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58
To sum up the first proposition then : in 1835, a
Mayor per se could not call out the militia, having
power only to suggest to the Governor that an
exigency had arisen calling for military force.
(2.) Under what circumstances may magistrates
fire on a mob, and after what preliminaries ?
This question is a broader one than the other,
and one in regard to which the authorities are
somewhat conflicting.
By the English Statute 2 Geo. I. c. 5 (com
monly called the Riot Act), it was provided that,
"
if
any riotous assembly did not disperse within one
"
hour after proclamation (made in due form provided
in the act),
"
the officers of the law should seize and
apprehend them
"
(enumerating sheriffs, mayors of
cities, &c., &c., as such officers) ; and "
if any persons
detached and collected shall afford their assistance to and be under the
control of the civil officer or magistrate, unless in case of a rebellion
declared by the legislature."
At this time, and until after 1835, there was no form prescribed for the
certificate
" under
gave one in substance,
SEAL.
the hand of said officers," but the Revised Statutes
as follows :
WARRANT.
Commonwealth of Massachusetts. SUFFOLK ss.
To A. B., COMMANDING FIRST DIVISION M. V. M.
WHEREAS, it has been made to appear to me, C. D., Sheriff of said
County, that there is threatened a tumult, riot, and mob of a body of
men, acting together by force with intent to offer violence to persons and
property, and by force and violence to break and resist the laws of this
Commonwealth in said County of Suffolk, and that military force is
necessary to aid the civil authorities in suppressing the same. Now,
therefore, I command you to parade (specifying the force) in due form
according to law. Hereof fail not at your peril, &c., &c.
Some such form as this was probably used in 1835.