FEDERAL TROOPS IN DOMESTIC DISTURBANCES

By Major George S. Patton, Jr., Cavalry

November 1932



When I was a cadet, all plebes were required to memorize the definition of leather, which, if time has not dulled my memory, ran thus, "If the fresh skin of an animal be divested of hair and other extraneous matter and be immersed in a saturated solution of tannic acid, chemical combinations occur which transform the hide into a fibrous tissue insoluble in and impervious to water; this is leather."



Similarly, when the subject of this conference is immersed in the cerebral fluid of Regular Soldiers, it emerges not theory, but tactics.



The chemistry of legal phraseology and erudite philosophy which produce these tactics are in fact as little germane to our work as are the metamorphoses of the tanning vat.



Since, however, no picture is wholly satisfactory without a background, we shall make a brief examination of the historical and legal aspect of the subject before entering upon it's tactics.



HISTORICALLY:



Scarcely was Washington inaugurated than the need for federal intervention in domestic disturbances became emphasized by the so called "Whiskey Rebellion." From that episode until the present time, federal troops have been called out more than a hundred times to participate in these most distasteful forms of service. While the majority of these incidents were insignificant, some dozen of them reached major proportions. Of these we may mention the following;



The "Dorr Rebellion" in Rhode Island in 1842; the Abolition disturbances in Kansas between 1854 and 1858; the railroad strikes of 1877, extending through West Virginia, Maryland, Pennsylvania, Ohio, and Indiana; the Chicago strike of 1894; the San Francisco fire of 1906; the West Virginia coal strikes of 1921; and lastly, the "Bonus War" of 1932



We, of the Army, should take pride in the fact that not once in all of these cases have our predecessors either failed or been guilty of unnecessary violence. It must be our aim to maintain this proud tradition whenever it shall be our unfortunate duty to be called on for such onerous service.



Remember that when the Army has done it's duty, liberty has flourished and that when it has failed, riot has changed into rebellion. Indeed, the epitaphs of those countless nations dead of the suicide of insurrection should bear these words, "DIED THIS DATE DUE TO THE FAILURE OF IT'S SOLDIERS."



When under Marius, Rome's first regulars blotted out in blood the mobs roused by those generous and misguided brothers, the Grachae. She prospered and from a debating society became the mistress of the world and so remained until, at last, the venal and disloyal Pretorian Guard "sold the purple" to the highest bidder and thereby destroyed the power that no foe could conquer.



When the foolish and genial Louis XVI lost his head and the Seine ran crimson to the sea, the fault lay not with the people, but with the soldiers. Yet less than ten years later, Napoleon with a "whiff of grape shot" destroyed the mob and saved, only to usurp, the directorate.



As General Knox clearly shows, the success of the Bolsheviks in 1917 was due wholly to the hesitating and weak character of the Russian officers. While in Germany, on the other hand, a loyal and well lead army destroyed the course of communism before it could ever raise it's ugly head above the ruins of a war weary nation.



It is a curious fact that despite the ill usage which English speaking nations have habitually accorded to their regular army members in peacetime, these "Brutal and licentious Mercenaries" have never yet bit the hand which starved them, nor failed in any way to support constituted authority. Even in the Civil War when more than twenty percent of the officers went south, not a single enlisted man deserted the flag.



THE LEGAL ASPECT:



Due to the combined effect of ignorance and careless diction, there is widespread misunderstanding of the principle terms used in connection with the enforcement of law by military means. Now while the particular name appropriate to the type of duty in the performance of which he is killed makes very little difference to the corpse, it is desirable that officers should know enough to select the proper word with which to head a report or proclamation.



The three terms most frequently used are; Military Government; Martial Law; and, Duty in Connection with Domestic Disturbances.



MILITARY GOVERNMENT supplants and replaces the laws heretofore existing in enemy territory which is occupied by our military forces. General Scott initiated our system in Mexico in 1847. To carry out his rule under this system, he invented the two forms of court we now recognize as appropriate; namely, Military Commissions for the trial of major civil and criminal crimes, and Provost Courts for the trial of minor offenses.



Military Government has also been exercised by the United States in Cuba, the Philippines, Vera Cruz, and lastly in occupied Germany.



MARTIAL LAW supplants and possibly replaces to a limited extent the laws heretofore existing in our own territory in cases where the civil authority being ineffective, the State or National Government, through it's military forces, controls the civil population without the authority of written law, but as necessity may require.



Wellington put it aptly when he said, "Martial Law is not law at all, it is merely the will of the commander."



From the Federal viewpoint, and this is the one which interests us, Martial Law can be used by the President or by a Military Commander where, in the case of foreign invasion, security and national defense demands it. (See Jackson at New Orleans in 1814). Or in the case of a rebellion, it may be used by order of the President, in disaffected territory or in border states. (See New Mexico, Kentucky, and Maryland during the Civil War).



While I am no lawyer, it seems to me that Martial Law would also be appropriate to any serious disturbance in the District of Columbia.



In passing, it should be noted that in accordance with it's definition, Martial Law will be more frequently used by individual States than by the United States.



DOMESTIC DISTURBANCES:



The use of Federal Troops in this case differs from the two previous examples in that; the military is used not to displace existing laws, but to sustain them when, by reason of obstructions, their effectual administration by normal legal methods becomes impossible.



SOURCES:



The authority for the use of Federal Troops in Domestic Disturbances is derived from the following sources;



The United States Constitution:



Article I. Section 8, provides that, "Congress shall have powers to raise and support armies . and to provide for the calling forth of the Militia to execute the laws of the Union, suppress insurrection, or to repel invasions."



Article II. Sections 2 and 3 provide that, "The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the service of the United States and that he shall take care that the laws are faithfully executed."



Article IV. Section 8 provides that, "The United States shall "Guarantee to every state in this Union a republican form of government," "Protect each of them against invasion," and "Protect each of them against domestic violence (on application of the legislature, or of the executive when the legislature cannot be convened)."



Other Federal Statutes:



R.S.5297 provides, "In case of insurrection in any State against the government thereof, it shall be lawful for the President, on the application of the legislature of such State, or of the Executive, when the legislature cannot be convened, to call forth such number of the militia of any other state or states . as he deems sufficient to suppress such insurrection, or . such part of the land and naval forces of the United States as he deems necessary."



R.S.5298 provides, "Whenever by reason of unlawful obstructions, combinations or assemblages of persons, or rebellion against the authority of the United States, it shall become impracticable, in the JUDGMENT OF THE PRESIDENT, to enforce, by the ordinary laws of judicial procedure, the laws of the United States within any State or Territory, it shall be lawful for the President . to employ such part of the land and naval forces of the United States as he may deem necessary to enforce the lawful execution of the laws of the United States ."



R.S.5299 provides, "Whenever insurrection, domestic violence, unlawful combinations, or conspiracies in any State so obstructs or hinders the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of rights, privileges, or immunities, or protection named in the Constitution . and the constituted authorities of such State are unable or unwilling, or refuse to protect the people in such rights . or whenever such insurrection, etc., opposes or obstructs the laws of the United States or the due execution thereof . it shall be lawful for the President, and it shall be his duty, to take such means . by the employment of the land and naval forces of the United States, as he deems necessary . for the suppression of such insurrections, etc."



R.S.5300 provides, "Whenever, in the judgment of the President, it becomes necessary to use the military forces under this title, the President shall, forthwith, by proclamation, command the insurgents to disperse and retire to their respective abodes, within a limited time."



Army Regulations:



Army Regulations under No. 50050 "Employment of Troops" and "Enforcement of the Laws" cover the subject quite fully.



Section I. Recites the statutes and penalties concerning the use of troops as a "posse comitatus."



Section II. In addition to quoting the constitutional and statutory authorities already referred to, this section gives a long list of sundry other acts of Congress authorizing and defining the use of Federal Troops in special cases, most of which are now practically impossible of occurrence.



These statutes cover; Public Lands, Peonage, Public Health, Indians, Extradition, Neutrality, Guano Islands, and Customs.



The section then goes on to specify the actions governing the use of Federal Troops in the Philippines, Puerto Rico, Alaska, and Hawaii.



These statutes are identical in spirit and in general specify that; the Governor may call on the Commanders of Military or Naval forces of the United States to prevent or suppress lawless violence, invasion, insurrection, or rebellion. Further, if the public safety demands it, he may suspend the Writ of Habeas Corpus or place the islands or a part of them under Martial Law. Provided, "That whenever a Governor exercises any of the above authorities he shall at once notify the President of his act and of the reasons for it."



Section III of A.R.50050 specifies the procedure governing the use of Federal Troops in Domestic Disturbances.



Par.5. Application for Troops, specifies:



a. "Application for the use of troops should originate with the civil authority. This application should be made to the President. In case the application is made by civil authority directly to a local commander; Such commander, whenever time admits, must forward the application to the War Department, with a statement of all material facts, for the consideration and action of the President."



b. Emergency, "In the case of sudden and unexpected invasion, insurrection, or riot, endangering the public property of the United States, or in case of attempted or threatened robbery or interruption of the United States mails, or other equivalent emergency so imminent as to render it dangerous to await instruction . an officer of the army may take such action before the receipt of instruction as the circumstances of the case . justify, and will promptly report his action, and the circumstances requiring it to the Adjutant General . for the information of the President."



Par.6. Proclamation:



Here is repeated the requirement of R.S.5300.



Par.7. Command:



a. "In the enforcement of laws, troops are employed as a part of the military power of the United States and act under the orders of the President as Commander in Chief."



b. "They cannot be directed to act under the orders of any civil officer."



c. "The commanding officers of troops so employed are directly responsible to their military superiors."



d. "Any unlawful or unauthorized act on their part would NOT be excusable on the ground of an order or request received by them from a Marshall or any other civil authority."



Par.8. Tactical:



a. "Troops called into action against a mob forcibly resisting or obstructing the execution of the laws of the United States or attempting to destroy property belonging to, or under the protection of, the United States are governed by the general regulations of the Army and apply military tactics in respect to the manner in which they shall act to accomplish the desired end."



b. "It is a purely tactical question in what manner they shall use the weapons with which they are armed; whether by fire of musketry and artillery, or by the use of the bayonet and saber, or by both, and at what stage of the operations each or either mode of attack shall be employed. This tactical question shall be decided by the immediate commander of the troops, according to his judgment of the situation. The fire of troops SHOULD be withheld until timely warning has been given to the innocent who may be mingled with the mob. Troops must never fire into a crowd unless ordered by their commanding officer, EXCEPT that single selected sharp shooters may shoot down individual rioters who have FIRED UPON or THROWN MISSILES AT the troops. As a general rule, only the bayonet (or saber) should be used against mixed crowds in the first stages of a revolt, but as soon as sufficient warning has been given to enable the innocent to separate themselves from the guilty, the action of the troops should be governed solely by the tactical considerations involved in the duty they are ordered to perform. They should make their flow so effective as to promptly suppress all resistance to lawful authority, and should stop the destruction of life the moment lawless resistance has ceased. Punishment belongs not to the troops, but to the courts of justice."



Training Regulations:



As strange as it may seem, this loquacious document is very reticent on Domestic Disturbances. All it has to say is found in T.R. 105, par.9, "Troops of the combat branches, in addition to their training for war, will be trained in the tactics for the suppression of domestic disturbances, the guiding method to be employed being a demonstration of force, followed, if necessary, by it's application in a speedy and decisive manner."



Habeas Corpus:



This is the next item that rises to plague us. Habeas Corpus is a writ issued by a judge and sent to the custodian of a prisoner directing that the custodian present the body of the prisoner in the court so that judgment may be passed as to whether or not the arrest and restraint are legal.



If a state or municipal judge serves a regular officer holding a prisoner with such a writ the officer should politely inform the court, in writing, that he holds the prisoner by the authority of the United States government and therefore is not amenable to the writ. If the writ is served on him by a federal judge, it is his duty to produce the prisoner at the time and place directed. When the writ is suspended, of course, this statement does not apply.



Legal Liability:



After an emergency is over, officers and men who have been engaged in the suppression of riots, etc. are liable to both civil and criminal prosecution for acts they have performed or are alleged to have performed.



If they have acted under orders of the President their defense is clear. If due to the gravity of the emergency, they have acted on their own responsibility, their defense rests on the plea of necessity.



As a matter of fact, no officer need bother his head or modify his actions due to fear of this academic danger, for a leading legal authority points out, "In no instance, so far as I am aware, has an English or American jury allowed an officer or soldier to suffer for acts done with any shadow of right in repelling invasion or quelling a mob."



Let me recapitulate the lessons of history and law.



Historically:



Throughout history good soldiers have quelled riots and often as a result have achieved promotion and fame. Bad soldiers have failed and as a result their countries have perished.



Legally:



As junior officers, we simply obey the orders of our superiors. As independent commanders there is a very remote possibility that we may have to back our judgment with our commissions. Officers in command of troops on riot duty should remember the following points;



1. Take no orders from civil officials; federal, state, or municipal.

2. Take no orders from National Guard or Reserve officers unless they have been mustered into the federal service and you have proof that they are so mustered.

3. You may and should cooperate with police or state troops who may be present; but you and not they are the judge of the amount and character of this cooperation. In the "Bonus War," for example, certain people strongly urged Major Surles to move several blocks out of his way to attack a building. Had he done so, he would have gotten in a lot of trouble as the house in question was full of women and children. It was my belief, and I see no reason to change it, that this advice was given with the deliberate intention of producing embarrassment to the Army.

4. Get your orders in writing. If the orders are dictated, that is oral, commit them to writing, read them back to the issuing officer, and ask him to initial them. If this is not practicable have several witnesses sign the orders and state that they heard them issued. Save that order. Some people have strange memories when it is necessary to pass the buck.

5. Before firing at a mob, warn them of your intention and tell innocent people to leave. Ask several members of your command to note the time and place at which you issued the warning.

6. Designate in advance certain sharpshooters to kill individual rioters who fire on or throw missiles at your men. Have this firing done ONLY on your order or that of a commissioned officer; at least in the first instance.

7. Get the names of several men who saw the shooting or throwing. Usually such witnesses are easy to find.

8. Should some orator start haranguing the crowd and inciting them to violence, grab him even if it brings on a local, small fight. Small fights are better than big ones. Words cunningly chosen change crowds into mobs.

9. If you have captured a dangerous agitator and some "misguided" federal judge issues a writ of Habeas Corpus for him, try to see the judge to find out what he is liable to do. If he seems prone to releasing the man, let your conscience be your guide. The legal phrase, "To present the body of the prisoner to the court," has a sinister and suggestive sound. There's always a danger that the man might attempt to escape. If he does, see that he at least falls out of ranks before you shoot him. To be soft hearted might mean death to your men. After all, WAR IS WAR.

10. Do not enrage reporters, but also, don't tell them too much or boast of your prowess to them. They dislike tear gas and are not provided with masks.

11. Finally, do your full duty as you see it and damn the consequences. Lord Allenby once said to me in speaking of his suppression of the riots in Cairo, "I have always thought that it is far better that a certain number of innocent students should perish than that the future of a great nation should be jeopardized."

