When was posse comitatus repealed

But President Bush, when signing the bill, attached a signing statement essentially exempting himself from being governed by the restrictions. The issue was fought out between two prominent senators, the president of the United States, and every governor in America. Yet it still got virtually no mainstream media attention. Some critics have expressed more ominous fears. As always with first steps of this sort, the danger lies in how the power can be abused in the future.

The one indisputable fact about the Bush administration is that its contempt for the Constitution is all but impossible to overestimate. A government that would deliberately lie to lead a nation into war, set up secret torture prisons, illegally wiretap American citizens, and then threaten the journalists who reveal these facts with jail, is certainly capable of using a military brigade at home, should it decide that its own definition of a threat has been met.

Eternal vigilance is the price of liberty, but how can citizens voluntarily pay this price when the media upon whom they depend has proven AWOL on its most sacred constitutional charge? Eric Alterman , George Zornick. Trevor Sutton , Carolyn Kenney. Rudy deLeon. Lawrence J. The armed forces will send 5, personnel , three helicopters, several military planes, and more than miles of razor wire to border locations, starting in Texas, Air Force Gen. Terrence J. Reporters also grilled White House press secretary Sarah Huckabee Sanders about whether Trump would suspend habeas corpus —the right for anyone who is arrested to appear before a judge—in order to stop asylum seekers.

She did not rule it out, sparking concerns. A posse comitatus is defined as a group summoned by the local sheriff to keep the peace or enforce an opposed legal precept, but in this case the term refers to an act first passed after the US Civil War that makes it illegal for the armed forces to be used to uphold domestic laws.

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. At its essence, the law reflects the American historical preference for stronger state governments and local authorities over centralized federal oversight and control.

Giving border control over to the military would be a controversial decision that could cost Donald Trump support even among the most far-right of voters and could damage the Republican party ahead of the Nov. Section to issue a proclamation immediately ordering "insurgents to disperse and retire peaceably to their abodes within a limited time.

The following sections describe the modern authorities and how they have been invoked since the passage of the Posse Comitatus Act, including some instances where a separate authority may have been used for similar purposes.

Section of Title 10 previously section of Title 10 authorizes the President to use the military to suppress an insurrection at the request of a state legislature, or its governor, in the event the legislature cannot be convened. The first request by a governor for troops after enactment of the Posse Comitatus Act appears to have occurred in , when the governor of Nebraska requested a company of troops to help protect a local court where the trial of a prominent outlaw was taking place, which had occasioned concern that the courthouse would be the scene of a rescue attempt by the portion of the band of outlaws still at large.

Another proclamation was issued under this provision in due to a miners' strike in Coeur d'Alene, ID. During the early part of the 20 th century, Presidents generally insisted that governors comply with the requirements of the Insurrection Act and the Constitution in formulating requests for the assistance of the Army.

In , after virtually the entire National Guard was called into federal service for the war in Europe, the Secretary of War instituted a "Direct Access Policy" to permit local and state officials to make direct requests for the assistance of federal troops to reduce the burden on states. At the request of the Commissioners of the District of Columbia, President Hoover used federal troops in to oust the Bonus Marchers from federal property in Washington, DC, but did not issue a proclamation.

When faced with losing their deferred status under the draft, the workers promptly returned to the plant and resumed production under military supervision. During the Second World War, racial strife began to contribute once again to civil disturbances, although federal troops were only called in twice. At the request of the Michigan governor, President Roosevelt issued a proclamation and sent federal troops to Detroit to restore order during a race riot there.

Troops were also sent to Philadelphia in to seize and operate the transportation system after white workers went on strike to protest the employment of some black workers as operators. A race riot in Detroit led the Michigan governor to request troops in , which President Johnson provided. Regular troops and federalized National Guard were deployed to these cities. In , reports of widespread looting on the island of St. Bush to issue a proclamation and send troops to the Virgin Islands, as the territorial governor requested federal intervention.

Croix to restore order and investigate reports of looting. The most recent invocation of 10 U. Section of Title 10 previously section of Title 10 delegates Congress's power under the Constitution to call forth the militia to the President, authorizing him to determine that "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States" and to use the Armed Forces as he considers necessary to enforce the law or to suppress the rebellion.

Its first application after the enactment of the Posse Comitatus Act involved an appeal by the governor of the Territory of New Mexico in for federal military assistance in putting an end to the anarchy that characterized the territory due to the operation of bands of robbers who were besieging mail coaches and terrorizing the local populace. When the governor complained about the lack of military assistance for arresting lawbreakers, the local commanding general replied that his troops could not be used to make ordinary arrests in situations that did not amount to an insurrection or reach a level of lawlessness that would extend beyond the capacity of the usual civil machinery to handle.

The Secretary of War later blamed the Posse Comitatus Act in part for the fact that lawlessness and riots in the territory had reached such a level that military intervention was required. Federal troops were called to Chicago in July to quell riots accompanying the railroad strikes. It appears that obtaining civilian deputies to assist marshals against the strikers was made difficult due to the fact that popular sympathies were with the strikers, leading the civilian authorities to prefer shifting the responsibility to the Army.

In , resistance in Utah to the "Edmunds law" for the suppression of polygamy caused the governor of that territory to seek federal assistance, which was granted. Animosity toward Chinese railroad laborers and miners led to major disturbances and to calls for federal troops in a number of western states and territories in A proclamation was issued in to employ troops to suppress a riot in Arkansas to support the courts and protect government property.

A large task force of regular troops, National Guard, federal marshals, and other police was assembled to protect the Pentagon during the anti-war demonstration known as the March on the Pentagon.

The National Guard was called into service during a postal strike in to "execute the laws of the United States as they relate to the Post Office Department. In , the Army became involved in a federal law enforcement operation to quell a civil disturbance on the Pine Ridge Reservation in South Dakota after some members of the American Indian Movement seized and occupied the village of Wounded Knee to demonstrate their grievances.

The Attorney General advised President Nixon to send federal troops to the area, presumably under the authority of 10 U. Marshals Service. The troops from the 82d Airborne were not deployed, but some questioned whether military aid supplied to civilian law enforcement was permissible under the Posse Comitatus Act, leading to litigation and eventually legislation to authorize some types of military support to civil authorities.

See below " Support to Law Enforcement. In , President Reagan issued a proclamation to order rioting prisoners in the federal penitentiary in Atlanta, Georgia, to disperse. Section of Title 10 previously section of Title 10 permits the President to use the Armed Forces to suppress any "insurrection, domestic violence, unlawful combination, or conspiracy" if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals, or if the unlawful action "obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

It does not require the request or even the permission of the governor of the affected state. The provision lay dormant after the end of Reconstruction until , when President Eisenhower ordered a battle group of the st Airborne Division into Little Rock and federalized the entire Arkansas National Guard in order to enforce a court order permitting nine black students to attend a previously white high school. The proclamation to disperse cited both sections and of Title 10, U.

Presidents Kennedy and Johnson followed the Little Rock precedent to deal with resistance to court-ordered desegregation in a number of Southern states. In , after the governor of Mississippi attempted to prevent black student James H. Meredith from registering at the University of Mississippi at Oxford, President Kennedy sought to enforce the court order with federal marshals.

In , Congress enacted general law enforcement exceptions to the Posse Comitatus Act prohibitions in order to resolve questions raised by the cases that grew out of the events at Wounded Knee. The legislation contains explicit grants of authority for military assistance to the police—federal, state, and local—particularly in the form of information and equipment, along with restrictions on the use of that authority.

The Wounded Knee cases spawned uncertainty as to the extent to which military authorities might share technical advice, the results of reconnaissance flights, or any other forms of information with civilian law enforcement authorities. Section previously Section specifically permits the Armed Forces to share information acquired during military operations and in fact encourages the Armed Forces to plan their activities with an eye to the production of incidental civilian benefits.

Section previously section permits military personnel to train civilian police on "the operation and maintenance of equipment" and to provide them with "expert advice. The explanation of what might constitute "expert advice" is limited, but Congress clearly did not use the phrase as a euphemism for active military participation in civilian police activity.

An implementing regulation published in excludes certain intelligence activities from its purview. Abstractly it might seem that even civilian use—against Americans within the United States—of tanks, missiles, fighter planes, aircraft carriers, and other implements of war offends the Posse Comitatus Act even if use can be accomplished without the direct involvement of military personnel.

The arsenal of American military weapons and equipment is "part of the Army and Air Force" even when turned over to civilian authorities before use for civilian purposes. Even if the Posse Comitatus Act were read to apply only to the use of personnel, would the use of military personnel to maintain equipment loaned to civilian authorities violate the act's proscription? The Wounded Knee cases provided conflicting answers. The provisions make it clear that the Defense Department may provide civilian police with military equipment and under some circumstances, particularly in drug cases, may also supply military personnel to maintain and, for certain limited purposes not including searches and seizures , operate such equipment.

In , Congress added authority for military support to counterdrug activities and activities to counter transnational organized crime. The authority granted in sections is subject to three general caveats.

It may not be used to undermine the military capability of the United States. For several years, the regulations called for by section appeared in parallel form in the Code of Federal Regulations and in a Defense Department Directive. Except as otherwise provided in this enclosure, the prohibition on use of military personnel 'as a posse comitatus or otherwise to execute the laws' prohibits the following forms of direct assistance:.

Although the provisions were removed from the C. The Armed Forces, when in performance of their military responsibilities, are beyond the reach of the Posse Comitatus Act and its statutory and regulatory supplements. Analysis of constitutional or statutory exceptions is unnecessary in such cases. The original debates make it clear that the act was designed to prevent use of the Armed Forces to execute civilian law.

Congress did not intend to limit the authority of the Army to perform its military duties. The legislative history, however, does not resolve the question of whether the act prohibits the Army from performing its military duties in a manner that affords incidental benefits to civilian law enforcement officers.

The courts and commentators believe that it does not. The courts have concluded that, consistent with this legitimate military purpose to maintain order on military installations, military personnel may, without violating the Posse Comitatus Act, turn over to civilian law enforcement authorities armed felons arrested when they flee onto a military base, or drunk drivers arrested on a military base, or firearms stolen from a military installation, as well as any stolen equipment that belongs to a military unit.

Cases called to apply the military purpose doctrine in cooperative police activities occurring off-base are the most difficult to reconcile. Some seem to require no more than a logical military nexus; others demand a very clear, specific military connection before they will concede the presence of a military purpose; and still others seem to seek a middle ground.

Finally, it is arguable that Congress's authorization for the use of force against those responsible for the September 11 attacks has mooted some of the limitations on the use of the military for law enforcement purposes by recasting them as military operations. Soon after the attacks, the Office of Legal Counsel OLC advised the White House and Defense Department that the Posse Comitatus Act imposed no constraint on the President's use of military forces domestically for anti-terrorism operations against "international or foreign terrorists operating within the United States.

The Posse Comitatus Act itself contains an exception that allows the use of the military when constitutionally or statutorily authorized, which has occurred in the present circumstances. In concluding that the prevention and deterrence of terrorism is "fundamentally military, rather than law enforcement, in character," OLC conceded that distinguishing between military and law enforcement functions when dealing with terrorism is "no easy task.

Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects. Moreover, the information gathered in such efforts could be of considerable use to federal prosecutors if the Government were to prosecute against captured terrorists.

OLC further opined that the President's inherent power to defend the United States supplied a "constitutional exception" to the Posse Comitatus Act, and that statutory exceptions could be found in both the authorization for use of military force and section now section of the Insurrection Act.

It does not appear, however, that much of this opinion remains the official interpretation of the Justice Department. The use of the military within the United States for counter-terrorism purposes has been negligible, despite some prodding from Congress to use military forces to apprehend, interrogate, and detain suspected members of Al Qaeda and "associated forces.

One U. The reviewing district court judge saw things differently:. Padilla is not being detained by the military in order to execute a civilian law or for violating a civilian law, not-withstanding that his alleged conduct may in fact violate one or more such laws.

He is being detained in order to interrogate him about the unlawful organization with which he is said to be affiliated and with which the military is in active combat, and to prevent him from becoming reaffiliated with that organization. The decision, however, was reversed on the grounds that the detention violated a more specific statute, but was then vacated by the Supreme Court on procedural grounds.

In subsequent proceedings, the petitioner did not rely on the Posse Comitatus Act. The act is limited to "willful" misuse of the Army or Air Force. In other instances, Congress has used the term "willful" in a number of different contexts and the term has been construed by the courts in a variety of ways, often inconsistent and contradictory. When has the Army or Air Force been used "to execute the laws"? The language of the act by itself seems sweeping.

It might apply with equal force to delivering the mail or making an arrest. Existing case law and commentary indicate that "execution of the law" in violation of the Posse Comitatus Act occurs a when the Armed Forces perform tasks ordinarily assigned not to them but to an organ of civil government, or b when the Armed Forces perform tasks assigned to them solely for purposes of civilian government.

The test that applies in cases where military personnel or units are conducting activities in support of law enforcement authorities is somewhat different, and is covered below.

While inquiries may surface in other contexts such as the use of the Armed Forces to fight forest fires or to provide assistance in the case of other natural disasters, Posse Comitatus Act questions arise most often when the Armed Forces assist civilian police. This is perhaps not surprising since it is the use that stimulated passage of the act. During the debate, Members complained of various ways in which the Army had been used, essentially as a police force, to break up labor disputes, to collect taxes, to execute search and arrest warrants, and to maintain order at the polls and during state legislative sessions.

At least when suggested that the Armed Forces have been improperly used as a police force, the tests used by most contemporary courts to determine whether military activity in support of civilian authorities violates the Posse Comitatus Act were developed out of disturbances at Wounded Knee on the Pine Ridge Indian Reservation in South Dakota and inquiry:.

The vast majority of cases called upon to apply these tests have found that the assistance provided civilian law enforcement did not constitute "execution of the law" in violation of Posse Comitatus Act requirements. The Office of Legal Counsel OLC opined in that the use of military personnel to conduct aerial infrared monitoring of private property for law enforcement purposes is "aerial reconnaissance" authorized by former 10 U.

Rather, OLC found,. The legislative history suggested to OLC that Congress had intended to codify certain court decisions interpreting the Posse Comitatus Act to have as its primary aim the prevention of any "direct confrontation between military personnel and civilians. Although created and used for law enforcement purposes, the Cutter Service had already been used as part of the military forces of the United States by the time the Posse Comitatus Act was enacted.

The Coast Guard is now a branch of the Armed Forces, located within the Department of Homeland Security, but relocated within the Navy in time of war or upon the order of the President. As a practical matter, however, the Coast Guard is statutorily authorized to perform law enforcement functions.

The act is silent as to what constitutes "part" of the Army or Air Force for purposes of proscription. There is little commentary or case law to resolve questions concerning the coverage of the National Guard, the Civil Air Patrol, civilian employees of the Armed Forces, or regular members of the Armed Forces while off duty.

Recall that it was the state militia, called to the aid of the marshal enforcing the Fugitive Slave Act, which triggered Attorney General Cushing's famous opinion. On the other hand, the National Guard is a creature of both state and federal law, a condition which as the militia it has enjoyed since the days of the Articles of Confederation. The historical perspective fares little better on the question of whether the Posse Comitatus Act extends to soldiers who assist civilian law enforcement officials in a manner which any other citizen would be permitted to provide assistance, particularly if they do so while off duty.

Congress passed the act in response to cases where members of the military had been used based on their civic obligations to respond to the call as the posse comitatus.

The debate in the Senate, however, suggests that the act was not intended to strip members of the military of all civilian rights and obligations. The Senate debate may have influenced some reviewing courts, particularly in earlier decisions interpreting the Posse Comitatus Act, which held that a soldier who does no more than any other citizen might do to assist civilian law enforcement has not been used in violation of the Posse Comitatus Act.

Some have questioned whether civilian employees of the Armed Forces should come within the proscription of the act, but most, frequently without comment, seem to consider them "part" of the Armed Forces for purposes of the Posse Comitatus Act.

It seems unlikely that the Posse Comitatus Act, by itself, applies beyond the confines of the United States, its territories, and possessions. The Posse Comitatus Act contains no expression of extraterritorial application. Congress enacted it in response to problems occurring within the United States and its territories, problems associated with the American political process and military usurpation of civilian law enforcement responsibilities over Americans.

It seems unlikely that its extraterritorial application was either anticipated or intended. The first court to consider the question agreed, but it arose in occupied territory overseas in which an American military government had temporarily displaced civil authorities. Congress does appear to have intended the authority and restrictions contained in 10 U. Sections to apply both in the United States and beyond its borders. The provisions directing the placement of members of the Coast Guard on Navy ships for drug interdiction purposes evidence an understanding that the Posse Comitatus Act's statutory shadow, the restrictions on arrests and similar direct law enforcement activities under 10 U.

Section , applies at least on the high seas. The regulations implementing 10 U. Section address only assistance to law enforcement officials of the several states, the United States, or its territories or possessions, but declares it does not apply to assistance to foreign officials.

The Posse Comitatus Act is a criminal statute under which there has never been an officially reported prosecution, although it appears there were two prosecutions shortly after the act was passed. Allegations that the Posse Comitatus Act has been violated are made most often by defendants seeking to exclude related testimony or physical evidence.

The case law begins with United States v. Walden , where the U. Court of Appeals for the Fourth Circuit found that the Treasury Department's use of three Marines as undercover agents in an investigation of firearms offenses violated Navy regulations that made the act applicable to use of the Marines, but declined to order the exclusion of evidence obtained by the Marines.

The court found no "conscious, deliberate or willful intent on the part of the Marines or the Treasury Department's Special Investigator to violate" the regulation or the act. Finally, the court felt the use of the Marines had been aberrational; that subsequent similar transgressions were unlikely; and that the regulation would be amended to provide an enforcement component. But the court warned, "should there be evidence of widespread or repeated violations in any future case, or ineffectiveness of enforcement by the military, we will consider ourselves free to consider whether adoption of an exclusionary rule is required as a future deterrent.

Later defendants have focused upon the Walden court's warning; later courts have emphasized the refusal to adopt an exclusionary rule. Most cases note the absence of an exclusionary rule either to avoid deciding whether the Posse Comitatus Act was violated or to conclude that no relief is available irrespective of any violation.

Court of Appeals for the Ninth Circuit Ninth Circuit determined in one case that a Navy investigation of child pornography involving surveillance of all computers in the state of Washington, not merely limited to those with any connection to the military, amounted to impermissible direct active involvement in civilian enforcement of a widespread nature in violation of DoD regulations.

The government's position that the military may monitor and search all computers in a state even though it has no reason to believe that the computer's owner has a military affiliation would render the PCA's restrictions entirely meaningless.

To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution.

Accordingly, the court found that "widespread and repeated violations" required deterrence and ordered evidence suppressed. There being no clearly established right to the exclusion of evidence due to a violation of the Posse Comitatus Act, even if there is proof that violations are widespread, habeas petitioners have been unsuccessful in reversing their convictions based on a claimed violation.

Three states' cases have required the suppression of evidence resulting from the use of military undercover agents to target civilian drug dealing without establishing any connection to activities on a military installation or sales to military personnel other than the undercover agents. The first criminal defendants to seek refuge in the Posse Comitatus Act claimed unsuccessfully that use of the military to transport them back to the United States for trial violated the act and vitiated the jurisdiction of American courts to try them.

In the early posse comitatus cases, the defendants' arguments were further undermined by the fact that the countries from which they were returned, Germany and Japan, were under American military rule at the time.

Defendants have found the act more helpful in prosecutions where the government must establish the lawfulness of its conduct as one of the elements of the offense charged, a rare feature of criminal prohibitions. Some time ago, the U. Court of Appeals for the Eighth Circuit found that a violation of the act might constitute an unreasonable search and seizure for purposes of the Fourth Amendment, thereby giving rise to a Bivens cause of action against offending federal officers or employees.

The most significant impact of the Posse Comitatus Act is attributable to compliance by the Armed Forces. As administrative adoption of the act for the Navy and Marines demonstrates, the military has a long-standing practice of avoiding involvement in civilian affairs which it believes are contrary to the act. For a review of the changed role of the military, see William C. Homeland Security Act of , P. Nat'l Security L. Canestaro, supra , note 1 , at arguing that numerous exceptions for military support of civil authorities "have taken their toll on the [Posse Comitatus Act's] strength".

Magna Carta, ch. Swindler, Magna Carta: Legend and Legacy "No freeman shall be taken, or imprisoned, or be disseised of any freehold, or liberties, or free customs , or outlawed, or banished, or in any other way destroyed, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land" language added to ch. Although the Magna Carta in the modified version of King Henry III remains in effect, the language quoted above is generally cited as "chapter Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land; It is accorded assented, and established, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Common Law; nor that none be out of his Franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law; and if any thing be done against the same, it shall be redressed and holden for none.

No Man of what[ever] Estate or Condition that he be, shall be put out of land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law. See Thompson, supra note 7 , at ; David E. Coke's Institutes make the same point; proceedings under martial law are not proceedings under the "law of the land" lex terrae. See I Coke, supra note 7 , at 50 "And so if two English men doe goe into a foreine kingdome, and fight there, and the one murder the other, lex terrae extendeth not hereunto, but this offense shall be heard, and determined before the constable, and marshall [i.

For a more expansive examination, see Engdahl, supra note 10 , at Restating the relevant guarantees of the Magna Carta and subsequent statutes, Parliament declared:. They do therefore humbly pray your most excellent Majesty Petition of Right, 3 Car. First , That in truth and reality it is not a law, but something indulged rather than allowed as a law; the necessity of government, order and discipline in an army, is that only which can give those laws a countenance.

Secondly , This indulged law was only to extend to members of the army, or to those of the opposite army, and never was so much indulged as intended to be executed or exercised upon others; for others were not listed under the army, had no colour of reason to be bound by military constitutions, applicable only to the army; whereof they were not parts, but they were to be ordered and governed according to the laws to which they were subject, though it were a time of war.

Thirdly , That the exercise of martial law, whereby any person should lose his life or member, or liberty, may not be permitted in time of peace, when the King's courts are open for all persons to receive justice, according to the laws of the land.

And it is laid down, that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any one by colour of martial law, this is murder; for it is against the magna carta. And the petition of right enacts, that no soldier shall be quartered on the subject without his own consent; and that no commission shall issue to proceed within this land according to martial law.

And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights, that the raising or keeping of a standing army within the kingdom in time of peace, unless it be with the consent of the parliament, is against the law.

Hiller B. Zobel, The Boston Massacre "The soldiers, one ought always to remember, went into Boston not as an occupying army but rather as a force of uniformed peace-keepers, or policemen. Their role as even the radicals conceived it was to assist the executive and if necessary the courts to maintain order. The last die was cast when two regiments of troops were quartered in Boston at the end of the decade.

Boston was a hotbed of colonial discontent. The assemblage of military troops for control of possible disorders aggravated the discontent, not only because it affronted the English tradition against domestic use of military troops, but also because it was without warrant in the charter of Massachusetts Bay.

The unwelcome troops were frequently taunted and vilified, and the ultimate and inevitable outrage soon occurred…. A crowd of angry Bostonians The soldiers made ready to force their passage, but were ordered back to the main guard The crowd approached the main guard with angry and opprobrious taunts. A sentinel struck one particularly bothersome boy with the butt of his musket, and quickly a crowd converged on that spot throwing snowballs and rocks at the sentinel along with verbal threats on his life.

The sentinel loaded his musket and waved it at the mob, a squad of soldiers were sent to his aid. The soldiers, soon joined by a colonel, loaded their muskets as the crowd hooted and jeered and berated them and dared them to shoot. They kept the crowd back a time with bayonets, but then suddenly fired. It was never made clear — it never is — whether they had fired on their officer's order, or upon their own compulsion. In any event, five Americans lay dead and several others seriously wounded Members of a distrusted standing army, whose quartering was in violation of the Petition of Right, and whose preparation to militarily suppress possible civil disorder was inconsistent with the oldest of England's own traditions, had slain English civilians in a time of peace.

This last charge presumably refers to the results of the murder trials of the officer and soldiers involved in the Boston Massacre. Two of the soldiers were convicted of manslaughter, branded on the hand and released; the officer and the other soldiers were acquitted. See Zobel, supra note 17 , at No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for public use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage When land-forces are raised by any State for the common defence, all officers of or under the rank of colonel, shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment The United States in Congress assembled shall never The Constitution treats the militia similarly.

The President is the Commander in Chief of the militia while it is in federal service, and Congress is empowered to approve its organization, arms and discipline, U. Congress is further empowered to organize, arm, and discipline the militia, and to govern any part of militia in federal service, but the power to appoint officers and train the militias remains with the states.

See Jay S. The Latin phrase literally means attendants with the capacity to act from the words comes and posse meaning companions or attendants comes and to be able or capable posse. Among the Romans comitatus referred to one who accompanied the proconsul to his province. Later, comes sometimes referred to as comites or counts meant the king's companions or his most trusted attendants and comitatus came to refer to the districts or counties entrusted to their care.

Bouvier's Law Dictionary and Concise Encyclopedia , At common law, the sheriff of every county was obligated "to defend his county against any of the king's enemies when they come into the land; and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is call the posse comitatus, or power of the county; which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, under pain of fine and imprisonment.

Canestaro, supra , note 1 , at observing that Judiciary Act of supported the Mansfield doctrine, which held that federal marshals could employ military troops as a posse comitatus. Engdahl, supra note 10 , at describing how, after the Act of March 3, , Ch. It was well understood that when they were used under such circumstances the soldiers were used not in their military character, but merely as civilian assistants subject to the command of the ordinary civil officers, and no more privileged in their use of force against citizens than the civil officers were themselves.

For example, to counter the infamous Burr conspiracy in , President Jefferson issued a proclamation "enjoin[ing] and requir[ing] all officers, civil and military, of the United States, or of any of the states or territories, and especially all governors and other executive authorities, all judges, justices and other officers of the peace, all military officers of the Army or Navy of the United States, or officers of the militia, to be vigilant, each within his respective department and according to his functions, in searching out and bringing to condign punishment all persons engaged in [a military expedition against Spanish territory], in seizing and detaining Eighteenth and nineteenth century instances are collected, along with related proclamations and other documentation, in Frederick T.