LANGUAGE. The origins of “posse comitatus” are to be found in domestic law. intent of which was to end the use of federal troops to police state elections in. of the Posse Comitatus Act in , the Armed Forces have been called on much less .. to regulate against it.4 In the end, the Constitution made the president the . have been due to their small numbers in relation to the states militias.” The posse comitatus, in common law, is the group of people mobilized by the conservator of The Lattimer Massacre of illustrated the danger of such groups, and thus ended their use in situations of civil unrest. Posse comitatus in.
Posse Comitatus Act | badz.info
Although violations will on rare occasions result in the exclusion of evidence, the dismissal of criminal charges, or a civil cause of action, as a practical matter compliance is ordinarily the result of military self-restraint. This report provides an historical analysis of the use of the Armed Forces to execute domestic law and of the Posse Comitatus Act, including their apparent theoretical and constitutional underpinnings.
The report then outlines the current application of the act as well as its statutory exceptions, and reviews the consequences of its violation. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Introduction Americans have a tradition, born in England and developed in the early years of our nation, that abhors military involvement in civilian affairs, at least under ordinary circumstances. It finds its most tangible expression in the 19th century Posse Comitatus Act, 18 U. Sectionwhich forbids use of the Army and as amended the Air Force to execute civil law except where expressly authorized.
The exception documents a contrary component of the tradition. Congress has expressly approved the use of the Armed Forces in extraordinary circumstances or where federal manpower to enforce the law was seen as inadequate. Striking the balance between rule and exception has never been easy, but failure to do so has often proven unfortunate.
If the rule is too unforgiving, a Shays's Rebellion may go unchecked. If exceptions are too generously granted, a Boston Massacre or Kent State tragedy may follow. The terrorist attacks against the United States in September produced some calls for more generous exceptions to the rule.
The report then outlines the current application of the Posse Comitatus Act as well as its statutory exceptions, and reviews the consequences of its violation.
Background The Magna Carta provides the first recorded acknowledgment of the origins of the Anglo-American tradition against military involvement in civilian affairs with its declaration that "no free man shall be Offended by this peacetime exercise of military judicial authority over civilians, Parliament sought and was granted the Petition of Right ofwhich outlawed both quartering and martial law commissions. First, the question arose in the British colonies rather than England itself.
England had stationed troops in the colonies to protect them against the French and Indians and had opted for military governorships in other territories.
The colonists remained subject to civil rather than military justice, 15 and soldiers who employed more force than civilian law permitted were themselves subject to civilian justice as the trial of the soldiers involved in the Boston Massacre demonstrates.
It provided that a civilian the President should be the Commander in Chief of the Army and Navy of the United States, and civilian authorities Congress should be solely empowered to raise and support Armies, provide and maintain a Navy, and make rules for their government and regulation. Presidents have relied upon the militia and Armed Forces with some frequency for riot control or when in extreme cases they felt it necessary to ensure the execution of federal law.
The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law
The Insurrection Act and Other Statutes Soon after Congress was first assembled under the Constitution, it authorized the President to call out the militia, initially to protect the frontier against "hostile incursions of the Indians," 38 and subsequently in cases of invasion, insurrection, or obstruction of the laws. Those convicted were eventually pardoned.
InPresident Jefferson called out federal troops to suppress opposition to the Embargo Act 54 by groups of traders in Vermont whose livelihood depended on imports and exports with Canada. The next year, the Army was employed in a similar vein to quiet militant activity along the Canadian border. When public reaction turned violent, the governor called out the militia and requested aid from the local military commander, who denied the request.
When the governor of a State has declared his inability to suppress an insurrection and has called upon the President of the United States under the Constitution to do so, that from that time commences a state not of peace but of war, and that although civil local authority still exists, yet the only outcome is to resort to force through the Federal military authorities, and that can only be through a subordination of the State authorities for the time being and until lawful order is restored; otherwise there can be no complete exercise of power in a military way within the limits of the State by the Federal officers.
In California, the failure of the governor to request assistance under the Insurrection Act led to a denial of military assistance. The senior naval commander in San Francisco, stressing the constitutional requirements for requesting aid from the federal government to put down domestic violence, instructed the ship's captain that there was to be no interference in the domestic troubles of the state.
Riley for troops to disband a territorial militia that had formed in Lawrence. Rather, it appears to have been an exercise of the newly emerging theory known as the Cushing Doctrine, explained below, under which members of the Armed Forces could act as a posse comitatus to enforce the law without invoking the Insurrection Act or other law that permitted the use of the Armed Forces.
At the dawn of the secessionist movement that led to the Civil War, President Buchanan declined to send troops into seceding states, apparently based on his perception that any troops dispatched to execute the laws of the Union would necessarily be subordinate to civil authorities.
The Reconstruction period after the Civil War was characterized by constant political turbulence in the South. This authority was used immediately after enactment when President Grant issued a proclamation calling attention to the new law and declaring himself ready to invoke it if necessary.
The Fugitive Slave Act was such a law, and its use led to the crystallization of the government's doctrine regarding the use of the military in the role of a posse. The marshals in turn might "summon and call to their aid the bystanders, or posse comitatus of the proper county Apparently adopting the views expressed earlier by the Senate Judiciary Committee in reaction to the previous Administration's views on the matter, Cushing declared: The posse comitatus comprises every person in the district or county above the age of fifteen years, whatever may be their occupation, whether civilians or not; and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of the sheriff or marshal.
The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus. Passage of the Posse Comitatus Act Following the Civil War, the use of federal troops to execute the laws, particularly in the states that had been part of the Confederacy, continued even after all other political restrictions had been lifted. Bythere was evidence that Republican state governments in more than one southern state owed their continued political existence to the presence of the military and that the activities of federal troops may have influenced the outcome of the Hayes-Tilden presidential election.
No compromise could be reached, and the session ended without passage of an Army appropriation bill. Money to pay the Army was subsequently appropriated in a special session, without reference to restrictions on use of the Army. While soldiers serving on a posse remained subordinate to civilian rules and law enforcement officers, troops called out under the Insurrection Act came to be viewed as an independent military force enforcing something like martial law, if not engaging in all-out war.
Posse comitatus - Wikipedia
Constitutional Origins Lord Coke and his colleagues, in crafting the Petition of Right offound within that chapter of the Magna Carta and subsequent explanatory statutes that are the antecedents of our constitutional due process clauses a prohibition against martial law. The Declaration of Independence lists the imposition of martial law upon us among those affronts to fundamental liberties that irrevocably ruptured our political ties to Great Britain. Finally, it is possible to see the protrusions of a larger, submerged constitutional principle which bars the use of the Armed Forces to solve civilian inconveniences in the Second, Third, and Fifth Amendments, with their promises of a civilian militia, freedom from the quartering of troops among us, and the benefits of due process.
This view is not without judicial support. The courts have demonstrated a rather long-standing reluctance to recognize the authority of military tribunals over civilians. Every person in a county shall be ready and apparelled at the command of the sheriff and at the cry of the country to arrest a felon whether within a franchise or without, and in default shall on conviction be liable to a fine, and if default be found in the lord of the franchise he shall forfeit the franchise to the Queen, and if in the bailiff he shall be liable besides the fine to imprisonment for not more than one year, or if he have not whereof to pay the fine, than two years.
It provided for fines for those who did not comply. The provisions for posse comitatus were repealed by the Criminal Law Act Every law enforcement officer is bound to execute the penal warrants given to him to execute. He may summon to his assistance, either in writing or orally, any of the citizens of the neighborhood or county to assist in the execution of such warrants.
The acts of the citizens formed as a posse by such officer shall be subject to the same protection and consequences as official acts. Resorting to the posse comitatus figures often[ according to whom? Based on this usage, the word "posse" has come to be used colloquially to refer to various teams, cliques, or gangs, often in pursuit of a crime suspect on horseback in the westernssometimes without legal authority. Posse comitatus in America became not an instrument of royal prerogative, but an institution of local self-governance.
The posse functioned through, rather than upon, the local popular will. This was done to safeguard national property rights for slaveholders, emancipate millions of enslaved African Americans, and enforce the doctrine of formal equality. The rise of the federal state, like the marketplace before it, had created contradictory but congruous forces of liberation and compulsion upon individuals.
While the act does not explicitly mention the United States Navy and the United States Marine Corpsthe Department of the Navy has prescribed regulations that are generally construed to give the act force with respect to those services as well.