UNITED STATES v. FENWICK et al., 25 F. Cas. 1062

THE COURT Instructed the jury as follows: As the counsel for some of the defendants have argued before you upon the law as well as upon the facts of the case, and the attorney of the United States has requested the court to state to you the law upon the whole case, we will endeavor to do so. In criminal eases, the jury has a right to give a general verdict, and, in doing so, must, of necessity, decide upon the law as well as upon the facts of the case.

As we have not taken notes of the evidence, not having had an expectation of being called upon to give an opinion upon the whole case, we leave the question of fact entirely to your consideration. But, as to the law, we say, that, if from the evidence you should be satisfied that the defendants, or any of them, assembled, to the number of three or more, with intent forcib!

" and violently to disturb the public peace i tumultuous manner, and with intent mrvj,illy to assist one another against anT- wh should oppose them in the execution -.f the purpose aforesaid, and they did thus assemble with force and violence, and in a tumultuous manner to disturb the peace, either by show of armor, threatening speeches or turbulent gestures, to the terror of the pe fie, then ,= ;ch assemblage, with such intent as aforesaid, so executed, constituted a riot, whether they broke into Snow’s house, or not.

That the marshal has a right to take the posse, and to call on all citizens to aid him in arresting the rioters, and that the citizens had a right to arm themselves. That the excitement, whatever might be the cause, was no justification of the intended force and violence. That the intent to seize Snow, by force, for uttering slanderous or offensive words, and to carry him, by force, anywhere, even before a justice of the peace, without legal warrant, if such case should be proved to the satisfaction of the jury, was an unlawful intent.

That the intent may be presumed from the act; for every man is presumed to have intended to do what he has done, until the contrary Is proved. That all concerned in the unlawful assembly are equally guilty of the subsequent acts done by any of them in furtherance of the common objects of the assembly; and all who joined them after the original meeting, and who were present at any subsequent act, and either active in doing, countenancing, or supporting, or ready, if necessary, to support, the .unlawful act, thereby became parties to the riot, and are equally guilty of all their subsequent acts.

The jury found six of the defendants guilty, and recommended them to the mercy of the court. When they were brought up for judgment, CRANCH, Chief Judge, said: “Before passing sentence upon the defendants who have been convicted in the cases of riot, the court has deemed it proper to make a few observations upon the nature and tendency of the of-fence. Civil society cannot exist without laws to protect the weak against the strong. These laws are of no avail unless supported by the strength of the whole society, or, at least, of a majority.

They must be executed according to prescribed forms, by known, responsible, public functionaries, selected for the purpose. Our judicial tribunals, and their forms of proceeding, have received the sanction of many ages, and by them the laws have been administered, to the general satisfaction of the people under all the various forms of government through which we and our ancestors have passed. In a regular government no laws can be made, or executed, but according to the forms prescribed by the constitution and fundamental laws of the state or society.

No voluntary association of individuals, unknown to the constitution, have a right to make or execute the laws, orto judge, condemn, or punish those whom they may deem to he offenders, and to punish whom they may suppose the law to be inadquate to, however pure or holy may be their motive; and if, in their fanaticism or their frenzy, they should take the life of their victim, they would be guilty of murder.

Such, also, would be the judgment of the law if any unauthorized individual, or combination of individuals, should snatch ¿£om the officers of justice even a condemned murderer, and proceed themselves to execute the sentence. But the example of such an usurpation of judicial or executive functions, if unpunished, would be far more pernicious to society than the mere act of murder which would have been committed. The reign of terror would have commenced and no one could foresee the extent of its ravages.

It is easier to create an excitement than to allay it; for every degree of excitement tends to pervert the judgment, to obscure the light of reason, and to sear the conscience. When a mob is once raised, no one can tell where it will end, and all who assisted in raising it are guilty of all the consequences. The more respectable the persons engaged in it, and the more desirable the end to be obtained, the more dangerous is the example; for if good men may use unlawful means to accomplish a good end, how can wicked men be restrained from using like means for an unlawful end?

All good ends must be pursued by lawful means. The supremacy of the law is the only security for life, liberty, and property.” The defendants, who were convicted, were then sentenced to six months’ imprisonment, and to. pay a fine of fifty dollars and costs.