Governor: No arbitrary Power over the Militia

“[D]uring pre-constitutional times, neither was Virginia’s Governor allowed to posture as some sort of what nowadays might be styled a Führer or Duce, nor did the Militia function mechanically and mindlessly as a Shutzstaffel or Praetorian Guard when the last of her Royal Governors attempted to behave in that high-handed fashion.” 

The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 336.

Also see Militia: Entrusted with “Police” PowersMilitia: Not Subordinate to SheriffsConstitutional “Homeland Security”: Militia Structure • Militia: Largely Outside the Jurisdiction of Congress National Guard: Not a Militia •  Militiamen Firearms Kept in the Home • Militia: Immune From Contemporary “Gun Control”


Governor: No Arbitrary Powers Over the Militia 

Because of the apparently broad powers that Governors in Virginia as well as other Colonies and then independent States exercised over the Militia in pre-constitutional times, contemporary proponents of revitalizing “the Militia of the several States” are often assailed with the dire prediction that the Militia will simply become new tools in the hands of rogue State Governors, or a rogue President of the United States, or rogue Members of Congress, under the dictates of which WE THE PEOPLE will be made to oppress themselves. An archtypical fear is that the Militia of one State might be marched off into some other State to put down the people there, or somehow convinced or compelled to tyrannize over the people within its own State. These nightmares have next to no historical basis anywhere—and certainly not in Virginia. For, by their very delineation, the powers over the Militia that Virginia’s General Assembly delegated to her Governor also entailed corresponding disabilities with respect to any actions in excess or in contradiction of those powers. And not always satisfied with that sort of implicit control, in areas of crucial concern the General Assembly imposed express limitations. (footnote 1)

Militia were usually not to be deployed at a far remove from her own boundaries as Virginia’s Militia statutes evidence:

  • • [1742] When considering a request of the Governor of Maryland for military assistance against certain hostile Indians, the Governor and Council agreed that it will be very difficult to perswade [Virginia’s Militiamen] to pass over Patowmack River or Chesapeak Bay”, because “the government of Virginia can not compel the militia, contrary to law, to march out of the colony”. (footnote 2)

  • • [1755] “[N]othing * * * shall * * * impower the governor * * * to lead or march the militia of this colony, or cause them to be led or marched, more than five miles beyond where the inhabitants of this colony, shall be settled on the western frontiers.” (footnote 3)

  • • [1756] “That nothing * * * shall * * * impower the governor * * * , or any other officer, to lead or march the soldiers hereby raised, or cause them to be led or marched out of this colony.” (footnote 4)

  • Militia were raised first and foremost to provide a particular Colony or State with security—not to be dragooned out of her territory for wide-ranging adventures.

    Virginia’s Militia, for instance, was that Colony’s (or State’s) own Militia, raised first and foremost to provide Virginia with security, not to be dragooned out of her territory in wide-ranging adventures without lawful and very specific authorization. The rule was different for Virginia’s regular troops, though, as evidenced in 1775 when the Convention of Delegates declared: “whereas it may be necessary, for the publick security, that the forces to be raised * * * should, as occasion may require, be marched to different parts of the united colonies, * * * the officers and soldiers * * * shall * * * be under the controul, and subject to the order, of the committee of safety”. (footnote 1) Distinguishably from Militiamen, though, these troops voluntarily enlisted in the first place, and could “not be compelled to continue [in the service] more than two years” in any event. (footnote 2)

    Footnotes:

    1.) When Virginia ousted her last Royal Governor, authority passed to a Convention, which appointed a Committee of Safety “invested with the supreme executive powers of government”. William Waller Hening, The Statutes at Large; Being a Collection of all the Laws of Virginia from the First Session of the Legislature, in the Year 1619, Volume IX, 1775-1778 (Richmond, Virginia: J. & G. Cochran, 1821), Preface, at [4].

    2.) EN-788 — CHAP. I, An Ordinance for raising an additional number of forces for the defence and protection of this colony, and for other purposes therein mentioned, At a Convention of Delegates held at the town of Richmond, in the colony of Virginia, on Friday the first of December, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 85, 81. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 334.

  • Virginia early established and consistently held that the Governor’s power to call out her Militia was contingent upon the presence of particular exigent circumstances, not simply a matter of his own arbitrary will. Four statutes referenced.

    Virginia early established and consistently held that the Governor’s power to call out her Militia was contingent upon the presence of particular exigent circumstances, not simply a matter of his own arbitrary will:

    • • [1705] “[U]pon any invasion of the enemy by sea or land, or upon any insurrection, the governor * * * have full power to levy, raise, arm and muster such a number of forces out of the militia * * * as shall be thought requisite and needfull for repelling the invasion or suppressing the insurrection, and the same being raised, to order, direct, march, employ, continue, discharge and disband, as the occasion shall require, or the cause of danger ceases for which they were raised.” (footnote 1)

    • • [1727, 1732, 1734, 1738, 1740, 1744, 1748, and 1753] “[U]pon any invasion of an enemy by sea or land, or upon any insurrection, the governor * * * have full power and authority to levy, raise, arm, and muster, such a number of forces, out of the militia * * * as shall be thought needful for repelling the invasion, or suppressing the insurrection, or other danger, and the same to lead, conduct, march, transport and employ * * * for the suppressing of all such insurrections, and repelling of all such invasions * * * ; and such forces again to discharge and disband, as the cause of danger ceases, for which they were so raised.” (footnote 2)

    • • [1757, 1758, 1759, 1761, 1762, 1764, 1766, 1769, and 1772] “[U]pon any invasion of any enemy, by sea or land, or upon any insurrection, the governor * * * shall have full power and authority to levy, raise, arm and muster such number of forces out of the militia * * * as shall be thought needful for repelling the invasion, or suppressing the insurrection or other danger; and the same to lead, conduct, march, transport and employ * * * for the suppressing and repelling of all such invasions and insurrections, and such forces again to discharge and disband as the cause of danger ceases.” (footnote 3)

    • • [1780] “[W]hereas by the arts of the enemy joined by disaffected persons, riots have taken place in some counties injurious to the peace and dignity of government; to prevent such pernicious practices in future, and in order to aid the civil power in the due and effectual execution of the laws, Be it enacted, That wherever the governour shall have satisfactory information that any persons within this commonwealth shall be inclined to mutiny or riot, * * * he is * * * empowered to order * * * troops of horse to be raised * * * in any county where such persons shall so resist or assemble together with an intention to resist.”  (footnote 4)

    Footnotes:

    1.)  EN-789 — CHAP. XXXI, An act for security and defence of the country in times of danger, AT A GENERAL ASSEMBLY, BEGUN AT THE CAPITOL, IN THE CITY OF WILLIAMSBURG, THE TWENTY-THIRD DAY OF OCTOBER, 1705, in Laws of Virginia, Volume 3, at 362-363. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 334.

    2.) EN-790 — CHAP. V, An Act for making more effectual provision against Invasions and Insurrections, § II, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT Williamsburg, the first day of February, 1727, in Laws of Virginia, Volume 4, at 197-198. Continued, CHAP. IV, An act to continue the Act, for making more effectual provision against Invasions and Insurrections, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT Williamsburg, the first day of February, [1727]. And from thence continued, by several prorogations, to the eighteenth day of May, 1732, in Laws of Virginia, Volume 4, at 323; CHAP. IV, An Act for further continuing the Act, For making more effectual provision against Invasions and Insurrections, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT Williamsburg, the first day of February, [1727]. And from thence continued, by several prorogations, to the twenty second day of August, 1734, in Laws of Virginia, Volume 4, at 395; CHAP. III, An Act, for reviving the Act, For making more effective provision against Invasions and Insurrections, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 24; CHAP. VI, An Act, for continuing and amending the Act, Intituled, An Act, for making more effectual Provision against Invasions and Insurrections, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on Friday the first day of August, [1735]. And from thence continued, by several prorogations, to the twenty second day of May, 1740, in Laws of Virginia, Volume 5, at 99; CHAP. IV, An Act, for continuing an Act, made in the first year of his majesty’s reign, intituled, an Act for making more effectual provision against invasions and insurrections; and one other act, intituled, an Act, for continuing and amending the aforementioned Act, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on Thursday, the sixth day of May, [1741]. And from thence continued, by several prorogations, to Tuesday, the fourth day of September, 1744, in Laws of Virginia, Volume 5, at 228.

         CHAP. XXXIX, An Act for making provision against Invasions and Insurrections, § II, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT The College in Williamsburg, the twenty-seventh day of October, 1748, in Laws of Virginia, Volume 6, at 113. Continued, CHAP. II, An Act for continuing an act, intituled, An Act for making provision against invasions and insurrections, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, 1752. And from thence continued by several prorogations, to Thursday the first day of November, 1753, in Laws of Virginia, Volume 6, at 350.   Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 335.

    3.) EN-791 — CHAP. IV, An Act for reducing the several acts for making provision against invasions and insurrections into one act, § I, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday, the twenty- fifth day of March, 1756, and from thence continued by several prorogations to Thursday the fourteenth of April, one thousand seven hundred and fifty-seven, in Laws of Virginia, Volume 7, at 106-107. Continued, CHAP. IV, An Act for continuing an act, intituled, An Act for reducing the several acts for making provision against invasions and insurrections into one act, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758, in Laws of Virginia, Volume 7, at 237; CHAP. V, An Act for further continuing an Act, intituled, An Act for reducing the several Acts for making provision against Invasions and Insurrections, into one Act, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758; and from thence continued by several prorogations to Thursday the twenty-second of February, 1759, in Laws of Virginia, Volume 7, at 275; CHAP. II, An Act for further continuing an act, entituled, An Act for reducing the several acts for making provision against invasions and insurrections into one act, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758; and from thence continued by several prorogations to Thursday the fifth of March, 1761, in Laws of Virginia, Volume 7, at 384; CHAP. IV, An Act for further continuing the act for reducing the several acts for making provision against invasions and insurrections into one act, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Tuesday the 2d of November[,] 1762, in Laws of Virginia, Volume 7, at 539; CHAP. I, An act for further continuing the act for reducing the several acts for making provision against invasions and insurrections into one act, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Tuesday the 30th of October, 1764, in Laws of Virginia, Volume 8, at 37; CHAP. I, An Act for further continuing the act for reducing the several acts for making provision against invasions and insurrections into one act, At a General Assembly, begun and held at the Capitol in Williamsburg, on Thursday the sixth day of November, 1766, in Laws of Virginia, Volume 8, at 189; CHAP. V, An Act for further continuing the Act, intituled an Act for reducing the several acts of Assembly for making provision against invasions and insurrections into one act, At a General Assembly, begun and held at the Capitol in the City of Williamsburg, on Tuesday, in the seventh day of November, 1769, in Laws of Virginia, Volume 8, at 334; CHAP. III, An act for further continuing the act, intituled An act for reducing the several acts of assembly, for making provision against invasions and insurrections, into one act, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Monday the tenth day of February, one thousand seven hundred and seventy-two, in Laws of Virginia, Volume 8, at 514. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 335.

    4.) EN-792 — CHAP. XXXII, An act to revive and amend an act entitled An act for giving further powers to the governour and council, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the sixteenth day of October, one thousand seven hundred and eighty, in Laws of Virginia, Volume 10, at 386-387. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 335.

  • 1775: Virginia Militiamen refused to muster under the command of her last Royal Governor, John Murray, the Earl of Dunmore.

    The Militia would justifiably have refused a call to “muster” and “march” for a patently illegitimate purpose—as was most convincingly proven in Virginia when her last Royal Governor, John Murray, the Earl of Dunmore, attempted to deploy the Colony’s Militia in order to suppress what her Declaration of Rights soon thereafter denominated as “the good people of Virginia”. (footnote 1) In 1775, Dunmore proclaimed that

    a certain Patrick Henry * * * and a Number of deluded Followers, have taken up Arms, chosen their Officers, and styling themselves an Independent Company, have * * * put themselves in a Posture of War * * * : Wherefore I have * * * issue[d] this my Proclamation, strictly charging all Persons, upon their Allegiance, not to aid, abet, or give Countenance to, the said Patrick Henry, or any other Persons concerned in such unwarrantable Combinations; but, on the Contrary, to oppose them and their Designs by every Means; which Designs must, otherwise, inevitably involve the whole Country in the most direful Calamity, as they will call for the Vengeance of offended Majesty and the Insulted Laws, to be exerted here, to vindicate the constitutional Authority of Government. (footnote 2)

    When these threats of “direful Calamity” and “Vengeance” proved unavailing, Dunmore attempted to assert what he wrongly supposed were his plenary and unchallengeable gubernatorial powers:

    I do in Virtue of the Power and Authority to Me given, by His Majesty, determine to execute Martial Law, and cause the same to be executed throughout this Colony: and to the end that Peace and good Order may the sooner be restored, I do require every Person capable of bearing Arms, to resort to His Majesty’s Standard, or be looked upon as Traitors to His Majesty’s Crown and Government, and thereby become liable to the Penalty the Law inflicts upon such Offences; such as forfeiture of Life, confiscation of Lands, &c. &c. (footnote 3)

    But the patriotic Militiamen of Virginia refused to bend beneath the yoke of “Martial Law” and “to resort to His Majesty’s standard”.

    So, during pre-constitutional times, neither was Virginia’s Governor allowed to posture as some sort of what nowadays might be styled a Führer or Duce, nor did the Militia function mechanically and mindlessly as a Shutzstaffel or Praetorian Guard when the last of her Royal Governors attempted to behave in that high- handed fashion. (footnote 4)

    Footnotes:

    1.) The entire story of the episode appears, for example, in Virginia: The Road to Independence, Robert L. Scribner, Editor (The University Press of Virginia: Virginia Independence Bicentennial Commission, 10 Volumes, 1973- 1983), Volume III, “An Introductory Note”, at 3-28, and with less scholarly detail but more accessibility for the average student in H.J. Eckenrode, The Revolution in Virginia (Hamden, Connecticut: Archon Books, 1964 [reprint of the 1916 edition]), Chapter II, and Michael Kranish, Flight from Monticello: Thomas Jefferson at War (New York, New York: Oxford University Press, 2010), at 45-90.

    2.) EN-793 — A Proclamation (6 May 1775), in Executive Journals of Virginia, Volume 6, at 665. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 336.

    3.) EN-794 — A Proclamation (7 November 1775), in Executive Journals of Virginia, Volume 6, at 669.

    4.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 336.

The importance of the requirements, repeated in statute after statute, that the Governor “shall have satisfactory information”—that he shall employ the Militia only for “the suppressing and repelling of all * * * invasions and insurrections” as necessitated the Militia’s deployment—and especially that he should “discharge and disband [the Militia] as the cause of danger ceases” cannot be over-emphasized. His “full power and authority to levy, raise, arm and muster such a number of forces out of the militia” depended upon an actual “cause of danger”, specifically in the form of an “invasion”, “insurrection”, or other disturbance that threatened “the due and effectual execution of the laws”—and therefore terminated as soon as that danger ran its course. Presumably, too, in the plain absence of an actual invasion, insurrection, or other dangerous disturbance, the Militia might justifiably have refused the Governor’s call to “muster” and “march”. (footnote 5)

  • Footnotes

    1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 333.

    2.) EN-785 — At a Council Held July 26th 1742, in Executive Journals of Virginia, Volume 5, at 94-95 & note 48. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 334.

    3.) EN 786 — CHAP. III, An act for amending an act, intituled, An act for making provision against invasions and insurrections, § X, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 548. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 334.

    4.) EN-787 — CHAP. I, An Act for raising the Sum of Twenty-five Thousand Pounds, for the better protection of the Inhabitants on the Frontiers of this Colony, and for other purposes therein mentioned, § XV, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the twenty-fifth day of March, 1756, in Laws of Virginia, Volume 7, at 17. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 334.

    5.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 336.