The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-09-02
RIOTERS ENCOURAGED BY A DIS
TRIOT JUDGE!

Winchester, attorney for the town of Brasheal
, and Henry Train, judge Of the Third Judicis
, District, in regard to the lawful authority I
, the mayor of tina. town to suppress riots an
to disperse disorderly assemblsges. The oc
casion which induced Capt. Winchester as tn
law officer OF the town, to appeal to the dis
trict judge for his extra judicial opinion OF
this interesting subject was the recen
tumultuous proceedings of the negroes, set
ting at defiance the mayor and other consti
tuted authority of the town, and, with arm.
in their hands, threatening violence to the
inhabitants Of that community.
That Judge Train is quite proud of the opin.
ion he has uttered in this matter, is shown by
the fact that he has caused or allowed it to be
published in the Republican of the 2Sth OF
August, and again in the Brashear Ne,os. 1t
has thus assumed an importance which de-
account Of the disorderly and revolutionary
ideas it advances, and the encouragement it
gives to riotous proceedings on the part of an
ignorant class whose evil passions ought to be
restrained by the fear Of punishment, rather
than to be stimulated by an assurance OF i'm
punity. Nothing that Judge Train has here
tofore done to outrage the public sense is SO
repreheHsible as this open declaration that
there is no law in Louisiana to suppress or
punish rioters.
However worthless this opinion of Judge
Train may be as an exposition of the law on
the subject of riots, we append it. with the
letter of Capt. Winchester which called it
forth, as one of the signs of the times that
point to the near future, when the exieencies
of the Radical party (of which Judge Train is
shining light may require public disturb
ances as in times past.
To His Honor, Henry Train:
As the highest Judicial officer of this Dis
trict, l would like your opinion and the
law on the following points, submitted to rae
by Charles II. st. Clair, Mayor of the town of
'Brashear.
1. In case Of a riot or illegal assemblage of
persons with guns and firearms or other
deadly weapons, whether the Mayor can
swear in q number of special police, arm
them, and proceed to the band OF rioters, tell |
them to lay down their arms and immedi-
ately dispense. and in case the band or as.
semblage do not Obey the order Of the Mayor |
or Chief of Pol ce, can he forthwith fire upon
said rioters?
B. F. WINCHESTER, Town Atty.
Brashear, Aug 90, 1875.
My humble opinion is that it seems there is
no warrant in law for such proceedings. In
the first place have looked in vain to find a
statute defining and furnishing riot or unlaw-
ful assemblies. That law, I believe, was in OPP
grafton before the Constitution of 1868, and the
supreme Court had occasion but once to pass
upon that otfense in the case of State w. Egan 10
A. 69S. But since the adoption of the Con-
'titution of 1868. there seems to be no trace
If the same Whether the trainers of that or
sanic law .deemed that its punishment would
% an infringement on the rights of the peo-
Die 10 redress their wrongs, real or i'm aginary,
I is not for me to determine; suffice to say,
hat the ingenuity of offenders or their coun-
sl might put such fae-spun construction
lpon Art. of that Constitution.
statute must always be produced in order {
o be enforced by the court &
Even statute which is silent about affix-
ng penalty to the on-observance of an act
commands or of law it defines. | have '
10 constitutional power to entertain and en-. i
orce. Why? Because the law does not au-
horize courts TO legislate on criminal or other
roceedipgs. The hardship of particular
ase can not exempt it from q universal rule C
law which takes no notice Of individual Ii
asses. !,
If courts can at their discretion take laws
ut OF universal rules TO avoid hardship, "
here would soon be no rules and so no law Fl
Under q government of written law the g
ldiciary, is but the interpreter of the legis-
tive will, and when there is none expressed
pom subject matter, courts, think, are .
owerless to legislate and decree penalties, as
this case, to an offence which from moral
oint of view, might be considered highly
Tlminal, but which courts are unauthorized
repress and punish. Fixed and precise r,
lies Of Interpretation intending alike TOR the :
Gu and the poor, in some instances produc- y
We of hard cases. are better than an arbi- d
AIRY subsection of the rights of parties to the
nscience Of the judge.
In - II our Supreme Court held that
g charge Of "enticing away from defendant
rtain freedmen laborers" was not an off3nse
lown to our laws; so are riots or unlawful II
they seem to be now ignored By
9 law and can not be punished, but if they
re still upon the statute book, life is not so =
lueless as to be disposed of in such sum- r..
ary way as suggested when the law ITSELF
existing, would infict no harder punish
emit than fine or Imprisonment upon the
lily perties,
Respectfully SuOultteQ, ID. i.
the imbecility manifested in the judges Y
alton OF irrelevant authorities to justify his
surd opinion is only equalled by his ignor-
3 the plain and explicit provisions of the
of the Legislature incorporating the town
Brashear; which expressly clothed the
'yor with authority in his capacity of es-
clio justice of the peace, ito suppress all
It's. ricts u'daufm assemblies, ARRAYS and
auhs; all breaches Of the peace committed n,
hin the limits Of the to,on; to that end he y
Ill appoint, from time to time, such q mum.
: of policemen as he shall think proper
the policemen SO appointed shall be SUBJ
to his control in the discharge of their
les, etc. Acts of 1872, page 23l, section
With this plain statute before his eyes, no.
ly but Judge Train would venture to give
opinion that diyasts tho Maynr If Rroebaar ST-