Origin of the Right To Bear Arms In America

(Reprinted from The Right to Keep and Bear Arms in the United States)

The concept that the people have a right to keep and bear arms seems to have survived over two centuries in this country without seriously being questioned. In recent times, however, the tide has turned against this apparent right. Few issues incite Americans more than the issue of gun, control. The debate rages on as to whether bearing arms is a permanent constitutional right, a mere American tradition, or an eminent danger to society contributing to crime and murder and, consequently, should be banned.

The merits of the arguments on either side of the debate must be questioned themselves if they evade the true legal foundation that surrounds the issue. It is the law of the land that determines whether we are dealing with principles of rights or an issue about gun use and control. Neither media propaganda nor crime rates and statistics can decide this. If such a right exists under the organic law of this land, then it clearly cannot be abrogated or impaired by a legislative body.

In order to have a just and precise idea of the meaning and nature of this “right” to keep and bear arms within this country, it will be useful to look at the state of things in the history of our ancestors and, thus, comprehend the reason and intent for its introduction into our American system of law.

The right of an individual to keep and bear arms has a long tradition in Western civilization dating back to ancient times. The Greek philosopher Aristotle thought the bearing of arms necessary to true citizenship and participation in the political system (Aristotle, Politics). Plato said that citizens ought to practice war—not in time of war, but, rather, while they are at peace (Plato, Laws, Bk. viii). Cicero, one of the leading advocates of Roman republicanism, supported the bearing of arms for the self-defense of the individual and for public defense against tyranny (Cicero, De Offices). Niccolo Machiavelli, the Italian political philosopher, advocated an armed populace of citizen soldiers to keep headstrong rulers in line (Machiavelli, Discourse).¹

The right to bear arms is older than the right to freedom of religion, speech, press, or assembly. The origin of this right lay in the customs of Germanic tribes, under which arms bearing was a right and a duty of free men. While the first mention of a citizen militia (fyrd) dates to 690 A. D., scholars have concluded that the right and duty to serve with personal armament is “older than our oldest records.”²

From prehistoric days, the right to bear arms seems to have been the badge of a Teutonic freeman and closely associated with his political privileges. Such armed freemen made up the military host of the tribe. During Saxon times in England, there was a fyrd, or national militia, service in which was one of the three duties—trinoda necessitas—to which every allodial proprietor was subject.³ King Alfred had gathered the armed citizenry together into a fyrd, or militia force, against Danish invaders, forcing them into a peace agreement with Alfred in 878 A.D.”⁴

The earliest document recognizing a right to keep and bear arms was the Assize (edict) of Arms of 1181 A.D., issued by Henry II of England. The law was intended to permit the rapid creation of a militia, but it apparently permitted the carrying of arms in self-defense. Provisions stipulated that arms were not to be sold, given away, nor taken away. It further stated that, “I f any one having these arms shall die, let his arms remain to his heir.”⁵

In 1285 A.D., the Statute of Winchester was directed to be passed by King Edward I to control the crimes of “robberies, murders, burnings and theft” (13 Edw. I , chap. 1). The statute actually broadened the Assize of Arms. Now “every man,” not just “every free man” had a legal duty to obtain arms.

In the year 1328 A.D., the Statute of Northampton was enacted under the reign of King Edward III, which regulated this right to bear arms by prohibiting the carrying of arms in riots and in certain public places such as courts. The law did not overrule the right to carry arms in self-defense, since the right to bear arms was considered an integral part of early English law and society. This stems from the fact that the practice of local police forces maintaining law and order began only in the nineteenth century. Before that time, villagers were expected to chase and catch highwaymen and other criminals. To do this they had to be armed.

“By the act of 22 and 23, Car. 2d, ch 25, sec. 3, (under King Charles II) it was provided that no person who has not lands of the yearly value of 100 pounds, other than the son and heir apparent of an esquire, or other person of higher degree, shall be allowed to keep a gun.”⁶ By this act, only persons of a certain status in life were allowed to keep arms.

James II, a Roman Catholic king, ascended the English throne in 1685 amidst domestic religious controversy between the Catholics and Protestants. James, by his own arbitrary power and contrary to law, disarmed the Protestant population and quartered his Catholic soldiers among the people and in private homes. The Protestants revolted in the “Glorious Revolution” of 1688 and succeeded in deposing James II and bringing to power the king’s Protestant daughter, Mary and her husband, William of Orange. William and Mary were offered the crown in 1689 on condition that they sign the Declaration of Rights.

The Declaration was divided in two parts, the first listing the abuses and aggressions which had existed during the former reign. Among these abuses were the following:

Whereas the late James the Second by the assistance of divers evil counsellors, judges and ministers employed by him did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom.

... By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering of soldiers contrary to law.

By causing several good subjects being Protestants to be disarmed, at the same time when papists were both armed and employed, contrary to law.⁷

There was also a Bill of Rights that listed and declared the existence of certain rights which the people possessed:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.⁸

It has been questioned as to whether this declaration gave the individual the right to bear arms for self-defense or if it was to be limited to militia purposes only. Referring to this declaration a New York court stated:

There was here recognized a universal citizen’s right to bear defensive arms, and it seems to me that the Bi11 of Rights established a general right on the part of all persons in England, falling within the classification of citizens, to retain arms for their protection and according to their condition, subject only to a reasonable control by law.⁹

It should also he noted that the great English legal commentators. Sir Edward Coke and Sir William Blackstone, both agreed that an individual could legally bear arms for self-defense. But even if it is to be supposed that the only right that existed under the law of 1689 was for common defense in an organized body (actually both rights were contemplated in the act), it must be realized that this situation of common defense necessarily entails private rights of ownership and to carry arms.

It is a matter of historical fact that the majority of the colonial settlers who came to America had guns and swords in hand as they stepped upon American soil for the first time. These arms continued to occupy a prominent role in colonial life, being necessary for survival, self-protection, and common defense of the colony.

It thus would be expected that we would find the subject of arms covered in colonial laws, charters, etc. The right to keep and bear arms seems to have played a prominent role in early America, in that the American colonial concern was that all men were to have and bear arms so they could defend themselves and, thus, the colony.

It was stated in the Second Charter of Virginia of 1609 that any persons could abide and inhabit in the Colony who had “sufficient Shipping, Armour, Weapons, Ordinance, Munition, Powder, Shot, Victuals, and such Merchandises . . . necessary for the said Plantations.”¹⁰ Thus, being well armed was a requirement to be part of the colony. This provision was repeated in the Third Charter of Virginia in 1611. In 1623, a Virginia militia statute required, “That no man go or send abroad without a sufficient party well armed.”¹¹

In the New Plymouth Colony, the General Court enacted a law which required servants and others who were about to be new estate owners to possess arms:

Regulation of Servants & New Housekeepers in New Plymouth, 1639:

It is enacted by the court that no servant coming out of his time, or other single person, be suffered to keep house or be for him or themselves till such time as he or they be competently provided for of arms and ammunition according to the order of the colonies.¹²

The 1640 militia law of New Plymouth provided: “That the inhabitants of every town within the government fit and able to bear arms be trained at least 6 times in the year.”¹³

The Commission for New Hampshire—1680 made provisions for “arraying and mustering the Inhabitants thereof; and instructing them how to bear and use their arms,” in order to have ready a disciplined militia.¹⁴

In New Jersey there were grievances being raised by the proprietors and planters regarding the free use of their arms. The issue was extensively covered in the Fundamental Constitutions for the Province of East New Jersey—1683, where the right to keep and bear arms was affirmed:

VII.... And that amongst the present Proprietors there are several that declare that they have no freedom to defend themselves with arms, and others who judge it their duty to defend themselves, wives and children, with arms; it is therefore agreed and consented to, and they the said Proprietors do by these presents agree and consent, that they will not in this case force each other against their respective judgments and consciences;

... And on the other side, those who do judge it their duty to bear arms for the public defense, shall have their liberty to do in a legal way.¹⁵

A militia had existed in every one of the colonies and local laws were often passed for the regulating of the militia and providing the right of male inhabitants to bear arms so as to be eligible and ready for militia duty. Massachusetts had passed a lengthy militia act in 1693, containing the following:

AN ACT FOR REGULATION OF T HE MILITIA

[SECT. 1.] That all male persons from sixteen years of age to sixty shall bear arms and duely attend all musters and military exercises of the respective troops and companies where they are listed or belong.¹⁶

Another aspect of bearing arms that had prevailed throughout the colonies was the requirement to bear arms when going to church on Sunday. A South Carolina law of 1743, was enacted for securing the inhabitants of the province against insurrections and other wicked attempts of Negroes within the province. The act provided that:

Every white male inhabitant of this province who, by the laws of this province, is or shall be able to bear arms in the militia of this province, who shall on any Sunday ... go and resort to any church or other place of divine worship within this province, and shall not carry with him a gun or a pair of horse pistols, in good order and fit for service, with at least six charges of gunpowder and ball, and shall not carry the same into the church or other place of divine worship as aforesaid, every such person shall forfeit and pay the sum of twenty shillings, current money.¹⁷

A similar act was passed in the Massachusetts Colony in 1706 which stated:

[SECT3] And that all male persons in the frontiers capable of bearing arms, shall carry their arms with them and be well provided for their defence when they go to publick worship on the Lord’s day, or other times, and also when they go abroad to work, on pain of forfeiting five shillings for each neglect, to be to the use of the town towards the procuring of arms or ammunition.¹⁸

These Sunday laws which provided for the bearing of arms were apparently aimed at providing both individual and public protection. Since the right of the people to keep and bear arms was a right that all English subjects possessed, and since the Crown had agreed to allow the American colonists all the rights of Englishmen, this right was generally acknowledged and even encouraged by the British Crown up to the time of King George III. In a commission for Governor John Reynolds of Georgia in 1754, King George II was still encouraging armed citizens in the colonies:

You [Governor Reynolds] shall take care that all planters and Christian servants be well and fitly provided with arms and that they be listed under good officers and when and as often as shall be thought fit mustered and trained, whereby they may be in better readiness for the defense of our colony under your government.¹⁹

The colonial records of this country thus clearly reveal that the colonists not only had a right of ownership and use of arms, but in fact were required to possess them. While this right primarily rested on the need for common defense by having ready an organized and trained militia, the right to keep and bear arms for private defense had certainly existed. Further, there are no laws or records that show this right was ever denied or prohibited.

We next need to examine the events that led to and resulted in the American War for Independence and how those events may have influenced or developed a right of the people to keep and bear arms.

To best understand the events that led up to the Revolution in America, it is important to understand colonial thought at the time. Regarding arms, the colonists were educated in the works of many eminent scholars, jurists, and statesmen from whom they learned of the right and duty of self-defense and of owning arms. They read the works of Plato, Aristotle, Cicero, Vattel, Montesquieu, Hume, Locke, Hobbes, Blackstone, Sydney, and Coke, all of whom had made statements about the role of an armed citizenry and the bearing of arms. Sir Willian Blackstone, one of the most authoritative commentators on the common law, wrote:

The fifth and last auxiliary right of the subject ... is that of having arms for their defence, suitable to their condition and degree.... Which is also ... of the natural right of resistance and self-preservation.²⁰

Regarding the colonists’ attitude and policy toward England, it, like England’s policy toward her colonies, had always been a consistent one. England had always insisted that her colonies must in some manner contribute to the glory and advancement of the parent country, though it seldom resorted to direct taxation. In return, the colonists would be regarded as Englishmen with the same rights and privileges as loyal subjects in England, thus respecting the Crown. This arrangement prevailed until certain events in the mid-1700s.

The contest for the Ohio Valley came to pass with the outbreak of the French and Indian War in 1754, during the reign of King George I I (1727-1760). The British won because of the fighting ability of the colonial militias and the war thus ended with the Treaty of Paris being signed in 1763.

King George III, who was now on the throne, urged that the war had been to the advantage of the colonies as well as of England; and, therefore, the colonists, as Englishmen, should be required to meet their share of the expenses of the war. The colonists, on the other side, argued that i f taxes were to be laid, the colonial legislature must vote them. The colonists could not act in the English Parliament and so the laying of taxes by that body would be “taxation without representation,” to which they declared they would not submit.²¹

While the colonists did not desire separation from the mother country and were proud to be called Englishmen, this feeling was gradually changed to one of distrust and aversion by the shortsighted policy of George III. The French and Indian War that had ended in 1763 brought large numbers of British soldiers to the colonies. King George III maintained and increased these standing armies following that war and ordered the troops to be quartered in private homes. The colonists, who were accustomed to relying on their own citizen militias, viewed the standing armies as an unnecessary and unlawful instrument of oppression. With soldiers established throughout the colonies, George III was now in the position to enforce any measure Parliament or his colonial ministers and governors might enact.

Early in 1764, George Grenville, Prime Minister of England, got through Parliament a series of measures for the control of the trade of the American colonies. The Navigation Acts, especially the odious Sugar and Molasses Act of 1733, were renewed and strictly enforced. All commanders of British frigates in American waters were to have the right of acting as customs officers, employing the hated Writs of Assistance,²² or general warrants to search a man’s premises for “smuggled articles.”²³

In 1765, the first bold attempt to directly tax the colonies was implemented by the passage of a Stamp Act. It required that revenue stamps purchased from the government should be placed on all legal documents, promissory notes, receipts, contracts, advertisements, newspapers, and other publications. There was more involved in this far-reaching tax measure than to just defray the cost of the war and support of the depleted Royal Treasury. “King George desired to keep a standing army in America, and it was proposed to make the colonists pay the cost of it by means of the tax.”²⁴

The passage of the Stamp Act aroused the utmost indignation from New Hampshire to Georgia. A declaration of rights and grievances was sent to the king and Parliament in England. The declaration said, among other things, that only the representative colonial assemblies could impose taxation. The struggle had now begun and the war cry was, “Taxation without representation is tyranny.” The colonists showed their violent opposition by mobbing and burning in effigy the tax officers and destroying the stamp offices.²⁵

The colonists agreed not to buy, sell, or use the articles that had been stamped and ceased using English goods. As a result, the law was repealed March 18, 1766. However, in the following year, 1767, King George directed that duties be imposed on glass, lead, paper, printers’ colors, and tea brought into the colonies. These measures were known as the Townshend Acts. To the colonists this again was taxation without representation and once more they rebelled.

In much of the colonies the revenue measures were difficult to enforce, especially in Boston where mob violence appeared in protest. The king became alarmed at the violence of the Bostonians and dispatched General Thomas Gage, as the commander-in-chief of the British forces in America, to Boston with two regiments of troops. These troops Gage quartered in the city, and the people resented this. Frequent collisions took place between the soldiers and the town’s people, climaxing on the night of March 5, 1770, when the soldiers fired on the people, killing and wounding several. The following day there was an immense gathering of the people in the Old South Meeting House, and Samuel Adams demanded the removal of the troops. The Boston Massacre, as it was called, aroused the whole country.

On the day of the Boston Massacre, a bill was introduced into the British Parliament to repeal the Townshend Acts. All duties were removed except on tea and on this article the duty was made so low that tea could be bought cheaper in America than in England. This was done so that the right of Parliament to impose taxes could be maintained. This was said to be the “king’s plan.” The King meant to “try the question with America.”

The Americans, however, were fighting for a principle and could not be silenced by cheaper tea. They knew that if Parliament could legally tax tea even a small amount, it could also levy any taxes it saw fit. The colonists, therefore, refused to buy or use tea. Ships full of tea were sent to Charleston, Philadelphia, Boston, New York, and other ports. The people of Philadelphia and New York would not allow the vessels to land and sent them back. In Annapolis and Rhode Island the tea was burned. In Boston the British officers would not allow the vessels to be sent back. The result was the Boston Tea Party of December 16, 1773, in which a party of men, disguised as Indians, boarded the ships, ripped open three hundred and forty-two chests, and spilled the tea into the harbor. This was a direct affront to the King, and Parliament at once resolved to punish Massachusetts.

In March 1774, Parliament passed a number of acts for the punishment of Massachusetts and, because of their severity, they were known in America as the “Intolerable Acts.” One of these was the Quartering Act which removed all legal obstacles to the quartering of troops in the colonies. These acts caused great hardships, especially in Boston.

On September 5, 1774, the first Continental Congress met in Philadelphia. It respectfully petitioned the king to put an end to their grievances, specifying thirteen acts of Parliament which they deemed “infringements and violations of their rights.” At the same time, the country was full of warlike preparations. Arms were bought and stored and militia groups formed.

General Gage, seeing the warlike feeling of the people, began to erect fortifications around Boston. Hearing that the colonists had collected powder, ammunition, and supplies. Gage sent eight hundred troops to seize the stores at Concord, where Gage believed the patriots had also hid a cannon. They were ordered to go by way of Lexington and arrest Samuel Adams and John Hancock, who were visiting there. But the ardent Boston patriot Paul Revere had learned of the expedition and, galloping ahead of the British troops, warned the inhabitants and also Adams and Hancock, who fled to safety.

When the British troops reached Lexington in the early morning (April 19, 1775) they found a little company of seventy “minutemen” drawn up on the village green to oppose them. The British major John Pitcairn ordered “the rebels” to “disperse.” When the minutemen bravely stood their ground, the British fired-a volley of musket shots, leaving eight of the patriot band dead or dying on the green.²⁶ The Americans fired, but seeing they were greatly outnumbered, made no more resistance and the British marched on.

From Lexington Pitcairn’s troops marched on to Concord, where, at the bridge, they again clashed with a group of minutemen who had gathered from the nearby towns. These were the “embattled farmers” who “fired the shot heard round the world.”²⁷ When the King’s subjects had taken up arms and fired upon the King’s troops, the American Revolution had officially begun.

After destroying what few military stores remained, the soldiers were forced to retreat to Boston, as armed patriots were pouring into the Concord-Lexington vicinity. On the return trip the “redcoats” were fired upon by farmers and militiamen from the roadsides, behind trees, rocks, and stone fences. The redcoats retreated in a state of exhaustion, with a loss in killed and wounded of nearly three hundred men; the Americans had about eighty killed or wounded.

The news of this engagement spread like wildfire. Men grasped whatever weapons they had and hastened toward Boston. Sixteen thousand colonial militia had assembled around Boston and held Gage besieged in his capital.

On May 10, 1775, the second Continental Congress assembled in Philadelphia. The delegates made appropriations for the colonial militia and George Washington was appointed, by unanimous vote, as commander in chief of the Continental army. They were also united in a Declaration of the Causes and Necessity of Taking up Arms on July 6, 1775, as a last address to the king. The declaration stated in part:

In our own native land, in defence of the freedom that is our birthright, and which we ever enjoyed till the late violation of it—for the protection of our property, acquired solely by the honest industry of our fore-fathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before.²⁸

The colonists here were not only claiming a right to bear arms to protect their freedom and property, but a right to take up arms against the established government when it becomes destructive to these ends.

When we review the chain of events which changed the loyal British-Americans of 1763, into rebels in arms against their king in 1775, we see that the cause centered around a usurpation of power and a violation of fundamental rights. It became clear that the illegal acts of Parliament and oppressions of King George could never stand without military force. Prior to 1763, a standing army among the colonists was not necessary, in that there were no unlawful, oppressive acts which required force to be administered.

The events of this period show that the only way tyranny can be enforced or maintained is with armed government troops (or police) about the population. And when tyranny is administered by arms, justice can be obtained only by arms. Had not the colonists taken up arms, the tyranny would have continued. We can thus acknowledge the necessity, right, and justification for possessing arms. As with the tyranny of James II, history had once again repeated itself, revealing the importance of an armed populace to “keep headstrong rulers in line.” The fact of this event was noted by an early court decision in Tennessee:

The evil that was produced by disarming the people in the time of James the second, was, that the King, by means of a standing army, quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the King to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands.

If the subjects had been armed, they could have resisted the payment of excessive fines, or the infliction of illegal and cruel punishments.²⁹

King James had apparently known that his unlawful and oppressive measures could never be implemented unless the people were disarmed. This is what King George would have done if the colonists had sat idly by and offered no resistance by arms. It was when the king’s army attempted to disarm the colonists by confiscating their gunpowder and ammunition stored at Concord, that they realized it was time to defend their right to keep and bear arms through the use of arms. For without arms, they would truly be helpless.

With the signing of the Declaration of Independence, the colonies declared that they were “Free and Independent States.” This declaration secured all of the “unalienable rights” which every free man possesses, and it cannot be doubted that the right to keep and bear arms was among those rights. The spirit of this document was proclaimed by James Otis, who said in 1764:

And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind ... is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country.

This concept was incorporated into the original State Constitutions of New Hampshire (1784), and Maryland (1776); and proclaimed by the State Conventions of Virginia and North Carolina in 1788, as proposals for a Bill of Rights in ratifying the U.S. Constitution. The language used was:

The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

In applying this American principle we are to resist Federal or State officials who, as usurpers, defy the limits of their powers imposed by the law of God and the Constitution.

As these newly formed “independent states” were drafting constitutions, they enumerated the more important rights they possessed as free men. It is significant to note that several of these states specifically singled out the right to keep and bear arms as one of their most cherished rights. The following are some excerpts from America’s first State Constitutions:³⁰

Constitution for Massachusetts —1780

CHAPTER V, ART. XVII. The people have a right to keep and bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Constitution of North Carolina—1776

XVII. The people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up.

Constitution of Pennsylvania—1776

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Constitution of Vermont—1777

XV. That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up.

Some of the other original states implied the existence of the right of the people to bear arms within the context of the militia, such as Virginia had done:

The Constitution of Virginia—1776

SEC. 13. 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.³¹

It is quite evident from the circumstances at this period in time that the right of a person to keep and bear arms prevailed throughout the colonies, and the foregoing declarations further substantiated this fact. The declaration of rights in these constitutions merely reaffirmed those natural and common law rights they possessed as Englishmen. We can thus claim that the right to bear arms has an origin stemming from the English Bill of Rights of 1689, as asserted by this New York Court:

The state constitutions drafted in the revolutionary war era therefore included provisions guaranteeing the right to bear arms and prohibiting standing armies in time of peace. The relevant provisions of the English Bill of Rights of 1689 provided a useful model for the colonial drafters.³²

It has been argued that subsequent legislation in England materially cut down the broad rights conferred or confirmed by William and Mary. However, the statute law of England did not become our law, but common-law rights, as expressed in the Bill of Rights, were effectually incorporated into the law of the state of New York by the Constitution of 1777.³³

It is interesting to note that New York’s Constitution of 1777, one of the original state constitutions, had no specific declaration of a right to keep and bear arms, but rather only reference to an armed militia. Yet the New York court clearly pointed out that the right was secured under the Constitution of 1777. This right is one that has clearly been recognized as existing prior to any formal Constitution.

The right [of citizens to bear arms] existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizen to bear arms.³⁴

Thus the citizens of the United States have a right to keep and bear arms, and one that cannot be disputed since it was one of those rights which were specifically claimed and exercised by the Founding Fathers of this nation. It thus is a right which is firmly part of our Constitutional Law.

1. Machiavelli had stated: “The principal foundations of all states are good laws and good arms; and there cannot be good laws where there are not good arms” {The Prince, XII).

2. U. S. Senate, Report of the Subcommittee on the Constitution of the Committee on the Judiciary, 97th Congress, 2nd sess., Feb., 1982.

3. Ellis Stevens, Sources of the Constitution of the United States (New York, 1927), 223.

4. Edward P. Cheyney, A Short History of England (1919), 65.

5. G. Adams and H. Stephens, Select Documents of English Constitutional History (London, 1926), 23-25.

6. Supreme Ct. of Tenn., Aymette vs. The State, 2 Humphrey (21 Tenn., 1840) 154, 156.

7. Adams and Stephens, Select Documents of English Constitutional History, 463.

8. Adams and Stephens, op. cit, 465.

9. People V. Horton, 264 N.Y.S. 84, 88; 147 Misc. 506.

10. F. N. Thorpe, Federal and State Constitutions Colonial Charters etc., (Washington: G.P.O., 1909), Vol. VII, 3799.

11. Hening, The Statutes at Large... of Virginia, vol. I (1823), 127.

12. W. K. Kavenagh, ed., Foundations of Colonial America, vol. I (N.Y., 1973), 405.

13. W. Brigham, The Compact... of New Plymouth (Boston, 1836), 31.

14. Thorp, Federal and State Constitutions etc., vol. IV, 2448.

15. ibid., vol. V, 2576-77.

16. The Acts and Resolves, of the Province of the Massachusetts Bay, vol. I (Boston, 1869), 128.

17. John B. Dillon, Oddities of Colonial Legislation in America (1879), 50. Also: Statutes of South Carolina, vol. vii, 417.

18. The Acts and Resolves, of the Province of the Massachusetts Bay, vol. I, 586.

19. K. Kavenagh, ed.. Foundations of Colonial America, vol. III, 2053. Also: Georgia Historical Quarterly, XXX (1946), 126.

20. Wm. Blackstone, Commentaries on the Law of England, vol. I, 144.

21. William Davidson, A History of the United States (Chicago, 1906), 157-58.

22. Against these writs the Boston lawyer James Otis had pleaded so vehemently three years earlier that John Adams called his speech the opening act of the American Revolution.

23. David Muzzey, An American History (Boston, 1929), 95.

24. Jacques Redway, The Making of the American Nation (1905), 123.

25. Thomas B. Lawler, Essentials of American History (1902), 133.

26. Muzzy, An American History (1929), 105.

27. Lawler, Essentials of American History (1902), 141.

28. Congress, Documents Illustrative of the Formation of the American States, 69th Congress, 1st sess.. House Doc. No. 398.

29. Aymette vs. The State, 2 Humphrey (21 Tenn.) 154,157 (1840).

30. Source: F.N. Thorpe, Federal and State Constitutions, etc. (1909).

31. F. N. Thorpe, vol. VII, 3814.

32. State V. Kessler, 614 P.2d 94, 97; 289 Ore. 359 (1980).

33. People V. Horton, 264 N.Y.S. 84, 88; 147 Misc. 506 (1933).

34. Bliss V. Commonwealth, 2 Littell (12 KY) 90, 92 (1822).