Constitutional Militia: Not Subordinate to Sheriffs

“Contrary to popular belief, “[N]o pre-constitutional American Militia were ever made generally subordinate to, or in any particulars controlled by or answerable to, Local Sheriffs as commanding officers.” *** Moreover, in the plainest contradistinction to “the Militia of the several States”Sheriffs derive no explicit authority whatsoever from the Constitution. Indeed, the noun “Sheriff ” does not even appear in that document.”.

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 113 and 115.

Also see Militia: Not Private Associations •  Governor: No Arbitrary Powers Over the Militia  • Militia: Largely Outside the Jurisdiction of Congress • The Watch and the Ward • Militia: Entrusted with “Police” Powers • Militia: Immune From Contemporary “Gun Control” • National Guard: Not a Militia • “Militia”: What are They? 


Constitutional Militia: Not Subordinate to Sheriffs

Contrary to another mistaken belief current among not a few contemporary patriots, Local Sheriffs enjoy no unique, supreme authority within their jurisdictions which would somehow entitle them either to assert direct control over whatever Militia units were already settled there, or indirectly to supersede and absorb the Militia entirely under their command by calling forth in the posse commitatus every adult eligible for the Militia. (footnote 1) Certainly no historical basis exists for any such claim. For no pre-constitutional American Militia were ever made generally subordinate to, or in any particulars controlled by or answerable to, Local Sheriffs as commanding officers. (footnote 2)

America’s Founding Fathers’ preeminent legal mentor was William Blackstone. And inasmuch as “[a]t the time of the adoption of the Federal Constitution [Sir William Blackstone’s Commentaries on the Laws of England] had been published about twenty years, and * * * more copies of the work had been sold in this country than in England; so that undoubtedly, the framers of the Constitution were familiar with it”(footnote 3) and considered it “the preeminent authority on English law”, (footnote 4) every legally literate American was also aware of the general rule for statutory construction which Blackstone taught. As Blackstone described Sheriffs’ traditional powers under the law as applied in England,

“[A]S the keeper of the king’s peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office. He may apprehend, and commit to prison, all persons who break the peace or attempt to break it * * * . He may, and is bound ex officio to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king’s enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse commitatus, or power of the county: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, under pain of fine and imprisonment.” (footnote 5)

Blackstone’s reference to “common law” in this passage (above) is perhaps the source of the composite proposal circulating among some contemporary patriots for the formation of “common-law militias” specifically commanded by Sheriffs.

  • The powers Blackstone catalogued were never considered either mandatory, or necessary, or sufficient for organizing the defense of any of the Colonies around their Sheriffs.

    The powers Blackstone catalogued, were never considered either mandatory, or necessary, or sufficient for organizing the defense of any of the Colonies around their Sheriffs. Although Sheriffs in pre-constitutional America traditionally could deputize individual citizens, or even summon them en masse in a posse commitatus, in aid of keeping the peace and enforcing the criminal law, (footnote 1) they played no special—let alone a commanding—role in the Militia. Otherwise, neither legal justification nor practical need would have existed for enactment of elaborate Militia statutes, as the matter of defending each Colony, County by County, could simply have been entrusted to the Sheriffs by implication; or the Militia statutes could simply have declared the Sheriffs the commanding officers of the Militia in each County within each Colony—neither of which courses of action ever occurred anywhere in pre-constitutional America. (footnote 2)

    Footnotes;

    1.) See Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Company, Revised Fourth Edition, 1968), at 1324.

    2.) 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 113 and 115.

  • Constable—the Constitution neither recognizes any authority inherent in the office nor grants any authority to that office.

    The Constitution neither recognizes any authority inherent in the office of Constable, nor grants any authority to that office, any more than it does for the office of Sheriff. But, as Blackstone explained,

    “[T]HE general duty of all constables [under English law] * * * [wa]s to keep the king’s peace in their several districts; and to that purpose they [we]re armed with very large powers, of arresting and imprisoning, of breaking open houses, and the like”—although, as he added, “of the extent of which powers, considering what manner of men [we]re for the most part put upon these offices, it [wa]s perhaps very well that they [we]re generally kept in ignorance”. (footnote 1Moreover, “[o]ne of the[ English constables’] principal duties * * * [wa]s to keep watch and ward in their respective jurisdictions”. (footnote 2)

    In the early days in Rhode Island, too, Constables could be assigned that duty:

    • [1700] “It shall * * * be lawfull for the Governor, Deputy Governor, or any two Assistants, or Justices for their respective town to issue forth their warrant to the respective Constables of their towns, to summons in the house-keepers and any other person, that shall reside in any town in this Collony, for the space of a month, not being servants, &., to watch, or send some sufficient person to watch for them[.]” (footnote 3)

    Later on, though, the Militia took over that responsibility (See The Watch and the Ward). Constables also occasionally performed some services for the Militia:

    • [1701] “[I]n case any person or persons that shall through his neglect [of Militia duty] be fineable * * * shall refuse or neglect to pay his or their fines upon demand * * * , and there be no visible estate to be found of said person or persons * * * whereby to make distraint on, then it shall be lawfull * * * to issue forth * * * [a] warrant to any Constables or other person to apprehend * * * such [delinquent] person or persons[.]” (footnote 4)

    Footnotes:

    1.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 356. Blackstone was the preeminent mentor of America’s Founding Fathers on the pre-constitutional laws of England. See e.g., Schick v. United States, 195 U.S. 65, 69 (1904), and Alden v. Maine, 527 U.S. 706, 715 (1999).

    2.) Id.

    3.) EN-80 — An Act for the settling a Constable’s watch in every respective town in this Collony, and for punishing those that shall neglect the same, Proceedings of the Generall Assembly held for the Collony of Rhode Island and Providence Plantations, at Newport, the 29th day of August, 1700, in Rhode Island Records, Volume 3, at 424. 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 115.

    4.) EN-81 — An Act for the better regulating the militia, and for punishing offenders as shall not conform to the law thereunto relating, Proceedings of the Generall Assembly held for the Collony of Rhode Island and Providence Plantations, at Newport, May the 6th, 1701, in Rhode Island Records, Volume 3, at 431. 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 115 and 116.

The authority that many contemporary patriots want Sheriffs to exercise for the purpose of exposing and suppressing usurpation and tyranny, especially on the part of rogue officials of the General Government, ought to be exercised by someone. In fact, it can be exercised, with full constitutional sanction, by the Militia, with their commanders—at the National level, the President; at the State level, the Governor; and at the Local level, “the County Lieutenant” or other chief commanding officer in the jurisdiction—performing the functions that Sheriffs as such cannot perform.

Distinct from Sheriffs, the Militia are explicitly incorporated within the Constitution of the United States. (footnote 6) And the Constitution devotes more words to setting out Congress’s and the States’ powers with respect to the Militia than it does to setting out Congress’s powers with respect to the Army and the Navy, thereby attesting to the importance of the Militia within the federal system.

  • Footnotes

    1.) This belief apparently derives, or at least takes comfort, from the Supreme Court’s opinion that Congress may not compel a State’s executive officials “to execute federal laws” by participating “in the administration of a federally enacted regulatory scheme” aimed at “gun control”. Printz v. United States, 521 U.S. 898, 904-905 (1997) (Scalia, J., for the Court). This decision did not turn, however, on the particular rights, powers, privileges, or immunities of Sheriffs under the Constitution or laws of the United States or any State’s laws. Local law-enforcement officers in general were the executive officials whom Congress attempted to dragoon into the General Government’s service, because typically they happened to have direct access to the data from which an individual’s eligibility to purchase a firearm could be ascertained. But the Court’s reasoning would have applied just as well to any State officer, bureaucrat, or employee whom Congress might have singled out to perform the requisite statutory duties—for example, Local prosecutors or custodians of criminal records other than actual law-enforcement officers.

    2.) 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 113.

    3.) Schick v. United States, 195 U.S. 65, 69 (1904).

    4.) Alden v. Maine, 527 U.S. 706, 715 (1999).

    5.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 343-344. Blackstone was the preeminent mentor of America’s Founding Fathers on the pre-constitutional laws of England. See e.g., Schick v. United States, 195 U.S. 65, 69 (1904), and Alden v. Maine, 527 U.S. 706, 715 (1999).

    6.) In Virginia, Sheriffs are constitutional elected officers. Const. of Virginia art. VII, § 4.