K
CHAR GE
TO THE GRAND JURY,
AT THE JULY TERM
OF THE
MUNICIPAL COURT, IN BOSTON,
1854.
BY E. R. HOAR,
One of the Justices of the Court of Common Pleas of Massachusetts.
PUBLISHED BY REQUEST.
BOSTON:
LITTLE, BROWN, & COMPANY,
No. 112 Washtngton Street.
1854. 
E
c- 5
At S, rami
NOTE. -A report of the charge of Judge HOAR to the Grand Jury of
Suffolk County appeared in the newspapers on the day following its delivery, and has been extensively circulated. The part of it which discusses
" the relation of the military power to the civil authority of the Commonwealth" was written before it was delivered.  The rest was oral, and more
liable to verbal inaccuracies of the speaker or the reporter. Some of these
have been corrected in this publication, but without departing, in any instance, from the substance of what was said.
BOSTON:
PRESS OP PRENTISS AND SAWYER,
No. 19 Water Street.
c 
ENE-,L' LINgAR,
ANN =40-R, MICUICI
CHAR GE.
AT the opening of the July term of the Municipal Court
in Boston, on Monday, July 3, 1854, a new Grand Jury for
the County of Suffolk was empanelled and sworn, and the
Charge required by law was given by Judge  HOAR.
He commenced by instructing the Grand Jury, at some
length, upon the formal duties of their office, and upon the
nature and obligations of the oath which they had taken.
He then proceeded to charge them particularly upon the
laws prohibiting lotteries, referring especially to attempted
evasions of those laws, under the name of Gift Enterprises,
and Gift Concerts. He instructed the Grand Jury that such
enterprises were infractions of the principles of the law, and
that persons engaged in promoting those enterprises, or in
selling or advertising tickets in them, were liable to indictment.
He then spoke of the fraudulent issue of the stock of
corporations, and stated the rules of criminal law applicable
to such a transaction. On this subject he held that if two or
more officers of any corporation had fraudulently issued
stock unauthorized by law, they were indictable for conspiracy; and if one officer alone had made such over-issue, and
by that means had obtained money or other valuable things,
he would be liable to be indicted under the statute for
obtaining goods under false pretences. He then proceeded
substantially as follows:
Another subject on which I think it important that the law
should be distinctly stated to you is, the subject of riots. It
is matter of public notoriety, gentlemen, that riotous proceedings have taken place within the County of Suffolk, within 
4
this City, and recently. It is probable from the action of the
inferior tribunals, that cases of this description may be
brought before you, and it may be your duty to investigate
that subject. I will, therefore, gentlemen, in the first place,
state to you the legal definition of "Riot," and then state
some of the rules applicable to persons engaged in riotous
demonstrations. 
"When three persons or more shall assemble themselves
together with the intent mutually to assist each other against
any who shall oppose them, in the execution of some enterprise of a private nature, with force or violence, against the
peace, or to the manifest terror of the people, whether the
act intended were of itself lawful or unlawful, -it is an
unlawful assembly: and if they execute their enterprise to
any extent,    it is a riot."
You wvill notice, gentlemen, that to constitute a riot, there
must be three persons, at least, or more assembled; they
must be acting in concert, with intent mutually to assist each
other against all who may oppose them.   It must be in the
exercise of a private purpose, to distinguish it from war or
rebellion against the government. Now, gentlemen, there is
no doubt, if three or more persons should assemble together
with force and violence, and in a mnianner calculated to produce
a breach of the peace, or to excite the terror of the people,
with the intent to rescue a prisoner lawfully in custody, and
should in the execution of that purpose proceed to batter
down the door of a building in which that prisoner is held,
that this would come within the legal definition of a riot.
And, gentlemen, when an unlawful or riotous assembly exists,
a responsibility may attach to all persons composing it, for
the commission of an act beyond the intention of the persons
who are thus unlawfully assembled - that if, beyond the
particular intention of each individual -for the rule of law
on that subject is this: -
"That if persons go together, united in an unlawful design,
to commit a felony or breach of the peace, and in the course
of effecting that purpose, any one does an act in pursuance of
the common purpose, they are all answerable for it. But if
one does an act, not in pursuance of the common design, the
others would not be answerable." 
In regard to the recent transactions which you are called
upon to investigate, I am not aware that there is anything
peculiar which will take them, in the investigation, out of the
ordinary rules of law applicable to similar cases.  It is not
for me to assume facts, except so far as they may be matters
of general notoriety, and you must investigate them for yourselves - that is your province, and not the province of the
Court.
But it may be made to appear to you, that within a few
weeks the door of this Court House was forcibly broken
open, in the night time, by a large number of persons, and
that in the course of the transaction in which they were
engaged, a man lost his life; and that the purpose of those
engaged in that assembly was to rescue from the custody of
the Marshal of the United States, a person placed in his
custody, under a precept issued by an officer of the United
States.  If the person whom  he held were lawfully in his
custody, an attempt by force and violence to rescue him, by
three or more persons, carried wholly or partially into execution, would undoubtedly make them rioters; and if, in the
course of their riotous acts, any person was by one of them,
acting in pursuance of their unlawful design, killed, each of
the persons who were thus engag,ed would be legally responsible for the death of that man, although it might not have
been in their individual contemplation to take his life. If
the common purpose were to rescue the prisoner by force,
and by attacking those who had him in charge, and breaking
down all opposition they might offer, and that led to the
destruction of the life of one of the persons who had him in
charge, or who was lawfully aiding the officers who had him
in charge, that would render all responsible who were engaged
in the common purpose.
Gentlemen, the question might be suggested whether this
were a lawful prisoner. I suppose there is no question that
he was held by the Marshal of the United States, under a
precept from  a Commissioner  of the United  States, and
executing the authoritv which a statute of the United States
had conferred upon him; and in relation to the question
whether that statute were one creating a constitutional and
legal obligation, I cannot, in the first place, so far as the facts
have come to my knowledge, see that it can be material.
For, genltlemlen, if the statute had been unconstitutional, and
if the prisoner were held merely under color of law, and not
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6'
under a law that had any validity and was binding upon all
citizens, the practical result might be the same. Men may
do some things by force and violence; they may interfere to
prevent a murder,  for example.   If at the time of the
attempt to rescue the prisoner in the Court House, the men
having him in custody were about to kill him, all citizens
would have a right to attempt to rescue him in the quickest
and  most effective manner, however  tumultuous.    They
would have the right to break in and prevent the commission
of an irreparable injury, where the protection of the laws
could not be made immediately available. In like manner,
gentlemen, if a pirate should appear in our waters, and
attempt to carry off a man or woman, the rushing together of
citizens, with any degree of violence, to prevent such a deed,
would be lawful; the exigency would justify the action. The
law allows force to be used wherever, and to the extent that
there is necessity for it, to prevent the commission of crime.
But, gentlemen, in thie case which we are considering, I
suppose no person would pretend that there was any intention
to take the life of the m1an there detained; that there was
any intention to do him bodily harm, or to do anything with
him, except to detain him in the place where he was then
held, until there should be an opportunity to resort to the
ordinary civil tribunals. He was held there by an officer
under the United States Government.   Take the common
cases of an arrest under a criminal charge, or for debt. An
officer might be acting illegally, or under a precept which
would not justify his action; yet, unless there were good
reasons to apprehend that great and irreparable injury would
be inflicted upon the person so held before he could be liberated by legal process, that would not authorize an assemblage of persons riotously to rescue him. They must resort
to the ordinary tribunals, to the protection the law affords, to
peaceable remedies, because tumult and violence might lead
to greater evils than the one they were seeking to prevent.
Gentlemen, beyond this, it is my duty to say to you that
the law under which that prisoner was detained, is a law
binding upon the citizens of this Commonwealth.   It has
been enacted by the National Legislature, approved by the
President of the United States, and held to be a constitutional
enactment by that tribunal whose duty it is to determine the
validity of all laws under which the inhabitants of this
Commonwealth are placed; and whatever opinions we may 
individually entertain as to the correctness of that decision,
no citizen of the Commonwealth has a legal right to disregard
the decision of the Supreme Court. It is binding upon all.
It is the duty of every inferior tribunal to regard what they
have decided henceforth as law, and it is the duty of all those
concerned in the administration of justice, in any and every
department, so to regard it. Gentlemen, any other rule, any
other conclusion, could lead to nothing but anarchy.
Undoubtedly, gentlemen, the decisions of the judicial tribunals of our country are subject to revision. We find the
decisions of the Supreme Court of the present day overruling
its decisions of twenty years ago. We find the Supreme
Court of the United States overruling decisions which were
made when that Court was differently constituted, holding
that those decisions were erroneous and illegal, and it is
competent for them to do so. And, gentlemen, the ultimate
result upon any question of this nature, the ultimate decision
of it, will be the result of the general conviction of the colmmunity. It will be the result of the mass of private opinion,
at least of professional opinion in the community.
It may be that at some time hereafter, the act of Congress
known as the Fugitive Slave Law will be held not to be constitutional. In the meantime, however, what is the duty of
those of us who have to do with it in the administration of
public justice? I might here, gentlemen, if it were proper
for me to do so, and I were delivering an opinion in which
that question arose, give you my private view upon this
matter. I might say to you that the reasoning on which the
law has been held to be constitutional, so far as our Supreme
Court is concerned, as I understand the decision, is placed on
the ground of authority, and not of right. I might say that
the authorities upon which that decision rests have failed to
satisfy my understanding. I might say, gentlemen, that in
my view, regarding it in the best light I have uponthe matter, that statute seems to me to evince a more deliberate and
settled disregard of all the principles of constitutional liberty
than any other enactment which has ever come under my
notice.  You, gentlemen, might each of you entertain similar
private opinions upon this subject. But of what avail is it,
and what right have you or I to act upon these opinions?
It could never have been the intention of the framers of our
Government, it is not consistent with the rules and principles
of our Government, that a rule of law should be held one
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8
way in New York, another in Philadelphia, and another in
Boston; that it should be dependent upon the individual
opinion of a Judge or a Juror called upon to administer it.
The only safe rule of our duty is, that when the tribunal,
provided by the Constitution and laws, has decided upon the
constitutionality of an enactment, all citizens are in practice
bound to regard it as a question settled. With their political
duties, with their feelings, we have nothing here to do.
Within these walls nothing of party passion, of private interest or feeling, should come.
It has been said sometimes, and in some places, that there
are laws which it is the duty of citizens to disobey or resist.
I have no doubt, gentlemen, and I suppose none of you have
any doubt, that a law may be enacted by a Republican Government, as well as an order passed by a despot, which may
be in itself wicked; and if a statute is passed which any
citizen, examining his duty by the best light God has given
him, and acting conscientiously and uprightly, believes to be
wicked, and which, acting under the law of God, he thinks
he ought to disobey, unquestionably he ought to disobey that
statute, because he ought to "obey God rather than man."
I suppose that any man who would seriously deny that there
is anything higher than human law, must ultimately deny
even the existence of a Most High.
But, gentlemen, it is not a question of private conscience
which determines our duties in the premises. A man whose
private conscience leads him to disobey a law recognized by
the community, must take the consequences of that disobedience. It is a matter solely between him and his Maker.
He should take good care that he is not mistaken, that his
private opinion does not result from passion or prejudice;
but if he believes it to be his duty to disobey, he must be
prepared to abide by the result, and the laws, as they are
enacted and settled by the constituted authorities to be constitutional and valid, must be enforced, although it may be to
his grievous harm. It will not do for the public authorities
to recognize his private opinion as a justification of his acts.
Gentlemen, in my last civil term in the county of Worcester,
a case came before me in which a man, I believe sincerely,
(probably he was partially deranged,) thought his religious
duty required him to refuse to support his wife and children.
He  made that statement, whether it was through delusion,
mistake, ignorance, or whatever other cause. I believe he 
9
rested it upon some passage of Scripture with regard to what
a person might do with unbelievers, placing his family in
that class, but the Court overruled his scruples. Although
he might have a right, as between his Maker and himself, to
act upon his conviction, it would not do to admit his private
opinion and judgment, as to his right or duty towards his
family, to weigh in the Courts of Justice with those called
upon to administer the laws.
A case in which, from private conscience, a man can be
bound openly to resist the law, by assailing others, it is more
difficult to imagine. %When such a case does arise, it partakes
of the nature of a revolution; and all the considerations
which apply to the right of revolution, and the expediency
of attempting a revolution, apply to cases of that nature.
Gentlemen, recent occurrences in this city have made it
my duty to instruct you upon another subject, of the highest
importance to the peace and security of the community, and
intimately connected with the principle which lie at the very
foundation of our frame of government.   I refer, as you
already anticipate, to the relation of the military power to the
civil authority of the Commonwealth. But a few weeks have
gone by since the citizens of Boston saw in their midst a
large body of soldiers assembled, the volunteer militia of
Massachusetts, engaged, as it has been asserted, in preserving
the peace of the city, and maintaining the supremacy of the
laws - an honorable and responsible duty, whenever it is
lawfully assumed, and faithfully discharged.
From what necessity or cause these soldiers were assembled; under what authority they acted; whether their employment and their conduct were in conformity with the
Constitution and laws of the Commonwealth - and to whom
the responsibility of their acts attaches -are questions which
have been publicly discussed, and which it is not improbable
that you may be obliged to investigate. The law applicable
to them I shall endeavor as briefly and plainly as possible to
state to you. And, gentlemen, while the chief reason for so
doing is on account of the bearing it may have upon your
practical duties, the occasion seems to me opportune, so far
as it may aid in diffusing just sentiments and a distinct understanding upon a subject, concerning which precision of ideas
is so important, and upon which so many confused notions
seem to prevail.
With the holiday soldier -the bright array, the martial
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music, and waving plumes, which most of us regard with
complacency, and which afford such delight to the juvenile
spectators, we are all familiar; with the soldier as the terrible
instrument of the law, the last resort of the civil government
for the absolute enforcement of its authority, we are happily
unfamiliar. The cases in which it has been necessary to
resort to an armed force to sustain the civil government of
this Commonwealth have been of rare occurrence; and when
such occasions have arisen, the moderation, prudence, and
sound discretion of those who were entrusted with civil
authority, and the firmness, forbearance, and exemplary
deportment of the soldiers, have been such as to lead to no
discussion as to the legality of their conduct.
It is extremely desirable, for the sake of the militia themselves, that the extent and limitations of their powers should
be justly defined, and familiarly known. They wish to understand their duty and to do it. They are neither strangers
nor aliens. Their interests are identical with ours. They
are some of our acquaintances, friends, and neighbors, who
have undertaken a particular public service. Interested in
its more exciting and cheerful aspect, they are also willing to
contemplate its more serious features.  They are liable to be
placed in trying situations, and upon a sudden emergency to
be required to do acts of the most painful nature.   The
importance of an accurate apprehension of legal rights and
duties, upon such a subject, can hardly be overrated.   A
duty more serious, a responsibility more fearful, can hardly
devolve upon man, than that which belongs to the citizen
soldier when lawfully summoned to aid the civil power in
upholding or executing the laws. He should enter upon it
in a serious and thoughtful spirit, regarding it only as a sad
and terrible necessity.
Consider, gentlemen, for a moment, the sacredness with
which human life is invested by the law, the soemnity which
the lawful destruction of it everywhere assumes. The life of
the vilest wretch among us, who has outraged all the laws of
God and man, cannot be taken in the administration of public
justice, and as the penalty of his crimes, but upon proceed ings where every provision that the wit of man can devise is
made against the possibility of haste, or error, or oppression.
He must be indicted by a Grand Jury; the Supreme Judicial
Tribunal of the State must be assembled; he must be found
guilty by a jury, substantially of his own selection from a 
11
large number of the most discreet and respectable of his
fellow citizens; able counsel are secured for him; he is to be
notified beforehand of the names of the witnesses against
him; and when his guilt has been fully established, no man
has power to harm him, until the Supreme Executive shall
have determined that there are no grounds for the interposition of its merciful prerogative, and have commanded the
sentence of the law to be enforced.
In self-defence, in obeying the instinct of self-preservation,
a man must retreat as far as he can, before he may lawfully
resort to a deadly weapon, and slay his adversary.
But when a military force is employed to suppress a riot, a
hundred lives may be sacrificed in a moment-without preparation, it may be almost without warning - the innocent
with the guilty.   The soldier who fires upon a mob  may
doom to instant destruction not only the lawless and depraved,
but men of generous impulses and honest purposes - the
mistaken -the misled - the unwary -  those whom accident
or curiosity have brought to the spot; perhaps his friend, his
neighbor, his relative.
The public service which he is thus called upon to discharge is a subject for no boasting beforehand, or exultation
afterward.   No  man of right principles or feelings could
regard it lightly. He should go to it as he would go to
attend an execution, and return thanking God for all that
he had been rightfully permitted to leave undone.
It is sometimes said that our Government rests, at last,
upon military force. It rests upon no such thing. It finds
its chief strength in the respect of an intelligent and virtuous
people for the laws which they themselves have made; and
its ultimate reliance is upon the power of the people to
execute their own will.  The  military force which a free
people allow to exist among them, it regards but as a convenient instrument. 
To understand clearly the points involved in this inquiry,
it will be well to recur a little to first principles.
The object of a Constitution of Government is, in the
preamble to the Constitution of Massachusetts, declared to be
"That every man may, at all times, find his security in the
-laws."
To this end two things were of the first necessity: 1, The
maintenance and enforcement of such wholesome laws as
should be enacted; and 2, The protection of the liberty of
a 
the citizen from the encroachments and abuse of authority of
those to whom power should be intrusted. With a view to
the first, the Constitution provides for the organization and
government of militia; and, in reference to the latter, the
Declaration of Rights contains this article:
"The people have a right to keep and bear arms for the
common defence; and as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without
the consent of the Legislature; and the military power shall
always be held in an exact subordination to the civil authority,
and be governed by it." [I)eclaration of Rights, Art. xvii.
By the Constitution, the Governor is made the Commanderin-chief of the militia, and entrusted with full power to discipline, instruct, and govern them; and to employ them
against the public enemies. He is also authorized to govern
them by law martial, when in actual service, in time of war
or invasion, and also in time of rebellion, declared by the
Legislature to exist; with all the powers incident to his
office, to be exercised agreeably to the Constitution and laws
of the land.
His powers in respect to calling out the militia in case of
war, insurrection, or invasion, made or threatened, are determined by law, (Rev. Stat., ch. 12, 129 and seq.) and are
only to be exercised by the Governor in person, or in case of
emergency by the commanding officer of a division.
With the nature of these powers and duties we have no
immediate concern.
I come, then, to the question, What are the provisions of
law for the suppression of riots and unlawful assemblies, and
for executing the laws of the Commonwealth, when forcibly
resisted?
These are of a two-fold nature: first, the modes which the
common law authorizes, in the absence of positive enactment,
and secondly, the powers expressly conferred by the statutes
-each being, of course, limited and controlled by the principles of the Constitution.
I have already given you the definition of a riot or unlawful assembly - and by the common law any citizen may lawfully endeavor to suppress an existing riot, by resisting those
who are engaged in it, and preventing others from joining
them.
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13
A sheriff, constable, or other peace officer, may do, the
same, and may command all other persons present to assist
them.
He may also arrest any of the rioters whom he finds committing any breach of the peace, and take them before a
justice. Any Justice of the Peace who shall find persons
riotously assembled, may arrest them; and by a verbal command may authorize others to arrest them; and the persons
so commanded may pursue and arrest the offenders in the
absence of the justice, as well as in his presence.
The general principles of the law -that if any person is
lawfully employed and is assaulted, he may use such force as
is necessary in self-defence,- and that a person charged with
the execution of a legal duty may repel, by force, any unlawful and forcible resistance to its performance,- apply in these
cases.
The power of the Mayor and Aldermen of cities, and of
the Selectmen of towns, to secure an adequate civil force by
the appointment of police officers, is unlimited. (Stat. 1851,
chap. 162.)
The statute of this  Commonwealth  which provides  for
calling out the militia to aid in the suppression of riots or
tumults, and in executing the laws, is the statute of 1840,
chapter 92, sections 27 and 29; and in all essential particulars it is an exact transcript of the 134th section of the 12th
chapter of the Revised Statutes; with this exception, that it
adds for the first time Mayors of Cities to the list of those
by whom an armed force may be called out.
These sections are as follows:
Section 27.  "Whenever there shall be, in any county, any tumult, riot, mob, or any body of
men acting together, by force, with intent to commit any felony, or to offer violence to persons
or property, or by force and violence to break and resist the laws of this Commonwealth, or any
such tumult, riot, or mob shall be threatened, and the fact be made to appear to the commander-in-chief, or the mayor of any city, or to any court of record sitting in said county, or if no
such court be sitting therein, then to any justice of any such court, or if no such justice be
within t      he county, then to the sheriff thereof, the commander-in-chief may issue Mis order, or
such mayor, court, justice, or sheriff may issue his precept, directed to any commanding officer
of any division, brigade, regiment, battalion, or corps, to order his command, or any part
thereof, describing the kind and number of troops, to appear at a time and place within speci
fled, to aid the civil authority in suppressing such violence and supporting the laws, which
precept, if issued by a court, shall be in substance as follows: -
ss.
COMMONWEALTHI OF MASSACHUSETTS.
[L. S.]
To  I   Insert the                A. B.  Insert his 
T   officer's title.  tcommanding.   command.
Whereas, it has been made to appear to our justices of our-, now holden at —,
within and for the County of         -, that [here insert one or more of the causes abovementioned] in our County of        -, and that military force is necessary to aid the civil
authority in suppressing the same; now, therefore, we command you that you cause [here 
14
state the number and kind of troops required] armed, equipped, and with ammunition,. as the
law directs, and with proper officers, either attached to the troops or detailed by you, to parade
at-      -,  on        —, then and there to obey such orders as may be given them, according to law.  Hereof fail not at your peril, and have you there this writ with your doings
returned thereon.
'Vitness, &c.    *    *    *    And if the same be issued by any mayor, justice, or sheriff,
it should be urder his hand and seal, and otherwise varied to suit the circumstances of the case."
Section 29.  "Such troops shall appear at the time and place appointed, armed,  &c.  And
shall obey and execute such orders as they may then and there receive, according to law."
The noticeable points of this Statute are, that it allows a
military force to be called out not only when there is a riot,
mob, &c., but whenever one is threatened; that it fixes the
persons by whom the existence of the riot, &c., or the fact that
one is threatened, shall be ascertained and determined; provides that the reason of calling out the military shall be stated
in the order or precept; and then leaves the mode in which the
troops shall be employed "to the civil authority in suppressing violence, and supporting the laws," to be fixed by the
rules of the common law, or by other Statutes.
If summoned according to the provisions of this Statute,
when they appear at the place named in the order or precept,
they  are lawfully assembled;-the fact that a sufficient
necessity existed for their assembling is, so far as they are
concerned, conclusively settled; and the question then arises,
What may they lawfully do? To whose orders are they
subjected? And how are such orders to be given?
In the first place, they have all the rights at common law,
or under the general laws of the Commonwealth, which other
citizens possess.  "It is clear," in the language of an eminent
Judge, "that the military do not lose the rights, and are not
exempt from the duties of subjects, by entering into that
condition."
They may occupy the place at which they were directed to
appear, so long as by the orders which they may have received
from the Governor, judge of a Court, sheriff, or mayor, or as
they may there receive from any lawful authority, they are
required to remain. They may march through the streets as
on other occasions, not interfering with the reasonable use of
the same by other persons; they may act in defence of their
own persons and lives, if attacked or assaulted, using such
force as is necessary and proper to repel the assailants.
They are not disqualified to act as the assistants of any civil
officer who has the right to call on the citizens to aid him in
the service of any process, civil or criminal, or in the execution of his duty under the laws; and although their being
engaged in military service would be a sufficient excuse for
I 
15
not obeying any call upon them as individual citizens, by a
person not authorized to direct the movements of the collective
force, yet if they should obey the call, their acts would be in
no degree unlawful, so far as those persons might be concerned against whom their acts were directed. If, without
objection from their commanding officer, and without interfering with their obedience to any lawful orders given them,
any of them should act as individuals to prevent a breach of
the peace, or to stay a rioter, or arrest a felon, the right to do
so would be as unquestionable as if they wore a different
dress. For every injury done to them, or indignity offered,
the offending person is, and ought to be, civilly and criminally responsible, as for a like offence to any other citizen;
and with this aggravation of the wrong, that the very position
which the soldier occupies, and the nature of his duties, may
render it difficult for him to detect the offender, and take
from him the power to make any resistance to the crime.
I come, then, gentlemen, to the consideration of the farther
powers for suppressing tumults and enforcing the laws, which
are contained in the 129th chapter of the Revised Statutes.
The first section provides that if persons to the number of
twelve or more, being armed, or to the number of thirty,
whether armed or not, shall be unlawfully, tumultuously, or
riotously assembled in any city or town, the mayor and each
of the aldermen of such city, and each of the selectmen of
such town, and every justice of the peace therein, and the
sheriff and his deputies, shall go among or near the persons
so assembled, and require them to disperse; and if they do
not disperse, then shall command the assistance of all persons
present in arresting the offenders. The second and third sec tions provide for the punishment of officers neglecting or
refusing to act, and of other persons who refuse or neglect to
assist.
The fourth section authorizes any two of the officers before
named, on the refusal or neglect of the unlawful assembly to
disperse, to require the aid of a sufficient number of persons,
inl arms or otherwise, and to "proceed, in such manner as in
their judgment shall seem expedient, forthwith to disperse" the
assembly, and arrest the persons composing it.
The fifth section is as follows: -
"Whenever an armed force shall be called out, in the
manner provided by the twelfth chapter, for the purpose of 
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suppressing any tumult or riot, or to disperse any body of
men acting together by force, and with intent to commit any
felony, or to offer violence to persons or property, or with
intent, by force and violence, to resist or oppose the execution
of the laws of this - Commonwealth, such armed force, when
they shall arrive at the place of such unlawful, riotous, or
tumultuous assembly, shall obey such orders for suppressing
the riot or tumult, and for dispersing and arresting all the
persons who are committing any of the said offences, as they
may have received from the Governor, or from any Judge of
a Court of Record, or the Sheriff of the county, and also such
further orders as they shall there receive from any two of the
magistrates or officers mentioned in the first section."
The sixth section, which is by a subsequent statute (1839,
chap. 54, e1,) extended to all cases under the two preceding
sections, provides that if by reason of the efforts made by any
two of the said officers or magistrates, or by their direction,
to suppress the unlawful assembly, &c., any person, though
but a spectator, should be killed, the said magistrates and
officers, and all persons acting under them, should be held
guiltless; and, that if the officers or their assistants, or persons acting by their order, should be killed or wounded, all
the rioters, and all persons who had refused to assist the
magistrates or officers, should be held answerable.
It is apparent from this statute that it applies only to cases
where a riot, tumult, unlawful assembly, or body of men
collected with intent to do the unlawful acts referred to,
actually exists.  It authorizes no forcible acts, by  way of
precaution. And, gentlemen, none are authorized by law.
The power to call out a military force, and hold them in
readiness for the emergency when it shall arise, is given by
the statute of 1840, to which I have previously referred.
But the power extends no farther.   And, as apractical rule,
which will be decisive of some  questions that may come
before you, I shall instruct you that
There is no law in this Commonwealth  by which any district, or part of a city or town, can be put into the possession
of a military force in time of peace, with power to obstruct
the ordinary and reasonable use of the public ways, and to
prevent peaceable citizens from  transacting their lawful business-  merely on account of an anticipated riot.
The fact that a riot has previously taken place, unless it be 
continuous and existing, will not alter the rule of law.  And
if it shall be made to alppear to you that a miilitaryiv force has
been so employed within the County of Suffolk, and any man
has been assaulted or inijuired thereby, or forcibly prevented
from enjoying his ordinary rig'hts as a citizen, without other
justification under the law, every soldier who may have collmitted allny such act of violence, and every officer, military or
civil, who shall have ordered, requested, caused, or procured
it to be done, is, (subject only to the qualification which I
shall presently state,) to be held responsible therefor.
But it is asked whether, in a case where no man doubts
that a riot or unlawful assembly is impending, the civil aind
military commanders are  oblig'ed to wait until irreparable
mischief is done,  till  a prisoner is rescued,  a  building
destroyed, or blood spilled, before they can fully interpose.
A  su-ficient answver lay perhaps be found in the statement,
that they may- employ all tihe ordinary and peaceable means
of enforcilng the civil authority, and may have in readiness
for instant employment, ally amount of military force which
the exigency shall demand.   Further than this the law does
not go, and the magistrate or officer cannot.  It miay seem to
many worthy and prudent men that more power should be
granted; but it has not been thought necessary or expedient
by the firanmers of our Constitution and laws. The principle
of Amierican institutions is not restraint -  nor intimidation 
but responsibility for acts done.   In relation to fieedom of
speech, for example, and of the press, we do not, as in some
countries it is done, establish a censorship, and determine
beforehand what shall be spoken or published, but we leave
men free to say or print what they please, and hold them
accountable for any abuse of the liberty.
In the next place, gentlenmen, the statute confers no discretionary power upon any military officer, under the commander-in-chief, nor can any be lawfully conferred upon him,
except as to the details of executing a specific service, upon
which he is lawfully ordered.   And this is in strict conforlmity with the requirements of the Constitution, that " the
military power shall always be held in exact subordination
to the civil authority, and be governed by it." It is for the
civil magistrates only  to determine  whether  an  unlawful
assembly exists, and whether military power is needed to
suppress it.  If any civil niagistrate should direct the commander of a military force, lawfully called out to aid in
3
17 
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suppressing an anticipated riot, to take possession of a city or
district, dispose his force therein as he should think expedient, and then, whenever in his judgment a riot should commence, or an unlawful assembly be gathered, to fire upon or
disperse it- leaving the whole question of the occasion and
the necessity to the discretion of the commander- such an
order would be of no legal validity, and the military officer
could not justify any act done under it, which would not
have been legally justifiable if no such order had been given.
The details of military service must of course be left to
the officer commanding the troops-  but the service required
must be designated by the civil authority.  Thus, when a riot
exists, the civil magistrates competent to act, may say to the
officer, clear this street - dislodge the occupants of this
building -  disperse this assembly -  arrest these rioters
protect these buildings - and the officer receiving the order
may employ his force to execute it in such a manner as he
may think best.  He  may send one file of men or ten; he
may charge with bayonets or sabres; he may fire blank cartridges or bullets; he may, unless the order is countermanded,
decide how many times he shall charge or fire, and when the
assembly is sufficiently dispersed.   But a general direction
to preserve the peace of a city, and sustain the laws, can give
to a military force no new protection or power.
On the other hand, if the orders given proceed from a
competent civil authority,- although, in my judgment, the
law clearly contemplates that the resources of the civil power
should usually be applied so far as they reasonably can be,
before resort is had to the military, yet a discretion is given
to the civil magistrates to determine when military force is
needed-and even if they have judged  erroneously,  the
soldier who obeys those orders is protected- and the cor rectness of the decision cannot be questioned to his prejudice.
The statute further provides, that the discretion in the use
of an armed force which it confers shall be exercised by two
of the officers named in the first section jointly.  It cannot
be assumed by one alone.  And further, the action of the two
must be direct and positive. It is not sufficient that one shall
be merely consulted by the other, and approve, or not object.
Both must act. Both must assume the responsibility. It must
be the order of both. Not that both must speak or write,
but if one speaks for the two, it must be with a direct author ity to speak in the name of the other. 
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The law plainly requires that both should be present. Not,
of course, that they should be between the soldiers and the
mob; not that they should ride with the military commander,
or charge with his troops-  but present, in a reasonable sense
of that phrase applicable to the nature of the case; present,
as a commander is present on the field of battle; present, so
that they can have personal cognizance of the fact that military force is necessary; that they may direct its application,
and be enabled to decide upon new exigencies as they arise,
and to determine when the terrible necessity is ended.
There is, in my judgment, a strong and clear implication
from the language of the 12th and 129th chapters of the
Revised Statutes, although not so distinctly expressed as
would be desirable, that the Governor, Judge of a Court of
Record in any county, or Sheriff, may  not only call out the
militia, but in case of an existing riot, may give specific
orders in regard to its suppression.  This view is confirmed
by the statutes of 1839, chap. 54, sect. 1, of which a part of
the provisions could hardly have any intelligible effect, if it
were not so. It is the general duty of the Goverinor to cause
the laws to be executed, and it is a common thing to invest
the Judge of a Court of Record with powers which it requires
two inferior magistrates to exercise.  It also seems to me that
the actual presence of these higher officers of the State could
not be contemplated or required.   They must act upon evidence and information; and the Legislature must have  supposed that the nature of their ordinary duties, and their
relation to the Commonwealth, would ensure a competent
knowledge of their legal power, and caution in its exercise.
The question has, I believe, no immediate practical bearing,
but a statement of it seemed necessary to a complete view of
the subject.
In Suffolk County, it could hardly arise, except in the case
of the Governor or a Judge; as there is probably never a
time when some Judge of a Court of Record is not found
within this city, and the Sheriff would not therefore be called
upon to act alone.
Another question of much practical importance is, how far
the private soldier or the inferior officer is answerable for an
act of violence done in obedience to the comnlmand of his superior, that command being given without lawful authority. If
a captain order his company, who have been lawfully called
out to aid the civil-authority, to fire upon a crowd, or to drive 
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batk any persons who are passing along or across a street, or
to clear a building, or the like, and the captain has no order
firom the commander of the force which would authorize him
to give such a direction, or the commander himself has no
legl authority from the civil magistrates, would the private
soldier who should ill goold iaith obey the order be protected?
Unlquestionably  the person  with whom  the illegal  order
originated would be responsible to the fullest extent; and in
respect to the subordinate, I slhall instruct you substantially
in the langiuage of a recent decision of the Supreme Court of
the United States.
Upon authority, and upon principle, independent of the
weight of judicial decision, it can never  be maintained that a
soldier or military officer can justify himself for doing an
unlawfiul act, by producing the order of his superior.  The
order may, palliate, but it cannot justify.  If the power exercisod by the superior were within the limits of a discretion
confidel to him bv l1aw, the inferior would be justified by the
order, even if the commal.nder had abused his power.  But I
have already said that the law does not confide to him a
discretionary power, except as to the mode of executiing the
lawful commands of the civil authorities.  But there are cases
when  the soldier may  be called upon to act in a sudden
emergen-y, without the possibility of learning with absolute
certainty the origin of the orders given him.  If, in such a
case, the subordinate act in good faith and wvith due diligence,
acting upon such information as he had a right to rely upon,
and upon all the information reasonably in his power to obtain,
and which, if reliable, would render his act legal, the order
of his superior will exonerate him from any criminal responsibility, although the information should afterward be discovered to be false or erroneous.
A point which may incidentally arise, respects the occasion
upon which the troops were called out on the second of June
last. It may be found that they were called out in aid of
the civil authority, to preserve the peace of the city, which
was endangered by a threatened resistance to the execution of
a process of the United States. A few words upon this
subject are all that are necessary.
WVe are all of us not only citizens of Massachusetts, but
citizens of the United States. Our relation to the Government
of the United States is a relation as individuals, except where
the Constitutioa and laws of the Union hlve otherwise specially 
provided. The State militia cannot, as an organized force, be
legally called into the service of the United-States, except by
a requisition of the President of the United States upon the
Governor, and according to the Constitution and laws.
Our State officers have nothing to do, in their official capacity, with executing the laws of the United States.  United
States officers, if resisted in the discharge of their duty, may
call upon citizens of the State to aid them in executing process, and it would be the duty and right of each citizen to
obey the call, unless he were lawfully excused. A lawful
excuse would be that the person whose aid was required
was engaged in a public duty under the government of the
State.  Congress  may  confer upon  officers of the United
States powers to prescribe duties which are analogous to those
of certain classes of State ofi-cers; but this can apply only
to the discharge of their official duties under the laws of the
United States, and can give them no authority to interfere
with the execution of State laws, or to control or exercise
any authority over any State organlization, or to assume the
specific functions of any State officer.
But, on the other hand, all acts done by an officer of the
United States in the discharge of his duty are to be regarded
as lawfully done under the laws of a State.   And if, in
resisting the execution of the laws of the United States, any
breach of the peace should occur, or any other violation of
State laws, it is the duty of the State officers to repress or
punish it, as they would if it were happening to the injury
or disturbance of any other citizens lawfully employed.
Thus, to apply these principles, the United States Marshal
of a district has no official relation, as such, to a Massachusetts Justice of the Peace, or to the Mayor of a city, or Sheriff of a county. He cannot call out the militia of a State, nor
give them any legal order when mustered, either alone or in
concurrence with any State officer. Although Congess has
conferred upon l- in the authority of a Sheriff, this obviously
can only mean the same functions in executing the laws of
the United States that a Sheriff has iti relation to the laws of
a State. He cannot serve a writ from a State Court, nor
undertake to execute a State law. But these principles are
too clear and well settled to require further illustration.
And now, gentlemen, it remains for you to apply the rules
of law which I have given you.
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If our citizen soldiers, lawfully mustered in the public
service, have been assaulted or injured, see to it that the
aggressor, if he can be discovered, shall not go unpunished.
If it shall be made to appear to you that any assault has
been committed, or violence done, or forcible obstruction of
lawful business occasioned, by any part of the military force,
"diligently enquire and true presentment make" concerning
it. Ascertain under what order or by what authority it was
done.  Trace it to its source.   Consider what is its justification. Extend the full protection of the law to everything
which a liberal construction of the law can justify or excuse.
But if you find the law has been violated, and that there has
been an invasion of private rights, or an infringement of
public liberty, do your duty as you have sworn to do it; and
"leave no man unpresented, for love, fear, favor, affection,
or hope of reward."
It may be said that there was a great public exigency, an
imminent danger; that riot and bloodshed were prevented;
that there has been no considerable destruction of property,
no serious personal injury inflicted; no sacrifice of life- and
that it would be harsh and unwise to subject to criminal
responsibility those who have acted with general good intention. Gentlemen, this is a very superficial view of the matter.
All right-minded men are opposed to lawless violence. The
whole community cry out against it. But when law is disregarded by its own guardians and supporters, it is "wounded
in the house of its friends," and all sentiments of reverence
for law in the public mind are weakened.
The old Latin maxim tells us, oppose beginnings  "Obsta
principiis." Occasions where the gravest consequences have
not followed, and the strongest passions are not excited, are
the best to establish principles and define duties.
And if the facts which shall be laid before you require it,
I have no doubt, gentlemen, that you will be'ready to show
to the people of the State, that laws are not made for those
only who crowd the gallery or fill the dock; that whenever
the strong arm of power has been raised without justification,
and any citizen has suffered in his person or property, the
whole community feels the wound; and that the justice,
which is no respecter of persons, will allow no military or
civil title to give immunity to the transgressor.
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