Weekly American. [volume] (Washington, D.C.) 1858-1858, 1858-01-09

perienced in war, with the knowledge Of It's hor-
rors, who knew what 1t was TO turn loose upon an
excited perhaps an unarmed people, the hireling
80 dery with arms in their hands say thus spoke
Old Hickory. Unfortunately thus did not speak
Young Hickory; for had Young Hickory spoken
as Old Hickory did, the slaughter of your fellow.
citizens would have been avoided crime would
have been prevented; the blood of slaughtered
citizens would not have been dripping from the
hands of the murderers, who have been called to
testify in this case The President is justified by
the law, though, issuing the orde". lie can plead
in his excuse Goddard's affidavit and the Mayors
letter. That is the decision. But if he had the
right, upon this representation, to order out this
military force, and is not responsible for the i'm
position upon him, can the same be said of the
city officials who p acticed the imposition? Did
they practice an impositionY You heard God
dird's affidavit read. You have heard the Mayors
letter read. do not know that will consume
your time by reading them again, but will state
what you Will verify when this Use is entrusted
you, that both the affidavit and the certificate
spoke OF affairs as they were alleged to haveaex-
isted at the time of their preparation. They both
represent, that at the time Of their preparation,
the polls of the first precinct of the Fourth ward
were in possession of rioters; that the comms-
sioners were driven away from them; that the law
was defed, and by persons in such strong force,
that it was impossible for the city authorities to
qnell tn I'm. They stated those facts Now, every
man on the jury knows that they are false. do
not care who he is; every man within the sound
Of my voice knows that the statement is false.
Now, If the President and the Secretary of the
Navy can plead the imposition a defence against
their legal responsibility so fir as they are con-
cerned, can the city officials, who practised the
imposition, escape its consequences? His Honor
says, for example, that the Mayor Of this city,
who is peace officer, had the right to make the
rtquisition on the military arm of the government,
and to use it at his discreet in proper case
that as matter of course it was discretionary
power; he was the judge of The occasion to ex-
ercise the power or to refrain from its exercise.
CERTAINLY, the power existed. 1t was in the dis
cretion of the officer to resort to it or not, and
that understood the learned Judge to declare in
his Instructions; but it does not follow because
this was discretionary power, that the Mayor is
not responsible for his action
The DISTRICT ATTORNEY. l do not under.
stand the instructions of the court as you do
Mr.. SCOTT. | cannot see how they can be
understood any other way. Is it to be believed
that the Mayor, because he has the discretion to
call out the military, is not responsible in law for
the exercise of that discretion. That is much be-
yond what any other judge would go, and much
beyond what this judge has gone.
The DISTRICT ATTORNEY. merely inter-
rupted the gentleman, to state the fact in this
case. Your Honor has told the jury that with the
necessity which induced the Mayor to make ap-
plcaton for the Marines, this jury has nothing to
do, except in one particular, and th4t is, if they
believed that the Marines made an assault upon
the rioters; and on that point, have spoken be-
fore.
The JUDGE. The terms of the decision OH the
instructions, are these: "
Although the act of the Executive in this case
was authorized by law, and required by duty, and
the Mayor was using discretionary power when
he applied for military aid-the single fact that he
and he alone, and every officer similarly situated,
must DECIDE when the proper time hiss arrived
TO make such an application, shows that he APP
plies at his discretion; still the inferior officer
must in the first instance resort to the civil power
land sometimes it may be material to know if he
has done SOL but if it be too weak to suppress
riot or if it will not aid to do So or if the riot or
disturbance be so great, so violent, so dangerous,
that it must be apparent that any attempt at quel
ling it by civil officers would be futile that such
an attempt must be unsuccessful, and would be
followed by the scofing and derision of those who
attemptedit and by increased tumult- then think
resort may be had at once to stronger means,
without full or further recourse to the civil power.
"lf you should believe, from the evidence you
have heard that the Marines made the first attack on
the alleged rioters, and that, whatever Of violent
and turbulent conduct and acts proceeded from the
defendants, or any of them, or Others connected
with them, resorted TO in resistance TO such at
tack then it will be your duty lin enquring whether
the defendants were guilty of riot at this particu-
lar time, or hour of the day, for you will recoect
the alleged rioting in the morning, if you believe
the evidence on this branch of the case was Who'll
ly unconnected with the Marines in any shape, ex.
n aa W. ok NJ
rines we're brought out TO ascertain whether any
or all OF the circumstances before reced existed,
20 as to authorize or justify the use Of force and
This, tn view to the guilt or innocence Of the
resiStdnts. But If you should believe from the
evidence in the that the Marines, after their
arrival at the polls, where they were legally, with.
out any offensive violent act on their part were
first assailed in violent and turbulent manner, TO
the terror OF the people, according to previous
concert whether remote or immediate, by the de-
PENDANTS, or any Of them, with or without connec-
ton with Others not on trial, making not fewer
than three assailants, for the purpose Of dispensing
the Marines against all opposition, then the de-
PENDANTS, or so many Of them as thus assailed the
Marines, would be guilty of a riot"
The DISTRICT ATTORNEY. That leaves il
open, then.
Mr.. SCOTT. / could not attribute to this
intelligent court the decision that petty corpora
ton officer, though he was peace officer, was
not responsible to the law for the manner In
which he exercised his power and discharged his
duty. Why, have a discretion how shall talk
to you, gentlemen Of the jury, but must exercise
i upon my own responsibility. If | offend
decency, IL | offend the law, may be punished
for it. The Mayor had the rigrIt@to get the
military; he had right to use them against those
who were violating the peace. But suppose,
instead of undertaking to arrest the party who
was within his power he had taken a platoon of
marines and fired upon him and killed him. Here
he was acting under his discretion; but if he
killed the man would il not be murder, and would
he not be responsible, therefore, in acting accord
ing TO his dscretionY The books contain a case
in point. Justice Littledale, in summing up
case OF this kind quote from Darlington and
Payne's English reports, in Rex versus Pinney, p.
56l-uses this language: snow, a person, whe-
Their magistrate or peace officer who has the
duty OF suppressing riot, is placed in a very
difficult situation; for il, by his acts, he causes
death, he is liable to be indicted for murder or
manslaughter, and if he does not act, he Is liable
to an indictment on information for neglect he
therefore bound to hit the precise line Of his
duty"
Tnis decision having been made, Mr. Justice j..
Parke said, al do not think it nece ssary to add
any thing" and Mr.. Justice Taunton said, "nor do
l." Both, therefore, concurred in the opinion.