rules of evidence and of the burden of proof. Reasons of public policy and the public safety make this a necessary rule in the administration of the criminal law. And this is the established doctrine in this Commonwealth. Rogers' case, 7 Met. 500; Com'th. v. McKie, 1 Gray, 61.

A further argument may be drawn from the fact that it is not every kind or degree of insanity that excuses a man from responsibility. A man may be partially insane, and yet be responsible for the acts with which he is charged as a criminal. It is the nature and degree of his insanity with reference to that particular act, and not the general state of his mind, that determines his responsibility. [Upon this point and upon the various tests of insanity, the Attorney General proposed to read from Chitty's Medical Jurisprudence. Lothrop objected. Per Curiam. It cannot be read. The reason is, that all evidence must be under oath.]

The very form of the verdict required by our statutes, (Rev. St. ch. 137, § 12,) where there is an acquittal on the ground of insanity, shows this to be the rule of law in this Commonwealth. In such cases the jury are required to find as an affirmative proposition that the prisoner was insane, and therefore not guilty. It is not sufficient where this defence is sustained to bring in a general verdict of not guilty, but there must be a special verdict, establishing affirmatively the prisoner's insanity.

Upon these grounds, the general and universal presumption of sanity, the fact that mere proof of partial insanity furnishes no sufficient defence, but that insanity must be shown with reference to the particular act in question; the well settled rule of law on this point in this Commonwealth, as laid down in the cases cited, and the particular verdict required by the statute where the verdict rests upon the prisoner's insanity, it is clear that there is no such burden upon the government as is contended for by the defence; but that the insanity and consequent irresponsibility of the prisoner must be established to the satisfaction of the jury by the preponderance of the whole evidence in the case.

METCALF, J. The burden of proof is on the government throughout to prove every essential ingredient of the crime. They must, therefore, prove that the offence has been committed by a reasonable creature. But there is a legal presumption that all men are sane; and when the fact that the act was committed is proved, the burden is sustained by the legal presumption, which stands till re

butted by proof of the contrary, satisfactory to the jury. It is not to say that the burden of proof changes. But it is sustained by the legal presumption, until this presumption is rebutted. In order to overcome this presumption, and to shield the prisoner from responsibility, it must be proved to the satisfaction of the jury, by a preponderance of the whole evidence in the case, that, at the time of the commission of the act, the mind of the accused was diseased and unsound, and that the disease existed to so high a degree that, for the time being, it overwhelmed the reason, conscience and judgment, that the prisoner in committing the homicide acted from an irresistible and uncontrollable impulse.

And this is not only required by the general rule of law, but is distinctly implied in the provision of the Rev. Sts. c. 137, § 12, that "when any person indicted for an offence, shall, on trial, be acquitted by the jury, by reason of insanity, the jury in giving their verdict of not guilty, shall state that it was given for such cause. Verdict, guilty.

Supreme Judicial Court of Massachusetts, Norfolk County. February Term, 1857.

WILLIAM H. ELA v. J. V. C. SMITH ET AL.

The power vested in the mayor of a city by St. 1840, c. 92, §§ 27, 29, to call out the militia in case of a threatened tumult, riot, or mob is quasi judicial in its nature, and his decision that such an emergency has arisen is conclusive.

When the militia have been called out on such an occasion, the mayor may, before any tumult or riot has actually broken out, or mob gathered, order the troops to repair to certain places, under their proper officers, to aid the civil power in preventing or repressing the anticipated disturbance. But he cannot clothe them with a discretionary power “to sustain the law of the land," or to do anything but carry out his own specific order, verbal or written.

If the commanding officer of the militia, by virtue of such discretionary power attempted to be conferred on him, give an order to clear and guard the streets, and this order is carried out by a certain company, the mayor, the captain of that company, and the commanding officer of the militia, are responsible to any person who shall be injured by the soldiers in executing this order, if the soldiers used no more violence than was necessary in fulfilling their instructions.

THIS was an action of tort brought in 1854, against the mayor of Boston of that year, the major-general in command of the militia, called out by the mayor on the day of

the rendition of a fugitive slave, a captain of one of the companies of militia, and the United States Marshal. The plaintiff alleged that he had been beaten and wounded by some of the soldiers against law, while quietly endeavoring to reach his place of business. Upon the trial, the rulings were so made as to take the case from the jury, and the points of law were argued, before the full bench, about a year since. At the opening of the court this term, the decision not having been written out, a brief statement of it was made by BIGELOW, J., substantially as follows:

By St. 1840, ch. 92, §§ 27, 29, the mayor of any city is authorized, in case "a tumult, riot, or mob shall be threatened, and the fact be made to appear to him," to issue a precept, the form of which is prescribed by § 27, to call out a division or any smaller number of the volunteer militia, "to aid the civil authority in suppressing such violence and supporting the laws." The authority thus given, of determining the question of fact, whether, in a particular case, a riot, tumult or mob is threatened, is in its nature a quasi judicial power; and the jurisdiction to decide it is conferred upon the mayor of a city, as well as upon the commander-in-chief and the other officers designated in the statute; in this, as in all other cases, where a special and limited jurisdiction is given by law to a magistrate or other civil officer, he cannot be held responsible in a civil action for his judgments, and acts done in pursuance of them, so long as he acts within the scope of his jurisdiction, however false and erroneous may be the conclusions to which he arrives; and the same protection is extended to those who are legally called upon to act under and in pursuance of the authority conferred upon him by law. In this case, therefore the question, whether there was a riot or mob threatened, so as to justify the mayor in issuing his precept for the assembling of the first division of the volunteer militia on the second day of June, 1854, cannot be inquired into. The judgment of the mayor upon this question is conclu

sive.

The precept issued by the mayor, dated May 31, 1854, by which the said division was assembled on said second day of June, is in exact conformity to the provisions of the statute, and the officers and men were legally called out in pursuance of said precept.

They being thus legally called out and assembled at the place designated in the precept of the mayor, for the

reason that "a tumult, riot or mob was threatened," it was competent for the mayor of the city, before any mob had actually assembled, or any tumult or riot had broken out, to order the troops to repair to certain designated places, under the command of their proper officers, for the purpose of aiding the civil authority in repressing and preventing such apprehended tumult, riot, or mob. This results from the express language of the statute, as well as from necessary implication; it being provided, not only that the civil authority may call out a military force, when "a tumult, riot, or mob is threatened," but also, that when so called out, it may be used "to suppress such violence," which clearly includes violence "threatened," as well as that actually existing. It follows that any order, given by the mayor on said second day of June to the division assembled on Boston Common in pursuance of his precept, by which they were directed to repair thence to a designated portion of the city, there to perform a specific duty or service, by him directed, for the purpose of preventing the assembly of a mob or the breaking out of a riot, would be, in the language of the statute, such an order as they might well receive and obey according to law. St. 1840, c. 92, §§ 27, 29.

It is not competent for the mayor of a city or other civil officer, under the powers conferred on him by stat ute, in cases of riot or mob, either threatened or actually existing, to vest in the officers or men called out by virtue of his precept any discretionary power or authority to take any steps or do any act to prevent or suppress such riot or mob. The manifest intent and purpose of the statute are that the volunteer militia shall, when thus called out, act as an armed police, subject solely and entirely to the absolute and exclusive control and direction of the civil authority, as to the specific duty or service which they are to perform. By no other means can "the military be kept in exact subordination to the civil authority and be governed thereby," according to the express provision of the Constitution. Of course, the details in which a specific service is to be performed must necessarily be left to the officers who are in command of the military force. But the service or duty must be directed and designated by the civil authority. In the present case, therefore, if the division, in marching from the Common, where they were assembled in pursuance of the precept of the mayor, or in clearing the streets or guarding them from all ingress, acted under the proclamation of the mayor, bearing date June 2,

1854, addressed to the citizens of Boston, a copy of which was sent to the major-general, in which it is stated that the military force are "clothed with full discretionary powers to sustain the laws of the land," and, by virtue of the discretion thus given, proceeded to clear and guard the streets, they acted without any lawful authority, and the defendants, Smith, Edmands and Evans, are legally responsible to the plaintiff for any act of force or violence committed upon him, in pursuance of their orders, or in which they or either of them participated. If, however, it shall be made to appear that the act of clearing and guarding the streets was done in pursuance of a specific order from the mayor, either verbal or written, to effect that purpose, it would be a sufficient justification for all the acts of the defendants, which were reasonable and necessary for the performance of this specific duty, and the plaintiff cannot recover, unless he can show that the force used towards him was excessive and unreasonable. Such specific order may be shown by proof, that it was arranged between the mayor and the major-general, that the service of clearing and guarding the streets was to be performed by the military force on the happening of a certain specified contingency or event, and that intelligence of the occurrence of such contingency or event was communicated to the major-general by the mayor, with an order to carry out and perform the specified duty previously designated and prescribed by him.

No question as to the constitutionality of the act of Congress, for the surrender of fugitives from labor, or the legality of the acts of the United States Commissioner, in issuing a certificate under said act, can be raised in this case. The defendants, Smith, Edmands and Evans, do not justify their acts, under the proceedings of the United States Commissioner, but solely under the provisions of law authorizing a military force to be called out for the prevention of a threatened riot, of which the removal of a fugitive slave was anticipated as the occasion. The only question, therefore, as to them, is, whether they were legally called out and acted under orders lawfully given by the civil authority. The right and duty of calling out a military force to repress and prevent an anticipated riot, cannot be made to depend, in any degree, upon the cause of such threatened disturbance of the peace. It is equally the duty of the civil officers to take all proper steps to prevent a threatened riot or mob, whether it was likely to arise from the enforcement of a constitutional or unconstitutional law.

Upon the evidence offered by the plaintiff at the former