Militia: Entrusted with “Police Powers”
A Governmental Function Performed by a Governmental Institution

“From the earliest days, Virginia empowered her Militia to execute the laws against criminal activities * * * The exercise of various “police powers” further evidenced that Virginia’s pre-constitutional Militia were governmental institutions.

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 337.

Also see The Watch and the Ward • Militia: Not Subordinate to SheriffsGovernor: No Arbitrary Powers Over the MilitiaNational Guard: Not a Militia • Militia: Immune From Contemporary “Gun Control” • Militiamen Firearms Kept in the Home • Regular Armed Forces and Militia Firearms 


“Police Powers”: Entrusted to the Militia as Governmental Institutions

From the earliest days in the American colonies, the Militia were empowered to execute the laws against criminal activities. Execution of the laws is a governmental function, which the Militia performed as governmental institutions. For example, Virginia empowered her Militia to execute the laws against such criminal activities:

  • [1676] “WHEREAS of late there hath bin many unlawfull tumults, routs and riotts in divers parts of this country, for prevention of such insolences, and punishing offenders in that kind, * * * Be it therefore enacted * * * , that every respective officer and magistrate within this countrey, civill and military, from a constable to the highest civill magistrate, and from the lowest to the highest militia officer, be hereby impowered and strictly commanded for the suppressing and punishing all such unlawfull assemblies, routs, riotts and tumults, to use all lawfull wayes, authoritie, power and command, and whosoever shall be at any time disobedient to any the lawfull commands of any such civill or military officer or magistrate either in assisting, suppressing, quieting and punishing of any unlawfull assemblyes, routs or tumults * * * shall be accounted, judged and punished as mutinous and rebellious.” (footnote 1)

  • • [1707] “It is * * * ordered that * * * Majr Harrison have Power to take under his Commd so many of the Militia of Surry County as he shall think Convenient for the better apprehending [certain suspected] murderers” among the Tuscaruro Indians. (footnote 2)

  • • [1711] “Ordered that a detachment of the Militia * * * be forthwith sent to the Maherine [Indian] town to make Search for [certain] suspected [stolen] goods, and that upon discovery thereof they sieze all the Men of that Nation and send them under a guard to Williamsburgh in order to be examined and tryed[.]” (footnote 3)

  • • [1732] When “a Number of the meaner sort of People of [Prince William] County consisting of fifty Men were got together in Arms designing * * * to destroy the Publick Warehouses in that & the adjacent Counties expecting to be joyn’d by other Malecontents from the neighbouring Counties”, the Governor and his Council determined that, “for the more effectual Suppressing the  Insurrection it is necessary that Orders be forthwith Issued to the Comanding Officers of the Militia * * * to call together the several Troops & Companies under their respective Comands * * * & in Case the Mutineers * * * should presume to Continue in Arms that they then march agt & endeavour to suppress them”. (footnote 4)

  • Militia were charged with the responsibility to maintain local security in and around houses of worship. Six statutes spanning the course of 156 years—from 1619 to 1775.

    Throughout the pre-constitutional period, the Militia was charged with the responsibility to maintain local security in and around houses of worship:

    • • [1619] “All persons whatsoever upon the Sabaoth daye shall frequent divine service and sermons both forenoon and afternoon, and all suche as beare arms shall bring their pieces swordes, poulder and shote.” (footnote 1)

    • • [1632] “ALL men that are fittinge to beare armes, shall bringe their peices to the church uppon payne for every effence[.]” (footnote 2)

    • • [1643] “[M]asters of every family shall bring with them to church on Sondays one fixed and serviceable gun with sufficient powder and shott[.]” (footnote 3)

    • • [1736] The Governor issued a Proclamation which “strictly Charge[d] and Command[ed], That all Persons serving in the Militia, who shall during the * * * Holy-Days, repair to their Parish Churches or Chappels, do take with them their Arms, Ammunition, and Accoutrements; and the Captains * * * of the Militia, are to take Care the same be done accordingly”. (footnote 4)

    • • [1738, 1755, 1757, 1759, 1762, 1766, and 1771] “[I]t shall and may be lawful, for the chief officer of the militia, in every county, to order all persons listed therein, to go armed to their respective parish churches[.]” (footnote 5)

    • • [1775] “[T]he * * * chief officer[ ] of the militia, shall and may order the other officers and soldiers under him to go armed to their parish churches on Sundays, and to any licensed meeting-houses, whenever he judges it necessary.” (footnote 6)

    The Governor and his Council explained the intent of these statutes in 1730, in an order “that all persons repairing to their respective Churches or Chappells on Sundays or Holy Days do carry with them their arms to prevent any Surprize thereof in their Absence when the Slaves are most at Liberty & have greatest Opportunity for that purpose”. (footnote 7) This was no merely paranoiac concern, as plans for revolts fomented among Virginia’s slaves were occasionally discovered and punished. (footnote 8)

    Footnotes:

    1.) EN-799 — Quoted in Narratives of Early Virginia, 1606-1625, Lyon G. Tyler, Editor (New York, New York: Charles Scribner’s Sons, 1907), at 273. But, “[t]he acts passed at the general assembly in 1619 * * * never received * * * sanction * * * in England”, and therefore “could not have the force of laws”. Laws of Virginia, Volume 1, at 122, note. 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 338.

    2.) EN-800 — ACT LI, A GRAND ASSEMBLY HOLDEN AT JAMES CITTY THE 21st OF ffEBRUARY, 1631-2, in Laws of Virginia, Volume 1, at 174. Reënacted, ACT XLV, A GRAND ASSEMBLY HOLDEN AT JAMES CITTY THE 4TH DAY OF SEPTEMBER, 1632, in Laws of Virginia, Volume 1, at 198. 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 338.

    3.) EN-801 — ACT XLI, AT A GRAND ASSEMBLIE HOLDEN AT JAMES CITTY THE SECOND DAY OF MARCH, 1642-3, in Laws of Virginia, Volume 1, at 263. 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 338.

    4.) EN-802 — A Proclamation for the more effectual putting in Execution the Laws concerning the Militia: And for preventing the unlawful Concourse of Negros, and other slaves (29 October 1736), in Executive Journals of Virginia, Volume 4, at 471. 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 338.

    5.) EN-803 — CHAP. II, An Act, for the better Regulation of the Militia, § VIII, 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 19.

         CHAP. II, An Act for the better regulating and training the Militia, § VIII, 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 534.

    CHAP. III, An Act for the better regulating and disciplining the Militia, § IX, 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 96. Continued, CHAP. IV, An Act for continuing an Act, intitutled, An Act for the better regulating and disciplining the Militia, 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 274; CHAP. III, An Act for amending and further continuing the act for the better regulating and disciplining the Militia, § IX, 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 538; CHAP. XXXI, An act to continue and amend the act for the better regulating and disciplining the militia, § X, 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 245; CHAP. II, An act for further continuing the act, intituled An act for the better regulating and disciplining the militia, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, the seventh day of November, one thousand seven hundred and sixty-nine, and from thence continued by several prorogations, and convened by proclamation the eleventh day of July, one thousand seven hundred and seventy-one, in Laws of Virginia, Volume 8, at 503 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 338.

    6.) EN-804 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 29-30. 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 339.

    7.) EN-805 — At a Council held at the Capitol the 28th day of Octr 1730, in Executive Journals of Virginia, Volume 4, at 228. 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 339.

    8.) EN-806 — See, e.g., October 24th 1687, in Executive Journals of Virginia, Volume 1, at 86-87; At a Council held at Williamsburgh the 21st day of March 1709, in Executive Journals of Virginia, Volume 3, at 234-235; A Proclamation for preventing the unlawful Meetings and Combinations of Negro’s and other Slaves (28 October 1730), in Executive Journals of Virginia, Volume 4, at 462-463. 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 339.

  • Pre-constitutional ‘slave patrols’ were prototypical ‘police forces’ in every sense which that term would be used today.

    Virginia’s “slave patrols” were prototypical “police forces”, in every sense in which that term would be used today. In particular, they exercised the powers to patrol; to conduct surveillance of streets and roads where suspicious “strollers” might have been found; to investigate “places” which might have been the scenes of illicit activities; to stop and interrogate questionable characters in order to ascertain their identities and reasons for being abroad; to arrest any “disorderly persons” or other individuals whom they suspected of wrongdoing; and to turn over to judicial authorities for trial and punishment the persons they detained. In addition, although typically denominated “slave patrols”, the Militia’s jurisdiction extended as well to “servants” (who were not slaves) and “other disorderly persons” (all of whom presumably were free men and women). Furthermore, although typically the statutes directed the appointment of only a single patrol consisting of an officer and four men in each County, they also allowed for as many “more companies” to be mustered as might have been needed. And although generally the statutes mandated only one patrol each month, they also allowed for deployment to be made “oftener” if necessary. So, depending upon circumstances, any greater number of Militiamen could have been called forth on any more comprehensive schedule. Thus, Virginia’s organization of her Militia for “slave patrols” was, in principle at least, actually superior to the organization of professional police and Sheriffs’ departments in the several States today. For contemporary law- enforcement agencies are limited in the numbers of their personnel, with no significant ability to mobilize in their support the vast reserve of men and women who would be available—sufficiently trained in the basics of law-enforcement to complement, supplement, and otherwise support the regular forces of officers—were “the Militia of the several States” properly revitalized. (footnote 1)

    Footnotes:

    1.) 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., C. Militia Entrusted with “police powers”, page 337.

Revitalization of “the Militia of the several States” along strict constitutional lines would establish local law enforcement agencies as a subset of the Militia. This would enable local Militiamen to provide assistance to first responders in the event of natural disasters and suppression of criminal activity.

As State government institutions, a revitalized constitutional Militia would be a tangible check against police brutality, as well as a check against any corrupt or incompetent government officials responsible for prosecuting criminal behavior within the local law enforcement apparatus.

  • Footnotes

    1.) EN-795 — ACT IV, An act for suppressing of tumults, routs, &c., AT A GRAND ASSEMBLIE, HOLDEN AT JAMES CITTIE THE FIFTH DAY OF JUNE[,] 1676, in Laws of Virginia, Volume 2, at 352. 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 337.

    2.) EN-796 — October the 25th 1707, in Executive Journals of Virginia, Volume 3, at 159. 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 337-338.

    3.) EN-797 — November the 26th 1711, in Executive Journals of Virginia, Volume 3, at 291. 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 338.

    4.) EN-798 — At a Council held at the Capitol the 26th day of March 1732, in Executive Journals of Virginia, Volume 4, at 263-264. 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 338.