either of the officers mentioned in section one hundred and eleven. Id.

§ 114. Conduct of the troops. - 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.

Id.

§ 115. Governor may, in certain cases, proclaim a county in a state of insurrection. 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.

3 R. S., 726, 107; Laws 1845, ch. 69, § 19.

§ 116. After the proclamation mentioned in the last section, the governor 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 deems necessary, to serve for such term, and under the command of such officer or officers as he may direct.

Id.

§ 117. May revoke the proclamation. — The governor, when he thinks proper, may revoke the proclamation authorized by section one hundred and fifteen, or declare that it shall cease, at the time and in the manner directed by him.

Id

4

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 JUSTICE OF JUSTICES' COURTS AND THEIR

CLERKS.

TITLE I.

OF IMPEACHMENTS.

SECTION 118. Impeachment to be delivered to president of the senate. 119. Copy of impeachment served on defendant.

120. Service, how made.

121. Proceedings, if defendant do not appear.

122. Defendant may object to deficiency of, or deny impeachment.

123. Form of objection or denial.

124. Proceedings thereon.

125. Two-thirds necessary to conviction.

126. Judgment on conviction, how pronounced.

127. Adoption of resolution.

128. Nature of the judgment.

129. Officer, when impeached, disqualified to act until acquitted. 130. Presiding officer, when president of the senate is impeached. 131. Impeachment, not a bar to indictment.

§ 118. Impeachment to be delivered to president of the senate. When an officer of the state is impeached by the assembly, the articles of impeachment must be delivered to the president of the senate.

3 R. S., 183, § 10; Penal Code, § 723.

New York Const., art. VI, § 1; 1 R. L., 132, § 4.

(a) An associate judge may deliver an opinion.- A presiding judge is liable for preventing his associate from delivering his opinion. (Addison's Trial, 114, 151; S C., 4 Dall., 225; Porter's Trial, 61; see, also, Barnard's Trial)

§ 119. Copy of impeachment served on defendant. The president of the senate must thereupon cause a copy of the articles of impeachment, with a notice to appear and answer the same, at the time and place appointed for the meeting of the

court, to be served on the defendant, not less than twenty days before the day fixed for the meeting of the court.

New form. (See Id., §§ 11, 13.)

§ 120. Service, how made. — The service must be upon the defendant personally, or if he cannot, upon diligent inquiry, be found in the state, the court upon proof of that fact, may order publication to be made in such manner as it deems proper, of a notice requiring him to appear at a specified time and place, and answer the articles of impeachment.

New in form. (See Id., § 11.)

§ 121. Proceedings, if defendant do not appear. If the defendant do not appear, the court, upon proof of service or publication as provided in the last two sections, may of its own motion, or for cause shown, assign another day or place for hearing the impeachment; or may then, or at any other time which it may appoint, proceed in the absence of the defendant, to trial and judgment.

New.

§ 122. Defendant may object to sufficiency of, or deny impeachment. When the defendant appears, he must answer the articles of impeachment; which he may do, either by objecting to their sufficiency, or that of any article therein, or by denying the truth of the same.

New. (3 R. S., 183, § 12.)

§ 123. Form of objection or denial. If the defendant object to the sufficiency of the impeachment, the objection must be in writing, but need not be in any specific form; it being sufficient, if it present intelligibly the grounds of the objection. If he deny the truth of the impeachment, the denial may be oral, and without oath, and must be entered upon the minutes.

New.

$124. Proceedings thereon. If an objection to the sufficiency of the impeachment be not sustained by a majority of the , members of the court who heard the argument, the defendant must forthwith answer the articles of impeachment. If he plead guilty, or refuse to plead, the court must render judgment of conviction against him. If he deny the matters charged the court

must, at such time as it may appoint, proceed to try the impeachment, and may adjourn the trial from time to time until concluded. 3 R. S., 183, § 11.

(a) Accusea may have counsel.- He may appear by counsel, as in civil actions. (New York Const., art. I, § 6; 3 R. S., 183, § 12; see, also, Rathbun v. Sawyer, 15 Wend., 451, and Garling v. Van Allen, 55 N. Y., 31.)

125. Two-thirds necessary to conviction. The defendant cannot be convicted on an impeachment, without the concurrence of two-thirds of the members present during the trial; and if such two-thirds do not concur in a conviction, the defendant must be declared acquitted.

New York Const., art. VI, § 1; 3 R. S., 184, §§ 16, 17.

§ 126. Judgment on conviction, how pronounced.-After conviction the court must immediately, or at such other time as it may appoint, pronounce judgment, in the form of a resolution, entered upon the minutes of the court. The vote upon the passage thereof must be taken by yeas and nays, and must also be entered upon the minutes.

New.

§ 127. Adoption of resolution. On the adoption of the resolution by a majority of the members present, who voted on the question of acquittal or conviction, it becomes the judgment of the court.

New.

§ 128. Nature of the judgment, — Upon conviction, the judgment must be either:

1. That the defendant be removed from office; or

2. That he be removed from office and disqualified to hold and enjoy a particular office or class of offices, or any office of profit, trust or honor whatever under this state.

N. Y. Const., art VI, § 1; 3 R. S., 184, § 18.

(a) Dueling law constitutional. The law of 1816, providing that any person convicted of dueling, etc., may be adjudged disqualified from holding any office of trust or emolument, civil or military, is constitutional, and a conviction under it is valid. (Barker v. People, 20 Johns., 457; 3 Cow., 686; 2 Wh. C. C., 19.)

§ 129. Officer, when impeached, disqualified to act until acquitted. No officer shall exercise his office, after articles of

impeachment against him shall have been delivered to the senate, until he is acquitted.

N. Y. Const., art. VI, §1; 3 R. S., 184, § 19.

130. Presiding officer, when president of the senate is impeached.— It the president of the senate be impeached, notice of the impeachment must be immediately given to the senate by the assembly, that another president may be chosen.

3 R. S., 184, § 20.

If the

§ 131. Impeachment not a bar to indictment. offense for which the defendant is impeached be a crime, the prosecution thereof is not barred by the impeachment.

3 R. S., 184, § 21; N. Y. Const., art. VI, § 1.

TITLE II.

OF THE REMOVAL OF JUSTICES OF THE PEACE, POLICE JUSTICES, AND JUSTICES OF JUSTICES' COURTS, AND THEIR CLERKS.

132. Justices of the peace, police justices, justices of justices' courts, and their clerks, are removable by the supreme court at a general term.

3 R. S., 184, § 18; 3 R. S., 223, § 96, ch. 280; Laws 1847, § 25; N. Y. Const., art. VI, § 18.

(a) Police justice a creature of legislation. The legislature may abolish or abridge the term of the office of police justice. (Coulter v. Murray, 15 Abb. [N. S.], 129; Wensler v. People, 58 N. Y., 516; see, also, People v. Keeler, 17 id., 320; People v. Shea, 7 Hun, 309.)