United States v. Stewart

gave his answer to the instructions as follows: With reference to the first instruction, the court said that much argument had been expended in relation to the president’s power to order out the military. The 15th clause of the 8th section of the article of the constitution of the United States, which confers upon congress the power to provide for the calling forth ot the militia to execute the laws of the United States, to suppress insurrection and repel invasion, has been referred to, as well as the act of February 28, 1795, in 1 Stat. 424; but the terms of the law itself show that it applies to the states, and to a different class of contingencies than .the one that is alleged to' exist in this case. The act of 1807 has also been cited, but the court *1342was of opinion that this provision in the constitution anfl the laws passed under it have no application to the inquiry submitted to the jury. There was another clause in the 2d section of article 2 of the constitution which makes the president commander-in-chief of the army and navy of the United States; and section 3 of the same article makes it his duty to take care that the laws be faithfully executed. It was under these two last named sections of the constitution that he apprehended the power to call out the military forces in aid of the civil authorities would be found. The 15th clause of section 8 of article 1 of the constitution, under the appropriate head of “What congress shall have power to do,” bestows legislative power; and section 2 of article 2 imposes the presidential duty. The chief magistrate of the United Siates, acting for this district, possesses the power which was exercised in this instance, and being the head of the proper department, the act of the secretary of the navy -was, to all intents and purposes, the act of the president. The authority, then, according to the evidence which the jury had heard, was a necessary application of the power granted by congress, and was properly and lawfully exercised by the executive upon this occasion. • The president could not make himself personally cognizant of all the circumstances whenever he was called upon to act. The representations made to him were such as not only to justify but to require the executive of the United States to do all that he did do. The marines and the officers who commanded them were legally at the polls of the first precinct of the Fourth ward, for they were there in obedience to orders. The may- or had a legal right to be there also, in his official character as mayor, either to quell the riot or to see that the laws of the city were duly executed. Although the act of the executive in this case was authorized by law and required by duty, the mayor was using a discretionary power when he applied to the secretary of the navy for the assistance of the .marines; for the simple fact that he, and he alone, as every other officer similarly situated, must decide when the proper time has arrived lo make such an application, shows that it lies at his discretion. Still, an inferior officer must in the first instance resort to the civil power, and it may be material to know whether he had done so, but if the civil power is too weak to repress the riot, or if the riot or disturbance be so great and so dangerous that it must be apparent that an attempt to quell it by the civil officers must be absurd—that such an attempt must necessarily be unsuccessful, and would only be followed by the scoffing at and derision of those who should attempt it, and by an increased tumult—the court was of opinion that resort might be had to other means, without further recourse to the civil power.

If the jury believe from the evidence, that marines made the first attack upon the rioters, and whatever of violence and turbulent conduct and acts proceeded from the defendants, or from any others connected with them, were resorted to in resisting such attack, then it would be their duty to inquire whether the defendants were guilty of a riot at that particular time and hour of the day; for the disturbance of the morning was wholly unconnected with the marines in any shape, except so far as it was the ground upon which the military were brought out. But if they should believe from the evidence in the case that the marines, after their arrival at the polls, where they were then legally, without any offence or violence upon their part, were first assailed in a violent and turbulent manner, according to previous concert, whether remote or immediate, on the part of the defendants, or any of them, either with or without connection with others who are not now upon trial, for the purpose of driving off the marines in spite of their opposition, then the defendants or so many of them as thus • assailed the marines would be guilty of a riot

With regard to the second instruction asked by the district attorney, the court remarked that the conduct of the elections, in the city of Washington, is confided by law to these commissioners, to be appointed as the law prescribes. Their duties are expressly pointed out by the law, and among these it is specified that they shall keep the polls opened from 7 o’clock in the morning until 7 o’clock in the evening. The commissioners cannot lawfully close the polls between those hours, and nothing short of some overruling necessity which makes it impracticable for them to receive the votes offered, or to continue the election, will excuse the closing of the polls. If the jury believe from the evidence that the polls were closed in the first precinct of the Fourth ward, in the language of the prayer, for no other reason than the presence of the said marines, then the act of closing them was illegal.

The mayor of the city of Washington has no powers other than those which are given him by the acts of congress and the laws of the corporate authorities, passed in pursuance and by virtue of the powers conferred upon them by congress. Among the duties of the mayor it is enjoined upon him by the “Act further to amend the charter of the city of Washington.” passed on the 4th of May, 1812 (section 3; 2 Stat 723), is to see that the laws of the corporation be duly executed. That provision was not repealed as had been asserted here. The act of May 13, 1S20, § 1 (3 Stat. 584), repeals only so much of the law of 1S12 as is “inconsistent with the provisions” of said act of 1820; and the law of May 17. 1848, § 1 (9 Stat. 223), continues the act of 1820 in full force for 20 years, with the same repeal (section 17; 9 Stat. 230) of the acts in conflict with its own provisions.

As to the recited duty of the mayor, as had been asserted, the mayor had the au*1343thority to request or demand that the polls should be opened, but he could not enforce that demand, for there are no specific powers conferred upon him for that purpose. If you believe from the evidence that he demanded of the commissioners to open the polls when closed, but did uot take any further or other steps that such demand should be carried into effect, it is no more than his duty required. And lastly, if the jury believe from the evidence that the defendant, or any of them, with or without the conjunction of others named in the indictment, but numbering at least three persons, did, in a violent and turbulent manner, to the terror of the people, with a determination mutually to assist one another against any who should oppose their act together according to previous concert and arrangement, remote or immediate, for the purpose of thwarting the efforts of the mayor to have the polls opened, or to prevent those efforts from succeeding, or for the purpose of opposing his exertions to preserve the public peace and preventing their success, then the defendant, or so many of them as thus acted, would be guilty of a riot.

The jury came into court, and represented to the judge their inability to agree upon a verdict. The judge thereupon discharged them.