Combination, they say, "that in pursuance of this unlawful combi nation, &c." Here then is the first charge you find, made in direct terms of the conspiracy and combination in the face of justice, and against the laws of our country, to prevent by all means lawful or unlawful the introduction of English preaching. Attributing to all the defendants and to each of them, the riot on the election day, in pursuance of the unlawful combination, &c. In the first part of this indictment then, you see the riot, as an essential part of the charge, is laid as in execution of the unlawful conspiracy; but as, in estab lishing this, the prosecution might fail, they proceed in the next count of the indictment, to lay the naked act of conspiracy, without a confirmation of it by acts. The description of the conspiracy in this count, corresponds with that which goes before. (Reads the second count of the indictment.) The second of these counts you find, contains the mere act of conspiracy, disunited with any act subsequently perpetrated; but the mere assembling together and conspiring, is the foundation of the charge upon which your verdict is requested. It will tend to simplify my remarks, to have these charges seperately presented to your view, and examine the nature of each charge, and how far any evidence supports it.

A riot, an assault and battery, and a combination and conspiring together, form the first of these charges; but the riot is not laid separately from the conspiracy; but as the execution of the conspiracy; of this design which is laid in the indictment, as the leading design of the combination; and as carrying into effect the agreement to prevent by unlawful means the introduction of the English language.

I need not refer to books for the purpose of stating what is the meaning of riot. Riot is a turbulent act of an unlawful nature, committed by three or more persons. The law knows no riot; no court and jury can determine upon any act called a riot, unless there have been three persons concerned in it. This then is a ground not disputed; but observe, gentlemen, I am not endeavoring to fly the charge, upon the ground of the riot not being proper ly laid; I shall answer the whole charge as fully as I can, by shewing you, that it, in no form, in no shape, has been supported by the prosecution.

The riot on the election day, is the first of these charges. By confining my remarks, to what took place on the election day; I will reserve for your future consideration, what took place at the other meetings at the school houses, and other places, which will be seen more fully by connecting their consideration, with the essential part of the charge. If connected together, it might be said, I was endeavoring to withdraw your attention from the separate parts of the case; for the purpose of shewing what was the meaning of those who signed that paper, they shall have the whole benefit of their evidence on the other side, but for the sake of perspicuity, I shall at present confine my views, to the language of the indictment.

On the election day, there defendants are charged, with having raised a great noise.

Ever since the establishment of this congregation, it has been composed of natives or descendants from natives of that country to whose industrious, frugal habits, Pennsylvania is in no small degree indebted for its prosperity; ever since the establishment of this congregation, which was in 1765, an annual election has been held for the purpose of choosing the officers of the corporation; this election is provided for by the charters, in such a manner as the proprietary at first, and the legislature in the second instance, thought most conducive to the prosperity of that body; under which it acted until the sixth of January last, when an evil Spirit arose to disturb them in the appearance of the English party. The congregation by these annual elections constitute, as you have seen, the corporation, not composed of the congregation at large, but of those persons who shall be annually chosen to that office; the members of the congregation are the electors, those who are to determine in what manner they will exercise their right of suffrage, granting to them in the first instance by the charter from the proprietaries, and in the second from the legislature of Pennsylvania; in both of which language has been adopted to the purpose of saving to them the power of election, (Vide the charters.) So it appears, they shall be entitled to nominate or appoint any person or persons to be chosen, &c.-meaning unquestionably the right of appointing them who are to be voted for as vestry men or church wardens. In these charters then is the provision which gives the members of the congregation a right of free, unbiassed suffrage; evident as to the manner in which the regulation shall be conduct, ed with respect to the appointment of inspectors. There can be no doubt, that in order to render all these regulations consistent only the votes of those persons should be received who are entitled to a participation in the right of suffrage; hence it follows as in the great community of which we are all members, so in this society, there must be some person appointed to receive tickets and decide upon their being presented, whether the persons offering them are entitled to vote; and if the charter is silent upon the subject, it follows, there must be some power somewhere to appoint inspectors. The congregation have not said, "this is a power we hold in our hands;" what time have they said; "it will be most convenient for one of our officers to appoint these inspectors? Never-the corporation has; and I submit to his Honor, that we find a byelaw of 1805, which vested in the president of the corporation the power of appointment; this was never repealed, nay, farther, until January 1816, we never find it objected to; but until that time it was considered as a convenient exertion of the power vested in the corporation. It is not to be inquired of in this collateral way; the question before you is, whether the defendants were guilty of the riot and combination charged, and not whether. the members then appointed, were legally appointed; this is to be discussed at a future day in another case; in a

case, allow me to observe, in which we shall meet our opponents upon more equal grounds; in that case we will not be as we are now, at the mercy of those who have indicted us, and of those, as avowed in the opening, who are most active in carrying on this prosecution; in that case we will not have our mouths shut, but having overcome that difficulty under which we now labor, we shall have the power of shewing their Honors, when sitting in bank, the whole of the proceedings on the day of election; and the question of the validity of the bye-law of 1805, will then be properly examined. It is sufficient for us now to say, that this is a bye-law, the existence of which was well known and for the term of ten years at least, was acted upon; this byelaw was supposed to vest a constitutional power in the president of the corporation, and never until the active leader of the present prosecution, George Witman, whom I shall treat through the whole of my argument as the culpable author of the whole dsturbance of that day, created a doubt in the minds of some of the members, was it ever thought it was not a constitutional powr. Any, gentlemen, is it not a constitutional power? Is the act of the legislature final? Those who oppose us know, that it is posible, that the person who votes may have a right of chosing the inspector, and yet if the person that took the vote was appointed by the chairman, it was exactly the same. The supreme autiority, the supreme court of this commonwealth has a power to nquire whether the intentions of the charter are fulfilled; and whether the inspectors were ap pointed by the congregation, or by the corporation, or by an individual, is precisely the same; it interferes with no provision of this act of assembly, it interfere with no right of the congregation for the president to appoint he inspectors at any time or at any place. There is now a new efort made, and in pursuance of the same system of surprise whim actuated the motion of Witman, has on this occasion been introduced against us after the testimony was closed; after it would have been irregular to have adduced any thing more, we hear there was no bye-law at all; then we hear for the first time, doubts whether the bye-law was regularly passed; all these considerations, I say with perfect confidence, are foreign to the present controversy. It is sufficient for me to shew in the records of this congregation this bye-law is entered, that the congregation thought it a valid bye-law; that those who opposed it on the sixth of January, 1816, had always treated it as valid, and under which the congregation and corporation had uniformly acted ever since it was passed. It is true, some of the witnesses say, the inspectors were appointed in the corporation; some say, out of the corporation. Gentlemen, we all know the nature of contested elections; we know it was rather the desire of the congregation, that a respectable man should devote so much of his time in attending to their business. One of the witnesses says, "it was talked of sometime before hand, and sometimes, it was said, such men would not serve, and sometimes that they would serve, and the next day the gentlemen were told"-Busch, himself, acknowledged, "he never had known an instance of the appoint

ment by the congregation. It is sufficient then for our purpose to know, that those on the part of the prosecution considered themselves as acting under it, and had never complained of it. As to Witman, what was the conduct of this person at the election? He proposed, they should appoint certain persons as inspectors; one of the members says, "are you the president;" another reminded him of the bye-law; he persisted; when he had nominated the inspectors, he had previously asked Honey, if he would put the question he proposed, whose answer was, "if it be in order; he himself put the question. This conduct carries with it the inference, that Witman had very little knowledge of the ordinances and fundamental articles of his own corporation, otherwise he would have seen, that none of the bye-laws can be repealed, but with the consent of at least two thirds of the congregation; that the congregation must be notifiel and assembled to repeal, although the corporation has the power to make a bye-law. To repeal a bye-law, already passed, appeared to the officers of the corporation a matter of too much importance to be intrusted to the corporation alone; they must assemble and have an opportunity of acting in concert with the congregation. He evinced at the time he moved, that byelaw should be repealed, is ignorance of the fundamental articles of the corporation; however, it was put to vote, and whether there was a majority for it, or aganst it, or whether it was carried in the negative by the casting vote of the president alone, is totally immaterial. By Link's testimony, it appears there were nine for it, to nine against it; as Honey ukimately explained it, he had arisen at first to vote simply as a member of the corporation-then he gave his vote as a member of the orporation; they do not pretend to say, they would have been successful, if Honey had not voted; or what would have been the result. Witman never mentions, that this bye-law was repealed by a notion he made ;-no; it appears, upon the ground he took, or appears to have taken, he presented a question upon general principles to the attorney general and took from him the opinion, that the congregation had a right to appoint, and not that the law should be repealed; that was not the question.

We proceed to the morning of the sixth of January, a time when indubitably, the strength on both sides, was expected to be brought forth in the course of the day; where, at the time the German party, who had all along acted upon the supposition of the presi dent, and could not have any motive for appearing so early on the ground, these, who were of the opposite party and knew of Witman's intended motion, were ready to take their stand, to support it. When according to the usual practice, the accounts were read by their treasurer, Mr. Long and Dr. Helmuth, concerning whose character, eulogium might be exhausted, was addressing the people; when Honey, who had previously made his nomination, and communicated it to the two persons, upon whom his choice had fallen, and obtained from one of them his reluctant consent, had left a paper upon his book, with his spectacles upon it, and had

turned round to see the sexton of the church; Witman cast his eyes upon the paper, shook his head; and one of the members said he shook his head because he did not like the men. 'This witness could have had no suspicion, that Witman intended to propose another course; but says Herpel, "I told my neighbor it was because he did not like the men that he shook his head. At this moment Witman springs upon the chair and makes his motion. Now you see what at once infused a spirit of disturbance which continued through the whole of that proceeding. No matter whether he begins, as stated by Bealer, with the words "no, no 3" he at once begins, in a manner, to drown all argument, to make his motion by using the language of the attorney general, and making his opinions subservient to his attempt. What is it, he declares to them? Gentlemen, I have the opinion of the highest law officer in this state, of Mr. Jared Ingersoll, that the congregation have the right to appoint the inspectors;" and then he proceeds, "those who are in favor of it, say I, and those against it, No. Thus blending together the questions and producing tumult and disorder; what could be the meaning of those who would say no? Not a mere objection to the names, but an objection the proceedings. Yes and no, answers in English and German, much noise and confusion, are the certain consequences of this motion of Witman. If they were to endeavor to do this, they could not take a better mode to disturb that meeting, and if this is the gentleman who has set on foot this prosecution, if he at least, was the leading cause of it, for at this instance it was done; it was in consequence of his act, that the disturbance arose in that assembly. Gentlemen of the jury, Witman says, "I thought, there was a great majority," says Busch, "I thought there was more than two to one." Is it possible, give Witman and his party all the credit they are entitled to, for concealing their intentions, and taking the others by surprise, take it to yourselves; was it possible to ascertain that there were two to one, or even a majority? If so, why was not Wagner installed into his office? How should the reputed minority succeed in keeping out his chosen officer ? How did they, opposed by this triumphant party, succeed in keeping him out. I refer you to Geyer's testimony. How does it happen that he does not assert that there was a decided majority in favor of Wagner and himself? How could it happen that this contemp-" tible minority prevented Wagner from taking his seat. I venture to say, there was no majority; and I refer to the final result of the election, in which without force or prevention of the English votes, there was a majority for the Germans. What could have induced them to use force, when they had the majority towards the English? And if no force had, been used, Wagner and every one who endeavored to put him in; he was not entitled to take his place as I have shewn you as an inspector. Whether you are to believe Witman, who tells you, that when Wagner got in, his clothes were torn, and he exhausted, or Lehr, who said he spoke to him with a smile, is not of much consequence. I grant that

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