Commonwealth v. Franklin , 4 U.S. 221 ( 1802 )

Brackenridge, Justice.

— The second count in the indictment is founded upon the second section of the act of assembly; and the special verdict finds expressly, that the defendants did conspire for the purpose mentioned in that section. The purpose was, “ to lay out townships in the county of Luzerne, by persons not appointed or acknowledged by the laws of this commonwealth.” Now, the term township indicates a local jurisdiction, for objects of local police, with powers and officers to effectuate the jurisdiction ; and a conspiracy by individuals to erect such townships, is an encroachment upon the rights and authority of the state. It is an offence indictable at common law; and the legislature, with a view more effectually to prevent its commission, had an unquestionable power to increase the punishment.

As to the first section of the act of assembly, I am not prepared to pronounce, that it is unconstitutional; and, consequently, I could not, even on that ground, decide, at present, to arrest the judgment. But it is enough, to observe, that, on the finding of the jury, I shall be ready to give judgment for the commonwealth, on the second count of the indictment, when the subject is brought before us in the circuit court. ^(a)

(a) The cause was argued upon the other objections in arrest of judgment, before the supreme court, in December term 1804. See post, p. 316.

1 The case was tried before Judges Yeates and Brackenridge, who differed in opinion as to the constitutionality of the intrusion law, but both concurred in submitting that question to the jury, which resulted in the special verdict. The court being divided, no judgment was given in the circuit court, but the question of the constitutionality of the intrusion law, and all others arising on the motion in arrest of judg ment, were reserved for the supreme court in bane. 2 Am. Law J. 287. From the Luzerne Federalist of the 10th May 1802.