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The Creation of a “True Antient and Indubitable” Right: The English Bill of Rights and the Right to Be Armed

Published online by Cambridge University Press:  10 January 2014

Joyce Lee Malcolm
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Extract

The seventh of the thirteen “ancient and indubitable” rights proclaimed in the English Declaration of Rights was neither ancient nor indubitable. It declared “that the Subjects which are Protestants may have Arms for their Defence suitable to their conditions, and as allowed by Law.” The right of ordinary subjects to possess weapons is perhaps the most extraordinary and least understood of English liberties. It lies at the heart of the relationship between the individual and his fellows and between the individual and his government. Few governments have ever been prepared to make such a guarantee, and, until 1689, no English parliamentary body was either. Its elevation that year to the company of ancient and indubitable rights unmasked the deep-seated distrust between the governing classes and the crown. Together with the equally novel article that gave Parliament greater control over standing armies, this right was meant to place the sword in the hands of Protestant Englishmen and the power over it in the hands of Parliament.

The actual novelty of this right had eluded historians for a variety of reasons. First, its framers were taken at their word when they described it as ancient and indubitable. Indeed, Whig historians preferred to believe there had been a conservative revolution. Thomas Macaulay rejoiced that “not a single flower of the crown was touched. Not a single new right was given to the people. The whole English law, substantive and adjective, was, in the judgment of all the greatest lawyers … almost exactly the same after the Revolution as before it.

Type
Research Article
Information
Journal of British Studies , Volume 32 , Issue 3 , July 1993 , pp. 226 - 249
Copyright
Copyright © North American Conference of British Studies 1993

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References

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14 The requirement to raise a “hue and cry” dates from at least the thirteenth century. A writ of 1252 explained that on the raising of the cry neighbours were to turn out with weapons they were bound to keep. See Frederick Pollock and Frederic Maitland, The History of English Law, 2 vols., 2d ed. (Cambridge, 1968), 2:578–79Google Scholar. The quotation from Richard Burn's popular eighteenth-century guidebook for justices illustrates the longevity of this requirement. See Burn, Richard, The Justice of the Peace and Parish Officer, 2 vols. (London, 1755), 2:17–20Google Scholar.

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18 A series of statutes culminating in the Statute of Winchester (1285) even spelled out the arms each household was required to keep. Maitland writes. “Every man is bound to have arms suitable to his degree, down to the man who need but have bow and arrows.” See Maitland, , Constitutional History of England, pp. 162, 276–77Google Scholar, and see Pollock, and Maitland, , History of English Law, 1:255–56, 421Google Scholar, and 421. n. 4. Two useful books on the militia of early modern England are Boynton, Lindsey, The Elizabethan Militia, 1558–1638 (London, 1967)Google Scholar. and Western, J. R., The English Militia in the Eighteenth Century: A Story of a Political Issue, 1660–1802 (London, 1965)Google Scholar (hereafter cited as Eighteenth-Century Militia).

19 Although the clergy contributed to the militia, they were not expected to fight, and after the Reformation, Catholics were in a similar position. Unlike their fellow subjects. Catholics were not allowed to keep their militia weapons at home.

20 See. e.g., 4 & 5 Phil. & Mary. c. 3 (1557): Firth, C. H. and Rait, R. S., eds., Acts and Ordinances of the Interregnum, 1642–1660, 3 vols. (London, 1911)Google Scholar: “An Act for Setling the Militia of the Commonwealth of England” (London, 1650)Google Scholar.

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22 See 33 Hen. 8, c. 9 which reads in part “that butts be made … in every city, town, and place, according to the law of ancient time used, and that the said inhabitants, and dwellers in every of them, be compelled to make and continue such butts, upon pain to forfeit, for every 3 months so lacking, 20s. And that the said inhabitants shall exercise themselves with long-bows in shooting at the same, and elsewhere, in holy days and other times convenient.”

23 For a detailed account of the English hostility to standing armies, see Schwoerer, Lois G.. “No Standing Armies!” The Antiarmy Ideology in Seventeenth-Century England (Baltimore, 1974)Google Scholar. Game acts that set an income requirement on hunting, for example, had as one motive the desire to keep weapons out of the hands of the lower classes. See Blackstone, William. Commentaries on the Laws of England, 4 vols., 1st ed. (London, 1765–1769). 2:411–12Google Scholar. And see Holdsworth, William S., A History of English Law, 7 vols. (Boston, 1924), 4:505Google Scholar.

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25 See, e.g., Wake, Joan, ed., A Copy of Papers Relating to Musters, Beacons, Subsidies, &c. in … Northampton, A.D. 1586–1623, Northampton Record Society, vol. 3 (Peterborough, 1926), p. 6Google Scholar; Wake, Joan, ed., The Montagu Musters Books, 1602–1623, Northampton Record Society, vol. 7 (Peterborough, 1935), pp. xliii, xlvGoogle Scholar; Rye, Walter, ed., State Papers Relating to Musters, Beacons … 1626 to Civil War, Norfolk and Norwich Archaeological Society (Norwich, 1907), pp. viii–ixGoogle Scholar.

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27 33 Hen. 8, c.6 (1541).

28 Schwoerer, , Declaration of Rights (n. 4 above), p. 77Google Scholar. The ancient Statute of Northampton, 2 Edw. 3, c. 3 (1328), banned carrying weapons in certain places and appeared to allow riding armed “in no place elsewhere.” This broader reading was not enforced in the seventeenth century. See. n. 41 below.

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36 “An Act for the free making saltpetre and gunpowder within the kingdom,” August 1641, 16 Car. 1, c. 21.

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42 The Statute of Northampton, “No Man shall come before the Justices or go or ride armed.” 2 Edw. 3. c. 3 (1328). This statute was passed during a period of great disorder.

43 “A Proclamation For Suppressing of disorderly and unseasonable Meetings, in Taverns and Tipling Houses. And also forbidding Footmen to wear Swords, or other Weapons, within London. Westminster, and their Liberties.” September 29, 1660, British Library (BL). BM 669, fol. 26 (13).

44 “A Proclamation commanding all cashiered Soldiers and other Persons that cannot give a good account of their being here to depart out of the Cities of London and Westminster,” December 17, 1660, BL. BM 669, fol. 26 (37).

45 See BL. BM 1851. ch. 8 (133), (134). (135).

46 Ibid.

47 This proclamation was issued on June 22, 1662.

48 There is no record of a proclamation for 1663, but on November 18, 1664, June 28, 1665. and June 10, 1670, the proclamation was reissued. See Steele, R., Tudor and Stuart Proclamations, 1485–1714, 2 vols. (Oxford, 1910), vol. 2Google Scholar.

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50 See Public Record Office (PRO), Privy Council Register, P.C. 2, vol. 55, fol. 71 (December 1660)Google Scholar.

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52 See Ibid., fol. 187 (September 4, 1661).

53 Ibid., fol. 189 (March 29, 1661).

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55 The Northamptonshire militia had been ordered to disarm all persons “notoriously knowne to be of ill principles or [who] have lately … by words or actions shewn any disaffection to his Majestie or his Government, or in any kind disturbed the publique peace.” See “Earl of Westmorland Letter Book, 1660–1665,” BL, Add. MS 34, 222, fol. 15.

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57 13 & 14 Car. 2, c. 3 (1662).

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64 22 & 23 Car. 2. c. 25 (1671). The Game Act of 1609, in effect until the act of 1671, provided that those who had personal property of £400 were entitled to hunt.

65 22 & 23 Car. 2. c. 25 (1671).

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67 For a more detailed discussion of the subject, see my forthcoming book, Arms for Their Defence: The Origins of an Anglo-American Right, chap. 4.

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74 CSPD, 1686–87, p. 164, June 10, 1686.

75 Ibid., p. 94. Henry Somerset, duke of Beaufort to Robert Spencer, earl of Sunderland, April 5, 1686.

76 Ibid., p. 118, Sunderland to Beaufort, May 1, 1686.

77 Ibid., p. 164. June 10, 1686.

78 See Ibid., pp. 308, 313, 349; Modern Reports; or, Select Cases Adjudged in the Courts of King's Bench, Chancery, Common Pleas, and Exchequer, since the Restoration of Charles II, 9 vols. (London, 1720–1733), 3:117Google Scholar.

79 CSPD, 1686–87, p. 314, December 6, 1686.

80 Letters were sent to the earl of Burlington, lord lieutenant of the West Riding of Yorkshire; the earl of Derby, lord lieutenant of Cheshire, Lancashire, and Chester; Viscount Fauconberg, lord lieutenant of the North Riding of Yorkshire; the duke of Somerset, lord lieutenant for Somerset and the East Riding of Yorkshire; the earl of Thanet, lord lieutenant of Westmorland and Cumberland; and the bishop of Durham, lord lieutenant for Durham. See Ibid., p. 314.

81 For example, a Roman Catholic had been appointed lord lieutenant of Cambridgeshire in October 1686.

82 Somers MS. in York, ed. (n. 3 above), 2:415.

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87 Ibid.

88 Ibid., 10:29.

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94 See CJ, 10:801, 805, 807, 824. The new game act was styled “An Act for the more easie Discovery and Conviction of such as shall Destroy the Game of this Kingdom,” 4 & 5 Will, & Mary, c. 23 (1692).

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96 See 5 Ann c. 14.

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103 Ibid. Emphasis is in the original.

104 Clark, J. C. D., Revolution and Rebellion: State and Society in England in the Seventeenth and Eighteenth Centuries (Cambridge, 1986), p. 74CrossRefGoogle Scholar. For his analysis, see pp. 74–76.