"This proceeding," he began, "is upon the application of one Lemuel Barker for a writ of _habeas corpus_, asking that he be discharged from custody, upon the ground that he has committed no crime punishable at common law or under the statutes of New York. An agreed state of facts has been submitted, upon which he stands charged by the commonwealth with having obtained five thousand dollars from one Cornelius Rockham by false pretences. The facts are, briefly, that on the 17th day of December Barker called at the residence of Rockham and said that he desired to make a proposition looking to the recovery of the lost child of said Rockham, but he desired to make it in the presence of witnesses, and would return at ten o'clock that night. Pursuant to his appointment, Barker again presented himself at the residence of said Rockham, and, in the presence of witnesses, declared, in substance, that at that time (then ten o'clock) he knew nothing of the said child, could not produce it, and could give no information in regard to it, but that at eleven o'clock he would know where the child was and would produce it; and that, if the said Rockham would then and there pay him five thousand dollars, he would at eleven o'clock take them to the lost child. The money was paid and the transaction completed. "At eleven o'clock, Barker took the men to a certain corner in the upper part of this city, and it there developed that the entire matter was a scheme on his part for the purpose of obtaining the said sum of money, which he had in some manner disposed of; and that he in fact knew nothing of the child and never intended to produce it. "The attorneys for the People considered it idle to discuss what they believed to be such a plain case of obtaining money under false pretences; and I confess that upon first hearing I was inclined to believe the proceeding a useless imposition upon the judiciary. I have had occasion to change my opinion." The attorneys present looked at each other with wonder and drew their chairs closer to the table. The audience moved anxiously. "The prisoner," continued the Judge, "has filed in his behalf the remarkable brief of one Randolph Mason, a counsellor. This I have read, first, with curiosity, then interest, then wonder, and, finally, conviction. In it the crime sought to be charged is traced from the days of the West Saxon Wights up to the present, beginning with the most ancient cases and ending with the later decisions of our own Court of Appeals. I have gone over these cases with great care, and find that the vital element of this crime is, and has ever been, the false and fraudulent representation or statement as to an _existing_ or _past fact_. Hence, no representation, however false, in regard to a _future_ transaction can be a crime. Nor can a false statement, _promissory_ in its nature, be the subject of a criminal charge.