The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-09-27
SUIT AGAINST THE HUDSON VIGILANCE c1MMl1TEs.
important Charge or the Judge as to the
Law Of theiCnsc, and as Against Mob We
Olcnce-The Jury In DeliberatiOn, SC.
sUPREME COURT-OIRCUIT.
Before Hon. Judge Potter, Of Saratoga county

SEPT 26-Wilam Mowers (coloreo) u.s. Peter Bogari,.s,
Abram Bcyaraus JFn. IT. Hunt Ayroa YaD Dses, Silas
". 7bty, Charles s. Wenchei and Adran, " r. SLING
Before the Judge proceeded charge the jury cxJudgc
Dean asked to submit the following propositions which he
asked the Court to charge
l. The defendants arc not liable TO the plaintiff for any
OF the matters charged in the complaint unless they
aided abetted assisted those who the actual per-
petraors Of the acts charged.
q citizen may, il he q breach Of the peace in
terere to prevent it but he does not interfere and
mains neutral taking no part in the occurrence, witness
ing only, party injured cannot sustain action against
the person who the and neglected
fused TO interfere
g. person who had no previous knowledge of any in
tended action on the part of Crst and his associates
against the plaintiff but who, by the noise, drawn
the public square, is not liable to action at the suit Of
Mowers for merely witnessing what was done
If the jury satisfied that defendant, Abraham Bo
eardus, was attracted to the public square by the noise,
and was requested by Mowers 10 take his watch and other
property and did take them at his request but did
JOIN himself to those who engaged in perpetratng
the acts complained of, he is not liable to an action.
8. Myron Van Dusen accompanied Mowers 30 the pub
lie square at his request and finding force which he be-
eved he could not resist he is not liable in this acton to
the plaintiff for not interfering at the risk Of his life
or limbs to prevent the action Of those who had assembled
there.
That though it may be public duty for citizen to
actively interfere to prevent breach Of the peace yet
neglect OF this duty does not constitute OF action
the suit person injured at such breach of the peace
T. That the rule OF evidence in reference to party
the same - to any other witnessalse in thing false
mall That appearing, by the affidavit Of the plaintiff
u
trial. that he there swore that the defendant Hunt
into his shop and with Howard and others pulled him OUT
that he there that the defendant Citing at the
square, and used language mentioned in the affidavit that
he there swore he did not return 10 the city Of Hudson
until May 1857; all Of which he admits is
that he bound to explain these misstatements and
explained they conclusive against his veracy and his
whole testimony should be disregardcd.
g. That if the jury are OF opinion that the plaintiff
against any one OF the defendants that the
damages against that limited 10 what occurred
when defendant present
i IN In, lafS
ton as against any one for loss OF his WIFE child any
property except what actually taken his person
10 That this being action for the recovery of DANA
ges for injury to the person. the jury have right look
at all the circumstances attending the alleged injury the
charge that was publicly made against hmvz ravish
ing an innocent white girl, and his neglect at the
deny IL, and his refusal this trial to allow the defend
ants to prove the truth Of the charge.
The Judge IN charging the jury said that this action
brought by VIM Mowers against Peter Bogardus Abram
Bogardns, VIM. II. Hunt Myron Van Dusen, silas W.
Toby, Chas S. Wcnchel and Abram v. v. Eng He
named all the defendants now because it important
that the jury should keep their before their minds
as may be necessary TO apply the testimony
separately with reference to each party The plain
till was barber, by occupation residing at Hud-
son. this State, for sixteen years, and had ac-
CURED little property there, amounting in value to
he seized by mob dragged the street. beaten
and then taken to public square, the mob increasing
they went along a ring was formed, and he was
stripped, either by himself the orders of others he
then tarred and feahcred the being poured
his head and running down his back and face. The
available defence is general denial that the defendants
participated in the affair and this will be the issue the
jury will have TO try for when attempt was made TO
Introduce an issue which was not in the it
cuded by the Court and therefore the only issue which the
jury to try whether not these defendants or any
of them fare guilty The Judge then continued After
four days Of patient and attentive hearing
about to assume the important duty Of deciding this
citing and somewhat remarkable case The case is GER
tanly peculiar in many Of its aspects and is perhaps as
novel as Wis peculiar but ii belongs to that class Of
that makes its decision almost exclusively the province Of
ajury. The Court will sufficiently have discharged its
further duty in this case by presenting to You the legal
issues that arise upon the peadngs and dsabusng your
minds of any erroneous impressions which may impro-
pery have been drawn into the As you sworn
to try the issues in this action it will be my first duty
show you what those issues nasmuc those issues
alone you be confined And those issues are to be
tried upon the evidence and upon the evidence alone and
not upon any prejudice upon the suspicion that
there anything existing outside of the that ought
TO be but has not been proved The suspicion that plain
tiff has outraged public opinion in the neighborhood
where he lived, which has been attempted to be drawn
into the CASE and that the punishment he received
the uncontrolled and uncomfortable result Of public
dgnation against him. you are bound to reject with
out n moments consideration. Your oaths forbid its
consideration because there is evidence here to
prove such a charge, and because the defendants
themselves, for best known to them, either be-
they did not believe it 10 be some other
reason, have set up no such defence in the case. The
Court, therefore, excluded the proof when offered, be-
cause was not proper issue in the You must
ject it Also because the plaintiff has had opportunity o.
trying such charge neither here before he left Hud
son. and should yon assume snch charge to be
true and act upon s You would to say nothing of de
parture from duty, perhaps, punish twice for
offence of which he may not be guilty This, you see,
would be double injustice. You will not assume it to be
true, because mob at Hudson did. You must not
sumo that the mob are the people, act upon the
motto that the voice Of the people thus spoken is the
voice of Godn AS has been said nothing more false
as a legal maxim. However true such maxim may be
politically, by people who about establishing form
OF government, it is not true as maxim Of law. By the
voice Of no mob, number Of men, self constituted,
and acting without law, are my rights or works to be
taken away by rufan violence This is land Of law.
supremacy all must bow. To its protection the
humbles citizens look with confidence SO, too the
color of plaintiff is not consideration which you TO
weigh in the scales of justice He is citizen of the State
Of New York for all the purposes Of claiming the rights of
life liberty and property and in these sacred halls JUS
ticc his rights sacred and stand upon equality
with every other citizen His rights must stand or fall by
the law and by the evidence Wheresoeyer else may
be proclaimed it is not yet the law of this State that
colored man or man Of African descent has rights
that white men are bound to respect" 1t is libel upon
the laws OF government based upon equality Of rights.
The principal questions Of fact which you to find gen.
emen are whether any of the defendants in this action
were So which Of them, participating in the acts or
aiding abetng giving counenance and encouragement
to the actors in the Transaction proved 10 yOu in which
the plaintiff was the victim q. Hudson in July, 1856;
you the burden Of trying distinct and Separate
cases. and if it shall turn out, by the evidence duly
so acted as to subject him to the legal liabilities then not
outstanding all that the plaintiff has suffered endured
your duty will be to render verdict in favor of each de-
PENDANT If the result Of your consideration and judg-
ment shall be that part of the defendants innocent
and part guilty, your verdict will then name those who
are found guilty, and those you find innocent simpor-
ant Therefore, that you carefully remember, we'll
duly weigh the evidence for and against Earle the de-
PENDANT and make the discrimination Now gentlemen
in the application Of the evidence to each in order TO
enable you to determine the guilt innocence of each de-
endan few rules of law by way of instruction from the
Court will be proper General rule to make all evidence
consistent if possible, allowing for Mistakes of recolec
tons, for confusion Of excitement In general law par
ty though not present at such transaction, might be
guilty OF the act he be found to have laid the plan have
nsgatcd or induced others to participate in the transac
on If he has advised the act he had procured in
strumens or materials to carry out the design So, too
one who had no prior knowledge Of the design, if
he see the transaction while in the act of consumma-
ton, and afterwards unite in Il, or being there, give
II his aid and countenance, or he take part in 1t
by his presence expressing his pleasure approba-
ton, he also is guilty Of the offence And where a
spracy by number fpersons TO do another injury
first proved Gas has been here,) then all persons pre-
sent aiding, abeting or joining the crowd remaining
TO witness and not opposing the act presumed in law
to be guilty, and the burthen is thrown upon them
prove their innocence This law Is based upon the sound
est reason. What be more encouraging TO an ire