Militia: Not the Product of “Common Law”

“Contrary to a belief enjoying some unwarranted currency among naive patriots today, no pre-constitutional Militia ever derived its authority from “common law”, in the strict sense in which American legal history and the Constitution itself employ that term.”

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 108.

Also see How are Militia Created?“Militia”: What are They? •  Militia: Not Private Associations 


Militia: Not the Product of “Common Law”

Contrary to a belief enjoying some unwarranted currency among naive patriots today, no pre-constitutional Militia ever derived its authority from “common law”, in the strict sense in which American legal history and the Constitution itself employ that term. (footnote 1) (Except, of course, insofar as a statute which applied in common to all members of the community on an equal basis was thereby an example of “common law”.) As Blackstone explained, “the common law, or lex non scripta, [footnote 2] of this kingdom [that is, England]”,

properly so called * * * is that law, by which proceedings and determinations in the king’s ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance: the manner and form of acquiring and transferring property; the solemnities and obligations of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires * * * —all these are doctrines that are not set down in any written statute or ordinance, but depend upon immemorial usage, that is upon common law, for their support. (footnote 3)

Revealingly, Blackstone did not include within this litany any matter relating to “militia”, because English “common law”—the lex non scripta—did not extend to that subject. (footnote 4)

  • English common law in general, and with respect to the ‘militia’ in particular, was never transplanted to and imposed upon the American Colonies as Blackstone observed in his Commentaries.

    Even had English “common law” in the very broadest sense—that is, the law “common” throughout the Realm because it embodied “[g]eneral customs; which are the universal rule of the whole kingdom”(footnote 1) as well as Parliamentary statutes—controlled the Mother Country’s militia on her own soil, the entirety of that law was never transplanted to and imposed upon the Colonies. As Blackstone observed, even in principle, in

    “our most distant plantations in America, * * * colonists carry with them only so much of the English law, as is applicable to their own situation * * * . The artificial refinements and distinctions incident to the property of a great and commercial people, laws of police and revenue, (such especially as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times, and under what restrictions must * * * be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council * * * . And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. (footnote 2)

    Footnotes:

    1.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 67.

    2.) Id., Volume 1, at 106-107.

  • In 1662 the colony of Virginia had adopted the position that they were not subject entirely to the Laws of England.

    The colony of Virginia had adopted the position that they were not subject entirely to the Laws of England, when her General Assembly in 1662 declared with careful distinction that it had “endeavoured in all things (as neere as the capacity and constitution of this country would admitt) to addhere to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence”. (footnote 1) And it was reasserted by Virginia’s revolutionary Convention in 1776, which declared

    “[t]hat the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, and which are of a general nature, not local to that kingdom, together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power this colony.” (footnote 2)

    Moreover, in practice, throughout the pre-constitutional era, both Virginia and the New England Colonies not infrequently rejected, in whole or in part, various rules of the English “common law”. (footnote 3)

    Footnotes:

    1.) EN-77 — AT A GRAND ASSEMBLY HELD AT JAMES CITY MARCH THE 23D 1661-2, in Laws of Virginia, Volume 2, at 43 (bold-face emphasis supplied). 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 110.

    2.) EN-78 — CHAP. V, An ordinance to enable the present magistrates and officers to continue the administration of justice, and for settling the general mode of proceedings in criminal and other cases till the same can be more amply provided for, § VI, At a General Convention of Delegates and Representatives, from the several counties and corporations of Virginia, held at the Capitol in the City of Williamsburg, on Monday the 6th of May, 1776, in Laws of Virginia, Volume 9, at 127. 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 110.

    3.) See, e.g., Powell v. Alabama, 287 U.S. 45, 60-65 (1932) (rejecting for purposes of American constitutional law the old English rule that denied a defendant a right to counsel in a criminal case). See generally William E. Nelson, The Common Law in Colonial America, Volume I, The Chesapeake and New England, 1607-1660 (New York, New York: Oxford University Press, 2008).

  • In 1700 Rhode Island had adopted the position that they were not subject entirely to the Laws of England.

    The position that the Colonies were not subject entirely to the laws of England was early adopted in Rhode Island, when in 1700 her General Assembly decreed “[t]hat in all Actions, Matters, Causes and Things whatsoever, where no particular Law of this Colony is made to Decide and Determine the same; that then and in all such Cases the Laws of England shall be put in Force, to Issue, Determine and Decide the same”. (footnote 1) Then, in 1749, the General Assembly finally appointed “a Committee to prepare a Bill for introducing into this Colony, such of the statutes of England, as are agreeable to the Constitution”; the Committee prepared a short list of the statutes “which * * * have heretofore been, and still ought to be in Force in this Colony”; and the General Assembly “Resolved, That all and every of th[os]e Statutes * * * shall be in full Force * * * until the General Assembly shall order otherwise”(footnote 2)

    Footnotes:

    1.) EN-75 — AN ACT, for putting in Force the Laws of England, in all Cases where no particular Law of this Colony hath Provided a Remedy, LAWS Made and Pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island, and Providence-Plantations, Held at Newport, the Thirtieth Day of April, 1700, in Public Laws of Rhode Island, 1744, at 28; and in Public Laws of Rhode Island, 1719, at 45. 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 108.

    2.) EN-76 — LAWS, Made and passed at a General Assembly of His Majesty’s Colony of Rhode-Island and Providence-Plantations in New-England, begun and held by Adjournment at South-Kingstown, on the last Tuesday of February, 1749, in Public Laws of Rhode Island, 1752, at 70-72 (bold-face emphasis supplied). Also in Rhode Island Records, Volume 5, at 288-289. 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 108.

  • ‘Militia’ in the American Colonies never arose out of Colonial and State “common law”, but solely from Colonial and State Militia Acts.

    Although in America the pre-constitutional Militia laws did rely on “common-law” remedies and the courts in order to enforce fines, the laws themselves never arose out of Colonial and State “common law” (lex non scripta), but solely from Colonial and State Militia Acts (leges scriptae). Regular Colonial and State Militia units often did have a say in choosing their own officers, and “Independent Companies” often did organize and largely regulate themselves—but always subject to specific governmental approval, supervision, and command as mandated by some statute. (footnote 1)

    Footnotes:

    1.) See generally 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 112 and 319.

No matter how patriotically motivated, well organized and equipped, and carefully trained they may be, private groups of individuals appealing to “common law” for their authority do not and can not constitute constitutional “Militia”. They must be organized, armed, and trained pursuant to State statute, which is where they derive their legal authority as State government institutions as component parts of “the Militia of the several States”.

  • Footnotes

    1.) See U.S. Const. amend. VII. 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 108.

    2.) “The unwritten law.” This is something of a self-contradictory appellation, though, because “the common law” was often “written” in reports of judicial decisions, without which records it could hardly have been generally or reliably known at all.

    3.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 67-68.

    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 109.