New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-06-29

constitution stated that the JUDICIARY powers
of the State should be confided to TIE Su.
preme Court, justices Of the peace, and
such other courts as the Legislature might.
in it's wisdom, establish or organize. Our
present constitution did not leave the mat
ter to the Legislature at all. 1t states that
the judiciary power of the State shall be
confided to the Supreme Court, the parish
courts, district courts and justices OF the
peace.
There is a glazing distinction between
the power of the Legislature under the
tuition of 1868, to enact such laws. The
law of 1855, as soon as the constitution Of
1868 was adopted, became repugnant to
that constitution. because 1t provided
the trial before set of officers who were
incapable of being given such Jurisdiction
by the constitution Of 1868. That act went
by the board because it was repugnant to
the provisions contained in the ninety
fourth article of the constitution OF 1868.
may here state the act of 1869, passed by
the first Legislature elected in 1868, was
passed in cOnsOnance with article ninety
four of the constitution of 1868. 1t was for
that reason, to guard the contingency pro-
vided for by that prohibition, that the act
of 1869, provided that the parties should be
tried, if they so desired, before ajury.
l thought then, aud so stated to several
would not do; because even with the con.
sent of the accused, he could not be tried
and convicted, and sentenced, by any other
tribunal than one of those mentioned in the
section of the judiciary department OF the
constitutions; because no man can, by his
own consent, confer judicial functions upon
any other man.
They, however, thought it would be suffi.
Gent compliance to leave it as the constitu.
ho trio1 nf hpfOrA
Judges-to the prisoner to say whether he
would be tried by such officer. They forgot
that the Parish Judge was an officer pro-
vided for by the constitution, and that the
petty officers called Recorders we're not
thought of except in moment OF lndigna-
ton, by thes convention. Therefore, 1t ls
immaterial to me whether the Legislature
in 1870 intended to re.enact the statute OF
1855. 1t appears to me they did do it.; and
it is plain under article ninety.four of the
constitution they had no power to do go.
They could not confide to any other set OF
magistrates, except those mentioned and
recognized in the constitution itself; the ju-
dicial function to determine the guilt or In
nocence of man charged with an offense
| against the laws of the State.
I have read in the newspapers in this
CITY. not one, but probably a thousand
transgressions and violations of this article.
and It is high time that 1t should be stop
| ped. don't believe that because q man is
| q thief he must be jerked up at moment'f
warning by anybody or everybody and put
into jail.
It Is part of, and the foundation of our
system that every man Is entitled to trial
according to the laws of the State, and, II
my humble opinion, consider the con1ne
ment of an individual and his incarceration
| in Jail, where he is deprived OF his liberty
| by an officer who is not authorize to do SO
| by law, to be q more heinous otfense thar
Lthat for which he has committed the party
r to Jail The offense of petty larceny is one
which involves his neighbours property, and
property has value. But under our laws
| liberty is invaluable and inestimable. Ane
| in the very proportion that there is between
| liberty and property the offense of usurpa
ton by the magistrate is greater than the
offense of larceny by the party who is in
generated in Jail.
| In the convention of 1863, knowing full
we'll that these things might and would bt
repeated, because it Is an old saying thai
bad precedents are always followed and gOot
ones disregarded, took the trouble to in
sert clause in article nineiy-four which
thought would deter parties from acting IL
such q manner in the future. 1t says: I'll
any case where such officers shall assume
jurisdiction over other matters than thos'
which may arise under police regulations o.
| under their jurisdiction as committing mag
istrates, they shall be liable to an action o
damages in favor OF the party Injured, or ni
heirs; and a verdict in favor OF the party
injured shall ipso .fdcto operate vacation o
the Office of said officer" Consequently, il
a case of that kind, all you have to d.
10 get that officer out of office is t.
sue him for damages and get a verdict
and that verdict will operate, withou
anything else, q vacation of his office.
did this because l wanted to bring to bea
on such offenses, not the agency of the Stat
as a repressive measure; because knew II
nineteen out of twenty cases the Stat
would not interfere to right it's citizen
against such usurpatiQn; but l wanted t.
bring to bear private interests, which ar
much more active and Jealous for tn
repression ofsuch usurpation.
We live under government where cltl
zen is entitled to trial according to law
And there can not be more helnous ofens
committed against the law than the usurpa
ton of power which results in the depriva
ton of the liberty of citizen until he ha
been tried, and tried according to the law
of the State, and not according to the within
and caprices of any petty legal officer o
magistrate.
Unless such conduct is stopped we vii
be drifting into anarchy and misrnle
and as the result OF this, into absOlut
despotism. To-day, the individual VIII
stands before me may be scoundrel; b
may be an inveterate thief for all know
and no great harm may be done by tn
usurpatiOn which deprives him of his liberty
but tomorrow that usurpation may deprlv
a citizen, the best amongst US, OF his liberty
and incarcerate him in the parish jail; be
cause usurpatiou never makes distine
tion-because it levels all classes. And i
order to protect our citizens it is necessar
the law should be strictly adhered to.
It seems to me clear that under artlcl
ninety-four of the constitution OF 1868, re
corder Staes had no power, whatever, an
that the Legislature could confer upon MI
no power whatever, to try and convict tn
relator here of the crime Of vagrancy, wit
which he is charged.
Let the prisoner be discharged.