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The posse comitatus and the office of sheriff: armed citizens summoned to the aid of law enforcement.

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back at least as far as the reign of Alfred the Great in ninth-century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff from their earliest days to the present. This Article also describes how the past and present of the posse comitatus can be used in interpretation of the Second Amendment.
TABLE OF CONTENTS

INTRODUCTION

I.  THE CONSTITUTIONAL OFFICE OF SHERIFF
    A. Anglo-Saxon Liberties
    B. The Anglo-Saxon Sheriff
    C. The Sheriffs Office from the Norman Conquest to the
       Fourteenth Century
       1. Sheriffs' Courts
       2. Election of Sheriffs
       3. Sheriffs Oath of Office and Bond
    D. The English Office of Sheriff in the Seventeenth Century and
       Thereafter
       1. Autonomous and Indivisible
       2. Modern Role in the United Kingdom
    E. The Sheriff in America
II. THE POSSE COMTATUS FOR THE KEEPER OF THE PEACE
    A. Posse Comitatus in England
    B. Posse Comitatus in Colonial America and the Revolution
    C. After Independence
    D. Posse Comitatus and the Civil War
       1. Before the War
       2. After the War
    E. Posse Comitatus in Late Nineteenth Century America to the
       Present
    F. Who Is Subject to Posse Comitatus Duty?
    G. Arms of the Posse Comitatus
III. COLORADO SHERIFFS AND THEIR POSSES
    A. Posse Comitatus in Crime Emergencies
       1. Pitkin Sheriffs Office
       2. Hinsdale Sheriffs Office
       3. Rio Blanco Sheriffs Office
       4. Jackson Sheriffs Office
       5. Larimer Sheriffs Office
       6. Morgan Sheriffs Office
    B. Posse Comitatus in Low-Risk Situations
    C. Trained Posse Comitatus in Forcible Law Enforcement
       Situations
       1. Alamosa County Sheriffs Office
       2. Baca County Sheriffs Office
       3. Custer County Sheriffs Office
       4. Delta County Sheriffs Office
       5. Douglas County Sheriffs Office
       6. Elbert County Sheriffs Office
       7. Hinsdale County Sheriffs Office
       8. Kiowa County Sheriffs Office
       9. Lincoln County Sheriffs Office
       10. Logan County Sheriffs Office
       11. Montezuma County Sheriffs Office
       12. Morgan County Sheriffs Office
       13. Prowers County Sheriffs Office
    D. The Colorado Mounted Rangers
IV. Posse Comitatus:
    The Right--and Duty--to Keep and Bear Arms
CONCLUSION
APPENDIX


INTRODUCTION

Most people know that in the American frontier West, sheriffs sometimes summoned "the posse" to assist in keeping the peace. The sheriffs posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century. The posse comitatus power thrives in the twenty-first century United States. Sheriffs today use their posse comitatus power frequently, sometimes daily. This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus.

The posse comitatus power does not belong exclusively to sheriffs, but the power was originally created for them, and they remain its most frequent users. Accordingly, Part I of this Article describes the origins and history of the office of sheriff. This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff's role as a constitutional officer who is elected directly by the people and enjoys great independence in the performance of his duties. While police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous.

Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present. The posse comitatus law of the twenty-first century United States is essentially the same as the posse comitatus law of England during the ninth century. The sheriff in carrying out his peacekeeping duty may summon to his aid the able-bodied adults of the county. He has complete discretion about whom to summon and how the persons summoned shall be armed.

Part III provides a case study of the posse comitatus in modern Colorado. Posses play numerous roles in Colorado. They have thwarted the escapes of criminals, including serial killer Ted Bundy. They also function as a citizen volunteer corps on a regular, structured basis; they assist sheriffs during county fairs, weather emergencies, and hostage situations, among many other duties. The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs' offices and police departments as needed.

Finally, Part IV considers the relationship between the posse comitatus and the Second Amendment. The Second Amendment aims to foster a "well-regulated militia," and, in furtherance of this purpose, the right of the people to keep and bear arms is safeguarded. The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of one would inevitably destroy the other. The Second Amendment's protection of the arms rights of citizens has the necessary effect of ensuring that there can be an effective posse comitatus. Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms. Sheriffs thus have proper third party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions.

Following this Article, a lengthy Appendix summarizes state statutes related to the posse comitatus-, almost all states continue the longstanding legal tradition that armed citizens may be summoned to aid of law enforcement.

The founding father of the posse comitatus was the first true King of England: Alfred the Great, who ruled from A.D. 871-899. One reason he is the only English king called "the Great" is that he recognized that he could not fulfill his own duties solely through his own appointees. To keep "the King's peace," the government needed the active participation of the people. Routine suppression of violent crime and emergency community defense against riots, insurrections, and invasions all require that the armed people actively defend the authority of the government. This is a moral point of the Second Amendment and of its counterparts in state constitutions. This is the "active liberty" extolled by Justice Breyer. (1) Armed citizens, under the guidance of the leaders chosen by the citizens, can embody and effectuate law and order.

I. THE CONSTITUTIONAL OFFICE OF SHERIFF

This Part explains the history of the office of sheriff, from its Anglo-Saxon origins through its present role in the United States. Section A explores why the Anglo-Saxon model was so revered by the American Founders. Section B then describes the origins and features of the office of sheriff in Anglo-Saxon England. Section C shows the continuity and changes in the office in the three centuries following the Norman Conquest of 1066. The most important development was the demise of the custom of electing sheriffs. Section D describes the long, slow decline of the office of sheriff in England from the seventeenth century to the present. Finally, Section E shows how the office of sheriff has thrived in America, from colonial days to the present. On both sides of the Atlantic, the sheriff was legally autonomous, but in America, the practical autonomy, responsibility, influence, and power of the sheriff were much greater. In addition, the custom of electing sheriffs was restored in America after centuries of disuse. Popular elections became an explicit requirement of most state constitutions.

A. ANGLO-SAXON LIBERTIES

To the American Founders, England before the Norman Conquest of 1066 was a land of liberty. (2) The American Revolution began because of violations of "the rights of Englishmen" (including the right to bear arms) as those rights existed in the late eighteenth century. (3) However, as with many revolutions, the ambitions for reform grew as the war continued. (4)

The importance of the people's right to bear arms was clear from the start of the Revolution. The war began on April 19, 1775, when Americans used their firearms to fight British soldiers who confiscated firearms and gunpowder by conducting house-to-house searches in Lexington and Concord. (5) The Americans chased and harried the Redcoats back to Boston, besieged them there, and fought several battles. (6) On March 17, 1776, the British departed Boston by ship. (7)

The revolutionaries valued Anglo-Saxon traditions. After the Declaration of Independence was announced, the Continental Congress had to decide on the public symbols of the new nation, so on July 6, 1776, a committee discussed the design of the Great Seal of the United States. Thomas Jefferson urged that the reverse of the seal depict "Hengist and Horsa, the Saxon Chiefs, from whom We claim the Honour of being descended and whose Political Principles and Form of Government We have assumed." (8) Hengist and Horsa were the first Anglo-Saxon rulers in England, from the fifth century A.D. (9)

The American Revolutionaries and their European intellectual ancestors believed that societies of liberty had existed in ancient times, and that one purpose of political activity was to recover that lost liberty--especially to ensure that the government ruled under The Law, and not above it. (10)

The eighteenth century Americans who (like many Englishmen of the time) viewed Anglo-Saxon England as a historical model of freedom were part of a longstanding tradition of idealizing the ancient free Germanic tribes, who seemed so different from the despotic Roman Empire and the European governments of the second millennium A.D. The idealization of Germanic liberty can be traced back as far as the first-century Roman historian Tacitus. He extolled the liberties and democracy of the German tribes, whom the Romans attempted to conquer but failed. (11) These German tribes later became the ancestors of the English (the Anglo-Saxons) and, to at least some degree, of the French. (12) The French author Francis Hotman's Francogallia lauded the ancient liberties of the era of Charlemagne (ruled A.D. 768-814), implicitly contrasting France's ancient, primitive freedom with the contemporary centralized despotism of the Bourbon kings. (13) In the Anglosphere, and especially in America, many believed that the liberties of the Anglo-Saxons had been destroyed by the Norman Conquest in 1066. (14)

The ideal of ancient Anglo-Saxon England became a powerful influence upon the new American nation, which was striving to create what Jefferson called "an Empire of liberty." (15)

The American view of Anglo-Saxon England as a land of liberty has influenced American law; the view is one of the sources of the Confrontation Clause in the Bill of Rights. (16) Anglo-Saxon history would also help to shape the office of sheriff in the United States. To Jefferson, "the office of sheriff' was "the most important of all the executive officers of the county." (17) As the United States in the nineteenth century grew from a thinly populated nation on the Atlantic seaboard into a nation stretching from ocean to ocean, there was a nearly constant process of forming new territories and states, both of them composed of counties. In creating the "most important" of all the county offices, the American people modeled the office on the best features of the Anglo-Saxon office of sheriff. The Americans also included what they considered to be improvements that had taken place in the centuries after the Norman Conquest. (18) As one historian would observe in 1930, "in America today ... the sheriff retains many of his Anglo-Saxon and Norman characteristics." (19) The same is true today: the fundamental structure of the American office of sheriff is as it was in the nineteenth century and is similar in many ways to its structure in the ninth century.

B. THE ANGLO-SAXON SHERIFF

This Section describes the origins and early characteristics of the office of sheriff. The formalization of that office into what is essentially the same office in modern America was one consequence of King Alfred the Great's victories against Danish invaders. Therefore, this Section proceeds chronologically from ancient times until 1066, describing developments in the office of sheriff in the context of contemporary political events.

After Roman rule receded from England, Germanic tribes--specifically, the Angles and the Saxons (20)--repeatedly invaded Britain. The tribes settled in England, which became a heptarchy (seven distinct kingdoms). (21) The Anglo-Saxons needed an official who would directly enforce the king's laws and look out for the king's interests. Thus was born "the king's reeve"--a man of the shire directly appointed by the king, whose duty was to carry out the king's commands. (22)

In the English system of government, the second oldest title of office is "sheriff." (23) The Anglo-Saxon word for what we today call a "county" was "shire." (24) The word "sheriff' is a compound of "seyre" (meaning "shire") and "reve" (meaning "bailiff' or "guardian"). (25) The sheriff is therefore the guardian of the county. One can find some references to "sheriffs" in Anglo-Saxon texts preceding Alfred the Great. (26) Nevertheless, we can trace the regularization of the office of sheriff and its posse comitatus power, as well as the militia that was later recognized by the Second Amendment, to Alfred's reign.

Of all English monarchs from post-Roman times to Queen Elizabeth II, only one is called "the Great." He is Alfred. As a second son, Alfred was not expected to become king. Well-educated, multilingual, and deeply religious, he studied for a while in Rome. (27) He ascended to the throne during a war with the Danes in which his older brother was killed. (28) The English lived in near-constant fear of Danish invasion and pillage; they were frequently oppressed by the Danes who had conquered parts of England. (29)

In A.D. 878, as The Anglo-Saxon Chronicle (a historical work begun during Alfred's time) explains, the Danes triumphed completely, and all the people of England were "subdued to their will;--ALL BUT ALFRED THE KING. He, with a little band, uneasily sought the woods and fastnesses of the moors." (30) With nothing but a guerilla band hiding in the swamps, Alfred kept alive the principle of English sovereignty and led the English back from the brink of annihilation. The bookish man became one of the greatest military strategists of his century. Once, he disguised himself as a harper, and entered the Danish camp--entertaining the Danes with song and story, meeting with the Danish prince Guthrum in his tent--and acquiring military intelligence. (31) His growing army finally expelled the most recent Danish invaders. (32) The Danish settlements in England were brought under his sovereignty and were no longer able to plunder the English at will. He was the first King of England. (33)

King Alfred recognized that another wave of Danish invasion was inevitable, so he began building England's capacity for self-defense. This capacity was founded on the idea that all the freemen were to be armed, trained, and ready to fight to defend their local and national communities. He created the English militia, which consisted of all armed people. (34) In the 1939 case United States v. Miller, the Supreme Court unanimously acknowledged the militia of the Second Amendment to be the institution founded by Alfred. (35)

Among Alfred's most important ideas was dividing the militia in each shire into two parts, only one of which would be required to serve at a given time. (36) The practical benefit was enormous. The men who were not serving in a particular campaign could work the farms, keep the economy functioning, and take care of the women and children. Meanwhile, the men who were actively serving in the militia were willing to go on longer campaigns because they did not feel compelled to return home as fast as possible in order to plant, cultivate, or harvest the crops. (37) When the Danes tried invading again, they were routed. (38)

During the American Revolution nearly a millennium later, the militia system would again be a foundation of victory. Soldiers in the Continental Army might be away from home for years, but the majority of American fighters came from the militia. Because they were not full-time soldiers, they could return home to take care of their farms and keep the American economy functioning. (39)

A second security reform of Alfred the Great was reformation of the office of sheriff. (40) After the period of Danish oppression, the English had devolved into lawlessness and robbery. (41) Alfred fixed England's county boundaries with greater precision and used the counties to organize national and community self-defense. (42) The sheriff was the pillar of this self-defense system and often the leader of the county militia. (43) As will be detailed in Part II, the sheriff exercised the authority to summon and command the armed body of the people not only in the militia, but also in several related forms: posse comitatus, "hue and cry," and "watch and ward." (44)

Thus, according to medieval historian Frank Barlow, "[i]t is not unlikely that every freeman had the duty, and right, to bear arms" in Anglo-Saxon times. (45) When carrying out the duty to bear arms, the freeman would most commonly be under the leadership of the sheriff. The Second Amendment also recognizes the individual right to keep and bear arms for all lawful purposes and the duty to bear arms when summoned to the defense of community, as in the militia or the posse comitatus-, the legal implications will be explored in Part IV. (46)

As the county leader of the armed people, "the reeve became the guarantor of the survival of the group." (47) "[T]he people maintained law and order among themselves" because the central government of the king had no practical ability to do so. (48)

A millennium later, Alfred the Great was still revered by Englishmen and Americans of all political persuasions. (49) He had brought peace and security to England, while, in the words of the English political philosopher David Hume, "[he] preserved the most sacred regard to the liberty of his people; and it is a memorable sentiment preserved in his will, that it was just the English should for ever remain as free as their own thoughts." (50)

Government records from Anglo-Saxon England are hardly complete, but there are records of sheriffs present in all English counties by A.D. 992. (51) The duties of sheriffs were numerous:
   [T]he original role of the sheriff was to act as the personal
   representative of the King in each county. Mediaeval government was
   not based on any concept of separation of powers and the duties of
   sheriffs were therefore both executive and judicial. They were
   responsible for commanding the local military [the militia] in
   cases of invasion or rebellion, they collected local taxes,
   investigated suspicious deaths, executed Royal Writs and generally
   maintained law and order. In their law enforcement role they could
   call upon the local freemen to form a posse comitatus to hunt for
   outlaws and, in their judicial role, they presided over the shire
   court, exercising both civil and criminal jurisdiction. (52)


The sheriffs responsibilities included mobilizing the people to resist invasion or for other military purposes, as leaders of the county militias. (53) So when William the Conqueror invaded in 1066, "[h]is primary adversaries were King Harold's Sheriffs." (54) Sheriff Esgar defended London against William's army. (55) At the Battle of Hastings, "King Harold's last battle was led by his sheriffs." (56)

Sheriffs tended to be from the lesser nobility. (57) A baron might be a great landholder with real property in several counties (and, later, as a Member of Parliament, a player on the national political stage). In contrast, the sheriff would usually be man of the shire. His interests and property were within a single county. (58) The sheriff needed to be man of independent means, because the national government provided him with no support, not even a salary. He was responsible for paying all the expenses of his office (e.g., the salaries of the undersheriff and the deputies), and he would keep whatever revenues he earned from his services (e.g., fees for serving writs). (59)

C. THE SHERIFF'S OFFICE FROM THE NORMAN CONQUEST TO THE FOURTEENTH CENTURY

Although the office of sheriff in tenth century England has much in common with the office in twenty-first century America, there were some important changes in the centuries following the Norman Conquest of 1066. Two of these changes would later be incorporated by Americans: the elimination of the sheriff's judicial role (60) and the requirement that sheriffs take an oath and post a bond. (61) Another Norman innovation--making the sheriffs office appointive rather than elective--was eventually accepted in England. (62) But it would later be rejected in the United States. (63)

1. Sheriffs' Courts

The most important step towards the end of the sheriffs' judicial function came with Magna Carta in 1215, although Magna Carta confirmed a trend that had been going on for a while.

The Norman Conquest had been disastrous for many of the English people, as they were subjugated to tyranny and poverty. (64) The problem was exacerbated by the conduct of King John (reigned 1199-1216). (65) According to David Hume's The History of England, "[t]he only happiness was, that arms were never yet ravished from the hands of the barons and people: The nation, by a great confederacy, might still vindicate its liberties." (66)

An armed revolt forced King John to agree to Magna Carta on June 12, 1215. Later monarchs were repeatedly compelled to declare that they too were bound by the Great Charter and would rule in accordance with it. (67) Magna Carta was created by the barons and contained great universal principles of ordered liberty, as well as items involving the narrower concerns of the barons of the time.

One broad principle of liberty contained in Magna Carta was the "law of the land" article, which is an ancestor of the U.S. Constitution's guarantees that no persons shall be deprived of life, liberty, or property without due process of law. (68) The Magna Carta of 1215 (although not its subsequent reissues by other monarchs) even included a provision authorizing the use of force against the king if he violated Magna Carta. (69)

One clause of Magna Carta required the discontinuance of the sheriffs' courts for holding pleas of the crown. (70) At the time, "pleas of the crown" was a legal term of art for certain cases involving issues where a royal interest was involved. (71) Efforts to restrict sheriffs' judicial role had been going on for the last century. (72) The standard view of historians has been that the sheriffs and their courts were oppressive, (73) although a modern commentator suggests that the upper nobility's actions against the sheriffs' courts came about "not because of general dissatisfaction with their conduct, but because the earls and barons were displeased at the local feudal courts' loss of 'business' (from which they derived revenue) to the increasingly popular sheriffs' courts." (74)

Regardless, Magna Carta was a major step in sheriffs losing their judicial role. Magna Carta did not by its terms apply in Scotland, so sheriffs continued to preside over the sheriffs' courts there, and these courts are the heart of the Scottish judicial system today. (75) The Scottish sheriffs also had the same law enforcement powers and duties as their English counterparts, such as raising the hue and cry. (76) In the United States, sheriffs retain many traditional duties to the courts, such as providing court security and serving warrants, but they have no judicial role in presiding over courts or deciding cases.

2. Election of Sheriffs

In the United States, it is axiomatic that the sheriff is elected by the people. (77) The American principle is based on the Anglo-Saxon custom of electing sheriffs, although precisely how many sheriffs were elected in either Anglo-Saxon or Norman times is difficult to say.

There is some debate about whether sheriffs were elected or appointed during the Anglo-Saxon era. According to Blackstone, in Anglo-Saxon times, "sheriffs were elected: following still that old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves." (78)

While the sheriffs of nineteenth century England were appointed and not elected, the author of an 1848 treatise on sheriff law explained that "[s]heriffs were formerly chosen by the inhabitants of their respective counties; in confirmation of which it was ordained by the statute of 28 Edw. 1, c. 8 and 13, that 'the people should have the election of sheriffs in every shire, when the shrievalty is not of inheritance."' (79) It was not surprising that Americans embraced the principle of election of sheriffs or that most states have constitutionalized this principle. (80) In the twentieth century, however, legal historians suggested that earlier writers had overstated the extent to which English sheriffs were elected. (81) Modern historians have shown that from the time of the Norman Conquest onward, most sheriffs were appointed. As far as we know, they were elected only in London (82) and in some southwestern counties. (83)

We may never have a full sense of how the office of sheriff functioned in Anglo-Saxon times. But we can be certain that when King Edward I and Parliament in 1300 promulgated the election statute (Articuli supra Cartas), the election of sheriffs was a change, rather than a "confirmation" of a then-current general practice. (84) Edward Coke, an enormously influential legal writer, described Edward I as having "restored to his people the ancient election of sheriffes...." (85) But even after Edward I's statute of 1300, we have only one record from the following decade for a sheriff election taking place. (86)

The next king, Edward II, was unpopular during his reign, and most historians have regarded him as mediocre or worse. (87) Among the problems was his very close relationship with his best friend, Piers Gaveston, whom much of the rest of the nobility believed unhinged Edward's judgment. (88) There was also Edward's propensity for seizing whatever property he wanted. These seizures were to support either his military adventures or the extravagant lifestyle that he and the Gaveston family led during the periods when the Gavestons had not been forced into temporary exile by Parliament. (89)

Rising tensions led an ad hoc assembly of barons to proclaim the Ordinances of 1311. (90) Like Magna Carta, the Ordinances of 1311 contained provisions regarding civil liberty (e.g., a provision against uncompensated seizure of property) and provisions relating to the barons' narrow self-interests. Item 17 demanded an end to the election of sheriffs. The varying political balance of power affected how much heed Edward II was willing to pay to the Ordinances of 1311, but he did eventually accede to the demand about sheriffs by promulgating the Sheriffs Act of 1315. (91) He thus gave statutory force to Item 17 of the Ordinances of 1311. (92)

Two other portions of the Ordinances, Items 10 and 39, perhaps provide some context for Item 17. Many of the Ordinances attempted to end the King's habit of helping himself to other people's property; the formal term for such monarchical theft was "prises." Item 10 of the Ordinances of 1311 stated, "[a]nd because it is to be feared that the people of the land will arise on account of the prises and divers oppressions inflicted before this time...." Given the continuing role of sheriffs as military leaders, (93) and given their continuing role in leading bodies of armed men in the posse comitatus and other law enforcement activities (discussed infra), the possibility could arise that elected sheriffs would serve as the leaders of a discontented populace which might revolt against an oppressive, kleptocratic king.

Greater context for the abolition of sheriff elections comes from Item 39, which required that various officials, including sheriffs, "shall be sworn ... to keep and hold all the ordinances made by the prelates, earls, and barons ... without contravening any point of them." (94) The motive for this clause appears to be that sheriffs (and some other officials) were not enforcing various decrees issued by the upper nobility. In situations where the great baron of a county issued a decree the electorate did not like, perhaps some elected sheriffs had been reluctant to enforce such decrees.

In 1338, King Edward III ordered that the counties elect their sheriffs, but this was abandoned in 1340, replaced by appointment by the Exchequer, the treasury office of the monarchy. (95) The "Good Parliament" of 1376 unsuccessfully demanded that sheriffs be elected. (96) Still, kings continued to need money, and for the right price, they would grant a locality the right of electing its own sheriff; by the eighteenth century, twenty-one cities or boroughs enjoyed the right of election. (97)

However the sheriff was chosen, he was supposed to be a defender of liberty. As historian William Morris puts it, "[i]n the time of Henry III, (98) he was still regarded by the king and council as their agent in the maintenance of popular liberties and private rights." (99)

3. Sheriff's Oath of Office and Bond

Item 39 of the Ordinances of 1311 had also said that sheriffs should take an oath of office. This had been a longstanding baronial demand. (100) The oath requirement became a well-established and uncontroversial part of the common law. (101) Thus, almost every American state constitution that provides for an office of sheriff requires that the sheriff take an oath, as must all other constitutional officers. In England, the sheriff's oath was to the supreme ruler, the monarch; in the United States, the sheriffs oath is also to the supreme ruler, the law itself--an oath to uphold the U.S. Constitution and the constitution of the sheriff's state. (102)

In the sixteenth century, a statute mandated that before taking office, a sheriff must post a bond as a surety against any malfeasance for which he or his deputies might be found liable. (103) This requirement is still standard for American sheriffs, although the sheriff may now choose to instead purchase liability insurance.

D. THE ENGLISH OFFICE OF SHERIFF IN THE SEVENTEENTH CENTURY AND THEREAFTER

By the time that emigrants from Great Britain were establishing colonies in America, the duties and scope of the office of sheriff were well understood and noncontroversial. In legal treatises, the laws concerning sheriffs tended to be addressed in larger treatises on other subjects, such as criminal law. The treatise entirely devoted to sheriffs was Michael Dalton's The Office and Authoritie of Sherifs. (104) Dalton was also the author of a very popular treatise on justices of the peace, which contained much content about sheriffs since both offices had similar powers and duties, such as summoning the posse comitatus. (105)

1. Autonomous and Indivisible

By the seventeenth century, two other important principles of the office of sheriff had been established: the office is autonomous and the office is indivisible. An early twentieth century case from Alberta, Canada, explained autonomy in terms that were no different than what had been said by Dalton and other commentators from centuries before:
   [T]he connection between the State and the sheriff after his
   appointment or election is of a very casual character. He is
   practically placed in the sole and undisturbed discharge of the
   duties of the shrievalty. He takes to his own use the emoluments of
   the office and out of them meets the expenditures of it. He employs
   under sheriffs or deputy sheriffs and bailiffs of his own
   selection. He assigns to them the work that they are to do, pays
   them their salaries and dismisses them at his pleasure. His office
   is in its management entirely free from outside dictatorship or
   control. He runs it as an institution for which he and he alone is
   responsible to those whose business passes through it. And so in
   those jurisdictions he is held liable for the misconduct of those
   whom he employs in his office. (106)


The monarch could choose the sheriff, but could in no way limit the office of sheriff: "neither can she [the queen] abridge the sheriff of any thing incident or belonging to his office, for the office is entire and indivisible." (107)

The autonomy of sheriffs and of justices of the peace may have been one reason for slack enforcement of the arms control laws that were introduced in the Tudor period (1485-1603). In general, the Tudor monarchs were trying to keep handguns and crossbows out of the hands of everyone except the gentry. (108) A 1526 proclamation by King Henry VIII told the sheriffs and mayor of London to stop being "negligent, slack, or remiss" in enforcing the arms restrictions. (109) In 1537, the King expressed his "displeasure and indignation" about the unenforcement of arms bans. (110) In 1600, a proclamation of Queen Elizabeth I complained about the "slack execution" of the arms control laws, and "the common carrying and use of guns contrary to the said statutes" by "common and ordinary persons traveling by the highways to carry pistols and other kind of pieces," and by "ruffians and other lewd and dissolute men." (111)

Another innovation was that a sheriff may not practice as an attorney during his term of office. (112) Given the sheriffs intimate involvement with the judicial system, the prohibition is a sensible prevention of conflicts of interest. The prohibition was carried forward into America (113) and today is often expressly stated in state statutes. (114)

2. Modern Role in the United Kingdom

The office of justice of the peace had been formally created in the fourteenth century, with roots from the previous century. (115) By the time Michael Dalton was writing in the early seventeenth century, the justices of the peace were supplanting the sheriffs as having the greatest practical role in keeping the peace. Other traditional sheriff duties, such as serving and enforcing writs, including by executing judgments, remained primarily the responsibility of sheriffs. (116)

Sheriffs in the seventeenth century continued to have a military role: "The sheriff was often appointed one of the commissioners of musters" (117--the periodic assemblies of the militia to ensure that every militiaman had provided himself with appropriate equipment. Likewise, the sheriff sometimes received assistance from the "trained bands," (118) militia units that engaged in extra practice to maintain high proficiency. During the English Civil War (1642-1651), both sides attempted to order sheriffs "to rally the counties to their support as though the military command were still theirs, ex officio." (119)

Everyone may have agreed the office of sheriff is indivisible, but in a constitutional system based on shared understandings, and lacking an authoritative text which supersedes all else, things that were once plainly illegal may become accepted innovations. So in England, the sheriffs were over the centuries stripped of all responsibilities. (120) Today the English office of sheriff is barely even ceremonial, consisting of holding an annual dinner for local judges and other important persons. (121)

E. THE SHERIFF IN AMERICA

Colonial Americans took the office of sheriff as they had inherited it from England, with one important exception: they restored the right of electing sheriffs, a task that was completed in the nineteenth century. While the office of sheriff was waning in England, the office became increasingly important in America.

Magna Carta applied in the American colonies, so sheriffs never served as judges. (122) In the colonies, the sheriffs used all the traditional powers of the office to the fullest. American sheriffs were more active than their English counterparts at finding criminals and delivering them to court, taking "an active law enforcement role." (123)

By all indications, the formal seventeenth century American understanding of the office was mostly the same as the English. A study of Maryland and Virginia in the seventeenth century "proves the similarities in the office of sheriff in England and in her colonies to have been decidedly more numerous than the differences." (124) Michael Dalton's English treatise Office of the Sheriffs is known to have been used as a guide in Maryland. (125) Dalton's Country Justice treatise (about the justice of the peace, and also containing much information about sheriffs and their posse powers) was also influential in America. (126) Virginian George Webb's 1736 treatise on sheriffs and other local officials was conventional in its treatment of sheriffs, the posse comitatus, and so on, relying on mainstream English sources such as Dalton. (127)

However, while the office looked the same on paper on both sides of the Atlantic, there were very significant practical differences, all of which had the effect of elevating the sheriff in America. To begin with, the American colonial sheriff was even more independent of central authority. In the American colonies, sheriffs were formally appointed by the crown, as they were in England and Scotland. (128) The royal governor typically made appointments taking into account the advice of the county justices. (129) The governor rarely questioned the county's nominees of individuals to become sheriff. (130)

Although nominally appointed by the royal governor, the American sheriff "was more of a county than a colonial official...," (131) Unlike the English counties, the American counties were self-governing. (132) "[A]s a member of the ruling group in the county, the sheriff shared its independence." (133)

The colonial sheriff enjoyed "little of the social functions and prestige of the English official, but economic and political forces more than compensated for this loss ... restoring to him some of the importance his ancestor early had in England as conservator of the peace...." In sum, "[t]he office was taking on new strength in the colonies while continuing to decline in England." (134)

An important American innovation was that the sheriff either had a salary or could only charge fees (e.g., for executing a civil judgment) that were fixed by law. This reform recognized the problem of some of the unsalaried English sheriffs who had used their office for personal enrichment. (135)

The return of the long-lost practice of electing sheriffs began in 1652, (136) when the Royal Governor of Virginia told each county to choose its own sheriffs. The commissioners of Northampton County asked the people of the county to elect the sheriff. William Waters became the first sheriff elected in America. (137) It was not surprising that the reestablishment of popular election of sheriffs came from a county government; other than the New England town meetings, the first democratic governments in the American colonies were county governments. (138) New England already had the tradition of electing constables--low-level officers responsible for suppression of minor crimes; this was in contrast to the English custom of constables being appointed by the justices of the peace. (139)

The restoration of direct election of sheriffs "encouraged them to adopt an active role, whilst the fact that they were officials of county government helped to give them the opportunity to do so." (140) Election "meant that sheriffs were amongst the first public officials to be elected in any newly settled area and were therefore able to develop their role with little opposition from competing organisations or officials." (141) Americans came to understand the election of the sheriff as a right of the people. (142) The 1802 Ohio Constitution was the first state constitution to formally specify that sheriffs must be elected. (143) Today, the large majority of American state constitutions require that sheriffs be elected by the people of the county. (144)

Developments in the United States confirmed the importance and independence of sheriffs, whose power came directly from the people. The classic American treatise on sheriff law, written in 1884 by William L. Murfee, observed,
   the sheriff is, in each of the United States, a constitutional
   officer, recognized eo nomine as part of the machinery of the state
   government, and therefore, although it is competent for
   legislatures to add to his powers or exact from him the performance
   of additional duties, it is, upon well established legal
   principles, beyond their powers to circumscribe his common-law
   functions or to transfer them to other officers. (145)


Today, American sheriffs are elected in all states except Alaska (which has no counties), Hawaii, Rhode Island, and Connecticut (where the office of sheriff was abolished in 2000). (146)

II. THE POSSE COMTATUS FOR THE KEEPER OF THE PEACE

The traditional American view is that the legislature may add new duties or powers to the office of sheriff, but may not remove any of the sheriffs inherent common law powers or duties. (147) An example of a new duty, not traceable to the common law, is that by Colorado statute, the sheriff is the chief fire warden in his or her county. (148)

In America, the most important traditional responsibility of the sheriff has been keeping the peace. This is the third item of what Edward Coke described as the "three-fold custody" of the sheriff. First, the sheriff has custody of justice, because no suit begins without a sheriff serving process, and because sheriffs are responsible for returning jurors to hear a trial. Second, the sheriff has custody of the law, since the sheriff executes the decisions in civil and criminal cases. (149) And third, the sheriff has custody of the commonwealth, for "he is [principal Conservator of the Peace], within the countie, which is the life of the common wealth...," (150)

This Article is principally concerned with the sheriffs duty of keeping the peace. For various aspects of that duty, the sheriff has traditionally had the authority to summon assistance from armed citizens. Formally, there are four separate prongs to this common law authority, although in practice they can easily overlap. The first prong stems from the English sheriffs specific duty of keeping "watch and ward," to guard towns, which was given statutory expression during the reign of King Richard I (1189-1199). (151) This is the power to arrange watches and patrols, and to require townsfolk to take turns on guard duty. (152) "Ward" was the daytime activity, and "watch" the nighttime activity. (153) Closely related to "watch and ward" was "hue and cry," the second traditional power. Under English law originating long before the Norman Conquest of 1066, all able-bodied men were obliged to join in the hutesium et clamor (hue and cry) to pursue fleeing criminals. Pursuing citizens were allowed to use deadly force if necessary to prevent escape. (154) The third power of the sheriffs, to summon the posse comitatus, is described in the remainder of Part II. The fourth power is to summon the militia. The use of this military force is supposed to be rare and only for situations that the posse comitatus is incapable of resolving.

A. POSSE COMITATUS IN ENGLAND

Richard Abels, a modern historian of the Anglo-Saxon period, reports that "[t]he reeves of the late ninth and the early tenth century also led posses in pursuit of thieves...." (155) The Latin phrase which was applied to this popular use of armed force for keeping the peace is posse comitatus, literally "[t]he power or force of the county." (156) Historian Richard Kemble wrote that from the early days of the heptarchy and throughout the Anglo-Saxon period, the sheriff was "leader of the constitutional force, the posse comitatus or levee en masse of the free men." (157) Kemble used this fact in support of his argument that in the early Anglo-Saxon period:
   The graviones, gerefan, or shire-reeves (by whatever name they may
   then have been called), were the essentially the people's officers;
   whether they were hereditary or not, these offices depended upon
   the popular will; and in a vast majority of cases, it is obvious
   that they must have been immediately dependent upon it,--that is to
   say, elective, and not hereditary. (158)


So it may well be that Alfred the Great did not invent the posse comitatus; it may also be that King Alfred's better organization of the shires, the shire-reeves, and the shire-based militias may have helped make the posse comitatus more effective.

William Henry Watson's 1848 treatise on the English sheriff explained that the posse comitatus power of the nineteenth century was formally the same as it had been in the ninth century.
   He may, and is bound, ex officio, to pursue and take all traitors,
   murderers, felons, and rioters; he hath also the custody and
   safe-keeping of the county gaol; he is to defend the same against
   rioters, and for this purpose, as well as for taking rioters and
   others breaking the peace, and also for attending the queen to the
   war when enemies come; he may command all the people of his county
   to attend him, which is called the posse comitatus, or power of the
   county, and this 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. (159)


Posse comitatus was available whenever the sheriff needed a citizen armed force to enforce the law. (160) The sheriff could use posse comitatus to suppress riots and also to enforce civil process--if and only if there was resistance to the civil process. (161) Examples for use of posse comitatus in cases of resistance of civil process included a Precept of Restitution, (162) and Writs of Execution, Replevin, Estrepement, Capias, "or other Writ." (163) The posse comitatus could be used to "to apprehend Felons, &c. Or disturbers of the peace." (164) In other words, the posse could be used for the arrest of all types of criminals. This included the power to arrest even "a great Lord." (165) By the eighteenth century, the government of Great Britain was moving towards reduced use of the posse comitatus and sheriffs, notwithstanding protests from political writers who argued that the sheriffs and the posse comitatus were the law enforcement system that complied with England's unwritten constitutional tradition. (166) The posse comitatus was still used in the early nineteenth century, (167) but, by the late nineteenth century, it, like many other formal powers of the sheriff, had fallen into disuse in England. (168) America was different.

B. POSSE COMITATUS IN COLONIAL AMERICA AND THE REVOLUTION

The sheriffs role as conservator of the peace--with the authority to summon the posse comitatus, raise the hue and cry, and administer watch and ward--was straightforwardly recognized in the American colonies. (169) But the changes in the posse began to reflect--and intensify--the ways in which the Americans were reshaping their English legal heritage towards greater self-government and liberty.

Gautham Rao's article The Federal Posse Comitatus Doctrine explains: "In its migration to America, however, colonists transformed the posse comitatus from an instrument of royal prerogative to an institution of local self-governance." (170) The posse "functioned through, rather than upon, the local popular will." (171) In other words, the Americans brought the posse back to its traditional Anglo-Saxon role, shaking off six centuries of how the Norman Conquest and succeeding monarchs had partially undemocratized the posse and the sheriff.

According to Rao, "[t]he colonists' control of the posse comitatus--of the legal means of coercion--all but precipitated the American Revolution." (172) The policies of the government in London had so alienated the Americans that they were no longer willing to enforce what London wanted. The Prime Minister, Lord North, recognized the problem: the posse had switched sides; rather than providing the manpower to enforce Parliament's will, the posse was now actively resisting that will: "[O]ur regulations here are of no import, if you have nobody in that country to give them force." (173) The problem was exacerbated by the fact that most sheriffs leaned Whig (towards citizen rights) rather than Tory (towards the authority of the monarch). (174)

So at the advice of Lord North and his party, the British government attempted to resort to military coercion of the Americans, and, starting in the fall of 1774, a gun control program designed to disarm them. Forcible disarmament with house-to-house searches by the British redcoats was attempted at Lexington and Concord on the morning of April 19, 1775. The Americans resisted with their personal arms, and the Revolutionary War began. (175)

C. AFTER INDEPENDENCE

In the Early Republic, the posse comitatus was an accepted and uncontroversial institution; the federal government only rarely used its posse comitatus powers.

One of the first legal treatises of the new United States of America was produced by James Wilson, the preeminent lawyer of his day, soon to be appointed to the Supreme Court by President Washington. (176) Quite conventionally, Wilson described posse comitatus as "the high power of ordering to [the sheriffs] assistance the whole strength of the county over which he presides" in order "to suppress ... unlawful force and resistance." (177)

Joel Barlow's essay Advice to the Privileged Orders argued that if the state represented the people as a whole, not just one class, society would be more stable. (178) Barlow noted that in Europe, an armed populace would be regarded "as a mark of an uncivilized people, extremely dangerous to a well ordered society." (179) But unlike the European rabble, which had no experience with self-government, Americans were their own sovereigns, and self-government brought out the best in man's character. Thus, the American people could be trusted with guns: "It is because the people are civilized, that they are with safety armed." (180) Barlow praised the "very important" "discoveries" which "had been made in modern nations, especially in England, and carried into successful practice, for the security of citizens against an undue exercise of the governing power; and some that were equally original for the regular assistance of the governing power against the turbulence of citizens." (181) These were the posse comitatus, habeas corpus, the jury, and the rule that "parliament holds the purse." (182) When the proposed Constitution was put before the American people, one of the objections of Anti-Federalists was that the new federal government did not have an enumerated posse comitatus power, but did have an enumerated militia power. The Anti-Federalists argued that therefore the federal government would use the militia (that is, military force) to carry out its powers on a routine basis. (183) In Federalist Number 29, Alexander Hamilton responded that the federal government did have posse comitatus power, by virtue of the Necessary and Proper Clause. (184)

After ratification of the Constitution, Hamilton's necessary and proper view of the federal posse comitatus power was uncontroversial. In addition, the federal government has all the normal powers of local government in areas, such as territories, where the federal government has the authority to exercise local government. (185) Thus, during the Jefferson administration, Secretary of State James Madison sent a written order that a French official "call for the assistance of the good citizens of the district, as the posse comitatus" to enforce the terms of the Louisiana Purchase. (186) In an 1833 treatise on American constitutional law, Supreme Court Justice Joseph Story explained that while the posse comitatus would suffice for maintaining law and order in most situations, there were some circumstances in which either a militia or a standing army would be necessary. (187)

For local law enforcement, posse comitatus in the decades before 1850 thrived as a well-developed and popular institution. Edward Livingston extolled the posse because "the same ties of property, of family, of love of country and of liberty" which make possemen "effective instruments for the suppression of disorder" also make them "unfit ... to promote any scheme of usurpation. The people can apprehend no danger to their liberties from such a force...," (188) Citizens served in the posse readily and with pride. (189) It was used for a wide variety of local enforcement, ranging from stopping illegal fishing up to riots. (190) Like jury service, posse service was a mandatory duty of a citizen, one that should be performed with pride as part of free citizen's rights and duties in a self-governing republic. (191)

In the early decades of the republic, before slavery became a major conflict, federal use of posse comitatus in the states was rare and sporadic. The Judiciary Act of 1789 gave U.S. Marshals authority to summon the posse comitatus. (192)

A modern scholar, Wesley Campbell, uses ratification history to argue against the Supreme Court decisions such as Printz v. United States, which forbid federal commandeering of state officials. (193) Campbell infers from the ratification history not only a federal posse comitatus power, but also a federal power to commandeer county sheriffs to lead the posse comitatus in federal service. (194) This is problematic because of the nature of the posse. The posse is an ad hoc organization. It has no organization until it enters into the service of whoever lawfully summoned it. As in England, the American common law recognized that many officials, not just the sheriffs, had the authority to summon a posse. These officials were a "Judge of Record, Sheriff, Coroner, (195) Constable, or other Officer to whose Office belongs the Conservation of the Peacef...," (196) The Appendix to this Article sets forth the modern state posse comitatus statutes; they follow the common law in providing that a variety of state or local officials, not just sheriffs, may summon a posse comitatus.

If a coroner summons the posse on Tuesday, then he is the posse commander that day. If a judge summons the posse on Friday, then she is the posse commander for that day. Accordingly, the power of a federal officer to summon a posse for his own use does not necessarily imply that the federal officer also has the power to summon any of the state officials--such as sheriffs, judges, and coroners--who also has posse-summoning power.

It is useful to contrast the posse with the state militia. There are a variety of possible posse commanders, depending on the exigencies of law enforcement need. There is no process for compulsory training of persons who might be summoned to posse service. In contrast, the state militia is a regular body. It is subject to periodic training and to musters (where militia members show that they possess the requisite arms for militia duty). (197) Unlike the posse, the militia is led by a regular set of officers. (198) The man who is the militia captain on Monday will still be the militia captain on Friday. The U.S. Constitution expressly grants Congress the power to summon the state militias, including their state officers, into federal service. (199) When the Constitution means to grant to the federal government the extraordinary power of commandeering state officers, the Constitution says so expressly.

Early practice shows that the federal posse comitatus power was not exercised as a power to commandeer state officers. The Judiciary Act of 1789 authorized federal marshals to summon posses. There appears to be no evidence indicating that from 1789 to the present, the federal posse power has ever been used by a federal marshal, or anyone else, to commandeer a state official in his official capacity (e.g., a sheriff or a state judge) into serving as posse commander in federal service.

In Prigg v. Pennsylvania, the Supreme Court ruled that the 1793 federal Fugitive Slave Act was constitutional. Even though Article I had not given Congress an enumerated power over fugitive slaves, the fugitive slave provisions in Article IV created an implied power, according to the Court. (200) At the same time, state and local officials had absolutely no obligation to assist in the recapture of fugitives, according to the Prigg Court. (201)

D. POSSE COMITATUS AND THE CIVIL WAR

1. Before the War

Everything changed with the congressional enactment of the Compromise of 1850. In exchange for admission of California to the Union as a free state, northern legislators accepted a massive new federal Fugitive Slave Act. (202) This time, the Act explicitly declared that citizens were required to serve when summoned in a federal posse comitatus hunting for fugitive slaves. (203) The federal posse comitatus had been transformed, as Rao puts it, "from emergency to routine ... from sporadic to ubiquitous." (204) The posse comitatus provisions of the Fugitive Slave Act of 1850 forced the North to become complicit in enforcing slavery, and thus to become part of the slave system. (205) To many northerners, forced service to recapture slaves felt little different from slavery itself. (206) The posse comitatus was supposed to be the people of the county participating in self-government by enforcing their own laws. Now, federal posse comitatus had been perverted into a weapon that transformed free citizens into the minions of distant slave owners.

Making things even worse, the federal government began using federal soldiers on slave hunts and claimed that these men were merely acting as posse comitatus. (207) To call the federal standing army a "posse comitatus" was as Orwellian as calling the federal army "the Massachusetts State Militia." The posse and the militia were supposed to be the institutions that minimized the need for domestic use of a standing army. The posse was not supposed to be used as a legal fiction to justify use of the military for ordinary law enforcement in a state that was not under martial law.

An 1854 poem by Walt Whitman, "A Boston Ballad," denounced the sight of federal troops--"the Federal foot and dragoons"--marching through Boston to transport a fugitive slave. (208) King George's despotic principles had triumphed: "You have got your revenge, old buster! The crown is come to its own, and more than its own." (209)

The innovative use of posse comitatus to enforce the Fugitive Slave Act brought slavery home to the North. Indifference to slavery as a faraway institution was no longer possible. According to the abolitionists, there were now only two choices for a free northern man: one option was to himself become a servant of the slave power in the federal posse comitatus. The only other choice was to put slavery everywhere in America on the road to destruction. (210) All sides agreed that Abraham Lincoln's plan to block any expansion of slavery into federal territories would eventually lead to the economic collapse of slavery in all the slave states. (211) Ascendant in Congress, the South had nationalized the issue of slavery, and thereby radicalized much of the North. The locally controlled posse comitatus of ordered liberty had helped bring about the American Revolution. The federally controlled posse comitatus of slavery would help cause the Civil War.

2. After the War

Victorious after four years of the bloodiest war in American history, the Radical Republicans and their political allies embarked upon a Reconstruction plan to demolish the slave power root and branch. (212) The Thirteenth Amendment and the abolition of de jure slavery was just the first step.

Prigg v. Pennsylvania had found an implicit pro-slavery federal power in the Fugitive Slave Clause of the Constitution. (213) So Congress looked to the other clauses of Article IV and found the guarantee that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (214) To the most ardent reconstructionists, this was enough to imply a congressional power to enact civil rights legislation--especially in conjunction with the enforcement power granted by Section Two of the Thirteenth Amendment. (215) Such legislation was enacted, (216) but Congress decided to put it on a more solid constitutional footing by proposing the Fourteenth Amendment for ratification, Section One of which provided that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...," (217) Section Five gave Congress the power to enforce the Amendment by appropriate legislation. (218)

Likewise, federal slavery powers were later used for civil rights ends: the Civil Rights Act of 1866, the Enforcement Acts of 1870 and 1871, and the Ku Klux Klan Act of 1871 all gave federal marshals authority to summon the posse comitatus, (219) Anti-slavery Senator Lyman Trumbull noted that the posse comitatus provision of the 1866 Civil Rights Act was "copied from the late fugitive slave act, adopted in 1850...," (220) But in the South in 1872 as in the North in 1852, there was resistance to serving in a federal posse comitatus for routine enforcement of federal laws which many local people did not accept. (221) Again, the federal military was sometimes used as posse comitatus, under the pretext that the men were merely acting as citizens, rather than as soldiers. (222) Finally in 1878, Congress passed the Posse Comitatus Act to forbid use of the army in law enforcement, except when expressly authorized by Congress. (223)

Today, the modern version of the civil rights statute provides that United States Magistrate Judges may appoint persons to serve warrants and process:
   [These] persons so appointed shall have authority to summon and
   call to their aid the bystanders or posse comitatus of the proper
   county, or such portion of the land or naval forces of the United
   States, or of the militia, as may be necessary to the performance
   of the duty with which they are charged.... (224)


The statutory authority of federal judges to raise the posse comitatus, as described above, is consistent with the American common law understanding of who may invoke the power. (225) As U.S. Attorney General Edward Bates wrote, "[t]he right of the courts to call out the whole power of the county to enforce their judgments, is as old as the common law...." (226)

E. POSSE COMITATUS IN LATE NINETEENTH CENTURY AMERICA TO THE PRESENT

With the federal posse comitatus crisis of 1850-1878 finally resolved, the posse comitatus returned to its traditional American role, with the power of the county to be used in support of popularly-supported laws. (227)

This is the period about which most people today have their greatest familiarity with the posse comitatus--of the western sheriff summoning the posse to pursue an escaped outlaw or to confront a violent gang. Frank Richard Prassel's The Western Peace Officer is the leading study of the office of sheriff in the western United States during the late nineteenth and early twentieth centuries. As Prassel observes, the original legal structure of the office of sheriff in the western territories and states is nearly identical to the modern structure of the office. (228)

The posse comitatus power continued to be a core, essential power of the county sheriff. (229) To this day, in almost every American state, the sheriff's common law posse comitatus power (230) is given expression by a statute on the subject. (231) As noted above, the power to raise the hue and cry is closely related to the posse comitatus power. American sheriffs continued to have the power of hue and cry. (232)

One of the longstanding rules of the English law of sheriffs was that the sheriff is civilly liable for the acts performed by his undersheriff, his deputies, or anyone else in his service. This principle applies to the posse comitatus. (233) Concomitantly, persons serving in the sheriffs posse have the same legal immunities as does the sheriff herself. (234) Once workman's compensation was established, it was straightforwardly applied so that a person who is injured while serving in the posse is entitled to workman's compensation just as are full-time deputies. (235)

The posse comitatus is familiar enough to the Supreme Court that it figured in part of the questioning during oral argument in Plyer v. Doe in 1982. (236) The case involved whether illegal aliens were entitled to attend American public schools; one hypothetical raised by a Justice involved the judicial authority to summon posse comitatus. (237) More recently, the 2012 Supreme Court case Filarsky v. Delia featured a mini-treatise on posse comitatus, recapitulating some of the leading precedents on the subject. (238)
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Title Annotation:Introduction through II. The Posse Comitatus for the Keeper of the Peace E. Posse Comitatus in Late Nineteenth Century America to the Present, p. 761-804; Symposium on Guns in America
Author:Kopel, David B.
Publication:Journal of Criminal Law and Criminology
Date:Sep 22, 2014
Words:10632
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