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The language of the law. Part Latin, part Anglo-Saxon, all confusing.

By the end of 1778, the Revolutionary War was going badly in the southern states. Savannah had fallen to the British just after Christmas, and Augusta was occupied in January 1779.1 The burden of defending the Carolinas had been placed largely on the shoulders of militia troops. And while some folks in places like North Carolina were turning out as militiamen to defend against the British, others remained loyal to the British Crown and mustered militia troops to fight on the other side.2

In North Carolina as a whole, the split between Revolutionary and Loyalist may have been pretty close to 50-50.3 Not a good thing for the infant State Government.

So on the 12th of February 1779, the North Carolina General Assembly passed a resolution:

Resolved that it be recommended to the Justices of the peace of the respective Counties to seize and secure, and even to remove to places at a distance from their places of residence, all disaffected persons, who not satisfied with entertaining sentiments inimical to the Country may be justly suspected of a disposition of carrying those sentiments into execution & that they be empowered also to order the Sheriff with a posse comitatus to disarm all persons from whom any Injury of the public safety is to be apprehended. That this shall not be executed but by a warrant signed by three Magistrates at least, upon due proof made, & the Colonels of the respective regiments are directed to furnish every possible assistance to carry this into execution.4

So, okay, they wanted the local Justices of the Peace to arrest the Loyalists and secure them (lock ’em up) away from their homes. But what’s this bit about letting the local JPs “order the Sheriff with a posse comitatus to disarm all persons from whom any Injury of the public safety is to be apprehended?”

Posse scouring county, Texas, 1922

What exactly is a “posse comitatus” anyway?

It’s just exactly what you think it is. Nothing more, nothing less.

It’s what you saw in every Wild West movie you ever saw growing up: the sheriff or marshal or Texas Ranger rounding up every able-bodied armed man in town and riding out after the bad guys.

It’s what chased Billy the Kid’s gang out of White Oaks, New Mexico, in 1880.5 It’s what U.S. Marshal Evitt Dumas Nix gathered up to go after the Doolin-Dalton gang in the Oklahoma Territory in 1893.6 It’s what tried (and failed) (rather spectacularly, actually) to bring in Pretty Boy Floyd in Pontotoc County, Oklahoma, in 1932.7

It’s simply “a body of persons given legal authority to assist a peace officer esp. in an emergency.” 8 The term itself is Latin, and means the power or force of the county.9

The concept originated in English common law, and it was part of the rights and duties of the sheriff:

He is … 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 called the posse comitatus, or power of the county…10

So the posse of the Wild West and the posse comitatus are the same thing. If your ancestor served on one (or, like at least a couple of mine, I suspect, got chased by one), that’s what it was all about.

But maybe you’re sitting there thinking you’re pretty sure you’ve read something about the posse comitatus recently. Yup. You have. But in capital letters. In 1878, Congress adopted the Posse Comitatus Act11 as part of a political compromise that got Rutherford B. Hayes the presidency. The law made it illegal “to employ any part of the Army of the United States, as a posse comitatus” (meaning that federal troops couldn’t be involved in local law-and-order issues) without an act of Congress.12 The way it’s usually interpreted is that the military can’t be used as cops here at home.

This became a hot-button issue after the September 11 attacks when there was fear that there could be widespread terrorist attacks and the military might be needed to maintain order here. So what you’ve read recently is about the Posse Comitatus Act, and not the posse comitatus itself.

A whole ’nother kettle of fish from a very young State of North Carolina sending out the locals to disarm anybody they thought might be on the other side of the fight.


SOURCES

  1. Siege of Savannah During the American Revolutionary War, Historynet.com (http://www.historynet.com : accessed 8 Mar 2012).
  2. See, e.g., William Stevens Powell, editor, Dictionary of North Carolina Biography, vol. 2, D-G (Chapel Hill, N.C. : Univ. of North Carolina Press, 1979), entry for “Samuel Bryan,” 259-261.
  3. So says the Encyclopedia Britannica, 11th ed. (New York : Encyclopedia Britannica, 1911), entry for “Loyalists”, 79.
  4. North Carolina General Assembly, Resolution of 12 February 1779, in Walter Clark, State Records of North Carolina (Goldsboro, N.C. : Book & Job, Printers, 1898), 388; digital images, Google Books (http://books.google.com : accessed 8 Mar 2012).
  5. Wikipedia (http://www.wikipedia.com), “White Oaks, New Mexico,” rev. 11 Jan 2012).
  6. U.S. Marshal Service, “History – Deputies versus the Wild Bunch” (http://www.usmarshals.gov/history/dalton/doolin-dalton.htm : accessed 8 Mar 2012).
  7. Jeffery S. King, The Life and Death of Pretty Boy Floyd (Kent, Ohio : Kent State University Press, 1998), 77-80.
  8. Random House Webster’s College Dictionary (New York : Random House, 1991), 1054, “posse.”
  9. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 913, “posse comitatus.”
  10. George Sharswood, ed., Blackstone’s Commentaries on the Laws of England, Vol. 1 – Books I & II (Philadelphia: J.B. Lippincott Co., 1893), 342.
  11. 18 U.S.C. § 1385.
  12. See generally Wikipedia (http://www.wikipedia.com), “Posse Comitatus Act,” rev. 29 Feb 2012).
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