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Show Page 10 The Utah Independent March 21, 1974' The Paper That Dares To Take A Stand law-maki- ng THE POSSE COMITATUS AND THE POWER OF THE PEOPLE Jean Stoddard Since the Founding Fathers well knew that there was no guarantee that a sheriff, even though being close to the People, would honor his oath of office to defend and protect the Constitution, they made certain that the People themselves could defend the local jurisdiction if he refused to do so. All officers should realize, however, that no sheriff or other officer of the law is protected by any unconstitutional law. An unconstitutional statute has been held to confer no authority on, and to afford no protection to, an officer acting thereunder." Also, Officers cannot be punished for refusing to obey such a statute." (CJS 16, sec. 101. p. 479) Such laws are in legal contemplation, as inoperative as though they had never been passed or as if the enactment had never been written, and are regarded as invalid or void from the date of enactment, and not only from the date on which it is judicially declared unconstitutional. Such a law generally binds no one, confers no rights, affords no protection , and imposes no duties, and a therewith is compliance unnecessary." (CJS 16, p. 469) Nevertheless, if a sheriff decides that he does not wish to get involved in resisting the enforcement of such arbitrary laws, the posse comitatus may act without him. Since the posse comitatus is all the men of the county", and the county is the unit of government closest to the People, the posse represents the People. The People are the Sovereigns, which makes them in fact, the government. The first three words of the We the People" Constitution declare by what authority the United States of America is ruled. The powers to only certain their elected government, and these are listed or enumerated in the Constitution. If a power is not delegated to government, then government does not have it. Everything else the People . kept for themselves. Amendments 9 and lOoftheBillof makes it clear that Rights government is not to interfere with the rights of the People. The government of the United States is not a concession to the people with some one higher up. It is the creation and the creature of the people themselves, as absolute . sovereigns. Constitutional law explains the powers of the People in the following manner: Since the supreme authority or sovereignty resides in the People, they can in general withhold, grant, or withdraw governmental powers. Powers not granted to the United States or prohibited to the states are reserved to the states or to the people. Since the People are the source all of governmental and political limitations on legislative powers or the sovereignty which in all must organized governments reside somewhere." Can we say, then, that it is mob rule" when the People or men of the focal community or county combine their forces in a posse comitatus action' to protect their lives, their property, and their freedom against a lawless element? Of course not. This right of the people is one of the inalienable rights that government is forbidden to interfere with in the Bill of Rights; This right of self and community protection is one that free men had enjoyed for many centuries, and the whole purpose of the Constitution was to protect it. This idea was well expressed in the preamble of the Constitution: We the People of the United States, in order to form a more perfect insure Union, establish justice, domestic tranquility, provide for the common defense , promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. likewise . Idaho Constitution provides for this same protection: In Article I, Section 1, it says, All men are by nature free and equal, Jand have certain inalienable rights, among which are enjoying and defending life and liberty; Crown, . American the and colonists claimed these liberties as their inheritance, and won,' by force of arms, the final right to them and to further ones which had been born and fostered by the conditions of the colonial is only governments. reasonable and natural that they would have used this common law as a base for the Constitution. In addition, each new state adopted the common law as it joined the So it Union. Congress shall) provide for calling forth the Militia, to execute the of the Union, suppress insurrections and repel invasions, Also, in Amendment II, A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The main purpose of this Amendment was to forbid government to interfere with the inalienable right of the people to keep and bear arms infering also the right of the posse comitatus to defend the local jurisdiction, and recognizing the right of the State to call out the Militia. It did not confer on citizens some new right to keep and bear arms; this was a right they had enjoyed for centuries and they did not intend to lose it. It was largely due to the small local militias such as those at Lexington and Concord, and all those who came to support them from every small village and town, that made it possible to win the war against. the British. They were incredibly successful, and these were men who had never fought together before, and some did not even have an officer in charge, as for instance, the action at Breed's Hill where the British were completely beaten and demoralized by a small company of old greyrhaired farmers, The militia, as has been provided for by law, are those men enlisted from the Posse Comitatus, by the The common law practice of using the County as the seat of government for the body politic (the People) had been used since feudal days when the castle and its lands were the legal unit of government. The Sheriff was in charge of law enforcement and all the men of the county (the posse comitatus) were expected to come to his aid, fully armed and ready to defend the local jurisdiction whenever he needed them. This state. They aTe under the was a ' militia system of law supervision of the Governor, and enforcement, and is used even are in the service of the state. They a country are soldier-citizewho ordinarily today in Switzerland 'that has not been involved in any work at their own professions most wars for many hundreds of years, of the time, and are trained as No country has dared to challenge . soldiers to be ready if needed. They them, and they have not had the may be called by the Governor or enormous expense of a large by. the President in a larger action, The Posse Comitatus is all the standing army. This militia system law of enforcement was what the men of the county, that a sheriff Founding Fathers intended for this may call to his assistance in the discharge of his official duty, as to country. They provided for it in Article I, quell a riot or to make an arrest. Section 8, Clause 15, Continued on page II (The ' . powers they war at their pleasure, withhold such powers, distribute them among various departments for the purposes of government, or and may withdraw such powers as have acquiring, possessing been conferred. protecting property ;; pursuing A constitutional provision is happiness and securing safety . Some people say, Show me in not necessarily a limitation or grant of power, although such is its the Constitution where it provides for a posse comitatus!" primary purpose. No legislative body which is The posse comes to us by way of a constitution written common law, which is referred the governed by which it is bound to obey possesses to and. recognized in the Constitution in the 6th and 7th sovereign powers to the fullest extent. No legislative body can Amendments. The Constitution is make laws that are not according based on this common law, as are to, and consonant with, the the laws and constitutions of our fundamental laws that have been states. Idaho recognizes the prescribed for its government by .common law, and where there is no the people, who are superior to statute, Idaho law depends on the . ' People gave common law. The common law is equally valid with the statute law. The common law is that body of old English law which evolved over many centuries in the common law courts of England. It had its beginnings in the time of King Alfred the Great and was based on Christian principles of fairness and justice. This is the law that the' colonists had been using up to the time of the Revolutionary War. The liberties enjoyed by Englishmen were'wrested from the both the power and the constitutions themselves. All written constitutions therefore are THE JEAN STODDARD COLUMN ns . SUNNY SAN DIEGO Invites you to the Biggest TAX EXPO 36 South .Main & 37 Richards of the year at the St, Salt Lake City SHERATON INN AIRPORT 1590 Harbor Island Drive Friday, April 5, 1974 Saturday, April 6, 1974 7:30 PM -- 11:00 PM 9:00 AM - 5:00 PM Major talks by: WILLIAM DREXLER, JEROME DALY VAUGHN ELLSWORTH, MARVIN COOLEY As well as talks by: George KINDRED, Claire KELLEY, Bob LYONS, Art PORTH, Jim SCOTT, John STEINBACHER , Super special Fuii-sz- e sofa sleeper at an incredible price! It s covered in carefree Herculon exactly as shown with free delivery. . Also appearances by; Byron FOOTE, George BOMHER, BobLEISKE, Terry OAKS, Jim TOWNSEND, Anita & Jim LOWERY, Karl BRAY, & Others. 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