Pre-constitutional Virginia Regulating Her Militia

“The legal history of Virginia’s pre-constitutional Militia parallels that of Rhode Island. (footnote 1) Certainly the two Colonies’ (and then independent States’) purposes in settling their Militia, and then regulating those establishments with the identical forms and functions for decade after decade, derived from the selfsame consideration: namely, that self-defense for a self-governing community depends in the first, as well as the final, analysis upon collective self-reliance and self-help by the people themselves.

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 315.

Also see To “Settle” the Militia • To “Regulate” the Militia • Pre-constitutional Rhode Island Regulating Her Militia • Militia: Not Private AssociationsMilitia: Near Universal Membership • National Guard: Not a Militia


Pre-constitutional Virginia Regulating Her Militia

From the earliest days, Virginia recognized, as she declared in 1672 and reaffirmed in 1676, that “against all tymes of danger it ought to be the care of all men to provide that their armes and habiliments for war, be alwayes kept fixed and fitt for service”. (footnote 2) This entailed not merely the arming of individuals in isolation or in ad hoc groups, but also their systematic organization within effective Militia.

As was the case in Rhode Island and throughout the other Colonies and then independent States, (footnote 3) in Virginia the pre-constitutional statutes identified themselves as “regulating” or as “regulations” of her Militia:

  • • [1723] “WHEREAS a due regulation of the Militia is absolutely necessary for the defence of this country * * * .” An Act for the settling and better Regulation of the Militia. (footnote 4)
  • • [1738] An Act, for the better Regulation of the Militia. (footnote 5)
  • • [1754] An Act for amending the act, intituled, An Act for the better regulation of the militia. (footnote 6)
  • • [1755] An Act for the better regulating and training the Militia. (footnote 7)
  • • [1757] An Act for the better regulating and disciplining the Militia. (footnote 8)
  • • [1759] An Act for continuing an Act, intitutled, An Act for the better regulating and disciplining the Militia. (footnote 9)
  • • [1762] An Act for amending and further continuing the act for the better regulating and disciplining the Militia. (footnote 10)
  • • [1766] An act to continue and amend the act for the better regulating and disciplining the militia. (footnote 11)
  • • [1771] An act for further continuing the act, intituled An act for the better regulating and disciplining the militia. (footnote 12)
  • • [1777] An act for regulating and disciplining the Militia. (footnote 13)
  • • [1779] An act for the better regulation and discipline of the militia(footnote 14)
  • • [1781] An act to amend the act for regulating and disciplining the militia, and for other purposes(footnote 15)
  • • [1782] An act to amend the act, intituled, An act for establishing and regulating the militia. (footnote 16)
  • • [1784] An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections. (footnote 17)
  • • [1785] An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections. (footnote 18)
  • Virginia’s Declaration of Rights in 1776 recognized ‘that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state’.

    Virginians realized that their Militia was the community’s “proper defence, in time of danger”—so whenever complaints arose (as in 1738 and 1755) that the existing establishment “hath proved very ineffectual”, remedial action was taken specifically to improve the Militia, in terms of “training the persons listed to serve therein, and reducing them under a proper discipline” more efficaciously than before, not to replace that institution with some other, wholly untried means of defense. (footnote 1) Indeed, “the good people of Virginia” did not learn only through their Declaration of Rights in 1776

    THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; * * *

    * * * [t]hat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them[; and]

    *  *  *  *  *

    * * * [t]hat a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state[;] (footnote 2)

    or only in 1784 and 1785 that “the defence and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty”; (footnote 3) but knew from at least as early as 1723 that “a due regulation of the Militia is absolutely necessary for the defence of this country”. (footnote 4)

    The practical reason was that, just as in 1705, throughout the entire pre-constitutional era the Militia could always “be ready on all occasions for the defence and preservation” of Virginia. (footnote 5) Not just from 1727 through 1753, after all, was it apparent that

    the frontiers of this dominion, being of great extent, are exposed to the invasions of foreign enemies, by sea, and incursions of Indians at land, and great dangers may likewise happen by * * * insurrections * * * ; for all which, the militia * * * is the most ready defence. And * * * the militia of those counties, where any of the dangers aforesaid shall arise, must necessarily be first emploied, and may, by the divine assistance, be able to suppress and repel such insurrections and invasions, without obliging that of other counties to be raised[.] (footnote 6) 

    Footnotes:

    1.) EN-726 — CHAP. II, An Act, for the better Regulation of the Militia, § I, 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 16; CHAP. II, An Act for the better regulating and training the Militia, § I, 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 530. 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 315.

    2.) EN-727 — A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government, 12 June 1776, Articles 1, 2, and 13, 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 109, 111.  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 315-316.

    3.) EN-728 — CHAP. XXVIII, An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § I, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October[,], one thousand seven hundred eighty-four, in Laws of Virginia, Volume 11, at 476; CHAP. I, An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § I, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] in one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 9. 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 316.

    4.) EN-729 — CHAP. II, An Act for the settling and better Regulation of the Militia, § I, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 118. 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 316.

    5.) EN-730 — CHAP. XXIV, An act for settling the Militia, 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 335. 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 316.

    6.) EN-731 — CHAP. V, An Act for making more effectual provision against Invasions and Insurrections, § I, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT Williamsburg, the first day of February, 1727, in Laws of Virginia, Volume 4, at 197. 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, § I, 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 112-113. 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 316.

  • Voters over generations approved of elected lawmaker’s efforts to consistently regulate the Militia in which they served.

    Doubtlessly, the legislators who authored these statutes, the voters who elected those lawmakers and approved of their efforts, and probably the vast majority of the individuals who served in Rhode Island’s and Virginia’s Militia under the aegis of these enactments believed that they provided, not simply Militia “regulated” in some at least minimally satisfactory manner, but “well regulated Militia”—even as “well regulated” as Rhode Island’s and Virginia’s circumstances allowed. After all, although the General Assemblies of those two Colonies and then independent States from time to time did amend their Militia laws whenever they considered them inadequate in various minor particulars, they obviously believed that the laws’ fundamental principles of organization and operation were sound, because, although they enacted many Militia statutes and related laws from the early 1600s through the late 1700s, they never modified, or even questioned, those principles. So the conclusion is unavoidable that they considered their Militia to be “well regulated” precisely because the Militia were “regulated” by statutes according to those principles. If the General Assemblies had deemed their Militia seriously defective in some fundamental way, they would have “regulated” them in some other manner, or even experimented with entirely different means of providing their communities with adequate “homeland security”. And this was the case, not only in Rhode Island and Virginia, but also throughout the other Colonies and then independent States. (footnote 1)

    Footnotes:

    1.) See generally The Selective Service System, Backgrounds of Selective Service, Military Obligation: The American Tradition, A Compilation of the Enactments of Compulsion From the Earliest Settlements of the Original Thirteen Colonies in 1607 Through the Articles of Confederation 1789, Special Monograph No. 1, Volume II (14 Parts) (Washington, D.C.: Government Printing Office, 1947).

  • Virginia’s pre-constitutional Militia was a governmental institution which proved itself the foundation for popular sovereignty.

    As events demonstrated on and after 19 April 1775 at the Battle of Lexington and Concord, in pre-constitutional America (as elsewhere throughout the modern world) “‘[p]olitical power grows out of the barrel of a gun’”. (footnote 1) In Virginia, as well as in Rhode Island and the other Colonies, “the good People” (as the Declaration of Independence and Virginia’s own Declaration of Rights styled them in 1776) held guns in their own hands. Therefore, in the ultimate analysis, where they stood was the locus of political power—as it always should be in a self-governing commonwealth. Yet, even during periods of actual fighting, no more than Rhode Island or any other Colony or independent State was Virginia home to some species of martial anarchy. For, just as in Rhode Island and elsewhere throughout America, Virginia’s pre-constitutional Militia was a strictly governmental institution. (footnote 2)

    Footnotes:

    1.) Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, First Edition, 1966), at 61.

    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 319.

These and other like and related statutes provide reliable evidence for WE THE PEOPLE today because they constituted reliable evidence for WE THE PEOPLE in the pre-constitutional era, being the very evidence that THE PEOPLE in that day themselves created. Indeed, they are the best of all possible evidence, because they document with legal certainty, exactitude, and even redundancy what, time and again over a period of more than a century, the General Assemblies of Rhode Island and Virginia wanted to happen, ordered to happen, expected to happen, and punished if it did not happen with respect to their Militia.(footnote 19)

  • Footnotes

    1.) For an overview of Virginia’s Militia in that era, see James B. Whisker, The American Colonial Militia, Volume 5, The Colonial Militia in the Southern States, 1605-1785 (Lewiston, New York: The Edwin Mellor Press, 1997), at 5-93.

    2.) EN-725 — ACT I, An act for the defence of the country, AT A GRAND ASSEMBLIE HOLDEN AT JAMES CITTIE BY PROROGATION FROM THE TWENTIETH OF SEPTEMBER[,] 1671, TO THE TWENTY-FOURTH OF SEPTEMBER[,] 1672, in Laws of Virginia, Volume 2, at 294. This Act was ordered to “be putt into strict and effectual execution”, AT A GRAND ASSEMBLIE HELD ATT JAMES CITTIE BY PROROGATION FROM THE ONE AND TWENTIETH DAY OF SEPTEMBER, 1674, TO THE SEAVENTH DAY OF MARCH, 1676, in Laws of Virginia, Volume 2, at 339. 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 315.

    3.) See generally The Selective Service System, Backgrounds of Selective Service, Military Obligation: The American Tradition, A Compilation of the Enactments of Compulsion From the Earliest Settlements of the Original Thirteen Colonies in 1607 Through the Articles of Confederation 1789, Special Monograph No. 1, Volume II (14 Parts) (Washington, D.C.: Government Printing Office, 1947).

    4.) EN-12 — CHAP. II, § I, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 118. 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 71.

    5.) EN-13 — CHAP. II, 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 16. 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 71.

    6.) EN-14 — CHAP. II, 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 14th day of February, 1754, in Laws of Virginia, Volume 6, at 421. 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 71.

    7.) EN-15 — CHAP. II, 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 530. 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 71.

    8.) EN-16 — CHAP. III, 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 93. 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 71.

    9.) EN-17 — CHAP. IV, 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. 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 72.

    10.) EN-18 — CHAP. III, 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 534. 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 72.

    11.) EN-19 — CHAP. XXXI, 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 241. 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 72.

    12.) EN-20 — CHAP. II, 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 72.

    13.) EN-21 — CHAP. I, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday the fifth day of May, one thousand seven hundred and seventy seven, in Laws of Virginia, Volume 9, at 267. 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 72.

    14.) EN-22 — CHAP. XX, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday, the third of May, one thousand seven hundred and seventy-nine, in Laws of Virginia, Volume 10, at 83. 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 72.

    15.) EN-23 — CHAP. VIII, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the seventh day of May, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 416. 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 72.

    16.) EN-24 — CHAP. XLIV, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday, the sixth day of May, one thousand seven hundred and eighty-two, in Laws of Virginia, Volume 11, at 173. 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 72.

    17.) EN-25 — CHAP. XXVIII, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October, one thousand seven hundred eighty-four, in Laws of Virginia, Volume 11, at 476. 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 72.

    18.) EN-26 — CHAP. I, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 9. 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 72.

    19.) 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 72.