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PERRIN LOVETT

~ Deo Vindice

PERRIN LOVETT

Tag Archives: Assize of Arms

The Second Amendment: English Common Law Pre-History

02 Tuesday Apr 2013

Posted by perrinlovett in Legal/Political Columns

≈ 3 Comments

Tags

America, American Revolution, arms, Assize of Arms, colonies, Commentaries on the Laws of England, Declaration of Independence, Empire, England, English, English Bill of Rights, English Civil War, Glorious Revolution, gun control, Jamestown, King, King James II, Liberty, Magna Carta, Mayflower, militia, Myles Standish, Natural Law, oppression, Parliament, peace, Pilgrims, Plymouth, police, regulars, rights, Rome, Second Amendment, Sir. William Blackstone, standing army, Statute of Einchester, The People, tyranny, War, weapons

In my last column in this series I ended by reviewing some of the ancient British customs regarding arms and defense.  This article concerns those more readily available but still usually uncited English legal traditions dating to several hundred years before the American Revolution.  Again, as with purely ancient intellectuals, those who preserved and lived this period of history regarded the rights of defense, self-preservation, and, necessarily, arms to be the stuff of natural law.  They regarded these rights as to defense from criminals, defense against foreign threats, and, particularly, as to thwarting domestic tyranny.

This common law tradition was already set in writing in the twelfth and thirteenth centuries with the Assize of Arms (1181) and the Magna Carta (Great Charter, 1215).  In 1285 the Statute of Winchester mandates that all citizens provide arms, according to their respective abilities, for militia usage.  Through this period and until the seventeenth century, England had little in the way of a professional military or police force.  Citizens were expected to do their part in order to fulfill both roles.  This meant that the people were expected (required even) to keep and, at times, bears their own arms. 

Two calamitous events during the seventeenth century dramatically effected the legal tradition: the Civil War of 1642 and the Glorious Revolution in 1688.  While the former is often painted as a power struggle and the latter a religious conflict, both were concerned foremost with who would control the power of the Crown.  In 1689, these and other events, lead to the English Bill of Rights.  The Bill was fully known as “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown;” in light of the recent religious (power) struggles it was riddled with references to Protestants and Catholics, which I will disregard here as unnecessary.

Very similar in nature to the American Declaration of Independence, the Bill lists a litany of charges against the late King James, II.  Among these were the following: “[R]aising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;” and “[C]ausing several good subjects … to be disarmed … contrary to law.”

Accordingly, the Lords assembled at Westminster declared certain rights and liberties as inviolable.  Two of these addressed the above problems: “That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;” and “That the subjects … may have arms for their defence suitable to their conditions and as allowed by law.” 

English_Bill_of_Rights_of_1689_(middle)

(English Bill of Rights.  Google.)

The Reader will recall that standing armies were a feared tool of tyranny during and after the American Revolution and also as far back as the days of the Roman Republic.  The presumed method for national defense (against all agents of evil) was a heavily armed citizenry which could assemble as needed in the form of a militia.  The seventeenth century also saw increased professionalism and modernization within the English militia.  This, in turn, partly gave way to the ensuing establishment of a permanent “Redcoat” army as the Kingdom gradually assumed the role of a major world Empire.

As we well know, part of that Empire was based here, in North America, in the territory which eventually became the United States.  Those earliest parts (colonies) were first established at Jamestown in 1607 and at Plymouth in 1620.  These had been preceded by the lost/abandoned colonies of Popham (Maine) in 1607 and Roanoke in 1585. 

Jamestown was the site of numerous battles and all out wars fought between the English and the native indians (Chesapeake).  It was the birthplace of the modern state of Virginia.  In 1691 Plymouth Colony merged with The Massachusetts Bay Colony in what is now modern Massachusetts, all being part of the greater Dominion of New England. 

Plymouth, from the very start was a model citizen militia society.  While a few students today are still aware of the Pilgrims and their Atlantic crossing aboard the Mayflower, fewer still are knowledgable as to the martial force necessary to carve out the new world.  The Mayflower’s first stop was at Provincetown Harbor in November of 1620.  Desiring a better location, and to take advantage of the hospitable New England winter, they later removed to Plymouth at the end of December.  Most remained aboard ship while a team of men worked during the day to raise a village from the ground.  Twenty armed men were left ashore every night to prevent marauding.  These men were average citizens who provided their own weapons; 911 was not an available option.

Early relations with the local indians were mixed at best.  As more and more colonists arrived the indians perceived the impending loss of their lands and many became hostile.  Myles Standish was a trained military officer and was placed in charge of security in the new colony.  Many view him as somewhat of a hot head.  At any rate he was forced to organize militias from among Englishmen in order to repel attacks by natives.  “Major” wars erupted in 1637 and 1675.  Each time the militia was sent forth to battle, not any group of regular troops.  It was by the force of common people bearing arms that America was crafted from the central-eastern part of the continent. 

militia

(Early Militia.  Google.)

Regular military units were called in during the next century first to assist and bolster the militias against common enemies (the French) and, later, to do battle with the militia.  This latter action contributed greatly to the Founders’ desire for a continued militia force instead of a full-time army in young America.  The early Americans were also governed in their views by the pre-existing English law and several legal commentators.

Perhaps the greatest commentator of his time regarding natural defense, along with natural law and the civil laws of England in general was Sir. William Blackstone (1723 -1780).  Blackstone was an attorney and politician who published from 1765 – 1769 the Commentaries on the Laws of England, a classic still refered to and cited by the law. 

Blackstone’s commentary on defense and other matters, generally, has resonance even today.  He famously wrote: “It is better that ten guilty persons escape than one innocent suffer.”  In modern, fading America, the forces of anti-self-defense gun control stupidly prefer to disarm any and all persons, leaving them to suffer whatever fate criminals have in store for them, than to see a tiny minority of deranged persons have the possibility of committing crimes.  All the more stupid is the abundant evidence that such an approach leads only to suffering innocents concurrent with rampant criminal behavior.  Defiance of natural law is as successful as defiance of gravity or physics.

Chapter One, Book One of Blackstone’s treatise is entitled: On the ABSOLUTE Rights of Individuals (emphasis added).  The final absolute right of individuals set forth therein is “that of having arms for their defense.”  Blackstone called this right “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

Blackstone went into further detail, describing the various remedies available to the people in cases of tyranny: first, use of the courts; second, petitions to the King and to Parliament; and finally, when all else fails, having and using their arms to repel tyranny.

At last we draw near to that time when the American colonists repelled the tyranny of the mother country.  In my next segment I will discuss the traditions regarding defense and arms in America before the introduction of the Second Amendment.  As with their ancient predecessors, these traditions echoe still in our modern world.

More Ancient Legal Doctrines of Self-Defense/Preservation

26 Tuesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 4 Comments

Tags

10 Commandments, America, Angles, arms, Assize of Arms, Britain, Catechism, Catholic Church, Cicero, Codex Justianius, Deuteronomy, Digesta, England, Exodus, God, Israel, Jesus Christ, John, King Arthur, King David, King Henry II, King John, kings, law, Leviticus, Lex Talionis, Magna Carta, militia, Natural Law, Normans, Numbers, people, Pilate, Psalms, Romans, Saxons, Second Amendment, self-defense, Smauel, truth, tyranny

This is the second installment in my new series about the Second Amendment, militias, government, and the natural right of self/defense.  After a few more segments I’ll get to the American experience.  This column is concerned with more ancient sources. Read on.

My last segment concerned the Natural Law and the provisions therein allowing for armed resistance of force and tyranny.  For those not acquainted with Natural Law (American attorneys, etc.), it is the universal law instituted by God for the management of human societies.  God’s first draft was extraordinarily simple, as He supposed that people would be capable of easily governing themselves in paradise.  The law was codified as: “Don’t eat that fruit.”  Unfortunately, the first humans were as dense as their descendants today.  They ate the fruit and thus complicated our lives forever. 

God later attempted to set out ten simple laws He expected us to obey.  True to our fallen, fallible, self-determining ways, we messed those up too.  After constantly displaying an inability to adhere to the simple, the ancient Hebrews began to demand of God a “modern” system of government for themselves.  They seemed jealous of surrounding Peoples who had, among other things, kings.  God, in His omnipotence, offered that they Hebrews didn’t really need or want a king.  They begged to differ, instituted a king, and began to suffer immediately.

After the failure of the kings, and the subjugation of the people by more powerful earthly empires, God sent His Son in yet another attempt to clarify His law.  Jesus, simultaneously ratifying the existing law and providing an alternative route to salvation, issued another simple commandment.  We have not been too quick to pick on that one either.  Thus, it appears that people are stuck with their worldly trappings and their constant inability to deal honestly ad logically therewith until the Second Coming.  Thus, in our present state, and if we are even capable, we must attempt to relate our world to the eternal principles of the Lord.  That is Natural Law.  Having ignored and broken the concrete mandates given us, we are left to guess at how such Law applies to our civilizations.  Unlike the laws of science, math, and physics, which are difficult but possible to extrapolate and apply, the Laws of society are much less definable.  This grasping process has been the work of scholars and theologians for millennia. 

The Law as applied to self-preservation has been called the first law of nature.  This makes sense as, without resorting to keeping ourselves from harm, most of the other “laws” we can divine seem to matter little. 

Previously, I examined several Bible verses which supported the right of self-defense and preservation.  I also cited the Catechism of the Catholic Church regarding the duty (not only the right) to defend oneself and those in one’s charge.  This doctrine has existed for thousands of years.  We are commanded: “Rescue the weak and needy; Deliver them out of the hand of the wicked.”  Psalm 82:4. 

King David, definitely not a pacifist, praised God, saying, “Blessed be the Lord my strength which teacheth my hands to war, and my fingers to fight.”  Psalms 144:1.  First Samuel 25:13 described an Israelite muster: “And David said unto his men, Gird ye on every man his sword.  And they girded on every man his sword; and David also girded on his sword.”  The Israelites were a militia, not a standing army, note that David and every man was equipped with his sword, not a government issue model.  Men were expected to report for duty already armed with their own weapons.  That means they had to keep and bear those weapons in order to fulfill their duties to their society.  This was also the early American situation, as it should be today.

These weapons were and are necessary to preserve freedom in society.  Any sane man will pray that he never need use any measure of force in defense however, he should be ready to do so if necessary.  The fifth or sixth Commandment (depending on how counted) clearly sets forth God’s intention to preserve life:  “Thous shalt not kill.”  It is also translated, “Thou shalt not murder.”  Exodus 20:13, Deuteronomy 5:17. 

The second translation is a prohibition on illicit killing, the first is a total ban.  In a perfect world it would be natural to follow a total ban on killing others made in God’s image.  However, as noted above, we have removed ourselves from perfection, be it temporarily.  Thus, given where we are, while we should strive for perfection, we may be limited to keeping from unlawful killings. 

In Leviticus, it appears that everything carries the death penalty.  Many of these provisions have actually been codified into civil law over the ages.  I’m not sure if anyone was ever executed for eating a shrimp.  However, Leviticus gave us the basis for many capital crimes still such today.  Accordingly, killers (murderers) may be executed in contravention of the Lord’s prohibition on killing.  Leviticus 24:16-17.  Numbers and Deuteronomy give further qualification as to which killings are crimes versus accidents. 

Coupled with those passages I cited last time, these dictates seem to logically indicate that force, including lethal force, may be used to repel unjust criminal activities.  The attendant duty upon us is to use the least force necessary to accomplish our defense.

Jesus exercised the ultimate restraint, in this regard, while enduring His treatment at the hands of His native detractors and Pilate.  Jesus made clear His purpose: “I came into the world…to bear witness to the truth; and all who are on the side of truth listen to my voice.”  John 18:38.  Demonstrating an eternal human misunderstanding, Pilate replied “What is truth?”  His purpose was not to overthrow earthly tyranny, but to provide an eternal alternative.  Rather than being an act of non-self-defense, Christ’s actions were the ultimate act of defense of others.  This truth may have been lost on one Roman, it was not on all Romans.

American law has been greatly influenced by our colonial past and our origins under the English Constitutional and common law.  In turn, English law was dependant on ancient Rome for many of its sources.  It must be remembered that the Kingdom of Britain once co-existed with the Eastern Roman Empire.  Thus, the legal traditions passed to the Isle of Britannia were those of earlier Roman glory – from the Republic and the earlier Western Empire.  From the founding of Rome until the time of Cicero, Roman laws were largely unwritten, even the Constitution.  Codification cam much later, under Justinian.  The Codex Justianius was issued in 529 A.D., five decades after the fall of the West.  The Digesta of ancient law was written soon thereafter.  Thus, began our tradition of dual sources of law – statutes and case-law. 

justinian_venice_rgzm

(Justinian.  Google.)

I previously cited to the Codex for its express allowance of the use of armed force to deter attack, by private parties and government agents.  This dual provision is tremendous as it presupposed that no-one is above the law and that even government force may be repelled when illegitimate.  Increasingly in America, the government takes the opposite position – that it is infallible and may not be resisted, even when tyrannical.  This is nonsense and may be disregarded as such.

In the next installment I will delve into the English tradition regarding arms and defense.  This tradition slowly coalesced into the modern theory of the militia being comprised of armed individual men.  Here, I will briefly note some of the long-standing traditions concerning arms in the British Isles before the rise of the common law and the Magna Carta.

“England” has been populated by various peoples probably for about 10,000 years.  The earliest peoples there were organized along the lines of families and tribes, each with its own society and rules.  It is obvious that most of these people were armed as they were constantly at war with one another and with the occasional outsider.  It is clear as mud as to what extent they retained formal doctrines regarding rights, arms, militia duties, etc.  “Self” defense often involved the entire tribe and was given to degenerating into all out war.  We could assign the Lex Talionis “the law of revenge” or the “law of the jungle” as the chief governing principle of these early Britons. 

As the centuries B.C. counted down, civilization and order began to grow in the Isles.  Legend has it that King Arthur was able to unite most of the peoples of lower England under his banner.  Whether he pulled a sword out of a stone is another matter but it seems that by his time (7th Century B.C.) swords were common among the people, both for use defensively and for militia service. 

Thus, when the Romans arrived in 43 B.C., they found a fierce and well armed people, not at all amenable to taming.  Four centuries of Roman occupation saw many changes in English life, including the ordering of the militias more along the lines of precise Legionary lines.  This, civil and engineering upgrades, and Christianity generally served to the benefit of the people, then and following the Roman’s departure.

Following the Romans, came the Angles, the Saxons, and eventually the Normans, each of whom introduced new character to England.  By at least the Twelfth Century England had evolved into a nation-state, not entire undistinguishable from its present form.  Then, standing armies were rare and the kings relied upon their subjects to form militias during times of needs.  Accordingly, free-men were expected, even ordered to keep arms for their and the common defense.  Assize of Arms, Henry II (1181).

King John signed the Magna Carta in 1215 which, in Section 61, provided for armed rebellion of sorts (lead by the nobility) in the event the Crown became tyrannical.  This process, of course, necessitated the continued institution of armed citizens.

magna carta

(Magna Carta Memorial, Runnymede, England.  Google.)

Next time, I will move forward in history and begin covering more modern English sources concerning the people, their rights, especially concerning arms and defense.  This will serve as a prelude to the customs of those English persons who colonized America, carrying the ancient traditions with them.

Perrin Lovett

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