majority">Tilghman C. J.

It appears by the Judge’s report that he did decline giving a positive opinion on the validity of the bye-law, conceiving thatvit was not necessary to do so. He declared at the same time that ,he had great doubts of its validity, and seemed to incline against it. With respect to the German petition, the Judge seems to have delivered his sentiments in terms sufficiently explicit. In order that the reasons for my opinion may be understood, it will be necessary to enter into the evidence in some detail. (Here the Chief Justice recapitulated the evidence before stated.) It is contended on the part of the defendants, that the bye-law was good, and therefore they had a right to use as much force as was necessary to repel Mr. Wagner, who was illegally attempting to take his seat as an inspector. I shall take the law to be so, which is all the defendants can ask. It follows then that the acts of violence which took place at the election are to be thrown out of the case. But it remains to be considered, whether the evidence was sufficient to convict the defendants of the conspiracy? If it was, there ought not to be a new trial, although the verdict, so far as concerns the acts of violence, may have been improper; because the Court in passing sentence may take that matter into consideration. A motion for a new trial is an appeal to the discretion of the Court. Unless injustice be the consequence of the verdict, a new trial should not be granted. The German petition is relied on as evidence of conspiracy. The original is in the German language, and gentlemen of respectability and learning were called at the trial to prove that the German words, the literal translation of which into English is with body and *15Ufe, are not to be taken, according to the German idiom, as any thing more than a bold figurative expression, denoting great zeal and ardour. But granting that the words may bear this meaning, it cannot be denied that the same words which may bear a figurative meaning may also bear a literal meaning, if so intended by the speaker; and whether the intent was to use them figuratively or literally, is to be ascertained from other words and actions of the speaker relative to the same subject at other times. If all the other speeches and actions of the persons who signed the petition, had been such as evinced a desire to avoid bloodshed, it might have been fairly concluded that the words in the petition were used figuratively. But what shall we say to the menaces of blood used on other occasions by several of the same party ? - what shall we say to their actual disturbance of the English party when quietly assembled at the school-house ? and what to those resolutions which disfranchised all members of the corporation who should be in favour of introducing the English language ? The German Lutheran Congregation have the right of worshipping God in what language they please. . No power on earth can lawfully force the English language upon them. Nor can any power withhold from them the use of that language, if they choose to adopt it. Their charter confines them to no language; it is the affair of the congregation, to be decided by themselves only. What are we to understand by the declaration of part of the congregation, that they will consider the places of those officers who are in favour of English preaching as vacant? If their places áre vacant, the. acts of the corporation may be void for want of a quorum: and all this without the decision of any court of justice, but by the will of individual members, assembled without authority. What .are we to understand by the request that the corporation will not suffer the question of English preaching to be decided by the votes of the corporation? If not by votes, how is it to be decided otherwise than by force ? Suppose now that the jury who convicted the defendants coupled together these declarations, these resolutions, and those intemperate speeches proved to have been made by various persons and on various occasions, and deduced from the whole an inference that it was seriously agreed on to exclude the English language at all hazards; who can say that they were clearly in the *16wrong ? It is certainly more than I feel myself justified in saying. But the defendants complain of the hardship of charging them with all the rash and violent speeches of a few individuals. Such however is the law, and it is founded in good reason. You cannot affect one man by the speeches of another, until you have proved that they were engaged in a common enterprise. That being proved, the words of one are evidence against the other, but not conclusive. It was in the power of the jury, if they found any thing which distinguished the case of some of the defendants from the others, to have acquitted them. But they have made no distinction, and there is nothing which warrants the Court in doing it. I perceive no sufficient ground therefore for a new trial, either in the Judge declining to decide peremptorily on the bye-law, or in any thing which he said respecting the German petition.

Another reason assigned in favour of the motion is, that the verdict was against evidence. This seems to be a reason generally alleged as matter of course ; and in the present case I consider it as put in merely that the counsel might not omit any thing which might possibly make in their favour. The evidence in this cause was not without contradiction ; as will always happen where many witnesses are called, on an occasion which excites strong feelings. On their credibility it is the province of the jury to decide; a province which I gladly yield to them, and shall never be disposed to invade. They have decided, and so let it rest.

One more objection has been made to the Judge’s opinion on a point of evidence. Jacob Mechlin had been called and examined as a witness far the prosecution. After he had given his evidence, it was proposed to examine Henry Heyl, another witness, as to what he had heard Mechlin say of the views and intentions of the English party. The Judge asked whether the question was proposed with a view of discrediting Mechlin’s testimony, and being answered that it was not, he rejected the evidence. The Judge likewise told the defendant’s counsel, that if they would prove that Mechlin was connected with the prosecutors, he would admit the evidence. It is now said that it had been proved before that Mechlin was connected with the prosecutors, and therefore the evidence should have been admitted. But it seems the Judge did not think it had been proved, and when he *17called for the proof, the counsel should have adverted to it, and by not doing so, they relinquished it. Besides, I am not Satisfied, that the. evidence was admissible on any ground, but that of discrediting Mechlin. He had been sworn, and might be asked, on his oath, as to any thing he knew of the views of the prosecutors. He is himself no party to this prosecution ; and those who are, have a right to insist, that what he says, he shall say upon oath. After that, his declarations may be proved by way of discrediting him; The evidence appears to me, therefore, to have been properly rejected.

These are all the objections which have been taken to the verdict. I cannot say, upon the whole, that justice demands a new trial, and therefore I am against it.

Yeates J.

It has been urged on the part of the defendants, by their counsel, that this case was prejudiced by my blending certain historical facts in my charge, respecting the celebration of divine worship in the German Lutheran churches in the English language.. It cannot be forgotten, that it was contended on their behalf, that, the right of using the German language, exclusively, in ,the public service of their churches, was secured to them by their two charters, and that they were incorporated by the name of “ The Ministers, Vestry-men, and Church-wardens, of the German “Lutheran Congregation in and near the city of Philadelphia.” The address of the committee in favour of English preaching, of 28th January, 1805, to the corporation — .the acts of the corporation thereon, of the 28th February following, and their answer' to the committee of the 2d March, together with a counter representation the same year, against the use of the English tongue in their religious exercises, were read in evidence. Testimony was also given, that several of the adherents to the worship of the Deity in the German language solely, branded their opponents with a breach of their oaths and solemn covenants, in attempting to introduce the partial use of the English tongue, into their religious worship. The counsel on both sides remarked fully on this evidence, and deduced such arguments from it as suited their respective purposes. Under such circumstances, I could not, without manifest impropriety, avoid delivering my sentiments on the litigated points, and the grounds on which they were formed. I took occasion to inform the iury, that *18the term. German, in the two instruments of incorporation, "was mere matter of description; and that the principle has .been established by us on full consideration in the case of the Roman Catholics of the Holy, Trinity Church in Spruce street. I further brought to their recollection what had been done in German Lutheran Churches, both here and at Lancaster, favourable to English'praying and preaching. I . recommended to those who opposed public worship in English on conscientious scruples alone, to consult their bibles, confessions of faith and catechisms, and to determine deliberately for themselvés. Yet, while with the single view of preserving the union and peace of the church, I asserted, my private opinion, I explicitly declared to the jurors, that the Councils of the Lutheran Churches alone, were the exclusive judges whether any other than the German language should be used in their public prayer or 'discourses. , It has also been said, that I gave no explicit opinion, whether the byelaw of 21st December, 1805, was valid or not, although I was requested so to do by the defendant’s counsel. A bye-law may be good in part and bad in part. The reasons for my conduct in this particular are stated in my charge, to which I again refer. They were satisfactory to my own mind.', It did not appear to me to be essentially necessary, in order to form a correct, verdict on the charge of conspiracy. The'innocence or .guilt of the defendants,(as to the offence for which they were tried, did not depend on the validity or invalidity of that ordinance. It is true it might, if its validity was established, have conduced to shew, that the act of George Wilman in nominating inspectors to be voted for by the.congregation, was unauthorised, and led in a considerably degree to the subsequent disorder and tumult, but the charge was not confined merely.to -that overt act. The bye-law was read and remarked upon by the counsel on' both sides,.but no account was given of its passage, nor were the names,of the members present entered on the minutes, and it came before me in a questionable shape. It is not necessary for me to adopt the strong language of one of the defendant’s counsel, in his argument on the quo warranto, that there was no evidence either intrinsic or extrinsic, to shew that two-thirds of the congregation convened, upon, due notice given, to enact that ordinance. On this head I will only add, that I put it to the jury to decide on all the evidence, whether, view*19ing the conduct of Witman on the election day in the most unfavourable light, it could justify the acts or declarations of those who had been styled the German party. .

Nothing is clearer to me, than that I could not legally permit the question to be put to Henry Heyl, of what Jacob Mechlin told him, as to the views and objects of the English party in carrying on this prosecution. The defendants’ counsel openly avowed, that they did not mean to discredit Mechlin’s testimony thereby. Mechlin had been examined as a witness for the commonwealth, and the views and objects of the English party might have been inquired into, if he knew them; or if he did not, he might have been asked, whether he had communicated them to Heyl. If he had denied the .latter, Heyl might have been produced to contradict him. Not a single witness had mentioned Mechlin's name before I decided on this point of evidence. I therefore did not deem myself authorised to consider him as the agent of the English party, but expressed my willingness to hear any testimony, which might shew his activity ip the business as a leader. In the manner in which the point came before me, I considered the answer to the question proposed as mere hearsay, and that the language of AfecA/ira could not be imputed to the prosecutors without manifest injustice.

As to the legal import and quality of the paper, called the German Petition, I had no oifficfdty in my mind about its construction, nor could I be misunderstood by the jury. It is stated in the reasons assigned for a new trial, that so far as I expressed my opinion, I was mistaken in point of law. The language of the instrument was strong and ardent, and the exceptionable words, “mit leib und leiben," were underscored in the original; of the plain literal signification of those words there was no doubt. Three learned gentlemen testified, that according to their apprehension of the idiom of the German language, the paper contained no threats of violence, but shewed great earnestness in a cause, supposed by the ad-dressers, to be good. Two of them, however, swore, that under certain circumstances, the instrument might be susceptible of a different meaning. Certain acts and declarations of some of those who had signed the instrument, and particularly intemperate expressions of one Christian Manhardt} an active partisan, who it was proved had drawn it *20up, had been given in evidence by several witnesses. These I supposed would serve by way of context, and have consir derable weight in forming a correct judgment of the views and objects of the petitioners. But it was evident, that the mjn¿s Qf both parties were greatly inflamed, that the witnesses were strongly biassed by supposed interests and peculiar wishes. I ventured no opinion.on-the credibility, of .the witnesses, but submitted that consideration wholly to the jury. I left it to them to decide, if they believed the testimony, whether force and violence were not intended to be used, in case the addressers should see a fit occasion for it, taking into view the facts preceding it, and all the attendant circumstances. The jury have convicted all the defendants, and I will only add, that on the fullest reflection, I see no reason to disturb their verdict.

Gibson J. concurred.

Motion for new'trial refused.

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