Posse comitatus (common law)
Encyclopedia
Posse comitatus or sheriff's posse is the common-law or statute law authority of a county
sheriff
or other law officer to conscript
any able-bodied males to assist him in keeping the peace or to pursue and arrest
a felon
, similar to the concept of the "hue and cry
". Originally found in English common law, it is generally obsolete; however, it survives in the United States
, where it is the law enforcement equivalent of summoning the militia
for military
purposes.
posse comitatūs, "to have the right to an armed retinue", in English use from the late 16th century, shortened to posse from the mid 17th century.
While the original meaning refers to a group of citizens assembled by the authorities to deal with an emergency (such as suppressing a riot or pursuing felons), the term posse is also used for any force or band, especially with hostile intent, often also figuratively or humorously. In 19th-century usage, posse comitatus also acquires the generalized or figurative meaning.
"; or that of the king, the old-fashioned "Commissions of Array". But the Royalist
leader in Cornwall
, Sir Ralph Hopton, indicted the enemy before the grand jury
of the county as disturbers of the peace, and had the posse comitatus called out to expel them.
, the first subsection of which stated that:
This permitted the (high) sheriff
of each county to call every citizen to his assistance to catch a person who had committed a felony
- that is, a serious crime. It provided for fines for those who did not comply. The provisions for posse comitatus were repealed by the Criminal Law Act 1967
. The second subsection provided for the sheriff to take 'the power of the county' if he faced resistance whilst executing a writ
, and provided for the arrest of resisters. This subsection is still in force.
s that have not repealed it by statute
. Resort to the posse comitatus figures often in the plot
s of Western movies, where the body of men recruited is frequently referred to as a posse. 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 western
s), sometimes without legal authority. In a number of states, especially in the Western United States
, sheriffs and other law enforcement agencies have called their civilian auxiliary groups "posses." The Lattimer Massacre
of 1897 illustrated the danger of such groups, and thus ended their use in situations of civil unrest. Some states provide for the posse by statute.
In the United States
, a Federal statute known as the Posse Comitatus Act
forbids the use of the United States Army
, and through it, its offspring, the United States Air Force
as a posse comitatus or for law enforcement purposes. A directive from the Secretary of Defense prohibits the use of the United States Navy
and United States Marine Corps
for law enforcement. No such limitation exists on the United States Coast Guard
, which can be used for all law enforcement purposes (for example, Coast Guardsmen were used as temporary Air Marshal
s for many months after the 9/11 attacks) except when, as during WWII, a part of the Coast Guard is placed under the command of the Navy. This part would then fall under the regulations governing the Navy in this matter, rather than those concerning the Coast Guard. The limitation also does not apply to the National Guard when activated by a state's governor and operating in accordance with Title 32 of the U.S. Code (for example, National Guardsmen were used extensively by state governors during Hurricane Katrina response actions). Conversely, the limitation would apply to the National Guard when activated by the President and operating in accordance with Title 10 of the U.S. Code.
County
A county is a jurisdiction of local government in certain modern nations. Historically in mainland Europe, the original French term, comté, and its equivalents in other languages denoted a jurisdiction under the sovereignty of a count A county is a jurisdiction of local government in certain...
sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
or other law officer to conscript
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
any able-bodied males to assist him in keeping the peace or to pursue and arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
a felon
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
, similar to the concept of the "hue and cry
Hue and cry
In common law, a hue and cry is a process by which bystanders are summoned to assist in the apprehension of a criminal who has been witnessed in the act of committing a crime.By the Statute of Winchester of 1285, 13 Edw. I cc...
". Originally found in English common law, it is generally obsolete; however, it survives in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, where it is the law enforcement equivalent of summoning the militia
Militia
The term militia is commonly used today to refer to a military force composed of ordinary citizens to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with...
for military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...
purposes.
Etymology
The term derives from the LatinLatin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
posse comitatūs, "to have the right to an armed retinue", in English use from the late 16th century, shortened to posse from the mid 17th century.
While the original meaning refers to a group of citizens assembled by the authorities to deal with an emergency (such as suppressing a riot or pursuing felons), the term posse is also used for any force or band, especially with hostile intent, often also figuratively or humorously. In 19th-century usage, posse comitatus also acquires the generalized or figurative meaning.
English Civil War
In 1642, during the early stages of the English Civil War, local forces were employed everywhere by all sides that could. They produced valid written authority, inducing them to assemble. The two most common authorities used were, on the side of the Parliament, its own recent "Militia OrdinanceMilitia Ordinance
The Militia Ordinance was a piece of legislation passed by the Long Parliament of England in March 1642, which was a major step towards the Civil War between the King and Parliament of England. Previously the King had the sole right to appoint the Lord Lieutenants, who were in charge of the county...
"; or that of the king, the old-fashioned "Commissions of Array". But the Royalist
Cavalier
Cavalier was the name used by Parliamentarians for a Royalist supporter of King Charles I and son Charles II during the English Civil War, the Interregnum, and the Restoration...
leader in Cornwall
Cornwall
Cornwall is a unitary authority and ceremonial county of England, within the United Kingdom. It is bordered to the north and west by the Celtic Sea, to the south by the English Channel, and to the east by the county of Devon, over the River Tamar. Cornwall has a population of , and covers an area of...
, Sir Ralph Hopton, indicted the enemy before the grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
of the county as disturbers of the peace, and had the posse comitatus called out to expel them.
In law
The powers of sheriffs for posse comitatus were codified by section 8 of the Sheriffs Act 1887Sheriffs Act 1887
The Sheriffs Act 1887 is an Act of the Parliament of the United Kingdom. It sets out the appointments and qualifications of Sheriffs in England and Wales.The Act gives sheriffs the right to arrest those resisting a warrant ....
, the first subsection of which stated that:
This permitted the (high) sheriff
High Sheriff
A high sheriff is, or was, a law enforcement officer in the United Kingdom, Canada and the United States.In England and Wales, the office is unpaid and partly ceremonial, appointed by the Crown through a warrant from the Privy Council. In Cornwall, the High Sheriff is appointed by the Duke of...
of each county to call every citizen to his assistance to catch a person who had committed a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
- that is, a serious crime. It provided for fines for those who did not comply. The provisions for posse comitatus were repealed by the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. The second subsection provided for the sheriff to take 'the power of the county' if he faced resistance whilst executing a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
, and provided for the arrest of resisters. This subsection is still in force.
United States
The power presumably continues to exist in those U.S. stateU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s that have not repealed it by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. Resort to the posse comitatus figures often in the plot
Plot
Plot is a literary term defined as the events that make up a story, particularly as they relate to one another in a pattern, in a sequence, through cause and effect, or by coincidence. One is generally interested in how well this pattern of events accomplishes some artistic or emotional effect...
s of Western movies, where the body of men recruited is frequently referred to as a posse. Based on this usage, the word posse has come to be used colloquially
Colloquialism
A colloquialism is a word or phrase that is common in everyday, unconstrained conversation rather than in formal speech, academic writing, or paralinguistics. Dictionaries often display colloquial words and phrases with the abbreviation colloq. as an identifier...
to refer to various teams, cliques, or gangs, often in pursuit of a crime suspect (on horseback in the western
Western
Western may refer to:* Western , a category of fiction and visual art centered on the American Old West** Western fiction, the Western genre as featured in literature* Western music, a type of American folk music-In geography:...
s), sometimes without legal authority. In a number of states, especially in the Western United States
Western United States
.The Western United States, commonly referred to as the American West or simply "the West," traditionally refers to the region comprising the westernmost states of the United States. Because the U.S. expanded westward after its founding, the meaning of the West has evolved over time...
, sheriffs and other law enforcement agencies have called their civilian auxiliary groups "posses." The Lattimer Massacre
Lattimer massacre
The Lattimer massacre was the violent deaths of 19 unarmed striking immigrant anthracite coal miners at the Lattimer mine near Hazleton, Pennsylvania, on September 10, 1897. The miners, mostly of Polish, Slovak, Lithuanian and German ethnicity, were shot and killed by a Luzerne County sheriff's...
of 1897 illustrated the danger of such groups, and thus ended their use in situations of civil unrest. Some states provide for the posse by statute.
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, a Federal statute known as the Posse Comitatus Act
Posse Comitatus Act
The Posse Comitatus Act is an often misunderstood and misquoted United States federal law passed on June 18, 1878, after the end of Reconstruction. Its intent was to limit the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of...
forbids the use of the United States Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
, and through it, its offspring, the United States Air Force
United States Air Force
The United States Air Force is the aerial warfare service branch of the United States Armed Forces and one of the American uniformed services. Initially part of the United States Army, the USAF was formed as a separate branch of the military on September 18, 1947 under the National Security Act of...
as a posse comitatus or for law enforcement purposes. A directive from the Secretary of Defense prohibits the use of the United States Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
and United States Marine Corps
United States Marine Corps
The United States Marine Corps is a branch of the United States Armed Forces responsible for providing power projection from the sea, using the mobility of the United States Navy to deliver combined-arms task forces rapidly. It is one of seven uniformed services of the United States...
for law enforcement. No such limitation exists on the United States Coast Guard
United States Coast Guard
The United States Coast Guard is a branch of the United States Armed Forces and one of the seven U.S. uniformed services. The Coast Guard is a maritime, military, multi-mission service unique among the military branches for having a maritime law enforcement mission and a federal regulatory agency...
, which can be used for all law enforcement purposes (for example, Coast Guardsmen were used as temporary Air Marshal
Sky marshal
A sky marshal is an undercover law enforcement or counter terrorist agent on board a commercial aircraft to counter aircraft hijackings...
s for many months after the 9/11 attacks) except when, as during WWII, a part of the Coast Guard is placed under the command of the Navy. This part would then fall under the regulations governing the Navy in this matter, rather than those concerning the Coast Guard. The limitation also does not apply to the National Guard when activated by a state's governor and operating in accordance with Title 32 of the U.S. Code (for example, National Guardsmen were used extensively by state governors during Hurricane Katrina response actions). Conversely, the limitation would apply to the National Guard when activated by the President and operating in accordance with Title 10 of the U.S. Code.
See also
- CommandeeringCommandeeringCommandeering is an act of appropriation by the military or police whereby they take possession of the property of a member of the public.-External links:*"" at Straight Dope, 25 April 2006*"" at Urban Legends Reference Pages, 6 August 2001...
- VigilanteVigilanteA vigilante is a private individual who legally or illegally punishes an alleged lawbreaker, or participates in a group which metes out extralegal punishment to an alleged lawbreaker....
- Posse Comitatus ActPosse Comitatus ActThe Posse Comitatus Act is an often misunderstood and misquoted United States federal law passed on June 18, 1878, after the end of Reconstruction. Its intent was to limit the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of...