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Campus "Unrest" demonstrations and consequences, 1970-1971

1971-11-12 American Report: Review of Religion and American Power Page 10

6-S AMERICAN REPORT, NOVEMBER 12, 1971

Due Process Forbids Soldiers in Civil Disorders

by David E. Engdahl

According to official Pentagon statistics, the National Guard was used to deal with civil disorders on 221 separate occasions between September 1967 and June , 1970. During the one month of May, 1970, National Guardsmen were activated on 24 separate occasions at 21 universities in 16 states. Despite the tragic consequences of their use that fateful month, frequent use of National Guardsmen in civil disorder situations has continued during the last year and a half. 
No sensible citizen is likely to deny that when destructive civil disorder actually occurs there must be some sufficient means in the Government to bring it to an end. One might have doubted, however, whether, in a nation which has traditionally served as a refuge from military tyranny abroad, the use of military force against civilians could be an acceptable means. The tragedy of May 4, 1970  has set many Americans to wondering how it is that this practice has become a part of our national life, whether it is consistent with either our law or our traditions and whether it can be brought to an end. The truth is, it became a part of our practice by default only a century ago, at a time when violence and high passion had impaired both temperance and reason; it is inconsistent both with our traditions and our contemporary law; but nonetheless it can be brought to an end only by great and concerted effort on the part of those deeply enough committed to the values of life and freedom to really care. 
The roots of our law run deep,. In the year 1181, Henry II

Lawrence Frank 

of England ordered every free man in England to keep arms and swear to use them in service of the King. HIs purpose was two fold: to provide a defense force to supplement the feudal army in the event of foreign attack, and to provide a pursuit force to aid the King's sheriff's in subduing malefactors to be held for evil trial. The same jurata ad arma - the citizens sworn to arms - were to fulfill both roles. There was no real distinction in English law between civil and military affairs. 
Over the next two centuries, however, as the common law of England began to take shape, the two functions of the jurata ad arma became clearly distinct. As a defense force they were placed under the control of officials peculiarly concerned with military affairs, and when so employed they were subject to what early came to be know as martial or military law. but in their other role they remained under the control of the sheriffs and like the sheriffs, subject to the very different rules of the developing common law. As a defense force, the jurata ad arma developed into the militia; as an aid to the sheriff for purposes of law enforcement, the jurata ad arma developed into the posse comittus - "the power of the county" - or simply, the sheriff's posse. The point is that it was precisely the same people - all able bodied men of age - who composed both the militia and the posse, what distinguished the two forces was the difference in the officials who has them in charge, and the differences in the laws which set limits to what each of the forces, or their members, could do. 
These differences became more clear during the 14th century. When peasant mobs rioted in England in 1381, the riots were suppressed by the citizens as the posse. However, the posse employed force in a fashion which, while appropriate for a field of war, violated the standards of reason and restraint demanded of sheriffs- and thus of the posse- by the common law. for their overzealousness in enforcement, the members of the posse would have been prosecuted and punished had the King not pardoned them for their offense in suppressing the riots (in the words of the pardon) "without due process of law." It had been settled by parliament some 50 years before that so long as the institutions of the civilian law had not been shut down, military measures were against the law. Even the King was not permitted to use military force against his subjects, but must treat them according to "due process of law."
Thus no less than six centuries ago the law drew a bold line between war and civil disorder, and between sheer armed force and due process of law. When kings in later years disregarded this distinction again and again it was reasserted and reclaimed by the people - more often than not, by revolution. 
The first English riot act was enacted by Parliament in 1412. It called for suppression of riots by the sheriff, with the aid of the posse. No provision was made for the use of the militia, and it is perfectly clear why: the militia when mustered into service was a military force not bound by due process of law, and riots could be suppressed only in accordance with due process. During the 16th century , however, a new type of royal military official was created and employed to suppress civil disorders by military force, superseding the sheriff and posse. By 1627 this practice in derogation of the due process tradition had build up considerable popular resentment. When King Charles I in that year sent soldiers to quell disorders in several towns, it so outraged the people that the next session of Parliament delayed all its other business and prepared that monumental document of English Liberty, the Petition of Right, insisting that military measures taken within the realm were unlawful and demanding that the King respect the law. Charles, however, continued to employ military measures in England until his repeated acts of tyranny precipitated revolution and cost Charles his head. 
The principle of the Petition of Right was implemented by Parliament and re emphasized on several occasions during the later 17th century. It became firmly settled that, although an armed assault, by foreigners or subjects, to actually depose the Government might be repelled by military force, civil disorders, or riots regardless of their gravity, must never be suppressed by the use of soldiers. A new riot act in 1714 repeated the established rule: riots must be suppressed by civilian officials with the aid of the posse - all of them subject to the restraints of due process. There was no authority for the use of soldiers to suppress any civil disorder,regardless how aggravated the circumstances might be 
With this background, it is easy to understand the anger if the American colonists when, for several years before they crossed the threshold of revolution, British soldiers were used to suppress civil disorders in the colonies. The tragedy at Boston on March 5, 1770 that became known as the Boston Massacre, was an outrage, not because the unruly mob of Bostonians was doing right, but because for soldiers to be employed against such wrongdoers was a violation of that oldest and most essential principle which generations of Englishmen had struggled to maintain as the primary safeguard of liberty itself. (The soldiers who fired at Boston were indicted and tried, and two at least convicted of manslaughter. What would have been the response of the colonists if there had been, not merely no indictment, but a refusal even to instigate a grand jury investigation?)
A crucial development in the law occurred in England in 780. A major riot in London, lasting several days, was finally suppressed by the use of soldiers. Afterwards the members of Parliament heatedly debated whether this was not a violation of the principle just discussed. The view which prevailed, and which soon became settled in American as well as English law, was that of Lord chief Justice Mansfield. Mansfield's doctrine acknowledged that riots were to be suppressed only by civil officers and the posse, and never by military force. He pointed out, however, that the same persons who were members of the army were also members of the posse, which included all able bodied men of age; and he concluded that, regardless of whether they wore army uniforms of not, they could not be called to suppress a riot "not as soldiers but as citizens." The critical point was that when employed to suppress a riot they acted in their capacity as members of the civilian posse, and not as soldiers, and were therefore subject to civilian law and command exactly like any other citizen called to aid a sheriff. Only on this view could the use of "soldiers" be reconciled with the historic principle of due process of law. 
A careful review of the records of the Constitutional Convention, the ratification debates, the congressional preparation of the Bill of Rights and the legislation of early Congresses concerning the army and the militia discloses unmistakably that the traditional prohibition of military force in civil disorders, as adapted by Lord Chief Justice Mansfield's doctrine was understood and deliberately preserved by the statesmen of that period as inherent in the concept of due process of law. the ancient notion of a posse of laymen was much less adapted to the social conditions of the 19th century than to those of the 13th century, yet nothing resembling the modern civilian police force had yet been established. The Mansfield Doctrine made available a practical source of manpower for law enforcement while preserving the traditional the traditional and now constitutional prohibition against military force. So the practice of using"soldiers" (selected militia men or regular army men) as civilians for law enforcement continued for two generations. From court opinions as well as other records it is clear that they were regarded, when so used, as civilians under the command of the ordinary civil officials and bound by the standards of due process of law. 
But then came the upheaval of civil war. Soldiers now were heroes for their exploits as soldiers, not abroad, but at home. Demands for efficient implementation of the social mandate of victory led to nakedly mili
[Cont p. 7-S, Col. 1 ]

Ohio Guardsmen Wins C.O.Status After Shooting. 
CLEVELAND - A Federal judge has ordered the discharge of an Ohio Nation Guardsman who declared himself a conscientious objector after the fatal shootings of four students at Kent State University in 1970.
U.S. District Judge William K. Thomas reversed the decision September 29 of an Army review board that had refused to grant Pvt, Raymond D. Silvey 24, the discharge in July. 
Silvey, an Akron computer analyst was a member of the Akron based 1st Battalion, 145th infantry that was among guard units sent to Kent Sate where fur students were killed and nine wounded in a confrontation between Guardsmen and antiwar demonstrations. May 4 on thee campus. 
"My first reaction, when the shooting occurred was to cry, and I did so unashamedly," Silvey said "I then left the ranks.... and threw down my rifle and declared I wasn't to take part in any killing."

Saving...

6-S AMERICAN REPORT, NOVEMBER 12, 1971 Due Process Forbids Soldiers in Civil Disorders by David E. Engdahl According to official Pentagon statistics, the National Guard was used to deal with civil disorders on 221 separate occasions between September 1967 and June , 1970. During the one month of May, 1970, National Guardsmen were activated on 24 separate occasions at 21 universities in 16 states. Despite the tragic consequences of their use that fateful month, frequent use of National Guardsmen in civil disorder situations has continued during the last year and a half. No sensible citizen is likely to deny that when destructive civil disorder actually occurs there must be some sufficient means in the Government to bring it to an end. One might have doubted, however, whether, in a nation which has traditionally served as a refuge from military tyranny abroad, the use of military force against civilians could be an acceptable means. The tragedy of May 4, 1970 has set many Americans to wondering how it is that this practice has become a part of our national life, whether it is consistent with either our law or our traditions and whether it can be brought to an end. The truth is, it became a part of our practice by default only a century ago, at a time when violence and high passion had impaired both temperance and reason; it is inconsistent both with our traditions and our contemporary law; but nonetheless it can be brought to an end only by great and concerted effort on the part of those deeply enough committed to the values of life and freedom to really care. The roots of our law run deep,. In the year 1181, Henry II Lawrence Frank of England ordered every free man in England to keep arms and swear to use them in service of the King. HIs purpose was two fold: to provide a defense force to supplement the feudal army in the event of foreign attack, and to provide a pursuit force to aid the King's sheriff's in subduing malefactors to be held for evil trial. The same jurata ad arma - the citizens sworn to arms - were to fulfill both roles. There was no real distinction in English law between civil and military affairs. Over the next two centuries, however, as the common law of England began to take shape, the two functions of the jurata ad arma became clearly distinct. As a defense force they were placed under the control of officials peculiarly concerned with military affairs, and when so employed they were subject to what early came to be know as martial or military law. but in their other role they remained under the control of the sheriffs and like the sheriffs, subject to the very different rules of the developing common law. As a defense force, the jurata ad arma developed into the militia; as an aid to the sheriff for purposes of law enforcement, the jurata ad arma developed into the posse comittus - "the power of the county" - or simply, the sheriff's posse. The point is that it was precisely the same people - all able bodied men of age - who composed both the militia and the posse, what distinguished the two forces was the difference in the officials who has them in charge, and the differences in the laws which set limits to what each of the forces, or their members, could do. These differences became more clear during the 14th century. When peasant mobs rioted in England in 1381, the riots were suppressed by the citizens as the posse. However, the posse employed force in a fashion which, while appropriate for a field of war, violated the standards of reason and restraint demanded of sheriffs- and thus of the posse- by the common law. for their overzealousness in enforcement, the members of the posse would have been prosecuted and punished had the King not pardoned them for their offense in suppressing the riots (in the words of the pardon) "without due process of law." It had been settled by parliament some 50 years before that so long as the institutions of the civilian law had not been shut down, military measures were against the law. Even the King was not permitted to use military force against his subjects, but must treat them according to "due process of law." Thus no less than six centuries ago the law drew a bold line between war and civil disorder, and between sheer armed force and due process of law. When kings in later years disregarded this distinction again and again it was reasserted and reclaimed by the people - more often than not, by revolution. The first English riot act was enacted by Parliament in 1412. It called for suppression of riots by the sheriff, with the aid of the posse. No provision was made for the use of the militia, and it is perfectly clear why: the militia when mustered into service was a military force not bound by due process of law, and riots could be suppressed only in accordance with due process. During the 16th century , however, a new type of royal military official was created and employed to suppress civil disorders by military force, superseding the sheriff and posse. By 1627 this practice in derogation of the due process tradition had build up considerable popular resentment. When King Charles I in that year sent soldiers to quell disorders in several towns, it so outraged the people that the next session of Parliament delayed all its other business and prepared that monumental document of English Liberty, the Petition of Right, insisting that military measures taken within the realm were unlawful and demanding that the King respect the law. Charles, however, continued to employ military measures in England until his repeated acts of tyranny precipitated revolution and cost Charles his head. The principle of the Petition of Right was implemented by Parliament and re emphasized on several occasions during the later 17th century. It became firmly settled that, although an armed assault, by foreigners or subjects, to actually depose the Government might be repelled by military force, civil disorders, or riots regardless of their gravity, must never be suppressed by the use of soldiers. A new riot act in 1714 repeated the established rule: riots must be suppressed by civilian officials with the aid of the posse - all of them subject to the restraints of due process. There was no authority for the use of soldiers to suppress any civil disorder,regardless how aggravated the circumstances might be With this background, it is easy to understand the anger if the American colonists when, for several years before they crossed the threshold of revolution, British soldiers were used to suppress civil disorders in the colonies. The tragedy at Boston on March 5, 1770 that became known as the Boston Massacre, was an outrage, not because the unruly mob of Bostonians was doing right, but because for soldiers to be employed against such wrongdoers was a violation of that oldest and most essential principle which generations of Englishmen had struggled to maintain as the primary safeguard of liberty itself. (The soldiers who fired at Boston were indicted and tried, and two at least convicted of manslaughter. What would have been the response of the colonists if there had been, not merely no indictment, but a refusal even to instigate a grand jury investigation?) A crucial development in the law occurred in England in 780. A major riot in London, lasting several days, was finally suppressed by the use of soldiers. Afterwards the members of Parliament heatedly debated whether this was not a violation of the principle just discussed. The view which prevailed, and which soon became settled in American as well as English law, was that of Lord chief Justice Mansfield. Mansfield's doctrine acknowledged that riots were to be suppressed only by civil officers and the posse, and never by military force. He pointed out, however, that the same persons who were members of the army were also members of the posse, which included all able bodied men of age; and he concluded that, regardless of whether they wore army uniforms of not, they could not be called to suppress a riot "not as soldiers but as citizens." The critical point was that when employed to suppress a riot they acted in their capacity as members of the civilian posse, and not as soldiers, and were therefore subject to civilian law and command exactly like any other citizen called to aid a sheriff. Only on this view could the use of "soldiers" be reconciled with the historic principle of due process of law. A careful review of the records of the Constitutional Convention, the ratification debates, the congressional preparation of the Bill of Rights and the legislation of early Congresses concerning the army and the militia discloses unmistakably that the traditional prohibition of military force in civil disorders, as adapted by Lord Chief Justice Mansfield's doctrine was understood and deliberately preserved by the statesmen of that period as inherent in the concept of due process of law. the ancient notion of a posse of laymen was much less adapted to the social conditions of the 19th century than to those of the 13th century, yet nothing resembling the modern civilian police force had yet been established. The Mansfield Doctrine made available a practical source of manpower for law enforcement while preserving the traditional the traditional and now constitutional prohibition against military force. So the practice of using"soldiers" (selected militia men or regular army men) as civilians for law enforcement continued for two generations. From court opinions as well as other records it is clear that they were regarded, when so used, as civilians under the command of the ordinary civil officials and bound by the standards of due process of law. But then came the upheaval of civil war. Soldiers now were heroes for their exploits as soldiers, not abroad, but at home. Demands for efficient implementation of the social mandate of victory led to nakedly mili [Cont p. 7-S, Col. 1 ] Ohio Guardsmen Wins C.O.Status After Shooting. CLEVELAND - A Federal judge has ordered the discharge of an Ohio Nation Guardsman who declared himself a conscientious objector after the fatal shootings of four students at Kent State University in 1970. U.S. District Judge William K. Thomas reversed the decision September 29 of an Army review board that had refused to grant Pvt, Raymond D. Silvey 24, the discharge in July. Silvey, an Akron computer analyst was a member of the Akron based 1st Battalion, 145th infantry that was among guard units sent to Kent Sate where fur students were killed and nine wounded in a confrontation between Guardsmen and antiwar demonstrations. May 4 on thee campus. "My first reaction, when the shooting occurred was to cry, and I did so unashamedly," Silvey said "I then left the ranks.... and threw down my rifle and declared I wasn't to take part in any killing."