New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-02-24

Our readers may recollect that a part Of the
aquela, as the doctors say, of the loathsome dis
temper with which the City of Boston was afflicted
on and about the I'd of June, 1854 was suit at law
brought against DR.. j. V. c. Smith then Mayor,
Mr. Berjamin f. Edmands, druggist and Major
General and one Evans christian name If he
have one) and occupation unknown, but " train
band captain bod" of the Modern Athens, for
an assault on an apothecary apprentice on the Cay
that Anthony Burns was prevailed upon to accom-
pany his beDefactor, Sutte, back to contentment
snd happiness. Watson Freeman, the Marshal,
was also sued on the same ground. The cases came
up for trial some time ago, and the Judge, Merrick,
not caring to assume the responsibility Of the ne
ces.ary rulings reserved the points for the whole
Court on the motion of the defendants that the
plaintiff be nonsuited because they were only in
tie discharge Of their legal duties.
We are happy to learn from our Boston CORE
spondentand the newspapers there, that Supreme
Court have faced this particular piece Of music in
creditable manner. The Mayor, in the plenitude
of bis brief horty seems to have thought it was
great ss well IS brief, and proceeded as if he had
been Doctor Francia, Dictator of Paraguay instead
of Doctor Smith, Mayor of Boston Keeping him.
self strangely cut of the way, be published proc
lamation investing General Edmands " with ful
discretionary pOwerto sustain thelaw ofthe land"
One of the uses these guardians of the law made Of
this absolute power was to charge an uolucky
apotbecarys boy, who frightened them out Of their
wits by a bottle Of ink he had in his hand, which
their cowardy consciences supposed TO be vitriol.
Captain Evans, in the most gallant manner, led bis
command on to the assault and, after brief but
desperate struggle, succeeded in cutting him down.
The enemy was then carried TO station house and
eft without care all night. In consequence Of this
treatment it is affirmed that the poor lads nervous
sys I'm sustained such shock that he will never be
able 10 DO any thing for his own support or tina, Of
his mother, who WAS dependent upon him. Aud
for these ipiuves he sought this redress at the hands
of the law.
The Court new sitting at Dedham pronounced
its decision last week. which folly sustains the
opinions expressed By lawyers Of responsibility a.
The time. 1t lays down the law thus; That il the
militia acted under the proclamation Of The Mayor
above referred 10, they aetsS Nithom ioyjm author
ify, ard that the defendants Smith, Evans and
Ednands, sale legally responsible to the plaintiff
"for any act of force or violence in pursuance Of
"their orders, or 10 which they or either OF them
participated" And the case was orderd to
stand against all the defendants except Freeman,
who was net shown by the evidence at tho partial
trial TO have had anything to do with the calling
out or disposition of the militia on that day. The
English law, from which our own is generally
copied in all the States, carefully makes the military
arm entirely subordinate to the civil power. The
soldiers, real or make believe as the ease may be-
are mere police officers in another kind Of uniform,
ond can do no lawful act eIcep. in obedience to
direct orders from the magistrate. The Major
General in such case, is no more than head
his discretion is just as outrageous in principle as
if he were Doeberry or Verges.
The decision in this case, it will be readily SEEN
has an interest which extends far beyond Massa-
chusetts. 1t marks out again the boundary which
separates civil and military power, and indicates the
exact and ciupulOus care which should be taken to
make the one the mere instrument of the other.
rather have their lives in the hands of Gen. Sand
ford than of Mayor Wood, in case of military
suppression Of hot; but it is very wholesome to
the general veal that Mayor Wood should under
stsrd that he must take the entire responsibility of
every act, and also be personally present at the
scene of danger. We trust that this unfortunate
boy will ob.ain swinging damages-smart money to
tune 81 fficent 10 make him confor able for life
out Of these Brummagem HaJnsus. And all other
tersons who were hindered 10 their busne's, or IN.
u,ed in their persons, Of course have their remedy
or redress now open to them, and We hope they
Will take it. 1t is a case proper for an example
that will be remembered. If Jerry Sneak
should ever again Gas is by no means inproeable)
wigele himself into TIE post of Mayor of Carat,
will be we'll for him, as well as for the citizens
thereof. that he should understand that he cannot
gise Msjor urgeon Discretionary power Of life and
death over them.