Last Updated on January 4, 2022 by Constitutional Militia
Women and Militia Service
During the pre-constitutional era women were subject to some Militia duties, if only of a financial nature. And if a legislature could have assigned to them some of those duties, it could have assigned all such duties.
Women and the Militia
Because no Colony or independent State formally enrolled women in her Militia during the pre-constitutional era, some superficial students of this subject might contend that anyone excluded from the Militia during pre-constitutional times should be excluded from the Militia today; women were excluded from the Militia in that era; therefore, women should be excluded from the Militia today. That conclusion is wrong.
In the pre-constitutional era, the full duty to keep and bear arms defined in the colonial and State Militia Acts applied only to all able-bodied adult free males, but never to free women and usually not to male slaves. Adult free women however, were often required by law to provide firearms, ammunition, and accoutrements for their minor sons and their male apprentices and servants enrolled in the Militia—so in this limited sense, free women too, were subject to a duty to keep arms. And in times of crisis, armed women who organized themselves in their own military company’s were not unknown.[1]
The duty to keep and bear arms carried with it an implicit right to do so, without such fulfillment of the duty would have been problematic or even impossible. So, “the people” who appertained the right and duty to keep and bear arms in relationship to the Militia consisted of all adult free males (for all purposes) and certain adult women (for certain purposes). Moreover, no statute in that era ever generally disbarred any free men or women from themselves possessing firearms in their homes, or from carrying them abroad for any legitimate purpose reason unrelated to the Militia.[2]
if any person or persons listed under the command of any Captain * * * of the militia, shall or do not appear complete in arms * * * upon the * * * training Days * * * as when their respective Captain * * * shall call them together, either by alarum or any other time or times * * * during times of war. And if any persons listed * * * shall neglect their respective duties and due obedience * * * [they] shall forfeit [certain sums of money.][5]
Everyone then living doubtlessly understood without being told that, in practice, the “person or persons listed” to whom the statute referred without differentiation of gender were and could be men alone, because from the Colony’s very earliest days only “Men” were “allowed and assigned to beare armes” and to “make their personall appearance completely armed with Muskett and all its furniture”.[1] Yet even this statute made the limitation of service to men clear enough in its further directives
[t]hat all 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 * * * .
* * * That 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 and warding, yet nevertheless, it shall be in the power and authority of the Captain * * * to order the said house keeper to find a sufficient watcher or warder, or to pay so much money as will hire or procure one[.][2]
Footnotes:
1.) EN-546 — [Number] 20, At the Generall Courte Held at Portsmouth on the 6th of August, 1640, in Rhode Island Records, Volume 1, at 104.
2.) EN-547 — 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 431-432 (emphasis supplied).
Women were not exempted from all Militia duties. Female “house keepers” such as widows or spinsters were required to procure suitable male substitutes to serve in the Watch and the Ward. And independent women, such as widows, were obliged to provide firearms, ammunition, and accoutrements for those of their minor sons, other young male dependents, and servants who were enrolled in the Militia, and to ensure that the latter performed their other Militia duties, by being made personally liable in fines for any defaults by their male charges in those particulars:
• [1665] “[F]or every defecte in not duely attending the trainings, each one listed, soe deficient, shall for every dayes defect, pay three shillings fine, to be levied by distraint on the partyes goods, or on the goods of the master or mistress, or parents of such sones or sarvents as are defective[.]”[1]
• [1677] “[I]f any person or persons to be” fined “be a son or servant, that have noe visible estate of their owne, * * * then the * * * fines and forfeitures shall be levied and distrained upon the estate of their respective masters, parents or other persons under whose service, command or tuition they are.”[2]
• [1718, 1730, and 1744] “[E]very Enlisted Person, that shall Refuse or Neglect to make his Personal appearance Accoutred as [required] * * * on * * * Training Days * * * shall for every such Default pay * * * Three Shillings in Mony * * * & if such defaulter shall Refuse so to do, * * * the Captain * * * shall Grant forth his Warrant * * * to take and distrain so much of the Personal Estate of such delinquent Person, or such as have them in Tuition,[3] as near as conveniently may be will pay his Fine or Fines * * * ; and such Estate that shall be taken by distress, shall be duly Apprized by Two Free-Holders * * * , and the Captain is * * * Impowered to Administer the same, and the overplus if any there be, to be returned to the owner thereof, and if he shall refuse to receive the same, then the Clerk shall give him Credit * * * which shall be accounted for out of his next Fine that shall become due[.]”[4]
• [1756] “[W]hen any Person under the Age of twenty-one Years, shall neglect or refuse to pay his Fine for Neglect of military Duty, the Clerk shall make Distress upon the Goods and Chattels of the Parents or Masters of such Persons[.]”[5]
• [1766] “[I]n Case such Delinquent be under the Age of Twenty- one Years, the Clerk shall make Distress upon the Goods and Chattels of the Parents or Masters of such Delinquent Persons[.]”[6]
• [1781] “[T]he Sergeant * * * shall take and distrain sufficient of the personal Estate of the Delinquent, if to be found, to satisfy and pay his Fine or Fines, having first required him to pay the same * * * : [and t]hat in case such Delinquent be under the Age of Twenty-one Years, the Sergeant shall make Distress upon the Goods and Chattels of the Parent or Master of such delinquent Person[.]”[7]
Footnotes:
1.) EN-550 — Acts and Orders of the Generall Assembly, sitting at Newport, May the 3, 1665, in Rhode Island Records, Volume 2, at 115.
2.) EN-551 — At the Generall Assembly and Election held in his Majesty’s name, May the 2d, 1677, at Newport, in Rhode Island Records, Volume 2, at 570-571.
3.) Compare the use of the term “tuition” in 1718 and thereafter with its use in 1677, in light of the term’s meaning of “[g]uardianship; superintendent care”, particularly “over a young person”. S. Johnson, Dictionary, ante note 50, in both the First (1755) and the Fourth (1773) Editions; N. Webster, An American Dictionary, ante note 15, definition 1; Webster’s Revised Unabridged Dictionary, ante note 11, definition 1.
4.) EN-552 — LAWS Made and Past by the General Assembly of his Majesties Colony of Rhode-Island, and Providence-Plantations, in New-England, begun and Held at Newport, the Seventh Day of May, 1718, and Continued by Adjournments to the Ninth Day of September following, in Public Laws of Rhode Island, 1719, at 88; in Public Laws of Rhode Island, 1730, at 93; and in Public Laws of Rhode Island, 1744, at 68.
5.) EN-553 — An ACT in Addition to, and Amendment of the several Acts regulating the Militia, 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 held by Adjournment at South-Kingstown, upon the last Monday in February, One Thousand Seven Hundred and Fifty-six, in Rhode Island Acts and Resolves, Volume 2, at {73}.
6.) EN-554 — 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 183.
7.) EN-555 — An ACT in Addition to, and Amendment of, an Act, passed in October, A.D. 1779, entituled, “An Act for the better forming, regulating and conducting, the military Force of this State”, At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence-Plantations, begun and holden, by Adjournment, at South-Kingstown, within and for the said State, on the Third Monday in March, One Thousand Seven Hundred and Eighty-one, in Rhode Island Acts and Resolves, Volume 11 [14], at {52}.
As the legal history makes clear, although women typically were almost entirely exempted from pre-constitutional Militia service, they were never absolutely excluded. Here, definitions are important.
• “To exempt” means to grant someone an immunity or freedom from a liability that otherwise would attach to that individual.[1]
• Whereas, “to exclude” means “[t]o shut out; to hinder from entrance or admission”;[2] “to debar from participation;[3] and “to prohibit”.[4]
Thus, “to exclude” means to shut out an individual from the relevant group in the first place, so that no liability related to membership in that group can ever attach to her; and therefore she requires no “exemption” from any particular liability. If the individual is subject to even a single liability related to membership, then she is not “excluded” from the group, even though she may be “exempted” from all other such liabilities.[5]
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).
2.) Id., definition 1 in both the First (1755) and the Fourth (1773) Editions. Accord, Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 890, definition 1.
3.) Webster’s Revised Unabridged Dictionary, ante note 2, at 521, definition 1. Accord, The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 1, at 918, definition 1; Webster’s Third New International Dictionary of the English Language (Springfield, Massachusetts: G. & C. Merriam Company, 1971), at 793, definitions 1a and 1b.
4.) Id. at 1, definition 2 in both editions. (Neither edition serially numbered its pages.)
5.) 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 950.
Today, women would be included to serve in “a well regulated Militia” as they have been legally emancipated since the colonial period.[3] As part of every State “regulating” her Militia, the statute would include “every able-bodied adult” as being required to serve in that State’s Militia. Obviously the social mores of today have changed as it is commonplace to have women serve in the United States Armed Forces—which would concurrently apply women performing their Militia service.
1.) See e.g., David H. Fischer, Paul Revere’s Ride (New York, New York: Oxford University Press, 1994), at 170-171.
2.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), by Dr. Edwin Vieira, Jr., page 44.
3.) U.S. Const. amend XIX.
