Martial Law at Narragansett Park Is Discussed by Chafee In Second Article of Series on Quinn vs. O'Hara Dispute

The following article was written for the CRIMSON by Zecharlah Chafee Jr. Professor of law.

Copyright, 1937, by the Harvard Crimson

Two orders of the Rhode Island Racing Commission closing Narragansett Park have been set aside by the State Supreme Court. Instead of going before the Racing Commission once more and establishing his case against the track by sufficient evidence, Governor Quinn has decided that it is too late to make further use of the machinery set up by the Legislature for controlling horse racing in Rhode Island.

Instead, he has shut down the track himself by a proclamation of martial law. Generals and soldiers are occupying the racetrack, and patrolling it day and night. Hardly any civilians can enter Narragansett Park except Mr. O'Hara who lives there and a few trainers and grooms for the horses.

Even the horses are restricted; they can take a little exercise early in the morning, but must go back to bed at 10 a.m. Meanwhile vituperative challenges pass to and for between Mr. O'Hara in his pent-house on the roof of the grandstand and Governor Quinn under the marble done on one of Providence's Seven Hills.

Quinn's Court

The Governor's eagerness to disregard the Rhode Island Supreme Court is rather surprising when we recall the origin of the present court. Mr. Quinn cannot complain like Mr. Roosevelt that he is balked by Republican judges who were selected by his predecessors.

Mr. Quinn took a prominent part in putting all these five judges on the bench. About four years ago, the whole Supreme Court composed of Republicans was forced to resign after years of service; and a complete new court with a majority of Democrats was chosen in its place by the legislature under the management of the Democratic organization, in which Mr. Quinn (then Lieutenant-Governor) was an outstanding leader.

"State of Insurrection"

In his proclamation of martial law last Saturday, Governor Quinn declares that Narragansett Park and all the surrounding territory in Pawtucket within a radius of one mile is "in a state of insurrection." This conclusion rests on the following findings of fact:

Numerous acts of violence have occurred at the race-track in the past few months. Large numbers of thugs, gangsters and racketeers have assembled on and about the premises. Mr. O'Hara, the managing director of the race-track, has imported known criminals into the State to coerce and frighten public officials. He has illegally interfered with the conduct of office of the former sheriff of the county, so as to require the removal of that sheriff. (This refers, among other matters, to the charge that this sheriff appointed deputy sheriffs who had criminal records.)

Mr. O'Hara has caused large numbers of Pawtucket police to intimidate public officials and prevent them from performing their duties, (As Mr. O'Hara is linked with the Pawtucket faction in the Democratic Party, which opposes the Governor's faction, the Pawtucket police have given no help to the Governor in his controversy with the race-track corporation, and he has been obliged to rely on the State Police and the National Guard.)

The Governor goes on to say that he is in possession of information indicating the presence at the July races of two Public Enemies killed last week by G. Men in Bangor. There is great danger that gangsters, criminals and persons of ill repute will unlawfully and riotously assemble at the track, bearing arms and acting together, and will cause serious breaches of the peace.

Strong-arm men employed by Mr. O'Hara are in the State; they have trailed officials, and threatened to bump-off the Governor and other officials. Mr. O'Hara has resorted to threats, intimidation and violence The opening of the track for the October races will result in bodily barm and injury to Rhode Island citizens and in lawlessness and disturbances with which civil authorities are unable to cope.

Martial Law Serious

Is the establishment of martial law under the conditions here stated permitted by the Constitutions of Rhode Island and the United States? Martial law is a very serious interference with the ordinary privileges of American citizens. Once it is established, they can no longer come and go freely upon a portion of the soil of the United States. They are hindered in the ordinary enjoyment of their property. They are accountable for all their actions within the proclaimed territory, not to judges and juries, but to generals, corporals, and privates. If they disobey military orders, they can probably be tried by court martial. They can be shot down if they fail to stop at the challenge of a sentry. If they want to protest, their only immediate remedy is to beg favors of the commanding officer.

Because of all those restraints on freedom a conscientious Executive will regard martial law as only a last resort. If the civil courts are open, state officials can ordinarlly obtain there abundant help in the maintenance of order, for instance, an injunction at the suit of the Attorney-General against the public nuisance caused by the assemblage of a large number of disorderly persons in connection with a prize fight or horse race.

If the legislature has vested in an administrative tribunal the control and regulation of a particular business, respect for law and order normally requires the subject to cross-examination. When a governor attempts to settled a controversy by martial law, he is acting as the prosecutor, judge, and jury all by himself, and employing methods for the maintenance of order which may be even more dangerous to private citizens than the activities of the persons whom the governor is attempting to suppress.

Martial Law Sometimes Warranted

Emergencies arise, nevertheless, when such drastic curtailments of liberty are warranted. The freedom of a few must sometimes be sacrificed in order to preserve freedom of all. Martial law is surely proper in a territory invaded by foreign troops, so that the ordinary courts can no longer sit and the army must be left free to take every available means to maintain the defense of the Nation.

Even during peace, martial law has sometimes been established in regions terrorized by violence. Whole counties in Colorado, Idaho, and Montana have been placed under martial law during large mining strikes. In the East, reglina in Pennsylvania were under martial law during the Homestead Strike of 1877 and the Anthracite Strike of 1902. Disastrous floods last spring made it necessary for the Army to take complete charge in Cincinnati, Louisville, and other cities along the Ohio River.

Was martial law made similarly, necessary at Narrangansett Park by any existing emergency? This aspect of the validity of Governor Quinn's action will be discussed in the third article by Professor Chafee tomorrow.