A hoary English law often invoked in America has a revolting backstory
THIS ANGRY ERA seems to have everybody reading everybody else the Riot Act. Last year National Public Radio reported that lawyers for a television network once read news executive Roger Ailes the riot act for his behavior toward female broadcasters; the New York Post reported that president-elect Donald Trump had read representatives of CNN, Fox, ABC, NBC, and CBS the riot act; and New York Times columnist Maureen Dowd wrote an article some commentators described as reading the riot act to hand-wringing Democrats. An Irish Times report described how a German diplomat had “politely read the riot act” to a visiting U.S. delegation because of President Trump’s antipathy for NATO. And every football season, coaches across the land spend part of halftime in a locker room reading their players the riot act.
“Reading the Riot Act” has come to connote berating, excoriating, chiding, or otherwise rebuking. But the Riot Act really is an official edict, representing an ancient thread of English commonaw, intended to be read aloud, under very particular conditions. Britain’s original Riot Act was not about dressing down an individual for particular offenses, but about controlling public protest and keeping the peace. The law’s preamble cited as the measure’s genesis “many rebellious riots and tumults…to the disturbance of the publick peace…continued and fomented by persons disaffected to his Majesty.”
The measure itself went beyond preserving the peace and the monarch’s peace of mind. Repeated invocation instilled a tradition that crossed the Atlantic, and the aim of the Riot Act—to assert
civil control as a last resort before unleashing state power—became a thread in the American fabric. During outbreaks of tumult, whether the Boston Tea Party, the 1863 New York City draft riots, confrontations between labor and capital, the `60s and their years of rage, and latter-day episodes in Ferguson, Missouri; Baltimore, Maryland; and Charlottesville, Virginia, authorities have or have not declared a situation out of control, often with historic result.
Legal scholars see in the original Riot Act progress toward many elements of American democracy. Amid unsettled conditions in a Britain that saw frequent riots and a monarchy increasingly dependent on the nobility to keep power, the Riot Act more deeply invested in civilian authorities, rather than the military, responsibility for domestic law enforcement. This shift foreshadowed today’s distinctions among the roles of the constabulary, the National Guard, and the regular Army, as well as politicians’ disinclination, except in exceptional situations, to have military forces restore domestic order. The history and tradition of the Riot Act, with its emphasis on civil authority over military might, is why concern arose in February 2017 when President Donald Trump announced that, in rounding up and deporting undocumented immigrants who had committed crimes or caused violence, federal authorities had conducted “a military operation.” The administration later clarified that term, explaining that Trump meant to say civil raids were conducted with military precision. The 18th-century Riot Act also intensified the expectation that individual citizens might need to arm themselves to help the state maintain the peace—one rationale Second Amendment purists offer in arguing against gun control. And the Riot Act helped delineate official discernment between protest and rebellion.
Parliament enacted the Riot Act in 1714, after an era in which British authorities had held riots to be de facto challenges to the monarchy. As a result, rioting was punishable by death, often preceded by torture and degradation so harsh as to alienate citizens and encourage juries to nullify the law by refusing to find individuals guilty of rioting. The Riot Act continued to define rioting as a felony, but not an automatic capital crime; as the empire expanded, offering locales to which miscreants could be sent, the penalty for rioting tended to be “transportation”—exile to the American colonies or, after 1785, Australia.
The act, which took effect in 1715, can be read as an extension of pre-Norman Conquest Britain and the Magna Carta, delegating to localities, and not to the crown, police powers to quell local disturbances. In instances in which 12 or more individuals “unlawfully, riotously, and tumultuously assembled together” behaved such that officialdom needed to run them off, the Riot Act authorized a mayor, justice of the peace, or similar figure to read aloud a warning of imminent government action. An actual reading as prescribed—“among the said rioters, or as near to them as he can safely come, with a loud voice”—was not always practical, since the party doing the deed had to get up close and personal with what could be a rampaging mob and, with precision and not skipping a word, declaim, “Our sovereign lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.”
At the conclusion of that reading, participants in the unlawful assembly had an hour to disperse or face local civil forces augmented by armed civilians mustered to restore the peace. The Riot Act held a community in which a riot had occurred responsible for damage done by rioters who went uncaptured, an incentive for residents to join the posse comitatus, a law enforcement arm America inherited as the sheriff’s posse of the Old West. The act indemnified parties assisting with restoring the peace if anyone was injured or killed in the dispersal of a riot.
The Riot Act also implicitly recognized that not every riot constituted rebellion or insurrection requiring military intervention, and that the existence of a standing army not only worried the monarch’s subjects but cost the kingdom dearly. Concern remained that local authorities could wield the act to repress any protest, lending readings of the Riot Act the potential to inflame rather than subdue.
A product of Britain’s imperial era, the Riot Act influenced the empire’s American holdings. Legal scholar James Gray Pope has noted that colonial governments beset by armed rioting and vigilantism passed riot acts of their own, with thresholds for unlawful assembly as low as three persons. More often, emulating the original, colonials set the limit at a dozen. These laws included sunset clauses limiting the statute’s applicability.
Colonial Connecticut needed only a single jailbreak to pass a riot act in 1722. New Jersey, where mobs repeatedly had broken into jails to rescue prisoners, passed a riot act in 1747 to keep the peace. Pennsylvania imposed a riot act in 1764 to deal with the Paxton Boys, vigilantes of Scots-Irish descent from the frontier along the Susquehanna River. In 1763, after the French and Indian War and Pontiac’s Rebellion, the Paxtons had retaliated against local Indians. They encroached on Indian land, violating treaties, and infamously massacred 21 members of the Conestoga tribe. The 1764 riot act came about because the Paxtons were marching on Philadelphia in pursuit of Native Americans being sheltered by the city’s civil authorities. In January 1764, about 250 Paxton Boys came to town—perhaps to complain that the government was not protecting them from Indians, perhaps to kill Conestogas in the colonial government’s custody. At Germantown, Benjamin Franklin led a delegation that met the marchers, who, told by Franklin that their grievances would be heard, dispersed.
The Riot Act and its principles loomed in Massachusetts as rebellious colonists’ activities reverberated in London, where Parliament did not take kindly to being told how to run the empire. The 1765 Stamp Act triggered demonstrations and confrontations with British authorities in Boston and environs. In 1770, the face-off that became the Boston Massacre occurred with no reading of the Riot Act because no civilian authority was willing to read the crowd the law—and no civil authority had summoned the Redcoats who did the shooting. Civil courts tried the soldiers, whose defense team included John Adams. All but two soldiers were acquitted on grounds of self-defense. The others were branded and released. When unrest persisted, Massachusetts Acting Governor Thomas Hutchinson moved to propose a riot act. Legislators balked, saying magistrates would have “a Power that would be dangerous to the Rights and Liberties of the People.” Parliament imposed the 1774 Massachusetts Government Act—among the so-called Intolerable Acts—barring meetings called without gubernatorial permission. That law is echoed in the First Amendment’s enshrinement of the right “peaceably to assemble.”
A meeting was called in Boston to organize resistance to the tea tax. Invoking the Government Act, Hutchinson tried to shut down the parley. In reply, Samuel Adams said that “a free and sensible People when they felt themselves injured would always and had a Right to meet together to consult for their Safety,” according to L.F.S. Upton in the William and Mary Quarterly. General Thomas Gage booted Hutchinson and replaced him. Even with the Massachusetts Government Act in hand, British colonial authorities were not sure whether Gage had authority to use regular troops against civilians in a situation that was short of civil war, unless a justice of the peace read the Riot Act.
The North Carolina colony passed a riot act in 1771, after adherents of the Regulator movement attacked colonial officials. The Regulators aimed their grievances at corrupt local officials favoring wealthy colonists. Colonial Governor William Tryon’s law, which was to remain on the books for a year, largely drew on the English statute. The North Carolina measure made it a felony for crowds of 10 or more to remain in place within an hour of a reading of the act, allowed official use of force without investigation, exempted from prosecution deputies accused of maiming or killing rioters, and authorized the governor to raise a militia at public expense to enforce the measure. The act also allowed for establishment of emergency courts and stipulated that rioters remaining at large for 60 days were to be declared outlaws, a traditional English term indicating that a person’s behavior had placed him or her outside the law. Government had authority to hunt down outlaws and to seize and sell their property. North Carolina invoked its riot act on May 16, 1771, at Alamance, where Regulators were protesting corruption. In the confrontation, government militia and Regulators exchanged fire. Militia captured 15 Regulators. Regulators killed nine militia and wounded 61.
The same year, Tryon was reassigned to govern New York. In 1774, he got a riot act through that colony’s legislature. The impetus was armed violence by a militia, the Green Mountain Boys, in real estate disputes in the upstate region later split off as Vermont, according to Gary Nash in The Unknown American Revolution: The Unruly Birth of Democracy and The Struggle to Create America. This time, Tryon defined an assembly of three or more persons having “unlawful intent” as subject to penalties. New York kept its riot act until 1778 when, with the Revolution under way, rebel legislators repudiated the law as “unjust” and “founded in ill policy.”
A successful revolution created the United States, but did not eradicate corruption, taxes, or hard times in America. Failure by the Continental Congress to pay Continental Army veterans, as promised, primed many for unrest, as did resentment of the infant government’s efforts to levy taxes. In 1785-86, taxes in Massachusetts were not lowered despite a severe depression leading to many farm foreclosures. Angry mobs prevented courts from operating; threats arose of attacks on state armories as the government refused to help citizens.
The rebellion’s leader was Daniel Shays, a farmhand who joined the Continental Army in 1775, fought at Lexington, Concord, Bunker Hill, and Saratoga, and was wounded in action. In 1780, having received no pay, Shays quit the military and went home to find himself in debtor’s court. He sought debt relief, and took his cause public, attracting allies. Like the Regulators who before the Revolution had stirred trouble down south, Shays and followers chafed at what they perceived as abuse by elites. To throttle Shays’s Rebellion and forestall further upheaval, Massachusetts in 1786 enacted a riot act and suspended habeas corpus. Vermont and Virginia enacted similar measures. In 1787, Shays and 4,000 compatriots, bent on overthrowing the government, marched on the United States Armory at Springfield, attempting but failing to seize weapons to do so. The episode helped hasten the collapse of the Articles of Confederation and helped lead to the Constitutional Convention to strengthen the federal government even as the First Amendment guaranteed citizens’ right to assemble. Shays’s Rebellion also prompted George Washington to re-enter public life and become the first president.
During Washington’s first term, Congress passed a riot act. The Militia Act of 1792 bore the subtitle, “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”
Section 3 of the Militia Act empowered the president, upon state request, to issue a proclamation ordering “insurgents to disperse, and retire peaceably to their respective abodes within a limited time.” Failure of crowds so warned to disperse could be answered by deploying the militia.
In the 19th century, even in states that seceded from the Union, official reaction to public protests and riots generally remained a state-level matter. On Thursday, April 2, 1863, hungry women enduring wartime hardship petitioned Virginia Governor John L. Letcher for help. Letcher refused to meet with the petitioners. When the women, who had assembled in Richmond at the Capitol Square by an equestrian statue of George Washington, began marching to the capital’s business district, Mayor Joseph Mayo read the group that state’s riot act. In response, the women and others began looting retail stores and government warehouses. Only pleas by Confederate President Jefferson Davis and the threat of troops firing on the disturbance defused the situation.
Efforts at curbing the right to assemble have taken many forms, including legislative attempts at defeating strikes. In 1877, variations on the Riot Act were read to workers on strike in Baltimore, Pittsburgh, and elsewhere. Until the late 1800s, “cities and states did not regulate public gatherings in advance,” said Tabatha Abu El-Haj, an associate professor of law at Drexel University in “Defining Peaceably: Policing the Line Between Constitutionally Protected Protest and Unlawful Assembly,” a Missouri Law Review article. “The law only sanctioned interference with public assemblies that were actually disruptive and only after they had begun.”
Since the latter 1900s, state legislatures have drawn finer distinctions about what constitutes a riot in contrast to a peaceful assembly protected by the First Amendment.
Discussion has centered on how disorderly a crowd has to get before the individuals constituting the group lose their constitutional protection. Most states came to have laws limiting the crimes of unlawful assembly and riot to situations of threatened or actual violence, according to Abu El-Haj. That changed when the federal government, moved by the tenor of the times, felt compelled to act.
After several years of increasing unrest in cities and as a result of demonstrations against the Vietnam War and for civil rights, Congress enacted the Civil Rights Act of 1968.
Initially undertaken to mandate fairness in housing, the bill, upon enactment, contained provisions known as the Anti-Riot Act. The 1968 law did not criminalize rioting qua rioting but did outlaw traveling interstate or using interstate commerce to incite riots or help others in doing so.
The law had a low threshold, defining a “riot” as a public disturbance involving three or more people which presented a threat or act of violence. Among the Anti-Riot Act’s most notorious applications was the trial in Chicago of pacifist David Dellinger, antiwar organizers Lee Weiner and Leonard Weinglass, radicals Tom Hayden, Rennie Davis, Yippies Jerry Rubin and Abby Hoffman, and Black Panther Party member Bobby Seale.
Indicted after violent disturbances at the August 1968 Democratic National Convention, the Chicago 8, tried in a courtroom presided over by Judge Julius Hoffman, starred in a political spectacle that distilled contrasting attitudes toward the Vietnam War, student protest, `60s counterculture, and the judicial process. The defendants were acquitted. No one ever was convicted under the law.
A version of Ohio’s riot act, whose threshold for a reading was four individuals, was read on May 3, 1970, in the town of Kent. Mayor Leroy Satrom directed his reading at antiwar demonstrators on the campus of Kent State University. The next day men of the Ohio National Guard, summoned to the campus, shot four people dead and wounded nine others.
Federal anti-riot laws remain in effect. Conservative critics questioned why President Barack Obama and U.S. Attorney General Eric Holder did not more assertively enforce federal anti-riot provisions during 2014 disturbances in Ferguson, Missouri. Protests triggered by President Trump’s election have prompted state Republican lawmakers to revisit individual riot acts. A bill in the Arizona legislature would add rioting to the activities banned under that state’s anti-racketeering laws; a Tennessee bill would protect from civil liability drivers who accidentally run over protesters in public rights-of-way.
These gestures’ constitutionality is far from clear.
State legislators may wind up being read the Riot Act, as it were, by courts, assuring that the Riot Act of 1714 and its offshoots directly and indirectly continue to figure in America’s approach to dissent—and to provide a pithy shorthand phrase for those vivid moments when push comes to shout.