English legal history and the right to carry arms
A few weeks ago, I joined several legal historians in filing
an amicus brief about the Second Amendment right to carry arms; the case is
Wrenn v. District of Columbia, currently before the D.C. Circuit. The brief addressed English legal history, and also American legal history through the 19th century. Stanford history professor Priya Satia has written an
article in
Slate, asserting that our description of English legal history is incorrect–that it is “incongruous” with “well-established history.” So let’s take a look at what the history really says.
In 1328, the government in England was near collapse. The previous year, King Edward II was had been deposed by an invasion led by his wife, Queen Isabella (a French Princess). Isabella and her consort Roger Mortimer took over the government. The monarchy’s ability to enforce the law was close to non-existent.
As historian Anthony Verduyn explains, the primary concern was “the gentry…using armed force to defeat the course of justice.” For decades there had been a problem of “magnates maintaining criminals.” (The Politics of Law and Order during the Early Years of Edward III, 108 Eng. Hist. Rev. 842 (1993).)
As numerous royal instructions to Sheriffs of the era indicate, these armed gangs prevented the monarch’s courts from functioning in many places, and attacked jurors who were traveling to perform jury service.
Besides that, as Verduyn writes, Isabella and Mortimer were fearful of being overthrown; with Parliament composed exclusively of aristocrats, Isabella and Mortimer did not want armed men coming to Parliament, nor traveling armed to meet the Queen. They favored a measure to “politically necessary to check dissent against the increasingly unpopular regime.” So in 1328, the Statute of Northampton was enacted. It provided:
Quote:
Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants in his presence, and his ministers in executing of the king’s precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night or by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.
As the text of the Statute indicates, the first concern was the thwarting of government functions. The penalty of forfeiture of “armour” indicates a statute aimed primarily at the aristocracy; commoners could not afford a coat of chain mail.
Yet the statute could be read broadly. The “in no part elsewhere” could be interpreted as a comprehensive ban on carrying by anyone except for “the king’s ministers” and except for people in hot pursuit of fleeing criminals (the hue and cry). It seems impossible that the Statute could ever have been enforced with the literal rigor that Prof. Satia imagines. Separate from the duty to join a hue and cry (which presumably would not be an everyday event), there was the ordinary duty of persons in towns and villages to keep “watch and ward”–this is to serve in daytime and night-time patrols to confront and question any unfamiliar person who attempted to enter. On top of that, the Tudor monarchs of the 16th century mandated that all towns and villages maintain public target ranges. Parents were required to teach their children how to use arms, and various Sunday amusements were outlawed, in order to remove distractions from target practice. The target mandates at first were for long bows, and later for muskets.
Also, there was the very common practice of people carrying knives, as a necessary tool for everyday use in cutting food and other tasks–and necessarily available for self-defense in an emergency.
So we know that the Statute of Northampton was not interpreted literally. A literal reading would forbid what the law required: watch and ward, Flutrand arms training.
What did the law actually forbid? The only case on the subject seems to be
Sir John Knight’s Case, from 1686. It was charged that Knight and three friends “did walk about the streets armed with guns, and that he went into church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects.” In the prosecution’s theory of the case, Knight’s intent was “to terrify.”
The Chief Justice of the King’s Bench agreed with that legal standard. The Chief Justice observed that the law was nearly obsolete from disuse: “this statute be almost gone
in desuetudinem.” In 1686, “now there be a general connivance to gentlemen to ride armed for their security.” Yet even though the Statute of Northampton was hardly ever enforced,
“where the crime shall appear to be malo animo it will come within the act.” (Malo animo= with bad intent.)
Thus, carrying arms was lawful if done with good intent, and unlawful if done with bad intent. This standard was reflected in an influential book a few years later, which linked the rights of ancient Britons and modern Englishmen. (James Tyrrell, Bibliotheca Politica 639 (London, W. Rawlins, S. Roycroft & H. Sawbridge 1694) (Statute of Northampton allows persons to carry arms “in their own defence against Illegal Violence.”).
The major criminal law treatise of the 18th century and for several decades of the 19th century was William Hawkins “Pleas of the Crown” (1716). It said that the Statute of Northampton applied “where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People.”
