Watch and the Ward

“[T]o this day the Militia retain the explicit constitutional authority—that no police forces share *** “to execute the Laws of the Union” when specially “call[ed] forth” for that purpose, (footnote 1) and to execute the laws of their States at all other times.” 

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 236.

Also see Militia: Entrusted with “Police” PowersMilitia: Not Subordinate to Sheriffs   • Governor: No Arbitrary Powers Over the Militia  • Militia: Largely Outside the Jurisdiction of Congress Militiamen Firearms Kept in the HomeMilitia: Immune From Contemporary “Gun Control” • National Guard: Not a Militia


“Watch” and “Ward” Defined

  • Definitions of ‘watch’ and ‘ward’ are necessary for clarity. The Militia statutes treated the differentiation of these words as substantial.

    Watch” variously means “[g]uard; vigilant keep”, “[w]atchmen; men set to guard”, and the “[p]ost or office of a watchman” (footnote 1)—or “[t]he act of watching”, “wakeful, vigilant, or constantly observant attention”, “preservative or preventive vigilance”, and “guarding by night”; “a body of watchmen”, “a sentry”, “a guard”; “[t]he post or office of a watchman” and “the place where a watchman is posted, or where a guard is kept”; and “[t]he period of the night when a person does duty as a sentinel, or guard” (footnote 2)—and, in particular, “men set for a guard, either one person or more, * * * to espy the approach of an enemy or other danger, and to give an alarm or notice”. (footnote 3) “Ward” variously means “[t]o guard; to watch”, “[t]o defend; to protect” (footnote 4) 528—or “the act of guarding * * * specifically, a guarding during the day”; and “[o]ne who, or that which, guards”, a “garrison” (footnote 5)—and “[t]o keep in safety”, “to guard”, “[t]o defend”, “to protect”; “[t]o be vigilant”; and “[t]o act on the defensive with a weapon”. (footnote 6) When distinctions are drawn between the two, “watch” usually denotes keeping guard during the night, and “ward” during the day. (footnote 7) Some authorities suggest that such a differentiation is a matter more of word-play than of reality. (footnote 8) But Rhode Island’s pre-constitutional statutes treated it as substantial. (footnote 9)

    Footnotes:

    1.) Samuel Johnson, A Dictionary of the English Language, First Edition (London, England: W. Strahan, 1755), and Fourth Edition (London, England: W. Strahan, 1773), definitions 4, 5, and 7 in both the First (1755) and the Fourth (1773) Editions. (Neither edition serially numbered its pages.)

    2.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1630, definitions 1 through 4. Accord, The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 2, at 3699, definitions 3, 6, 6b, 8, and 11.

    3.) Noah Webster, An American Dictionary of the English Language (New York, New York: S. Cosgrove, 1828), definition 5.

    4.) Id., at 1, definitions 1 and 2 in both the First (1755) and the Fourth (1773) Editions.

    5.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1626, definitions 1 and 2 (noun). Accord, The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 2, at 3684, definitions 1 and 11 (noun).

    6.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1627, definitions 1 and 2 (transitive verb), and definitions 1 and 2 (intransitive verb). Accord, The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 2, at 3684, definition 1 (verb).

    7.) See, e.g., Samuel Johnson, A Dictionary of the English Language, First Edition (London, England: W. Strahan, 1755), and Fourth Edition (London, England: W. Strahan, 1773), definition 8 (“watch” is “[a] period of the night”) in both the First (1755) and the Fourth (1773) Editions;Noah Webster, An American Dictionary of the English Language (New York, New York: S. Cosgrove, 1828), definition 8 (“watch”) and definition 1 (“ward”); Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1630, definition 1 (“watch”), and 1626 and 1627, definition 1 (“ward”); The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 2, at 3699, definition 4; Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Company, Revised Fourth Edition, 1968), at 1761.

    8.) The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 2, at 3699, definition 7 of “watch”.

    9.) 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 235.

Watch and the Ward 

The Watch in Colonial America is often treated as the first institution established for the regular purposes of “law enforcement”, and therefore as the precursor of modern-day municipal police forces. (footnote 2) This view, however, forgets that both the Watch and the Ward were effectively subsets of the pre-constitutional Militia (as probably no one who served in the Watch or the Ward was not a member of the Militia, too), and that to this day the Militia retain the explicit constitutional authority—that no police forces share (unless, as they should be, all police forces are deemed to be, and employed as, specialized units within the Militia (footnote 3))—“to execute the Laws of the Union” when specially “call[ed] forth” for that purpose, (footnote 4) and to execute the laws of their States at all other times.

Some authorities suggest that such a differentiation between The “watch” and the “ward” is a matter more of word-play than of reality. (footnote 5) But Rhode Island’s pre-constitutional statutes treated it as substantial. For within Rhode Island’s Militia, her Watch and Ward embodied the fullness of compulsory duty. From the earliest days in America, every man who could carry a firearm performed the functions of Watch and Ward as a practical matter pursuant to statute:

  • • [1639] “[N]oe man shall go two miles from the Towne unarmed, eyther with Gunn or Sword; and that none shall come to any public Meeting without his weapon.” (footnote 6)
  • • [1643] “[E]very man do come armed unto the [general Town] meeting upon every sixth day.” (footnote 7)
  • The Watch was an institution as ancient in origin as its necessity in Anglo-American society was always apparent. In positive law, it dates from at least the English Statute of Winchester in 1285.

    The Watch was an institution as ancient in origin as its necessity in Anglo- American society was always apparent. In positive law, it dates from at least the English Statute of Winchester in 1285, which commanded that

    “all watches be made as it hath been used in times past * * * in every city by six men at every gate; in every borough, twelve men; every town, six or four, according to the number of the inhabitants of the town, and they shall watch the town continually all night from the sun-setting to the sun- rising. And if any stranger do pass by them he shall be arrested until morning[;]

    and that

    every man have in his house harness [that is, armaments] for to keep the peace * * * that is to say, every man between fifteen years of age and sixty years shall be assessed and sworn to armour according to the quantity of their lands and goods; that is to wit, from fifteen pounds lands, and goods forty marks, an hauberke, an helme of iron, a sword, a knife, and a horse; and from ten pounds of lands, and twenty marks goods, an hauberke, an helme of iron, a sword, and a knife; and from five pounds lands, a doublet, an helme of iron, a sword, and a knife; and from forty shillings of land, a sword, a bow and arrows, and a knife; and he that hath less than forty shillings yearly shall * * * keep gisarmes, knives and other less weapons; and he that hath less than twenty marks in goods, shall have swords, knives, and other less weapons; and all other that may shall have bows and arrows out of the forest, and in the forest bows and boults. And that view of armour be made every year two times. And * * * two constables shall * * * make the view of armour; and * * * present * * * such defaults as they shall find[.]” (footnote 1)

    Footnotes:

    1.) 13 Edward I, Chapter 6, ¶¶ IV and VI, as presented in William Stubbs, Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward the First (Oxford, England: Clarendon Press, Eighth Edition, 1905), at 473, 474. 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 235-236.

  • Rhode Island’s legislators systematized the Watch and the Ward in both by statute in both times of war and peace. Nine Militia statutes spanning the course of 100 years—from 1676 to 1776.

    Rhode Island’s legislators systematized the Watch and the Ward by statute, they determined that:

    • (i) the duty should be enforced in both peace and war;
    • (ii) any man of even the most modest physical capabilities who could perform the requisite functions should do so;
    • (iii) a man’s conscientious objection to the personal use of firearms should not preclude his service;
    • (iv) women who were the heads of their households should be made financially responsible for providing suitable men to perform the duty;
    • (v) members of Independent Companies should not be exempt; and
    • (vi) even the utterly subservient status of Negroes within society should not disqualify them.

    Thus—

    • • [1676] “[W]hosever in this Island [that is, Rhode Island] hath a negro man capable to watch the said negro, shall be lyable to that service, and capable negros to be as lyable to that service as Englishmen.” (footnote 1)

    • • [1699, 1701, and 1705] “[A]ll persons within this Collony, above the age of sixteen, and under the age of sixty years, as well house keepers as others, shall be obliged to watch or ward, or find or procure a sufficient man to watch or ward, upon legall notice given to any of them[.]” (footnote 2)

    • • [1719 and 1744] “That the Town Council of each respective Town in this Colony, Be * * * Authorized and Impowered, to appoint, Settle and Order a Military Watch in Time of War * * * of such Number of Persons as they think proper”; and “[t]hat each respective Town Council * * * be * * * fully Impowered to appoint and Settle all Watches in Time of Peace”. (footnote 3)

    • • [1730] Although this statute “exempted [conscientious objectors] from all Service, Fines and Forfeitures, accruing by any Law, for the Neglect of Training, bearing Arms, practicing the Art of War, or of attending on such Persons as do practice the same”, it further provided “[t]hat this Act * * * shall not be deemed or constrained to exempt any Person from watching and warding in this Colony”.  (footnote 4)

    • • [1740] “That all Persons making solemn Engagement * * * that it is against their Conscience to bear Arms at all, shall on an Alarm, appear * * * without Arms, to be employed as * * * Watches * * * or else * * * to watch against or extinguish any Fires that may be kindled at such Times, either by Design or Accident[.]” (footnote 5)

    • • [1755] “[A]ll those * * * duly enlisted in this [Independent Artillery] Company * * * shall be exempted from bearing Arms, or doing military Duty (watching and warding excepted) in the several Companies or train’d Bands in whose District they respectively live[.]” (footnote 6)

    • • [1766] This statute contained the same provisions as the statute of 1740. (footnote 7)

    • • [1774] This statute contained the same provisions as the statute of 1755, albeit for a different Independent Company. (footnote 8)

    • • [1776] “That a Watch, consisting of not more than Six Men, be kept in each of the Towns bordering upon the Sea * * * : That the Colonels of each respective Regiment be empowered and directed to place the said Watch[.]” (footnote 9)

    Footnotes:

    1.) EN-526 — Proceedings of the Generall Assembly of the Collony of Rhode Island and Providence Plantations, held at Newport, the 13th of March, 1675-6, [Session of] Aprill the 4th[, 1676], in Rhode Island Records, Volume 2, at 536. 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 237.

    2.) EN-527 — An Act for the better regulating the militia, and for punishing offenders as shall not conform to the law thereunto relating, At the Generall Assembly and Election held for the Collony at Newport, the 7th of May, 1701, in Rhode Island Records, Volume 3, at 432. This statute is dated “1699” in LAWS AND ACTS OF RHODE ISLAND, AND PROVIDENCE PLANTATIONS Made from the First Settlement in 1636 to 1705, at 92, reprinted in J.D. Cushing, Editor, The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations (Wilmington, Delaware: M. Glazier, 1977), at 107. Reprinted from a compilation dated “1705”, it appears in Military Obligation, Rhode Island, at 37. 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 237.

    3.) EN-528 — An Act for the Establishing of Watches throughout this Colony, both in Time of War and Peace, A LAW, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island, and Providence- Plantations, held at Newport, by Adjournment to the Eighth Day of September, 1719, in Public Laws of Rhode Island, 1744, at 80. 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 237.

    4.) EN-529 — An Act for the Relief of Tender Consciences, and for preventing their being burthened with Military Duty, LAWS, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island and Providence-Plantations, in New-England, held at Newport, by Adjournment, on the third Monday of June, 1730, in Public Laws of Rhode Island, 1730, at 218. 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 237.

    5.) EN-530 — An Act for the more effectual putting the Colony into a proper Posture of Defence, A LAW, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island, and Providence-Plantations, in New-England; held by Adjournment, at Warwick, the Twenty-Seventh Day of January, 1740, in Public Laws of Rhode Island, 1744, at 234. 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 238.

    6.) EN-531 — An ACT for erecting an ARTILLERY COMPANY in the Towns of Westerly and Charlestown, At the GENERAL ASSEMBLY of the Governor and Company of the English Colony of Rhode-Island, and Providence-Plantations, in New-England, in AMERICA; begun (in Consequence of Warrants issued by his Honor the Governor) and held at Providence, on Wednesday the first of January, One Thousand Seven Hundred and Fifty-five, in Rhode Island Acts and Resolves, Volume 2, at {64}. 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 238.

    7.) EN-532 — An ACT, regulating the Militia in this Colony, part of An ACT, establishing the Revisement of the Laws of this Colony, and for the putting the same in Force, in A LAW, Made and passed at the General Assembly of the Colony of Rhode-Island and Providence Plantations, held at Providence on the First Monday in December, 1766, in Public Laws of Rhode Island, 1767, at 185. 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 238.

    8.) EN-533 — AN ACT establishing an Independent Company, by the Name of The Light-Infantry for the County of Providence, At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the English Colony of Rhode-Island, and Providence Plantations, in New-England, in America, begun and holden, by Adjournment, at Newport, within and for the said Colony, on the Second Monday in June, One Thousand Seven Hundred and Seventy-four, in Rhode Island Acts and Resolves, Volume 7, at {38}. 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 238.

    9.) EN-534 — At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the English Colony of Rhode Island and Providence Plantations, in New-England, in America, begun and holden by Adjournment, at Providence, within and for the Colony aforesaid, on the Second Monday in January, One Thousand Seven Hundred and Seventy-six, in Rhode Island Acts and Resolves, Volume 8 [9], at {221}. 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 238.

  • The only means by which men could obtain exemptions in practice from the Watch and the Ward were by providing suitable substitutes or paying fines. Two Militia statutes referenced.

    The only means by which men could obtain exemptions in practice from the Watch and the Ward were by providing suitable substitutes or paying fines. For instance—

    • • [1699, 1701, and 1705] “[A]ll persons within this Collony, above the age of sixteen, and under the age of sixty years, as well house keepers as others, shall be obliged to watch or ward, or find or procure a sufficient man to watch or ward, upon legall notice given to any of them * * * . And if any person shall refuse or neglect to watch * * * , he or they so neglecting or refusing, shall pay as a fine * * * five shillings * * * , to be taken and imprisoned in manner and form as the fines for neglecting of training or alarum are taken and proceeded in.

      “And * * * all house keepers, as well widows as others, although there be no person in said family that is qualified according to law as to watching or warding, yet nevertheless, it shall be in the power and authority of the Captain, commander or head officer * * * , at their discretion, to order the said house keeper to find a suitable watcher or warder, or to pay such money as will hire or procure one; and upon neglect of refusall thereof, to be under the like fine and penalty[.]” (footnote 1)

    • • [1744] “[W]hen it shall be thought necessary to set a double Watch in any Town in this Government, every Person that shall be legally notified to watch at such Times, and shall refuse or neglect to appear, * * * or send a good and sufficient Man in his Room, such Person for every such Offence, shall pay a Fine of Sixteen Shillings. (footnote 2)

    Footnotes:

    1.) EN-535 — An Act for the better regulating the militia, and for punishing offenders as shall not conform to the law thereunto relating, At the Generall Assembly and Election held for the Collony at Newport, the 7th of May, 1701, in Rhode Island Records, Volume 3, at 432. This statute is dated “1699” in LAWS AND ACTS OF RHODE ISLAND, AND PROVIDENCE PLANTATIONS Made from the First Settlement in 1636 to 1705, at 92, reprinted in J.D. Cushing, Editor, The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations (Wilmington, Delaware: M. Glazier, 1977), at 107. Reprinted from a compilation dated “1705”, it appears in Military Obligation, Rhode Island, at 37. 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 238.

    2.) EN-536 — An ACT for putting this Colony in a Posture of Defence, and for rend’ring the Militia in the several Towns thereof, more Useful in Time of an Actual Invasion, LAWS, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island, and Providence-Plantations, in New-England; held by Adjournment, at Newport, the Twenty Second Day of May, 1744, in Public Laws of Rhode Island, 1744, at 289. 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 238.

When distinctions are drawn between the two, “watch” usually denotes keeping guard during the night, and “ward” during the day. (footnote 8) Some authorities suggest that such a differentiation is a matter more of word-play than of reality. (footnote 9) But Rhode Island’s pre-constitutional statutes treated it as substantial. (footnote 10)

If the Militia were properly revitalized along strict constitutional lines, contemporary police forces and other law-enforcement agencies would become sub-organizations within the Militia, as were the Minutemen and the Rangers in pre-constitutional America. For further analysis see “No Need Exists To Disarm The Police

  • Footnotes

    1.) U.S. Const. art. I, § 8, cl. 15.

    2.) See, e.g., Cynthia Morris & Bryan Vila, Editors, The Role of Police in American Society: A Documentary History (Westport, Connecticut: Greenwood Press, 1999), at 3-4.

    3.) 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 236.

    4.) U.S. Const. art. I, § 8, cl. 15.

    5.) The Compact Edition of the Oxford English Dictionary, ante note 11, Volume 2, at 3699, definition 7 of “watch”.

    6.) By the Body Politicke in the Ile of Aqethnec, Inhabiting this present, 25 of 9: month. 1639, in Rhode Island Records, Volume 1, at 94.

    7.) At a Generall Towne Meetinge at Portsmouth, 1st of March, 1643, in Rhode Island Records, Volume 1, at 79.

    8.) See, e.g., S. Johnson, Dictionary, ante note 50, definition 8 (“watch” is “[a] period of the night”) in both the First (1755) and the Fourth (1773) Editions; N. Webster, An American Dictionary, ante note 15, definition 8 (“watch”) and definition 1 (“ward”); Webster’s Revised Unabridged Dictionary, ante note 11, at 1630, definition 1 (“watch”), and 1626 and 1627, definition 1 (“ward”); The Compact Edition of the Oxford English Dictionary, ante note 11 Volume 2, at 3699, definition 4; Black’s Law Dictionary, ante note 368, at 1761.

    9.) The Compact Edition of the Oxford English Dictionary, ante note 11, Volume 2, at 3699, definition 7 of “watch”.

    10.) 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 235.