New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-03-13

q hiatus in the Legislature of this State
probably rendered unnecessary in conse-
quence of the high integrity of the officers
who have had charge OF it-that no penalty
is affixed by the statutes of our State for
accepting or offering bride, except IN the
administration of justice, by or to Judge
or juror; that every other officer OF the
State may be tempted by brides or may
receive brides, and it may be done with
perfect IMMUNITY, because there is no leg
islative enactment upon that subject.
Now, what is the state of things in Lou
isiana? There are a great many things
which are offensive to the public which
are crimes by the common law, or mlsde-
meanors, because this immense mass OF
Ofenses which have grown up from cen
fury to century, have been incorporated
into the common law. In all those States
where the common law prevails man
can scarcely do anything without its being
pronounced wrong or right under that sys-
tenn. Here, if there be no statute declar-
ing an act wrong, no man is at liberty to
sit in judgment on his neighbor, and say
that it is wrong, for as soon as you depart
from the law which creates and defines the
offense, what do you become? You do not
become a court, or judge administering
the known law of the land.
You do not become the executors
of the law, as Blackstone says,
but you each one establish within your
own mind tribunal Of propriety without
any known rule to govern you, and when
you come to O conclusion, you first make
the law, and then you judge the party
and convict him by your own law, made
at the time being. AS l said the other
day, a Mormon who has many wives con-
siders it no harm; you may consider 1t
wrong. A man may do thing IN one
State which would be violation OF pub
lie sentiment, and he could do the same
thing in another State according to diff
ferent condition of public sentiment
where it would be perfectly right. There
fore, if there is. no known rule laid
down in advance, the violation OF
which is denounced, and you are
left to your own individual Judgment,
and to punish a man for violating what
you may conceive to be right; to try him
for thing which you undertake to prove
an offense, it seems to me, is setting up
your individual judgment over another,
when you have no constitutional power
to do so. It must necessarily come to
that. You may think one religion right,
and I may think the other right. You
may think it is right, as thought by many
at one time, to prosecute man for his re-
ligion you may think it right, as was
thought at one time, that persons, on &C
count of their religion, should be excluded
from Office. Political parties were organ
lied on that principle.
You say Mr.. Wickliffe is unworthy to
hold Office because he has done something
which you thought wrong. Those people
in those days thought that man with
certain class of religious opinions ought
not to be trusted, because they doubted
his allegiance to the government of which
he was a citizen. All that has passed
away; you do not think So now. The
religious furore, created at the time for
political purposes, has died out and your
opinions have entirely changed. l only
refer to these facts for the purpose of
calculation, and not to rip up old sores,
things which are dead and buried, but
merely as an argument and calculation, to
show you that when you depart from the
plain paths of the law, you have then no
landmarks to guide you in arriving at
correct conclusion in regard to these
things.
The learned manager cited Mr.. Burke
on improbable offenses. cite him too,
but that was under the common law. l
read from Mr.. Burke, volume Z, pages Is
and IA:
But the crimes we charge in these arti-
cles are not lapses, defects, errors OF COM
mon frailtY which as we know and feel, we
70, oil I fhlnp
pleaded on the ground of surprise or error
be pleaded with success. We give up the
whole of these predlcaments. We urge no
crimes that are not crimes of forethought."
This, going to show that they must be
crimes and intentional crimes; they must
be crimes of forethought; they must not be
merely errors, lapses, or surprises-he
gives that all up; but they must be crimes
in the sense of the law and crimes afore-
thought.
In Peok's trial, Mr.. Buchanan, who was
then manager on the part OF the House OF
Representatives, says:
"What is misbehavior in Office? In an
swer to this question, and without pre-
tending to furnish definition, l freely
admit we are bound to prove that the re-
spondent has violated the constitution or
some known law Of the land
Now, then. think | have established
that in this State we are in peculiar con-
dition; that We have none of this mass of
underlined otfenses known to the common
law; that although under the common law
you may indict man for any of these
ings-drunkenness, or anything of that
kind-you can not do it here, because I'M
less drunkenness is defined to be an Of
fopSa II can NOT he nuniShed And what
was the conclusion on the trial OF Presi-
dent Johnson? The very same argu-
ment, to certain extent, that
I am now making was made then.
The opinions delivered by the various
Senators, and you will find the most
eminent Of them, as members of the
profession, take the view that | do;
and so hardly pressed were the
managers on that sutherland how
do you think they got rid of it?
they got rid of it by saying that in the
District of Columbia, where the acts of
President johnson were committed-when
Maryland coded that portion of the Dis
trict to the United States for the seat of
goyernment-the common law which pre-
vailed in Maryland was transferred to the
seat of government, and under the COM
mon law these things charged against
President johnson were offences, and
therefore they could prosecute him.
MIR. Bingham, the ablest of the man
ayers, in his concluding argument. puts
his case upon that ground. | read from
the second volume of Johnson's trial,
page 400:
senators, l refer in passing, without
stoyDing to read the statute for 7 believe