munroe, lives at M'Evoy’s. Saw the affray begin. Saw them at Brady’s house. They marched with colours, playing the fife, and with lilies. Affray begun'between seven and eight o’clock John Moore struck first. Cassidy went to see what kind. of colours were there, and Moore struck him in the belly. Did not hear Cassidy say any thing. One of our men went to relieve Cassidy. Bush struck Murney, and Moore struck witness. They came with clubs out of Green’s house. There was fifteen or twenty Orangemen. When that affray began they rushed out. Bush had a hammer. None of M'Evoy’s men liad clubs. None of our side went for clubs—never lifted a stick. Only four catholics and a great crowd of Orangemen. Witness was struck with a pole. None of the others present when Bush struck Murney.

(Cross examined by Van Wyck.) Is an Irishman and a catholic. Has never talked with any body about it. Thinks Cassidy went to see what colours they had—heard him say so. Two guns fired at Brady’s, but can’t tell who fired them. Some said it was Brady’s hoy. Did not see a green flag, and was close to the house. Wove eight or ten yards that day. None of the catholics took up sticks. Saw them all come out of Green’s house, and knew them to be Orangemen. M'Evoy was wringing his yam in the dye-house.

James Morgan. Witness heard of the Orange flag, and had a curiosity to see it. Moore struck first with the pole. Witness had no concern in the affray. They boxed with fists Orangemen went to Green’sy and" came out with billets of wood and fought desperately. Saw none of them strike Murney.

(Cross examined by Graham.) Witness is a catholic. Had nol been at M‘Evoy’s nor Morris’. Did not hear Moore say, come on *96and take it (the flag) if you dare. Can’t say who carried the axehandle. Witness saw no stones or brickbats—nothing of that kind.

James Cassidy. Witness never worked for M‘Evoy. Was struck by the. Orange party on the 12th of July. Witness saw the Orange party opposite Morris’, and went to see what it was. Told them they ought to take down the flag. John Moore struck, but did not injure him much. Did not see Murney struck by any body at that affray. . Orange party fought a few minutes and then went into the gateway. Saw billets of wood with Orange party. No more blows after Fitzsimmons was struck down.

(Cross examined by Van Wyck.) Is a catholic. First saw the colours opposite. Did not say aloud he would go and see what the colours were. Thought it was not particular to have a flying that day. Do not know whether they were in earnest. Thought it would pass without disturbance. Do not like to hear of their walking in a free country. Did not talk with Murney before he told them to take down the flag. Did not see Moore knocked down. Struck him, before he got the pole, with his fist. Did not see any person strike Murney.

Phelix- M'Kinney. Saw part of the affray. Had come around from his house, and saw M'Evoy come around to rescue his wife, and was struck by Moore. John Moore said after knocking M‘ Evoy down, “damn their souls, kill them all.” Did not see Me Evoy knocked down. Do not know who knockod Fitzsimmons down. Did not see Murney struck. Mrs. MlEvoy had got a blow. Witness did strike and was struck, but he is too old to fight.

Charles. Gafney. Witness saw the affray. Saw Moore and others who carried the Orange flag. Moore was the first person struck. John Mullen struck Fitzsimmons with a billet of wood on the head. Did not see Murney struck. Saw M‘Evoy come in a gore of blood. Catholics had no sticks, all the unmerciful weapons were carried by the Orange party. Heard them cry out for the damned papists to clear the way.

(Cross examined by Van Wyck.) Is a catholic. Had no interest in either side of the affray. Saw the green flag up. Had no hand in putting it up.

Hugh M‘Evoy. Is a weaver and a catholic. Charged his men not to mingle with the Orangemen. No combination among the catholics. Saw Moore strike Murney with his fist. Did not strike Murney with a pole. Saw no sticks with catholics. Did not see what took place before Murney was struck. Does not know whether Moore or Murney struck first, they were all in a scufile.

(Cross examined by Van Wyck.) Witness did not see a green flag. Went to the city Hall, &c. never said he had a written order to take the names of the Orangemen.

(James Murney called again.) Witness had nothing to do with the green flag. Had no arms but a split stick he picked up from one who had lost it. Has no combination among the catholics.

TESTIMONY ON THE PART OF THE DEFEDNANTS.

David Huston. Saw the affray. A party of catholics, fourteen or fifteen, came from Cornelia-street. They marched between *97M'Evers’ and Green’s house. They met Orangemen, and were not very peaceable. They went to Moore -and his men. They halloed out, “ it is time to have done with your Orange work,” and the flag came down. Saw no bludgeons or sticks. Murney was not struck. Saw neither side have sticks. Found sticks on the battle ground, after the affray was over.

Mrs. Brady. Witness saw part of the affray. Saw Robert Moore’s child covered with blood, and Mr. Bush with lumps on Bis face.

William Robb. Witness was standing talking with a young mah in Herring-street. Saw ten or thirteen men run from M1 EVoy’s. Run towards the flag. Cassidy took both hands to strike witness.

(Cross examined by Emmet.} Witness is a purple marksman.

Jane Carson. Witness saw Mrs. M‘Evoy throw a stone or brick-bat at Mr. Irving-

Cassidy called- again. Witness went to make peace. Would have struck if he had not come to make peace.

Robb called again. Cassidy did not say he was a peace-maker. Did not act like a peace-maker.

Here Mr. Graham offered to prove by six witnesses of unexceptionable character, the Orange oath, which was objected to by Mr. Emmet, and overruled by the court.

CHARGE OF THE COURT.

Gentlemen of the jury—The defendants stand indicted for an assault and battery committed on James Murney, on the 12th of July last. This is a simple case of assault and battery upon the record, and we might have decided it in two hours, but have been influenced by zeal and passion, and have been carried away by extraneous matters. I shall first notice the law, as contended for by the counsel for the defendants.

1st. The jury are judges of the law and fact. This principle of criminal jurisprudence has been so long and so firmly settled, that it is too late now to intrench upon it. No enlightened court would intrench upon that province of the jury. In any direction of the court, as to principles of law, you have a right to differ with them, and it may he your duty, gentlemen, in some cases to differ with them. A decent respect to their direction is only expected.

*982d. When an affray is about taking place, and a man intermingles jn it, he becomes a party to the affray, and must take the consequences—he must give notice of his pea'ceable intention—that his object is to suppress the affray, or he will not be justified. 1 East, -304.

3d. By our constitution and laws, all associations have a right to meet and celebrate their festivals, taking care not to violate the laws. The United Irishmen, the French, the Spaniard, and the English, have a right to meet and celebrate as they please; the authority of the country will not interfere, (even where there is error, for error may be tolerated as long as there is reason to conquer it,) if they do not violate the peace.

4th. No words will justify an assault. If they called for croppies, &c. it would not justify the violence that ensued.

5th. If the defendants struck in self-defence, they are. not guilty. But to this rule there is an exception: for example—if two men go out to fight, and do fight, it is an assault and battery in each.

The court has now remarked upon the principles of law, as applicable to this case. Did the defendants assault James Murney or not ? Were the blows given as testified by him. (Here the court read and commented upon the testimony of prosecutor.) The court laid down1 the law as stated by the district attorney, that where two go out to box, and commit a breach of the peace, they are both guilty. The agreement to do wrong can be no justification to them.

If a man sees an affray, or a collection of people about to commit an affray, and looks on without attempting to prevent it, the law, which pays no respect to persons, deems him in some measure guilty, and will *99punish him as a party in the affray. What is it, gentlemen, that keeps the American people together, but their constitution and laws 1 No man dare trample upon jour privileges. Dare any man assault your wife and children ? What protects them but the law ; and shall that law be violated with impunity ? I do conjure you, gentlemen, as you value the sacred rights of an American citizen, as you hold in reverence the sacred office of jurors, that you put a stop by your verdict, to such open violations of the hospitality and laws of the American people. By the constitution and laws of the United States, every man has an undoubted right to worship God according to the dictates of his own conscience» The laws can never permit that sacred right to he violated, and will punish every attempt to intrench upon it. Gentlemen, I do conjure you to dismiss every feeling of prejudice, be it religious or political. Decide this case, upon the principles of public policy and law.

What would be the consequence, gentlemen, if these public violations of the peace were tolerated ? The government would end in anarchy and in blood. The equality and liberty of our laws are known throughout the world. This happy country.is an asylum to the oppressed of every nation on the face of the earth—here they find security and protection. What do we ask of them in return 1 Do we ask them to change their religious opinions—to renounce their political creed—to abandon the forms and ceremonies of their former life ? No. All we ask in-return for all the privileges they enjoy, is that they will-be good and peaceable citizens, and obey the laws., What then must the court and jury think of those people who violate the hospitality and laws of that country that has offered them, an asylum, and afforded them ss*100curily ? Although, gentlemen, we believe the defendants guilty of the assault and battery, yet we are com-polled, in the most decided manner, to express our disapprobation of the conduct of the other party. We know nothing about Orangemen, Catholics, United Irishmen, &c. They are all protected, and entitled to protection, by the laws of this country. We know there has been a mob, and a most shameful violation of the laws of the land, in New-York, in Paterson, and in Loclcport. It is for you, gentlemen, to put down these illegal associations—to put a speedy and effectual stop to these violations of the peace.

The jury retired about nine P. M. and returned at half past ten, with a verdict of Guilty.