§ 96. The commanding officer must act entirely on the defensive, not suffering his men to fire, and permitting them to use their edged or pointed weapons only, to repel actual violence, except in one of the following cases: 1. If an attack be made on any one of the troops, by which his life is in danger, or if an attempt be made to disarm him, which he cannot otherwise avoid, he may defend himself by discharging his fire-arms: 2. If a general attack be made by the rioters upon the troops with fire-arms, missiles or other weapons, by which their lives are indiscriminately put in danger, the commanding officer may order the troops to fire; but not until an endeavor has been made to disper e the rioters, by means less dangerous to persons who may not be engaged in the riot: 3. If the troops cannot be placed between the rioters. and the persons or property which they apparently intend to attack, and the illegal purpose of the riot be persevered in by means evidently dangerous to the lives or property of others, although no attack be made on the troops themselves, the magistrates or officers mentioned in section 93, or any two of them, may direct the commanding officer to disperse the rioters; which he is authorised to do by ordering the troops, first to use the bayonet or sword, and if they prove ineffectual to disperse the assembly, but not otherwise, then to discharge their fire-arms against them: 4. The troops must not be brought up to the place, until after the magistrate or other officer has proclaimed the office which he holds, and ordered the assembly to disperse; nor can they make a discharge of fire-arms against the rioters, until after a signal given by three discharges in rapid succession, with blank cartridges, and the lapse of a reasonable time thereafter. 5. Every endeavor must be used, both by the magistrates and civil officers, and by the officer commanding the troops, which can be made consistently with the preservation of life, to induce or force the rioters to disperse, before an attack is made upon them by which their lives may be endangered. This section is taken almost literally from Livingston's Criminal Code, p. 499, 500, art. 130. The Commissioners cannot more aptly illustrate the propriety of its introduction, than by quoting the language of that learned jurist, in his report, p. 209, 210. "In all riots or insurrections," says he, "the immediate, sometimes the ultimate object is violence to some obnoxious person, or the plunder or destruction of property. To protect these, without the useless sacrifice of human life, is the object of the laws on this subject; therefore, all the provisions of this chapter are intended, if possible, to stop the violence by the fear of an armed force, without having recourse to its dreadful execution. The militia are only to be employed, where the ordinary civil power has been tried and found insufficient. It is, when practicable, to be stationed between the rioters and the object of their intended violence; to act strictly on the defensive, and under the direction of the magistrate. When the use of weapons becomes necessary, to use only those, such as the bayonet and sword, which may be directed solely against the assailants, without endangering the lives of others; leaving the more dangerous and uncontrollable effect of hre-arms, (which may injure the innocent as well as the guilty,) for the last resort. case can the armed force be brought up, before the magistrate [CRIM. CODE.] 4 In no has displayed a white flag, and ordered the rioters to disperse ; and, unless to repel an attack endangering life, no order is to be given for the use of offensive arms, until half an hour has elapsed after the order to disperse without its being obeyed. The remarks on this chapter cannot be closed, without observ ing the essential difference between the nature of the armed force, the use of which is contemplated by the code, and that employed on similar occasions in England and other countries in Europe. There, it is composed of men entirely under the control of the executive branch of the government, upon which they depend entirely for subsistence. Here, except in the circumstances of their being organized and armed, they differ in nothing, from the power which is at the daily call of the civil officer. Without arms or military array, they are the common posse comitatus, as it is called, or the civil power of the county; the same ties of property, of family, of love of country and of liberty, to make them effective instruments for the suppression of disorder, and the most unfit, even when disciplined and armed, that could be chosen to promote any scheme of usurpation. The people can apprehend no danger to their liberties from such a force, even when it is actively employed against themselves, when, deceived by the factious, agitated by party, or indignant against real or imagined injury, they are led to oppose the operation of the laws. Yet with all these safeguards, the legislator would be unfaithful to his trust, who should neglect other precautions, against the necessary evil of employing the weapons of war in the work of peace." In this Code, the Commissioners have substituted three rapid discharges of blank cartridge, as a signal more likely to arrest attention. The white flag may not readily be seen, by reason of darkness, or it may be found impracticable to display it. Instead of the lapse of half an hour, they propose that a reasonable time should be given for the rioters to disperse. § 97. When the governor is satisfied that the execution of civil or criminal process has been forcibly resisted in any county, by bodies of men, or that combinations to resist the execution of process by force, exist in any county, and that the power of the county has been exerted, and has not been sufficient to enable the officer having the process, to execute it, he may, on the application of the officer, or of the district attorney or county judge of the county, by proclamation to be published in the state paper, and in such papers in the county as he may direct, declare the county to be in a state of insurrection, and may order into the service of the state such number and description of volunteer or uniform companies, or other militia of the state, as he may deem necessary, to serve for such term, and under the command of such officer or officers as he may direct. § 98. The governor may, when he thinks proper, revoke the proclamation authorised by the last section, or declare that it shall cease, at the time and in the manner directed by him. § 99. A person who, after the publication of the proclamation authorised by section 97, resists or aids in resisting, the execution of process in a county declared to be in a state of insurrection, or who aids or attempts the rescue or escape of another from lawful custody or confinement, or who resists or aids in resisting, a force ordered out by the governor to quell or suppress an insurrection, is guilty of a felony, and is punishable by imprisonment in a state prison for not less than two years. PART III. OF JUDICIAL PROCEEDINGS FOR THE REMOVAL OF PUBLIC OFFICERS, BY IMPEACHMENT OR OTHERWISE. TITLE I. Of impeachments. II. Of the removal of justices of the peace, police justices, and justices of justices' courts and their clerks. TITLE I. OF IMPEACHMENTS. SECTION 100. Impeachment to be delivered to president of the senate. 101. Court to be summoned, and copy of impeachment served on defendant. 102. Service, how made. 103. Proceedings, if defendant do not appear. 101. Defendant may object to sufficiency of, or deny impeachment. 105. Form of objection or denial. 106. Proceedings thereon. 107. Trial. 108. Two-thirds necessary to conviction. 103, 110. Judgment on conviction, how pronounced. 111. Nature of the judgment. 112. Effect of judgment of suspension. 113. Judicial officer, when impeached, disqualified to act, until acquitted- § 100. When a civil officer of the state is impeached by the assembly, for wilful or corrupt misconduct in office, the articles of impeachment must be delivered to the president of the senate. Substantially the same as 2 R. S., 224, 3d ed., sec. 14. |