This article is an examination of the pre-existing documents used to found, run or otherwise organize the Colonies and pre-US Constitution States with regards to the Second Amendment of the Bill of Rights. This is in now an exhaustive list of those grants, charters and constitutions that make up the body of pre-US Constitutional law, but may serve as giving some insight into the expectations of the US Constitution in this area.
It is not an article that is considered to one that is all inclusive, indeed I will leave out four major colonies ( Pennsylvania, Rhode Island, South Carolina and Virginia) as this is more for my utility than any other thing. Yet some of these documents may be of interest to others and I highlight areas of interest in this realm of arms and the common man due to personal interest.
Massachusetts
Massachusetts starts with The Charter of New England of 1620 (Source: Avalon Project), of which this comes as a first military power grant from the Crown under James I:
And Wee do further of our especiall Grace, certaine Knowledge, and mere Motion, grant, declare, and ordain, that such principall Governor, as from time to time shall be authorized and appointed in Manner and Forme in these Presents heretofore expressed, shall haue full Power and Authority to use and exercise marshall Laws in Cases of Rebellion, Insurrection and Mutiny in as large and ample Manner as our Lieutenants in our Counties within our Realme of England have or ought to have by Force of their Commission of Lieutenancy.
The Governor at Plymouth gets this power of martial law in the listed cases which is a traditional power grant within English law and power structures under the Crown. Following that sentence is the rest of the paragraph:
And for as much as it shall be necessary for all our lovinge Subjects as shall inhabit within the said Precincts of New-England aforesaid, to determine to live together in the Feare and true Worship of Allmighty God, Christian Peace, and civil Quietness, each with other, whereby every one may with more Safety, Pleasure, and Profist, enjoye that whereunto they shall attaine with great Pain and Perill, Wee, for Us, our Heires and Successors, are likewise pleased and contented, and by these Presents do give and grant unto the said Council and their Successors, and to such Governors, Officers, and Ministers, as shall be by the said Councill constituted and appointed according to the Natures and Limitts of their Offices and Places respectively, that they shall and may, from time to time for ever heerafter, within the said Precincts of New-England, or in the Way by the Seas thither, and from thence have full and absolute Power and Authority to correct, punish, pardon, governe, and rule all such the Subjects of Us, our Heires and Successors, as shall from time to time adventure themselves in any Voyage thither, or that shall aft any Time heerafter inhabit in the Precincts or Territories of the said Collony as aforesaid, according to such Laws, Orders, Ordinances, Directions, and Instructions as by the said Councill aforesaid shall be established; and in Defect thereof, in Cases of Necessity, according to the good Discretions of the said Governors and Officers respectively, as well in Cases capital and criminal, as civill, both marine and others, so allways as the said Statutes, Ordinances, and Proceedings, as near as conveniently may be, agreeable to the Laws, Statutes, Government and Policie of this our Realme of England. And furthermore, if any Person or Persons,-Adventurers or Planters of the said Collony, or any other, aft any Time or Times heereafter, shall transport any Moneys, Goods, or Merchandizes, out of any of our Kingdoms, with a Pretence or Purpose to land, sell, or otherwise dispose of the same within the Limitts and Bounds of the said Collony, and yet nevertheless being att Sea, or after he hath landed within any Part of the said Collony shall carry the same into any other fforaigne Country with a Purpose there to sell and dispose thereof, that then all the Goods and Chattles of the said Person or Persons so offending and transported, together with the Ship or Vessell wherein such Transportation was made, shall be forfeited to Us, our Heires and Successors.
This is a long section to decompress after the simple military grant to keep civil order via martial law. The power limits of the Colony is that of its lands and near seas along the coast (as opposed to the high seas off coast), which means that as maritime realms are also explicitly included not only for civil affairs but capital affairs, the Admiralty power is also granted to the Colony. Of course no one may sell off parts of the colony or its good without proper law, writ, charter or other allowance, and the penalty is as stated. Taken together this is a complete military and civil set of power grants from the Crown, so long as the laws are those that are standard in England at the time, which is under James I.
A bit further on is this part:
And Wee do further of our especiall Grace, certaine Knowledge and meere Motion, for Us, and our Heires, and Successors, give and grant to the said Councell, and their Successors for ever by these Presents, that it shall be lawfull and free for them and their Assignes, att all and every time and times hereafter, out of our Realmes or Dominions whatsoever, to take, load, carry, and transport in, and into their Voyages, and for, and towards the said Plantation in New-England, all such and so many of our loveing Subjects, or any other Strangers that will become our loving Subjects, and live under our Allegiance, as shall willingly accompany them in the said Voyages and Plantation, with Shipping, Armour, Weapons, Ordinances, Munition, Shott, Victuals, and all Manner of Cloathing, Implements, Furniture, Beasts, Cattle, Horses, Mares, and all other Things necessary for the said Plantation, and for their Use and Defence, and for Trade with the People there, and in passing and returning to and fro, without paving or yielding, any Custom or Subsidie either inwards or outwards, to Us, our Heires, or Successors, for the same, for the Space of seven Years, from the Day of the Date of these Presents, provided, that none of the said Persons be such as shall be hereafter by special Name restrained by Us, our Heire, or Successors.
Basically whatever you need to do to arm up, get settled, get food, indeed a long list of materials and goods as general heading for establishing the colony are to move tax free for seven years. Do note that defense of the colony, and the individuals in it is one of the primary reasons for such grant. Indeed it is also a tax free grant for anything that can be sold from that colony over that period of time, which means that it is a no overhead from the Crown transaction so that every bit of income that can be yielded gets put right back in the Colony. The next paragraph will also extend that to foreign sales, as well, so long as the goods are lawful ones to trade.
Next are further power grants and allowances of power use:
And further our Will and Pleasure is, and Wee do by these Presents charge, comand, warrant, and authorize the said Councill, and their Successors, or the major Part of them, which shall be present and assembled for that Purpose, shall from time to time under their comon Seale, distribute, convey, assigne, and sett over, such particular Portions of Lands, Tenements, and Hereditaments, as are by these Presents, formerly granted unto each our loveing Subjects, naturally borne or Denisons, or others, as well Adventurers as Planters, as by the said Company upon a Comission of Survey and. Distribution, executed and returned for that Purpose, shall be named, appointed, and allowed, wherein our Will and Pleasure is, that Respect be had as well to the Proportion of the Adventurers, as to the special Service, Hazard, Exploit, or Meritt of any Person so to be recompensed, advanced, or rewarded, and wee do also, for Us, our Heires, and Successors, grant to the said Councell and their Successors and to all and every such Governours, other Officers, or Ministers, as by the said Councill shall be appointed to have Power and Authority of Government and Command in and over the said Collony and Plantation, that they and every of them, shall, and lawfully may, from time to time, and aft all Times hereafter for ever, for their severall Defence and Safety, encounter, expulse, repel, and resist by Force of Arms, as well by Sea as by Land, and all Ways and Meanes whatsoever, all such Person and Persons, as without the speciall Licence of the said Councell and their Successors, or the greater Part of them, shall attempt to inhabitt within the said severall Precincts and Limitts of the said Collony and Plantation. And also all, and every such Person or Persons whatsoever, as shall enterprise or attempt att any time hereafter Destruction, Invasion, Detriment, or Annovance to the said Collony and Plantation; and that it shall be lawfull for the said Councill, and their Successors, and every of them, from Time to Time, and att all Times heereafter, and they shall have full Power and Authority, to take and surprize by all Ways and Means whatsoever, all and every such Person and Persons whatsoever, with their Ships, Goods, and other Furniture, trafficking in any Harbour, Creeke, or Place, within the Limitts and Precintes of the said Collony and Plantations, and not being allowed by the said Councill to be adventurers or Planters of the said Collony. And of our further Royall Favor, Wee have granted, and for Us, our Heires, and Successors, Wee do grant unto the said Councill and their Successors, that the said Territoryes, Lands, Rivers, and Places aforesaid, or any of them, shall not be visited, frequented, or traded unto, by any other of our Subjects, or the Subjects of Us, our Heires, or Successors, either from any the Ports and Havens belonging or appertayning, or which shall belong or appertayne unto Us, our Heires, or Successors, or to any forraigne State, Prince, or Pottentate whatsoever: And therefore, Wee do hereby for Us, our Heires, and Successors, charge, command, prohibit and forbid all the Subjects of Us, our Heires, and Successors, of what Degree and Quality soever, they be, that none of them, directly, or indirectly, presume to vissitt, frequent, trade, or adventure to traffick into, or from the said Territoryes, Lands, Rivers, and Places aforesaid, or any of them other than the said Councill and their Successors, Factors, Deputys, and Assignes, unless it be with the License and Consent of the said Councill and Company first had and obtained in Writing, under the comon Seal, upon Pain of our Indignation and Imprisonment of their Bodys during the Pleasure of Us, our Heires or Successors, and the Forfeiture and Loss both of theire Ships and Goods, wheresoever they shall be found either within any of our Kingdomes or Dominions, or any other Place or Places out of our Dominions.
The 'several Defense' means the defense of anyone, their home, property or any of the other lawfully gained or inherited lands, estates, etc. of each person of the colony without respect to where they come from so long as they place themselves under the administration of the Colonial government. This is the militia power, written at length and it is written in defense of the colony in its several parts and pertains to foreign invasion, trade and those trafficking in such things or seeking advantage of the Colony outside of law set at the Colony level. As there is no set time for when something like this can happen or where in the colony it can happen, the power to actually get such a defense together is devolved downwards to the local level.
A command structure is set by the Council, but the ability to call up such militia is given to those in charge at that most local of levels. This is not a power grant, as such, but an order that such power be orderly created, administered and maintained for the safety of the property of the colonists, in several. While the Crown can give the general outlines for how this is to work, it depends upon the Legislative organization (the Parliament in England, the Council of New England) to actually create the legal vehicles for this utilization of common power of self-defense for the realm not just as a whole but in its several parts.
This is an important distinction as the power grant for Admiralty uses is one that comes from the State level and can be delegated. A militia power, coming from the bottom-up, can only be given order under law for the protection of the individuals and the realm they are part of locally.
Again, the expectation would be that the colonists would follow English common law, or regularized set of understandings for locally administered law for militias by a regional government (here the Council, in England whatever is at the town, borough, or county level). There is a difference between 'give and grant' and 'authorize and warrant' language, although much of the same verbiage is used for both, the active Crown voice is in specific areas (although they may be broad in scope) while the passive language is a recognition that such things are outside of the scope of the Crown, but can be given some order and regularity. Military power is granted. Taxation power is granted. Admiralty jurisdiction and power is granted. Militia power is authorized and warranted.
More on problems that the colony may face:
And to the End that now lewd or ill-disposed Persons, Saylors, Soldiers, Artificers, Labourers, Husbandmen, or others, which shall receive Wages, Apparel, or other Entertainment from the said Councill, or contract and agree with the said Councill to goe, and to serve, and to be imployed, in the said Plantation, in the Collony in New England, do afterwards withdraw, hide, and conceale themselves, or refuse to go thither, after they have been so entertained and agreed withall; and that no Persons which shall be sent and imployed in the said Plantation, of the said Collony in New-England, upon the Charge of the said Councill, doe misbehave themselves by mutinous Seditions, or other notorious Misdemeanors, or which shall be imployed, or sent abroad by the Governour of New England or his Deputy, with any Shipp or Pinnace, for Provision for the said Collony, or for some Discovery, or other Business or Affaires concerninge the same, doe from thence either treacherously come back againe, or returne into the Realme of Englande by Stealth, or without Licence of the Governour of the said Collonv in New-England for the Time being, or be sent hither as Misdoers or Oflendors; and that none of those Persons after theire Returne from thence, being questioned by the said Councill heere, for such their Misdemeanors and Offences, do, by insolent and contemptuous Carriage in the Presence of the said Councill shew little Respect and Reverence, either to the Place or Authority in which we have placed and appointed them and others, for the clearing of their Lewdness and Misdemeanors committed in New-England, divulge vile and scandalous Reports of the Country of New-England, or of the Government or Estate of the said Plantation and Collonv, to bring the said Voyages and Plantation into Disgrace and Contempt, by Meanes whereof, not only the Adventurers and Planters already engaged in the said Plantation may be exceedingly abused and hindered, and a great number of our loveing and well-disposed Subjects, otherways well affected and inclined to joine and adventure in so noble a Christian and worthy Action may be discouraged from the same, but also the Enterprize itself may be overthrowne, which cannot miscarry without some Dishonour to Us and our Kingdome: Wee, therefore, for preventing so great and enormous Abuses and Misdemeanors, Do, by these Presents for Us, our Heires, and Successors, give and grant unto the said President or his Deputy, or such other Person or Persons, as by the Orders of the said Councill shall be appointed by Warrant under his or their Hand or Hands, to send for, or cause to-be apprehended, all and every such Person and Persons, who shall be noted, or accused, or found at any time or times hereafter to offend or misbehave themselves in any the Affaires before mentioned and expressed; and upon the Examination of any such Offender or Offenders, and just Proofe made by Oathe taken before the said Councill, of any such notorious Misdemeanours by them comitted as aforesaid, and also upon any insolent, contemptuous, or irreverent Carriage or Misbehaviour, to or against the said Councill, to be shewed or used by any such Person or Persons so called, convened, and appearing before them as aforesaid, that in all such Cases, our said Councill, or any two or more of them for the Time being, shall and may have full Power and Authority, either heere to bind them over with good Sureties for their good Behaviour, and further therein to proceed, to all Intents and Purposes as it is used in other like Cases within our Realme of England, or else at their Discretions to remand and send back the said offenders, or any of them, to the said Collony of New-England, there to be proceeded against and punished as the Governour's Deputy or Councill there for the Time being, shall think meete, or otherwise according to such Laws and Ordinances as are, and shall be, in Use there, for the well ordering and good Government of the said Collony.
This is a 'give and grant' power to stop certain behaviors injurious to the Colony, the Crown and England as a whole. Basically anyone working against the Colony either internally or from external sources that is doing activities to have 'notorious Misdemeanors' (such lovely language and yet so vague) which seeks to undermine, dispirit or otherwise discourage trade with, migration, or other orderly support of the Colony can be apprehended, held over, dispossessed of property or have any other necessary laws applied to them. Note that these are things done in secret, with stealth and meant not to be open appeal to government but a secretive undermining of it.
If put together with the militia authority, that means that local miscreants can be pulled in by locals and put before whoever it is that the Council puts in judgment of such cases: the militia power is against active works against the colony and in other times would go through normal legal channels for things like outing sedition.
Now for another and wider scope section:
And our Will and Pleasure is, and Wee do hereby declare to all Christian Kings, Princes, and States, that if any Person or Persons which shall hereafter be of the said Collony or Plantation, or any other by License or Appointment of the said Councill, or their Successors, or otherwise, shall at any time or times heereafter, rob or spoil, by Sea or by Land, or do any Hurt, Violence, or unlawfull Hostillity to any of the Subjects of Us, our Heires, or Successors, or any of the Subjects of any King, Prince, Ruler, or Governour, or State, being then in League and Amity with Us, our Heires and Successors, and that upon such Injury, or upon just Complaint of such Prince, Ruler, Governour, or State, or their Subjects, Wee, our Heires, or Successors shall make open Proclamation within any of the Ports of our Realme of England commodious for that Purpose, that the Person or Persons having committed any such Robbery or Spoile, shall within the Term limited by such a Proclamation, make full Restitution or Satisfaction of all such Injuries done, so as the said Princes or other, so complaining, may hold themselves fully satisfied and contented. And if that the said Person or Persons having committed such Robery or Spoile, shall not make or cause to be made Satisfaction accordingly within such Terme so to be limited, that then it shall be lawful for Us, our Heires, and Successors, to put the said Person or Persons our of our Allegiance and Protection; and that it shall be lawful and free for all Princes to prosecute with Hostillity the said Offenders and every of them, their, and every of their Procurers, Aidors, Abettors, and Comforters in that Behalfe. Also, Wee do for Us, our Heires, and Successors, declare by these Presents, that all and every the Persons, beinge our Subjects, which shall goe and inhabitt within the said Collony and Plantation, and every of their Children and Posterity, which shall happen to be born within the Limitts thereof, shall have and enjoy all Liberties, and ffranchizes, and Immunities of free Denizens and naturall Subjects within any of our other Dominions, to all Intents and Purposes, as if they had been abidinge and born within this our Kingdome of England, or any other our Dominions.
To the Colonists: you are to behave in a lawful and civilized manner and NOT take anything by force.
In the final paragraph there is the command to any officers to help the Colony:
And Wee do further for Us, our Heires and Successors, charge and comand all and singular Admirals, Vice-Admirals, Generals, Commanders, Captaines, Justices of Peace, Majors, Sheriffs, Bailiffs Constables, Customers, Comptrollers, Waiters, Searchers, and all the Officers of Us, our Heires and Successors, whatsoever to be from time to time, and att all times heereafter, in all Things aiding, helping, and assisting unto the said Councill, and their Successors, and unto every of them, upon Request and Requests by them to be made, in all Matters and Things, for the furtherance and Accomplishment of all or any the Matters and Things by Us, in and by these our Letters-pattents, given, granted, and provided, or by Us meant or intended to be given, granted, and provided, as they our said Officers, and the Officers of Us, our Heires and Successors, do tender our Pleasure, and will avoid the contrary att their Perills. And Wee also do by these Presents, ratifye and confirm unto the said Councill and their Successors, all Priveliges, Franchises, Liberties, Immunities granted in our said former Letters-patents, and not in these our Letters-patents revoked, altered, changed or abridged, altho' Expressed, Mentioned, &c.
It is the abridgement of these sorts of powers, expressly mentioned, that become part of the long list of things against George III in the Declaration of Independence which so many know its opening, but so few actually bother to read just what it was that was being removed from local control and power.
In the Charter of Massachusetts Bay of 1629 (Source: Avalon Project) there is much language held over by Charles I from James I, including some of the tax policy which is amended, and then continues into affairs of the Colony:
AND WEE DOE further, for Vs. our Heires and Successors, give and graunt to the said Governor and Company, and their Successors bv theis Presents, that all and everie such Chiefe Comaunders, Captaines, Governors, and other Officers and Ministers, as by the said Orders, Lawes, Statuts, Ordinnces, Instruccons, or Direccons of the said Governor and Company for the Tyme being, shalbe from Tyme to Tyme hereafter vmploied either in the Government of the saide Inhabitants and Plantacon, or in the Waye by Sea thither, or from thence, according to the Natures and Lymitts of their Offices and Places respectively, shall from Tyme to Tyme hereafter for ever, within the Precincts and Partes of Newe England hereby mencoed to be graunted and confirmed, or in the Waye by Sea thither, or from thence, have full and Absolute Power and Authoritie to correct, punishe, pardon, governe, and rule all such the Subiects of Vs. our Heires and Successors, as shall from Tyme to Tyme adventure themselves in any Voyadge thither or from thence, or that shall at any Tyme hereafter, inhabite within the Precincts and Partes of Newe England aforesaid, according to the Orders, Lawes, Ordinnces, Instruccons, and Direccons aforesaid, not being repugnant to the Lawes and Statutes of our Realme of England as aforesaid. AND WEE DOE further, for Vs. our Heires and Successors, give and graunte to the said Governor and Company, and their Successors, by theis Presents, that it shall and maie be lawfull, to and for the Chiefe Comaunders, Governors, and officers of the said Company for the Time being, who shalbe resident in the said Parte of Newe England in America, by theis presents graunted, and others there inhabiting by their Appointment and Direccon, from Tyme to Tyme, and at all Tymes hereafter for their speciall Defence and Safety, to incounter, expulse, repell, and resist by Force of Armes, aswell by Sea as by Lande, and by all fitting Waies and Meanes whatsoever, all such Person and Persons, as shall at any Tyme hereafter, attempt or enterprise the Destruccon, Invasion, Detriment, or Annoyaunce to the said Plantation or Inhabitants, and to take and surprise by all Waies and Meanes whatsoever, all and every such Person and Persons, with their Shippes, Armour, Municons and other Goodes, as shall in hostile manner invade or attempt the defeating of the said Plantacon, or the Hurt of the said Company and Inhabitants: NEVERTHELESS, our Will and Pleasure is, and Wee doe hereby declare to all Christian Kinges, Princes and States, that yf any Person or Persons which shall hereafter be of the said Company or Plantacon or any other by Lycense or Appointment of the said Governor and Company for the Tyme being, shall at any Tyme or Tymes hereafter, robb or spoyle, by Sea or by Land, or doe any Hurt, Violence, or vnlawful Hostilitie to any of the Subjects of Vs. our Heires or Successors, or any of the Subjects of any Prince or State, being then in League and Amytie with Vs. our Heires and Successors, and that upon such injury don and vpon iust Complaint of such Prince or State or their Subjects, WEE, our Heires and Successors shall make open Proclamacon within any of the Partes within our Realme of England, comodious for that purpose, that the Person or Persons haveing comitted any such Roberie or Spoyle, shall within the Terme lymytted by such a Proclamacon, make full Restitucon or Satisfaccon of all such Iniureis don, soe as the said Princes or others so complayning, maie hould themselves fullie satisfied and contented; and that yf the said Person or Persons, haveing comitted such Robbery or Spoile, shall not make, or cause to be made Satisfaccon accordinglie, within such Tyme soe to be lymytted, that then it shalbe lawfull for Vs. our Heires and Successors, to putt the said Person or Persons out of our Allegiance and Proteccon, and that it shalbe lawfull and free for all Princes to prosecute with Hostilitie, the said Offendors, and every of them, their and every of their Procurers, Ayders, Abettors, and Comforters in that Behalf: PROVIDED also, and our expresse Will and Pleasure is, And Wee doe by theis Presents for Vs. our Heires and Successors ordeyne and appoint That theis Presents shall not in any manner envre, or be taken to abridge, barr, or hinder any of our loving subjects whatsoever, to vse and exercise the Trade of Fishing vpon that Coast of New England in America, by theis Presents mencoed to be graunted. But that they, and every, or any of them shall have full and free Power and Liberty to continue and vse their said Trade of Fishing vpon the said Coast, in any the Seas therevnto adioyning, or any Armes of the Seas or Saltwater Rivers where they have byn wont to fishe, and to build and sett vp vpon the Landes by theis Presents graunted, such Wharfes, Stages, and Workehouses as shalbe necessarie for the salting, drying, keeping, and packing vp of their Fish, to be taken or gotten vpon that Coast; and to cutt down, and take such Trees and other Materialls there groweing, or being, or shalbe needefull for that Purpose, and for all other necessarie Easements, Helpes, and Advantage concerning their said Trade of Fishing there, in such Manner and Forme as they have byn heretofore at any tyme accustomed to doe, without making any wilfull Waste or Spoyle, any Thing in theis Presents conteyned to the contrarie notwithstanding. AND WEE DOE further, for Vs. our Heires and Successors, ordeyne and graunte to the said Governor and Company, and their Successors by theis Presents that theis our Letters-patents shalbe firme, good, effectuall, and availeable in all Thinges, and to all Intents and Construccons of Lawe, according to our true Meaning herein before declared, and shalbe construed, reputed, and adjudged in all Cases most favourablie on the Behalf, and for the Benefist and Behoofe of the saide Governor and Company and their Successors: ALTHOUGH expresse mencon of the true yearely Value or certenty of the Premisses or any of them; or of any other Guiftes or Grauntes, by Vs. or any of our Progenitors or Predecessors to the foresaid Governor or Company before this tyme made, in theis-Presents is not made; or any Statute, Acte, Ordinnce, Provision, Proclamacon, or Restrainte to the contrarie thereof, heretofore had, made, published, ordeyned, or provided, or any other Matter, Cause, or Thinge whatsoever to the contrarie thereof in any wise notwithstanding.
In one paragraph multiple powers and jurisdictional areas are put together: military, militia and Admiralty. Because military and Admiralty realms are in the 'give and grant' area, the entire block is in that 'give and grant' form. Further as it pertains to crimes committed by Colonists against other realms, the paragraph must also fall into that as it can be a Nation to Nation affair that requires information and regularization. Where James I would utilize explicit and discrete language, Charles I mixes up those previously defined areas and joins things with different backgrounds together.
In essence this is a re-statement of James I original Charter, just downsizing the area to that of Massachusetts, although giving some extension of scope to that of the high seas for defense of ships on lawful fishing grounds. There is also extension to the dock and wharf areas, plus surroundings, which is important for maritime trade, a necessity for such a Colony.
With James II comes the return of Catholicism to the throne and much in the way of problems in England. Although somewhat isolated, the able governor that was appointed to oversee New England, Sir Edmund Andros, was an attempt to bring the multiple colonies of the New England region together under one rule. To a degree his skill in prior Colonies shows up with Massachusetts, Maine, New Hampshire and Rhode Island moving under control, Connecticut giving obedience but little help to Andros, and then New York and the Jerseys to follow. His Commission of 1688 (Source: Avalon Project) goes over some of the reasons and rationale behind this shift under James II. This is one time in which the actual document dates shift from the old to new calendar, and I'm taking that 1688 as the actual old date. What happens in England, however, in 1688 (1689 in the modern calendar) is that James II later in that year is forced to confront a Protestant army invited to England by the Prince of Orange to set aright the changes that James II had put in place. Thus the English Bill of Rights comes just after the Commission of 1688 in New England. Thus first things first with Edmund Andros' Commission pertaining to items military and militia:
And Wee do hereby give and grant unto you the said Sr Edmd Andros by your self your Captains and Commanders, by you to be authorized, full power and authority to levy arme muster command or employ, all persons whatsoever residing within our said Territory and Dominion of New England, and, as occasion shall serve, them to transfers from one place to another for the resisting and withstanding all enemies pyrats and rebells, both at land and sea, and to transfers such forces to any of our Plantations in America or the Territories thereunto belonging, as occasion shall require for the defence of the same against the invasion or attempt of any of our enemies, and then, if occasion shall require to pursue and prosecute in or out of the limits of our said Territories and Plantations or any of them, And if it shall so please God, them to vanquish; and, being taken, according to the law of arms to put to death or keep and preserve alive, at your discretion. And also to execute martiall law in time of invasion insurrection or warr, and during the continuance of the same, and upon soldiers in pay, and to do and execute all and every other thing which to a Captain Generall doth or ought of right to belong, as fully and amply as any our Captain Generall doth or hath usually don.
And Wee do hereby give and grant unto you full power and authority to erect raise and build within our Territory and Dominion aforesaid, such and so many forts, platformes, Castles, cities, boroughs, towns, and fortifications as you shall judge necessary; and the same or any of them to fortify and furnish with ordnance ammunition and all sorts of armes, fit and necessary for the security & defence of our said territory; and the same again or any of them to demolish or dismantle as may be most convenient.
And Wee do hereby give and grant unto you the said Sr Edmund Andros full power and authority to erect one or more Court or Courts Admirall within our said Territory and Dominion, for the hearing and determining of all marine and other causes and matters proper therein to be heard & determined, with all reasonable and necessary powers, authorities fees and priviledges.
And you are to execute all powers belonging to the place and office of Vice Admirall of and in all the seas and coasts about your Government; according to such commission authority and instructions as you shall receive from ourself under the Seal of our Admiralty or from High Admirall of our Foreign Plantations for the time being.
And forasmuch as divers mutinies & disorders do happen by persons shipped and imployed at Sea, and to the end that such as shall be shipped or imployed at Sea may be better governed and ordered; Wee do hereby give and grant unto you the said Sr Edmund Andros our Captain Generall and Governor in Cheif, full power and authority to constitute and appoint Captains, Masters of Ships, and other Commanders, commissions to execute the law martial, and to use such proceedings authorities, punishment, correction and execution upon any offender or offenders who shall be mutinous seditious, disorderly or any way unruly either at sea or during the time of their abode or residence in any of the ports harbors or bays of our said Territory and Dominion, as the Cause shall be found to require, according to martial law. Provided that nothing herein conteined shall be construed to the enabling you or any by your authority to hold plea or have jurisdiction of any offence cause matter or thing committed or don upon the sea or within any of the havens, rivers, or creeks of our said Territory and Dominion under your government, by any Captain Commander Lieutenant Master or other officer seaman soldier or person whatsoever, who shall be in actuall service and pay in and on board any of our ships of War or other vessels acting by immediat commission or warrant from our self under the Seal of our Admiralty, or from our High Admirall of England for the time being; but that such Captain Commander Lieut Master officer seaman soldier and other person so offending shall be left to be proceeded against and tryed, as the merit of their offences shall require, either by Commission under our Great Seal of England as the statute of 28 Henry VIII directs, or by commission from our said High Admirall, according to the Act of Parliament passed in the 13th year of the reign of the late King our most dear and most intirely beloved brother of ever blessed memory (entituled An Act for the establishing articles and Orders for the regulating and better governmt of His Matys navys, shipps or warr, and Forces by sea) and not otherwise. Saving only, that it shall and may be lawfull for you, upon such Captains and Commanders refusing or neglecting to execute. Or upon his negligent or undue execution of any the written orders he shall receive from You for our service, & the service of our said Territory and Dominion. to suspend him the said Captain or Commander from the exercise of the said office of Commander and commit him safe custody, either on board his own ship or elsewhere, at the discretion of you, in order to his being brought to answer for the same by commission either under our Great Seal of England or from our said High Admirall as is before expressed. In which case our will and pleasure is that the Captain or Commander so by you suspended shall during his suspension and commitmt be succeeded in his said office, by such commission or Warrant Officer of our said ship appointed by our self or our High Admirall for the time being, as by the known practice and discipline of our Navy doth and ought next to succeed him, as is case of death sickness of other ordinary disability hapning to the Commander of any of our ships & not otherwise; you standing also accountable to us for the truth & importance of the crimes and misdemeanours for which you shall so proceed to the suspending of such our said Captain or Commander. Provided also that all disorders and misdemeanors committed on shore by any Captain Commander, Lieutent, Master, or other officer seaman soldier or person whatsoever belonging to any of our ships of warr or other vessel acting by immediate commission or warrt from our self under the Great Seal of our Admiralty or from our High Admll from England for the time being may be tryed & punished according to the lawes of the place where any such disorders off'ences and misdemeanors shall be so committed on shore, notwithstanding such offender be in our actuall service and borne in our pay on board any such out shipps of warr or other vessels acting by immediate Commission or warrant from ourself or our High Admirall as aforesaid; so as he shall not receive any protection (for the avoiding of justice for such offences committed on shore) from any presence of his being improved in our service at sea.
Now isn't that a lot to unpack?
First off getting 28 Hen. 8 Statutory items is not the easiest thing, although Wikipedia has a simple list of the 1536 acts, finding original source material is difficult although by context the Offences at Sea Act 1536 appears to be the appropriate one.
The military power is given prime place for Sir Edmund Andros and it is a pretty much all-inclusive of land and sea, across all the Colonies of New England deal. Beyond that is that this power to raise an army goes down to every inhabitant of all those Colonies. This isn't conscription, as such, but the power for it is implicit in this Commission.
The Admiralty power is also granted as subsidiary to the Admiralty of England, directly, but is a separate jurisdiction given to New England's governor via this Commission. As with the military power, the direct Crown power is supreme and over-arching, but this amount of delegation is the creation of a relatively complete separate system under the larger system.
Finally there are these passages:
And Wee do hereby require and command all officers and ministers, civill and military and all other inhabitants of our said Territory and Dominion to be obedient aiding and assisting unto you the said Sr Edmd Andros in the execution of this our commission and of the powers and authorityes therein contained, and upon your death or absence out of our said Territory unto our Lieut. Governor, to whom wee do therefore by these presents give and grant all and singular the powers and authorityes aforesaid to be exercised and enjoyed by him in case of your death or absence during our pleasure, or untill your arrival within our said Territory and Dominion; as Wee do further hereby give and grant full power and authority to our Lieut. Governor to do and execute whatsoever he shall be by you authorized and appointed to do and execute, in pursuance of and according to the powers granted to you by this Commission.
And if in the case of your death or absence there be no person upon the place, appointed by us to be Commander in Cheif; our will and pleasure is, that the then' present Councill of our Territory aforesaid, do take upon them the administration of the Governmt and execute this commission and the severall powers and authoritys herein contained; and that the first Counselor who shall be at the time of yor death or absence residing within the same, do preside in our said Councill, with such powers and preheminencies as any former President hath used and enjoyed within our said territory, or any other our plantations in America, untill our pleasure be further known, or your arrivall as aforesaid.
Note that power devolves to the Council if Governor and Lt. Governor are both deceased or absent.
Next is the important English Bill of Rights of 1689 (Source: Avalon Project) which is in a long line of documents starting with The CHARTER of LIBERTIES of HENRY I as part of a collection that forms the basis for the English Constitution which is never gathered into one document. The various Charters at ascension to the throne give a basis for the basic contractual agreement of a King to be held to prior agreements with the nobles and aristocrats, which finally gets to the level of the people as a whole. Starting with just a few lines of text in the Anglo-Saxon Chronicles, these agreements form the basis for British civil rights. As an unratified set of documents, however, they give much leeway to governments and Monarchs to change that basis of honoring those rights in the law. Yet without these documents the Anglo-Saxon line of constitution would not have a basis for becoming a modern reality.
As with prior documents there is a point of taxation and representation going on, but that is a secondary issue to the power of the Crown with regards to the Anglican Church, established and utilized by Kings going back to William II. Unlike prior Kings, however, James II has a list of particulars drawn up against him that will guide Americans in their drafting of the Declaration:
By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;
By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;
By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;
By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering 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;
By violating the freedom of election of members to serve in Parliament;
By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;
And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;
And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;
And excessive fines have been imposed;
And illegal and cruel punishments inflicted;
And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;
Amongst these indictments are those pertaining to liberty (taxation) , keeping a standing army, and disarming individuals. Doing these things is contrary to the known and established laws and statutes and freedom of Englishmen, therefore the right to have arms predates the 1689 English Bill of Civil Rights. Not only does it predate it, but doing anything to disarm Protestants, or indeed anyone, is against such laws, statutes and understood freedom of the realm.
What this is, and make no mistake about it, is a statement against the Divine Right of Kings to rule as they wish and a statement that government comes from the assent of the governed as has been traditional, to that point in time, since at least the 6th Century. Those that take up arms against the King are "...the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections..." which are not only just the traditional nobility system but those elected to temporal office. This is a statement of power from the governed to the King, and the statement is, quite clearly, that the King has broken the contract that is established and traditional in England.
Their remedy is as follows, in part:
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
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;
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
That election of members of Parliament ought to be free;
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
Subjects which are Protestants may have arms for their defense suitable to their condition as allowed by law, which is, in part, the essence of Amendment II to the US Constitution. And do note that it was those taking up arms against an unjust King who were Protestants who were able to get help to put this Bill of Rights in place. The government has no right nor power to make anyone defenseless save by those conditions allowed by law. That also means the law cannot be extended to include all the people.
As those people of the English Colonies in America are considered to be Englishmen, with the understood rights, liberties and freedoms of same, then it can be said that there is a continuous historical right to have arms in said Colonies.
After that comes a really mashed together piece of work in The Charter of Massachusetts Bay in 1691 (Source: The Avalon Project), which I will do my best to excerpt from the poorly formatted, run-on sentence structure a few pieces of interest which I will try to break up, just a bit, for readability. This is under King William and Queen Mary:
[...] And Wee doe by these presents for vs Our Heires and Successors Grant Establish and Ordaine that the Governor of our said Province or Territory for the time being shall have full Power by himselfe or by any Cheif Comander or other Officer or Officers to be appointed by him from time to time to traine instruct Exercise and Governe the Militia there and for the speciall Denfence and Safety of Our said Province or Territory
to assemble in Martiall Array and put in Warlike posture the Inhabitants of Our said Province or Territory and to lead and Conduct them and with them to Encounter Expulse Repell Resist and pursue by force of Armes as well by Sea as by Land within or without the limitts of Our said Province or Territory and alsoe to kill slay destroy and Conquer by all fitting wayes Enterprises and meanes whatsoever all and every such Person and Persons as shall at any time hereafter Attempt or Enterprize the destruccon Invasion Detriment or Annoyance of Our said Province or Territory and
to vse and exercise the Law Martiall in time of actuall Warr Invasion or Rebellion as occasion shall necessarily require and alsoe from time to time
to Erect Forts and to fortifie any place or Places within Our said Province or Territory and the same to furnish with all necessary Amunicon Provisions and Stores of Warr for Odence or Defence and to comitt from time to time the Custody and Government of the same to such Person or Persons as to him shall seem meet
And the said Forts and Fortificacons to demolish at his Pleasure and to take and surprise by all waies and meanes whatsoever all and every such Person or Persons with their Shipps Arms Ammuncon and other goods as shall in a hostile manner Invade or attempt the Invading Conquering or Annoying of Our said Province or Territory Provided alwayes and Wee doe by these presents for Vs Our Heires and Successors [...]
It still doesn't look very good, but is a bit more coherent. The limits given after this are to other grants given to others under the Crown.
From this the Militia power is 'time to time' which has some training and such attached to it. This Militia can form the basis for an army (if the reasoning of the sentences follow) which can have in it the inhabitants of the territory as its basis. Thus the militia can have in it all the inhabitants of a territory.
The Admiralty jurisdiction and power is then addressed later:
[...] it is hereby declared that nothing herein shall extend or be taken to Erect or grant or allow the Exercise of any Admirall Court Jurisdicon Power or Authority but that the same shall be and is hereby reserved to Vs and Our Successors and shall from time to time be Erected Granted and exercised by vertue of Commissions to be yssued vnder the Great Seale of England or vnder the Seale of the High Admirall or the Comissioners for executing the Office of High Admirall of England
And further Our expresse Will and Pleasure is And Wee doe by these present for Vs Our Heires and Successors Ordaine and appoint that these Our Letters Patents shall not in any manner Enure or be taken to abridge bar or hinder any of Our loveing Subjects whatsoever to vse and exercise the Trade of Fishing vpon the Coasts of New England but that they and every of them shall have full and free power and Libertie to continue and vse their said Trade of Fishing vpon the said Coasts in any of the seas therevnto adjoyning or any Arms of the said Seas or Salt Water Rivers where they have been wont to fish and to build and set vpon the Lands within Our said Province or Collony lying west and not then possesst by perticuler Proprietors such Wharfes Stages and Workhouses as shall be necessary for the salting drying keeping and packing of their Fish to be taken or gotten vpon that Coast
And to Cutt down and take such Trees and other Materialls there growing or being or growing (11) vpon any parts or places lying west and not then in possession Of particular proprietors as shall be needfull for that purpose and for all other necessary easments helps and advantages concerning the Trade of Fishing there in such manner and forme as they have been heretofore at any time accustomed to doe without maketng any Wilfull Wast or Spoile any thing in these presents conteyned to the contrary notwithstanding [...]
Yes, while the verbiage does repeat in concept, the necessity of reinforcement puts the power grants into perspective. Due to its maritime nature, the Admiralty jurisdiction for contracts, buildings and such is a very important one that also overlaps with the military power not only for the building of such vessels for commerce, but in rendering pirates and others who attack upon the sea and land liable to civil law complaints beyond the martial law. This is later supported and amended in the Explanatory Charter of Massachusetts Bay in 1725 (Source: The Avalon Project) under King George I.
New York
Properly New York starts as part of the New England Charter stretching, finally, from Maine down to the Jerseys. With that said the other pieces, particularly the preceding for Massachusetts, will give a feel for the powers granted or administered in New York. What New York has that is a bit different from other Colonies or Provinces, is a purchase agreement: New York bought some territory from someone else, namely the Dutch who had purchased Manhattan Island from the local tribes. There is an actual purchase record for Manhattan Island on 05 NOV 1626 (Source: The Avalon Project) and that price was a bit higher than the original cost of beads, trinkets and trade goods the Dutch paid for it: 60 Guilders.
Due to the number of overlapping areas of authority, and all the settling of borders gone through in other documents, New York is left with little on its record (although see New Jersey for a textual copy of the New England grant under Charles II retained in NY) until 1777 and the Constitution of New York (Source: The Avalon Project). This Constitution follows most closely the outlines of the Declaration of Independence and utilizes the list of abuses as the reason and cause for severing ties with Great Britain. Much is cited but there are some of due note here:
"He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.
"He has kept among us, in times of peace, standing armies, without the consent of our legislatures.
"He has affected to render the military independent of, and superior to, the civil power.
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:
"For quartering large bodies of troops among us:
"For protecting them, by a mock trial, from punishment for any murders they should commit on the inhabitants of these States:
"For cutting off our trade with all parts of the world:
"For imposing taxes on us without our consent:
"For depriving us, in many cases, of the benefits of trial by jury:
"For transporting us beyond seas, to be tried for pretended offences:
"For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlargiIlg itS boundaries, so as to render it at once an example and fit instrumellt for introducing the same absolute rule into these colonies:
"For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:
"For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
"He has abdicated government here, by declaring us out of his protection, and waging war against us.
"He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
"He is at this time transporting large armies of foreign mercenaries to complete the work of death, desolation, and tyranny, already lies on with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.
"He has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their Lands.
"He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions.
"In every stage of these oppressions, we have petitioned for redress m the most humble terms. Our repeated petitions have been answered only by repeated injury. A prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.
Nor have we been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connection and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must therefore acquiesce in the necessity which denounces our separation, and hold them as we hold the rest of mankind, enemies in war; in peace, friends.
"We therefore, the Representatives of the United States of America, in general Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare, That these united colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; and that as free and independent States they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor."
The stuff done by King George III wouldn't have been attempted by much of anyone after the Restoration. Further the normal rights, duties, and obligations of a Monarch to those people being governed are far established and noted by Roman historian to at least the 7th Century AD. The conception of local control, of having a say in affairs locally and to being free and independent at the local level with only some of the highest level duties passed up to the Nation State level date back not to the Colonies, not to James I, not to William I and truly even pre-date Alfred the Great. This line of reasoning and tradition for government that is republic in all but name, is a cultural and historical lineage in its own right which is being broken by George III. Just as with Ethelred the Unready, Henry I, John I and James II there is a contract amongst the people and its chosen government which is outlined and stated with the limitations falling upon the highest level as agreed upon as a contract between Kings and his peers and finally all of the people as a whole.
As part of the organization going on the following are put into place:
XIX. That it shall be the duty of the governor to inform the legislature, at every session, of the condition of the State, so far as may respect his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress, and other States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are faithfully executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature.
XX. That a lieutenant-governor shall, at every election of a governor, and as often as the lieutenant-governor shall die, resign, or be removed from office, be elected in the same manner with the governor, to continue in office until the next election of a governor; and such lieutenant-governor shall, by virtue of his office, be president of the senate, and, upon an equal division, have a casting voice in their decisions, but not vote on any other occasion. And in case of the impeachment of the governor, or his removal from office, death, resignation, or absence from the State, the lieutenant-governor shall exercise all the power and authority appertaining to the office of governor until another be chosen, or the governor absent or impeached shall return or lie acquitted: Provided, That where the governor shall, with the consent of the legislature, be out of the State, in time of war, at the head of a military force thereof, he shall still continue in his command of all the military force of this State both by sea and land.
The Executive is put in charge of running the military in times of war, and that is the full military executive power at land and sea.
XXIV. That all military officers be appointed during pleasure; that all commissioned officers, civil and military, be commissioned by the governor; and that the chancellor, the judges of the supreme court, and first judge of the county court in every county, hold their offices during good behavior or until they shall have respectively attained the age of sixty years.
An interesting difference, here, between New York and other States with regards to military officers.
XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration, respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and rejected. And this convention doth further ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same.
This is the continuity of civil and military law via the common law, and, with necessary changes and adaptations, it continues on after the separation from Great Britain. This is, perhaps, one of the greatest strengths of the new governments being formed up – the put the continuity of law at the top of the list as it is that law that has protected their rights and freedoms before being abrogated by George III.
XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth.(12) And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.
New York puts the duty of defense of the State to its citizens at large. The militia is to be armed, trained and in readiness of service but not in service at all times. A State, indeed any government, only has call upon for the common defense when it is attacked, undermined or otherwise brought into danger of losing its civil government and for those times it is the duty of citizens to come to defense of their freely created government. New York does exclude people of conscience from active service, but still requires recompense from such people in lieu of active service. To the end of having such a militia the State also provides places in each county for the storage of arms, munitions or other goods necessary for war. Growing up in Western NY this was reflected by the old Armory buildings which still existed at that time.
Free citizens, in other words, were to be armed and ready for service in defense of their State. There is no time constraint on that: it is at all times. You are not in active service to the State for its defense save for when it requires some training and such, or in times of actual conflict or danger. This is a non-standing army, but one with standing provisions and other armaments at the ready at each county so that all the free citizens may participate in the defense of their freely chosen Government and the State as a whole. This is not true in every State, and each runs its militia differently. It is that pre-support outlay and infrastructure that is explicitly stated to the county level of detail that is different from other such pre-US Constitution documents.
New Hampshire
The Grant of Hampshire to Capt. John Mason, 7th November 1629 (Source: The Avalon Project) is a general document from James I that is the basic 'go out and establish a colony' type. A second document, Grant of Laconia to Sir Ferdinando Gorges and Captain John Mason by the Council for New England; November 17, 1629 (Source: The Avalon Project) is, perhaps, a bit thick to read but conforms to the basic set of documents that flow from the establishment of the New England Council (as seen in Massachusetts and elsewhere). As such it needs to be unpacked a bit for readability, and I'll try to extract some interesting bits. Throughout this document it is the Council speaking using the King's prior Grant:
[..] give, grant, and confirm unto the said President and Council and their successors, under the reservations and limitations and declarations in the said letters patent expressed, all that part and portion of that country now commonly called New England which is situate, lying, and being between the latitude of forty degrees and forty eight of northerly latitude together with the seas and islands lying within one hundred miles of any part of the said coast of the country aforesaid, and also all the lands, soils, grounds, havens, ports, rivers, mines as well royal mines of gold and silver, and other mines, minerals, pearls and precious stones, woods, quarries, marshes, waters, fishing, hunting, hawking, fowling, commodities, and hereditaments whatsoever, together with all perogatives jurisdictions, royalties, privileges, franchises, and preheminences within any of the said territories and precincts thereof whatsoever. To have, hold, possess, enjoy all and singular the said lands and premises in the said letters patent granted or mentioned to be granted unto them the said president and council, their successors and assigns forever. To be holden of his Majesty, his heirs and successors, as of his Highness' manor of East Greenwich in the county of Kent, in free and common soccage, and not in capite or by knight's service, yielding and paying to his Majesty, his heirs and successors, the one-fifth part of all gold and silver ore that from time to time, and at all times from the date of the said letters patent, shall be there gotten, had, or obtained for all services, duties, or demands as in and by his Highness' said letters patent amongst divers other things therein contained more full and at large it does and may appear.
Royal overhead: 20%.
That one in five business would actually start to spark the American Revolution in the timber industry with the best logs and logs of a certain diameter reserved for the Crown. It is, alone, not the basis for the Revolution, but cements a part of the 'no taxation without representation' concept that would underlie it in the coming century.
For all of that you get the normal and standard rights to utilizing all the standard rights and privileges to enjoy such lands in possessing them.
After delineating where the Colony ends and where Canada begins (a very difficult subject), there is this:
As also all the lands, soil, grounds, havens, ports, rivers, mines, minerals, pearls and precious stones, woods, quarries, marshes, waters, fishings, hunting, hawking, fowling trade, and traffic with the savages, and other commodities and hereditaments whatsoever, with all and singular their appurtenances together with all perogatives, rights, royalties, jurisdictions, privileges, franchises, preheminences, liberties, marine power in and upon the said rivers and lakes. As also all escheats and casulaties thereof, flotsam, jetsam and lagon, with anchorages and other such duties, immunities, sects, islets, and appurtenances whatsoever, with all the estate, right, title, interest, claim, and demand whatsoever which the said President and Council and their successors of right ought to have or claim in or to the said portions of lands, rivers, and lakes and other the premises as is aforesaid by reason or force of his Highness' said letters patents, in as free, large, ample, and beneficial manner to all intents, constructions, and purposes whatsoever as in and by the said letters patent the same are amongst other things granted to the said president and council aforesaid, except two-fifths of the ore of gold and silver in these parts hereafter expressed which said portions of lands, rivers, lakes, with the appurtenances the said Sir Ferdinando Gorges and Captain John Mason with the consent of the president and council intend to name The Province of Laconia, to have and to hold all the said portions of land and all the lakes and islands therein contained as aforesaid, and all and singular other the premises hereby given, granted, aliened, enfeoffed, and confirmed or mentioned or intended by these presents to be given, granted, aliened, enfeoffed, and confirmed, with all and singular the appurtenances and every part and parcel thereof unto the said Sir Ferdinando Gorges and Captain John Mason, their heirs and assigns, and their associates contracts with them forever. To be holden of his said Majesty, his heirs and successors, as of his Highness' manor of East Greenwich in the county of Kent, in free and common soccage and not in capite or by knight's service, nevertheless with such exceptions, reservations, limitations, and declarations as in the said letters patent are at large expressed, yielding and paying into our sovereign lord the King, his heirs and successors, the fifth part of all the ore of gold and silver that from time to time hereafter shall be there gotten and obtained for all services, duties, and demands.
So on some lands the Crown wants 20%, on other lands the Council wants 40% and the Crown 20%... is that a 20% of the 40% or is it an additional 20% taken with the 40%, which is to say 60%. You know for all the rights and privileges you would have just like your estates back home, 60% seems a bit steep. Maybe if the King promised to stop by for a visit, every so often, it would be a different thing... but, somehow, all we kept getting were letters and bureaucrats, often armed bureaucrats with troops. At least he isn't asking for 20% of the beer.
And what does he get to do with that? Why have an estate with fort:
And the said Sir Ferdinando Gorges and Captain John Mason do covenant and grant to and with the said president and council, their successors and assigns, by these presents, that the said Sir Ferdinando Gorges and Captain John Mason shall and will before the expiration of three years, to be accounted from the day of the date hereof, have in or upon the said portions of lands, or some part thereof, one fort with a competent guard and ten families at the least of his Majesty's subjects resident and being in and upon the same premises, or in default thereof shall and will forfeit and lose to the said president and council the sum of one hundred pounds sterling money.
A bit further:
And further, that if the said Sir Ferdinando Gorges and Captain John Mason, their heirs and assigns, or associates, shall at any time hereafter alien these premises or any part thereof to any foreign nation, or to any person or persons of any foreign nation, without the special license, consent, and agreement of the said president and council, their successors or assigns, that then the part or parts of the said lands so aliened shall immediately return back again to the use of the said president and council. And the said president and council, for themselves and their successors, do further covenant and grant to and with the said Sir Ferdinando Gorges and Captain John Mason, their heirs and assigns, and associates, and by these presents that it shall and may be lawful at all times hereafter to and for the said Sir Ferdinando Gorges and Captain John Mason, their heirs, assigns, and their associates, and the deputies, factors, servants, and tenants of them or any of them to have free egress, regress, way, and passage to enter and pass into and return from and to any of the said demised lands, lakes, and rivers with their ships, boats, barks, or other vessels with their munition and their cattle and commodities of what nature soever from, by, and through any of the lands, rivers, harbors, creeks, or seaports upon the sea coasts or frontier parts of New England aforesaid belonging to the president and council aforesaid without any let, trouble, interruption, molestation, or hindrance of them the said president and council, their successors or assigns, or of any other person or persons claiming under them or by their means or procurement.
A fort and the standard bits a knight can do, then the military power (and no giving away parts to foreign nations, either).
After that is a Grant of the Province of New Hampshire to John Wollaston, Esq. in 1635 (Source: The Avalon Project), which is one of the longest run-on sentences I have ever encountered. What was Charles I thinking with that? Charles I would also give another grant to John Mason (plus this one, and this one, all in 1635),
In 1639 the Agreement of Settlers at Exeter in New Hampshire (Source: The Avalon Project) is pretty simple and contains only one part:
Whereas it hath pleased the Lord to move the Heart of our dread Sovereigns Charles by the Grace of God King &c. to grant Licence and Libertye to sundry of his subjects to plant themselves in the Westerlle parts of America. We his loyal Subjects Brethern of the Church in Exeter situate and lying upon the River Pascataqua with other Inhabitants there, considering with ourselves the holy Will of God and o'er own Necessity that we should not live without wholesomne Lawes and Civil Government among us of which we are altogether destitute; do in the name of Christ and in the sight of God combine ourselves together to erect and set up among us such Government as shall be to our best discerning agreeable to the Will of God professing ourselves Subjects to our Sovereign Lord King Charles according to the Libertyes of our English Colony of Massachusetts, and binding of ourselves solemnly by the Grace and Help of Christ and in His Name and fear to submit ourselves to such Godly and Christian Lawes as are established in the realm of England to our best Knowledge, and to all other such Lawes which shall upon good grounds be made and enacted among us according to God that we may live quietly and peaceably together in all godliness and honesty.Mo. 8. D. 4. 1639 as attests our Hands.
Just to shorten it: they are living as Englishmen under English laws.
Finally in 1776 comes the Constitution of New Hampshire (Source: The Avalon Project) which is taken up on 05 Jan 1776. This is a fascinating glimpse into just what had driven the Colonies to this point in time:
WE, the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good; and in particular to establish some form of government, provided that measure should be recommended by the Continental Congress: And a recommendation to that purpose having been transmitted to us from the said Congress: Have taken into our serious consideration the unhappy circumstances, into which this colony is involved by means of many grievous and oppressive acts of the British Parliament, depriving us of our natural and constitutional rights and privileges; to enforce obedience to which acts a powerful fleet and army have been sent to this country by the ministry of Great Britain, who have exercised a wanton and cruel abuse of their power, in destroying the lives and properties of the colonists in many places with fire and sword, taking the ships and lading from many of the honest and industrious inhabitants of this colony employed in commerce, agreeable to the laws and customs a long time used here.
New Hampshire feels set upon by an oppressive military sent by Great Britain, and that Great Britain's Parliament and Ministries are no longer recognizing constitutional nor natural rights of the colonists.
The sudden and abrupt departure of his Excellency John Wentworth, Esq., our late Governor, and several of the Council, leaving us destitute of legislation, and no executive courts being open to punish criminal offenders; whereby the lives and properties of the honest people of this colony are liable to the machinations and evil designs of wicked men, Therefore, for the preservation of peace and good order, and for the security of the lives and properties of the inhabitants of this colony, we conceive ourselves reduced to the necessity of establishing A FORM OF GOVERNMENT to continue during the present unhappy and unnatural contest with Great Britain; PROTESTING and DECLARING that we neaver sought to throw off our dependence upon Great Britain, but felt ourselves happy under her protection, while we could enjoy our constitutional rights and privileges. And that we shall rejoice if such a reconciliation between us and our parent State can be effected as shall be approved by the CONTINENTAL CONGRESS, in whose prudence and wisdom we confide.
Basically the executive and enough of the legislature and judiciary of the appointed government left the people in the lurch. Because of that and without the means to actually run things in the old order, the people of New Hampshire must create a new one for the immediate period. This will be a government that does recognize their constitutional and natural rights. They then lay out the process of what this government is, how it is constituted and who gets to be on it.
Amongst the tasks the bicameral legislature has, and it has a few:
That general and field officers of the militia, on any vacancy, be appointed by the two houses, and all inferior officers be chosen by the respective companies.
That all officers of the Army be appointed by the two houses, except they should direct otherwise in case of any emergency.
The militia power has general and field offices established by the legislature, and the companies, themselves, are to choose their own commanders and officers below those field ranks.
The militia is separated from the Army, which has its officers appointed by the legislature.
This is a distinction with a difference that carries with it the conception that the militia is a locally organized, operated, run and commanded set of organizations while the Army is commanded directly in the way the legislature wants it to be and it chooses the officers at all levels. That is a prime and key difference between militias and Armies: militias are self-formed all the way up to the local command level, and only when called into the field to the legislatively appointed field officers come into play. That is NOT an army, but a militia.
Maryland
The Charter of Maryland 1632 (Source: The Avalon Project) under Charles I offers some perspective of the royal grant of power to local establishments of a military sort:
IX. Furthermore, that the New Colony may more happily increase by a Multitude of People resorting thither, and at the same Time may be more firmly secured from the Incursions of Savages, or of other Enemies, Pirates, and Ravagers: We therefore, for Us. our Heirs and Successors, do by these Presents give and grant Power, License and Liberty, to all the Liege-Men and Subjects, present and future, of Us, our Heirs and Successors, except such to whom it shall be expressly forbidden, to transport themselves and their Families to the said Province, with fitting Vessels, and suitable Provisions, and therein to settle, dwell and inhabit; and to build and fortify Castles, Forts, and other Places of Strength, at the Appointment of the aforesaid now Baron of Baltimore, and his Heirs, for the Public and their own Defence; the Statute of Fugitives, or any other whatsoever to the contrary of the Premises in any wise notwithstanding.
This grant is one that deals with those who are not beholden to the law or are the declared enemies of the colony or the Crown, yet is also a reaffirmation that the security of the colony is a local affair done under a Crown appointee. Of significant note that it is for the subjects and liege-men to do this, thus the individuals who are subject to the Crown are given to be able to secure themselves from such perils as enumerated with an all inclusive 'other Enemies, Pirates, and Ravagers'.
This is reinforced a bit later:
XII. But because, that in so remote a Region, placed among so many barbarous Nations, the Incursions as well of the Barbarians themselves, as of other Enemies, Pirates and Ravagers, probably will be feared. Therefore We have Given, and for Us, our Heirs, and Sucessors, do Give by these Presents, as full and unrestrained Power, as any Captain-General of an Army ever hath had, unto the aforesaid now Baron of Baltimore, and to his Heirs and Assigns, by themselves, or by their Captains, or other Officers to summon to their Standards, and to array all men, of whatsoever Condition, or wheresoever born, for the Time being, in the said Province of Maryland, to wage War, and to pursue, even beyond the Limits of their Province, the Enemies and Ravagers aforesaid, infesting those Parts by Land and by Sea, and (if God shall grant it) to vanquish and captivate them, and the Captives to put to Death, or, according to their Discretion, to save, and to do all other and singular the Things which appertain, or have been accustomed to appertain unto the Authority and Office of a Captain-General of an Army.
XIII. We also will, and by this our Charter, do give unto the aforesaid now Baron of Baltimore, and to his Heirs and Assigns, Power, Liberty, and Authority, that, in Case of Rebellion, sudden Tumult, or Sedition, if any (which God forbid) should happen to arise, whether upon Land within the Province aforesaid, or upon the High Sea in making a Voyage to the said Province of Maryland. or in returning thence, they may, by themselves, or by their Captains, or others Officers, thereunto deputed under their Seals (to whom We, for Us, our Heirs and Successors, by these Presents, do Give and Grant the fullest Power and Authority) exercise Martial Law as freely, and in as ample Manner and Form, as any Captain-General of an Army, by virtue of his Office may, or hath accustomed to use the same, against the seditious Authors of Innovations in those Parts, with-drawing themselves from the Government of him or them, refusing to serve in War, flying over to the Enemy, exceeding their Leave of Absence, Deserters, or otherwise howsoever offending against the Rule, Law, or Discipline of War.
In these two paragraphs are a pretty substantive war power grant to the Baron of Baltimore for not only internal security against invaders or seditious elements, but against those external elements that invade Maryland. To do this requires that there be troops and he is to 'to array all men, of whatsoever Condition, or wheresoever born, for the Time being'. These are, from that, not just nobles or aristocrats, not just Knights or Liege-Men, but from the ordinary citizenry of any rank or standing at all. This is a call to the common defense under the Crown and as it pertains tightly to IX, previously, in verbiage and scope, there is a direct connection between allowance for an armed citizenry and the common defense of their own lands under the Charter.
What this gets you is a bit more than hinted at:
XIV. Moreover, left in so remote and far distant a Region, every Access to Honors and Dignities may seem to be precluded, and utterly barred, to Men well born, who are preparing to engage in the present Expedition, and desirous of deserving well, both in Peace and War, of Us, and our Kingdom; for this Cause, We, for Us, our Heirs and Successors, do give free and plenary Power to the aforesaid now Baron of Baltimore, and to his Heirs and Assigns, to confer Favors, Rewards and Honors, upon such Subjects, inhabiting within the Province aforesaid, as shall be well deserving, and to adorn them with whatsoever Titles and Dignities they shall appoint; (so that they be not such as are now used in England) also to erect and incorporate Towns into Boroughs, and Boroughs into Cities, with suitable Privileges and Immunities, according to the Merits of the Inhabitants, and Convenience of the Places; and to do all and singular other Things in the Premises, which to him or them shall seem fitting and convenient; even although they shall be such as, in their own Nature, require a more special Commandment and Warrant than in these Presents may be expressed.
Thus the commanding officer (and Baron of the colony) is given the ability to award titles, rank, etc. in actions both at peace and war times, to such well born individuals who deserve them. And as the grant of ability to incorporate new areas, create new districts and so on are also granted, this also creates the power to designate new well born amongst the citizenry to run such things.
This is a plenary power of military and civil authority that devolves much of the Crown power to an individual to utilize for the benefit of the colony. Without this, of course, a colony could not be run without modern communications, and even with such communications the ability to ascertain just what the mood, temper and attitude of the people of such a colony and those aggressive to it actually are, would be difficult to convey.
Jumping from the Charter from Charles I the next document of note is the Constitution of Maryland in 1776 (Source: The Avalon Project). It contains much of the language that is familiar to the US Constitution but broken down into sub-parts with additional language familiar elsewhere also put into them. This starts with a Declaration of Rights:
XXV. That a well-regulated militia is the proper and natural defence of a free government.
XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.
XXVIII. That no soldier ought to be quartered in any house, in time of peace, without the consent of the owner; and in time of war, in such manner only, as the Legislature shall direct,
XXIX. That no person, except regular soldiers, mariners, and marines in the service of this State, or militia when in actual service, ought in any case to be subject to or punishable by martial law.
The militia is not a standing army nor what we would consider an organized military group. It is also a 'natural defense of government', not an assignment from government to the people but something that people will naturally do so as to sustain and maintain their government. These rights are separate from the next section which is the actual Constitution, Or Form Of Government which is the next section of the document.
In the actual form of government there is a given the powers of the Sheriff with regards to elections:
III. That the Sheriff of each county, or, in case of sickness, his Deputy (summoning two Justices of the county, who are required to attend, for the preservation of the peace) shall be the judges of the election, and may adjourn from day to day, if necessary, till the same be finished, so that the whole election shall be concluded in four days; and shall make his return thereof, under his hand, to the Chancellor of this State for the time being.
Thus this is not a militia power. Later in XLII the specifics for electing a Sheriff are laid out.
There is an interesting part to avoid problems that is not part of many such Constitutions since this time:
XXXVII. That no Senator, Delegate of Assembly, or member of the Council, if he shall qualify as such, shall hold or execute any office of profit, or receive the profits of any office exercised by any other person, during the time for which he shall be elected; nor shall any (governor be capable of holding any other office of profit in this State, while he acts as such. And no person, holding a place of profit or receiving any part of the profits thereof, or receiving the profits or any part of the profits arising on any agency, for the supply of clothing or provisions for the Army or Navy, or holding any office under the United States, or any of them-or a minister, or preacher of the gospel, of any denomination-or any person, employed in the regular land service, or marine, of this or the United States-shall have a seat in the General Assembly or the Council of this State.
This is an anti-conflict of interest and anti-cronyism clause that prevents officials from gaining benefit from the State and prevents holding office when holding office of profit with the US (that is under the Articles of Confederation). It is an instance in which the US Constitution obviously missed out on having such wisdom vested in it. And it is backed up by oath of office:
XXXVIII. That every Governor, Senator, Delegate to Congress or Assembly, and member of the Council, before he acts as such, shall take an oath " that he will not receive, directly or indirectly at any time, any part of the profits of any office, held by any other person during his acting in his office of Governor, Senator, Delegate to Congress or Assembly, or member of the Council, or the profits or any part of the profits arising on any agency for the supply of clothing or provisions for the Army or Navy."
It is a strong reinforcement of the explicit prohibition and puts the individual on record as having agreed to it. And as it is a strongly held position it must be penalized:
XXXIX. That if any Senator, Delegate to Congress or Assembly, or member of the Council, shall hold or execute any office of profit, or receive, directly or indirectly, at any time, the profits or any part of the profits of any office exercised by any other person, during his acting as Senator, Delegate to Congress or Assembly, or member of the Council-his seat (on conviction, in a Court of law, by the oath of two credible witnesses) shall be void; and he shall suffer the punishment of wilful and corrupt perjury, or be banished this State forever, or disqualified forever from holding any office or place of trust or profit, as the Court may judge.
The variety of punishment left up to the discretion of the Court as to the severity of the offense, including banishment from the State is something that is one of the most explicit that I have come across looking at such documents.
Next is a specific prohibition to office for militia officers:
XLV. That no field officer of the militia be eligible as a Senator, Delegate, or member of the Council.
And how officers are appointed:
XLVIII. That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justices, the Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government (Assessors, Constables, and Overseers of the roads only excepted) and may also suspend or remove any civil officer who has not a commission, during good behaviour; and may suspend any militia officer, for one month: and may also suspend or remove any regular officer in the land or sea service: and the Governor may remove or suspend any militia officer, in pursuance of the judgment of a Court Martial.
Thus the Governor is in charge of the operational (or executive) portion of the land and sea forces, inclusive of militia, appointing officers to same with advice and consent of the Council, and can suspend such officers for one month or remove or suspend same after a Court Martial. From this the militia works under military code and law.
While simple in conception, the militia is complex in how it operates, particularly at the higher levels of officers. All militia members are not just the defenders of their government, but fall under military code and rules for such defense.
In continuing with the anti-corruption efforts there is the following:
LII. That every Chancellor, Judge, Register of Wills, Commissioner of the Loan Office, Attorney-General, Sheriff, Treasurer, Naval Officer, Register of the Land Office, Register of the Chancery Court, and every Clerk of the common law courts, Surveyor and Auditor of the public accounts, before he acts as such, shall take an oath " That he will not directly or indirectly receive any fee or reward, for doing his office of , but what is or shall be allowed by law; nor will, directly or indirectly, receive the profits or any part of the profits of any office held by any other person, and that he does not hold the same office in trust, or for the benefit of any other person."
LIII. That if any Governor, Chancellor, Judge, Register of Wills, Attorney-General, Register of the Land Office, Register of the Chancery Court, or any Clerk of the common law courts, Treasurer, Naval Officer, Sheriff, Surveyor or Auditor of public accounts, shall receive, directly or indirectly, at any time, the profits, or any part of the profits of any office, held by any other person, during his acting in the office to which he is appointed; his election, appointment and commission (on conviction in a court of law by oath of two credible witnesses) shall be void; and he shall suffer the punishment for wilful and corrupt perjury, or be banished this State forever, or disqualified forever from holding any office or place of trust or profit, as the court may adjudge.
It is as if the people of Maryland knew about the ways that government could become corrupt and did their best to put impediments to it in their Constitution! Like they were drawing from experience and history... fancy that. Apparently the idea of repeating similar verbiage and circumstances is necessary to drive the point home is one that is well understood in this time period.
And now for an interesting bit on jurisdiction:
LVI. That there be a Court of Appeals, composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive, in all cases of appeal, from the General Court, Court of Chancery, and Court of Admiralty: that one person of integrity and sound judgment in the law, be appointed Chancellor: that three persons of integrity and sound judgment in the law, be appointed judges of the Court now called the Provincial Court; and that the same Court be hereafter called and known by the name of The General Court; which Court shall sit on the western and eastern shores, for transacting and determining the business of the respective shores, at such times and places as the future Legislature of this State shall direct and appoint.
This is the State-based Admiralty jurisdiction which goes with all those contracts on ship building, delivery of goods, and other items, such as rendering of judgment on takings, that is in the list of items in the Declaration of Independence that the Crown once handed over to many of the Colonies and then abridged or abrogated. The people of Maryland are now taking it back and it is separate from the Articles of Confederation, as well.
LVII. That the style of all laws run thus; "Be it enacted by the General Assembly of Maryland:" that all public commissions and grants run thus; "The State of Maryland," &c. and shall be signed by the Governor, and attested by the Chancellor, with the seal of the State annexed-except military commissions, which shall not be attested by the Chancellor or have the seal of the State annexed: that all writs shall run in the same style, and be attesteted, sealed and signed a usual: that all indictments shall conclude, "Against the peace, government, and dignity of the State."
This sort of Oath for military officers and/or militia is a relatively common affair amongst the Colonies as they organize into States. There are amendments to the 1776 Constitution of Maryland (Source: Avalon Project), but as they are ratified post-US Constitution, they are not being considered.
Maine
Maine doesn't get a Constitution until 1820, which puts it a bit out of the pre-1787 time range. What it gets, instead, are four Grants from the Crown. With that said there are some things of interest from the Royal Grants worth looking at.
Grant of the Province of Maine in 1639 (Source: Avalon Project) has some space devoted to just how these people are supposed to take care of themselves with regards to military affairs. Do note that this grant is under Charles I of England. Unlike prior instances where I tried to parse out pieces from extended and run-on sentences, I'll do my best to boldface the important bits:
And because in a Country soe farr distant and seated amongst see many barbarous nations the Intrusions or Invasions as well of the barbarous people as of Pirates and other enemies maye be justly feared Wee Doe therefore for us our heires and successors give and graunte unto the said Sir Fardinando Gorges his heires and assignee full power and authoritie that hee the said Sir Fardinando Gorges his heires and assignee as well by him and themselves as by his and theire Deputyes Captaynes or other Officers for the tyme being shall or lawfullye maye muster leavie rayse armes and ymploye all person and persons whatsoever inhabiteing or resideing within the said Province or Premisses for the resisting or withstanding of such Enymies or Pyrates both att Lande and aft Sea and such Enimies or Pyrates (if occasion shall require) to pursue and prosecute out of the lymitts of the said Province or Premisses and then (if itt shall soe please God) to vanquishe apprehends and take and being taken either according to the Lawe of armes to kill or to keepe and preserve them aft their pleasure And likewise by force of armes to recover from any person or persons all such Territories Domynions Landes Places Goods Chattels and Wares which hereafter shalbee taken from the said Sir Fardinando Gorges his heires or assignee or from his or theire Deputyes Officers or Servants or from any the Plantors Inhabitants or Residents of or within the said Province or Premisses or from any other Members Aydors or Assistors of the said Sir Fardinando Gorges his heires or assignee or from any other the subjects of us our heires and successors or others in amitie with us our heires and successors in the said Province and Premisses and Coasts or any of them or in theire passage to or from the same And bite Doe further for us our heires and successors give and graunte unto the said Sir Fardinando Gorges his heires and assignee in case any Rebellion sudden tumult or mutynie shall happen to arise either uppon the said Lande within the said Province and Premisses or any of them or Coastes of the same or uppon the mayne Sea in passing thither or returning from thence or in any such expedicon or service as aforesaid itt shall and may be lawefull to and for the said Sir Fardinando Gorges his heires and assignee as well by him and themselves as by his and theire deputies Captaynes or other Officers under his or theire scale in that behalfe to bee authorized (to whome wee alsoe for us our heires and successors doe give and graunte full power and authoritye to doe and execute the same) to use and execute martial lawe against such Rebells Traytors Mutyners and Seditious Persons in as ample manner and forme as anie Captayne Generall in the Warrs or as any Lieuetennante or Lieuetennants of any Gountie within this our Realme of England by vertue of his or theire Office or Place maie or have beene accustomed in tyme of Warre Rebellion or Mutynie to doe and performe
And Wee Doe for us our heires and successors further give and graunte unto the said Sir Fardinando Gorges his heires and assignee and to all and every Commander Governour Officer Minister Person and Persons which shall by the said Sir Fardinando Gorges his heires or assignee bee thereunto authorized or appoynted leavo lycense and power to erect rayse and builde from time to tyme in the Province Territories and Coastes aforesaid and every or any of them such and soe manic Forts Fortresses Platforms Castles Citties Townes and Villages and all Fortificacons whatsoever and the same and everie of them to fortifie and furnishe with men Ordynances men Powder Shott Armour and all other Weapons Munition and Habillments of Warr both for defence and ofience whatsoever as to the said Sir Fardinando Gorges his heirs and assignee and everie or anie of them shall seeme meete and convenient And likewise to commits from tyme to tyme the Government Custody and defence thereof unto such person and persons as to the said Sir Fardinando Gorges his heires and assignee shall seeme meete and to the said severall Citties Borroughes and Townes to graunte Letters or Charters of Incorporacons with all Libertyes and thinges belonging to the same and in the said severall Cittyes Boroughes and Townes to constitute suche and so manic Marketts Marts and Fayres and to graunte such meete Tolles Customes Dutyes and Priviledges to or with the same as by the said Sir Fardinando Gorges his heires or assignee shalbee thought fitt And for that Plantacons are subjecte to diverse difficulties and discommodities Therefore Wee favouring the present beginning of the said Plantacon and haveing a provident care that those wlloe are grieved in one thing may bee releived in another Doe of our especiall grace certeyne knowledge and meere mocon for us our heires and successors give and graunte unto the said Sir Fardinando Gorges his heires and assignee and to all other our subjects the Dwellers or Inhabitants that shall att any tyme hereafter bee the Plantors of or in the said Province or any of the Premisses free Lycense and Libertie for the landeing bringeing in and unladeing or otherwise disposeing of all the Wares Merchandize Proffitts and Comodities of the said Province or any the Premisses both by sea and lance either by themselves or theire Servants Factors or Assignes in any of the Portes of us our heires and successors within our Kingdomes of England and Ireland payeing onely such Customes Subsidies and Dutyes as our naturall subjects of this our Realme of England shall or ought to paye and none other and to have and enjoye all such Liberties Freedomes and Privyledges for or concerneing the exporting of the same agayne without payement of any more Customes or Dutyes and for having agayne of Imposts in such manner and in the like beneficiall sorte as any of our naturall borne subjects of this our Realme shall then have and enjoye And Wee Doe alsoe for us our heires and successors give and graunte unto the said Fardinando Gorges his heires and assignee full and absolute power and authoritie to make erect and appoynt within the said Province and Premisses such and soe many Portes Havens Creekes and other Places for the ladeing and unladeing of Shippes Barques and other Vessells and in such and soe many places and to appoynt such Rights Jurisdiccons Priviledges and Libertyes unto the said Portes Havens and Creekes belonging as to him or them shall seeme meete and that all and singular Shippes Boyes Barques and other Vessels to bee laden and unladen in any way of Merchandize shalbee laden or unladen aft such Portes Havens or Creekes soe by the aforesaid Sir Fardinando Gorges his heires or assignee to be erected and appoynted and not elsewhere within the said Province Premisses and Coastes and to appoynt what reasonable Tolles shalbee paid for the same and the same Tolles to receive take and enjoye to the behoof of the said Sir Fardinando Gorges his heires and assignee to his and theire use without accompte to bee therefore made to us our heirs or successors any use costume matter or thinge to the contrary thereof notwitllstandinge Saveing allwayes to all our Subjects of our Kingdome of England Libertie of Fisheing aswell in the sea as in the Creekes of the said Province and Premisses aforesaid and the Priviledge of Salteing and dryeing of theire Fishe and Dryeing of theire nests a Shoare of the said Province and any the Premisses any thinge to the contrary thereof notwithstanding which said Liberties and Priviledges our pleasure is that the said subjects of us our heires and successors shall enjoye without any noteable dammage or injurie to bee done to the said Sir Fardinando Gorges his heires and assignee or the Inhabitants of the said Province or any of the Premisses or in any of the said Portes Creekes or Shoares aforesaid but chiefly in the Wooden there groweing
This is not just the militia power granted to Maine: it is the full authority of military power including the Admiralty power (given in the next paragraph after those two) and the power to levy what was at one time the 'King's Tax' upon ports and harbors for the maintaining of same. This is a broad and sweeping grant of powers at a distance and thoroughly necessary to run a large Empire.
Part of the list of grievances in 1776 dealt with these items (as well as internal tolling and taxation on trade) that was being abrogated under George III, but had previously been Grants under Charles I.
In the Grant of 1664 (Source: The Avalon Project) under Charles II lets the Province know that his brother James Duke of York (future James II) had not been granted any military oversight of Maine as part of giving him oversight over the recently taken Dutch colonies. This was then amended and extended in the Grant of 1674 (Source: The Avalon Project).
North Carolina
The lineage of power grants and administration for North Carolina starts in 1663 under Charles II with the Charter of Carolina (Source: The Avalon Project). Within that Charter are power grants, as such, to those going to settle the colony, and it includes the following:
7th. And to the end the said province may be more happily increased, by the multitude of people resorting thither, and may likewise be the more strongly defended from the incursions of salvages and other enemies, pirates and robbers, therefore we, for us, our heirs and successors, do give and grant by these presents, power, license and liberty unto all the liege people of us, our heirs and successors in our kingdom of England or elsewhere, within any other our dominions, islands, colonies or plantations, (excepting those who shall be especially forbidden,) to transport themselves and families unto the said province, with convenient shipping and fitting provisions, and there to settle themselves, dwell and inhabit, any law, statute, act, ordinance, or other thing to the contrary in any wise notwithstanding. And we will also, and of our more special grace, for us, our heirs and successors, do straightly enjoin, ordain, constitute and command, that the said province of Carolina, shall be of our allegiance, and that all and singular the subjects and liege people of us, our heirs and successors, transported or to be transported into the said province, and the children of them and of such as shall descend from them, there born or hereafter to be born, be and shall be denizens and lieges of us, our heirs and successors of this our kingdom of England, and be in all things held, treated, and reputed as the liege faithful people of us, our heirs and successors, born within this our said kingdom, or any other of our dominions, and may inherit or otherwise purchase and receive, take, hold, buy and possess any lands, tenements or hereditaments within the same places, and them may occupy, possess and enjoy, give, sell, aliene and bequeathe; as likewise all liberties. franchises and priviledges of this our kingdom of England, and of other our dominions aforesaid, and may freely and quietly have, possess and enjoy, as our liege people born within the same, without the least molestation, vexation, trouble or grievance of us, our heirs and successors, any statute, act, ordinance, or provision to the contrary notwithstanding.
[..]
14th. And further also, we do by these presents, for us, our heirs and successors, give and grant license to them, the said Edward Earl of Clarendon, George Duke of Albemarle, William Lord Craven, John Lord Berkley, Anthony Lord Ashley, Sir George Carteret, Sir William Berkley, and Sir John Colleton, their heirs and assigns, full power, liberty and license to erect, raise and build within the said province and places aforesaid, or any part or parts thereof, such and so many forts, fortresses, castles, cities, boroughs, towns, villages and other fortifications whatsoever, and the same or any of them to fortify and furnish with ordinance, powder, shot, armory, and all other weapons, ammunition, habilements of war, both offensive and defensive, as shall be thought fit and convenient for the safety and welfare of the said province and places, or any part thereof, and the same, or any of them from time to time, as occasion shall require, to dismantle, disfurnish, demolish and pull down, and also to place, constitute and appoint in and over all or any of the castles, forts, fortifications, cities, towns and places aforesaid, governors, deputy governors, magistrates, sheriffs and other officers, civil and military, as to them shall seem meet, and to the said cities, boroughs, towns, villages, or any other place or places within the said province, to grant "letters or charters of incorporation," with all liberties, franchises and priviledges, requisite and usefull, or to or within any corporations, within this our kingdom of England, granted or belonging; and in the same cities, boroughs, towns and other places, to constitute, erect and appoint such and so many markets, marts and fairs, as shall in that behalf be thought fit and necessary; and further also to erect and make in the province aforesaid, or any part thereof, so many mannors as to them shall seem meet and convenient, and in every of the said mannors to have and to hold a court baron, with all things whatsoever which to a court baron do belong, and to have and to hold views of "frank pledge" and "court leet," for the conservation of the peace and better government of those parts within such limits, jurisdictions, and precincts, as by the said Edward Earl of Clarendon, George Duke of Albemarle, William Lord Craven, John Lord Berkley, Anthony Lord Ashley, Sir George Carteret, Sir William Berkley and Sir John Colleton, or their heirs, shall be appointed for that purpose, with all things whatsoever, which to a court leet, or view of frank pledge do belong, the said court to be holden by stewards, to be deputed and authorized by the said Edward Earl of Clarendon, George Duke of Albemarle, William Lord Craven, John Lord Berkley, Anthony Lord Ashley, Sir George Carteret, Sir William Berkley, and Sir John Colleton, or their heirs, or by the lords of other manners and leets, for the time being, when the same shall be erected.
15th. And because that in so remote a country, and scituate among so many barbarous nations, and the invasions as well of salvages as of other enemies, pirates and robbers, may probably be feared; therefore we have given, and for us, our heirs and successors, do give power, by these presents, unto the said Edward Earl of Clarendon, George Duke of Albemarle, William Lord Craven, John Lord Berkley, Anthony Lord Ashley, Sir George Carteret, Sir William Berkley, and Sir John Colleton, their heirs and assigns, by themselves, or their captains, or other their officers, to levy, muster and train all sorts of men, of what condition or wheresoever born, in the said province for the time being, and to make war and pursue the enemies aforesaid, as well by sea as by land, yea, even without the limits of the said province, and by God's assistance to vanquish and take them, and being taken to put them to death by the law of war, or to save them at their pleasure; and to do all and every other thing, which unto the charge of a captain general of an army belongeth, or hath accustomed to belong, as fully and freely as any captain general of an army hath or ever had the same.
16th. Also our will and pleasure is, and by this our charter we give unto the said Edward Earl of Clarendon, George Luke of Albemarle, William Lord Craven, John Lord Berkley, Anthony Lord Ashley, Sir George Carteret, Sir William Berkley, and Sir John Colleton, their heirs and assigns, full power, liberty and authority, in case of rebellion, tumult or sedition, (if any should happen,) which God forbid, either upon the land within the province aforesaid, or upon the main sea, in making a voyage thither, or returning from thence, by him or themselves, their captains, deputies and officers, to be authorized under his or their seals for that purpose, to whom also, for us, our heirs and successors, we do give and grant by these presents, full power and authority, to exercise martial law against mutinous and seditious persons of those parts, such as shall refuse to submit themselves to their government, or shall refuse to serve in the wars, or shall fly to the enemy, or forsake their colours or ensigns, or be loyterers or straglers, or otherwise howsoever offending against law, custom or discipline military, as freely and in as ample manner and form as any captain general of an army by vertue of his office, might or hath accustomed to use the same.
There are multiple power grants at play here. First is the full military power at land and sea granted for use by the colony which includes raising an actual army. Said army is to be used in defense of the colony, to put down treason or sedition or mutiny, and to fend off attacks and take the attack to anyone who goes after the colony or parts thereof.
Because the erection of ports and the ability to form companies is also part of this grant, the Admiralty power is also given so that it can be utilized in the erection of those things necessary for maritime use both for trade and defense. As the ability to bring in and try attackers is also granted, that is both the civil and military power to bring in pirates, ravagers, etc. who can be tried in either venue or both as military affairs do not cover civilian damages as a matter of course.
Those powers are the explicit grant of 14-16, the Militia power is found in 7 in which the normal rights and freedoms under law that are for all Englishmen are also available to those living in the colony. As their self-defense is also at heart of their living in that colony and their defense of same, that plus the unstated but existing right of Englishmen to have arms and bear them for their own defense makes the basis for a militia. If the government can have an army (although given the circumstances a small one) the people also have the right to defend themselves in those times when the government's allowed military establishment can't protect them.
Following this document is A Declaration and Proposal of the Lord Proprietor of Carolina in 1663 (Source: The Avalon Project), and then Concessions and Agreements of the Lords Proprietors of the Province of Carolina, 1665 (Source: The Avalon Project) which puts together the government of Carolina which begins to formalize the Charter powers. The Assembly, amongst other powers, gets the following:
5. Item by act as aforesd to erect within ye said Countyes such see many Baronyes and Manors with their necessary Courts, jurisdiccons freedomes and priviledges as to them shall seeme convenient, as alsoe to device ye sd Countyes into Hundreds Parishes Tribes or such other denizens and districEons as they shall thinke flit and the said Divisions to distinguish by what names we shall order or direct, and in default thereof by such names as they please As also within any part of ye said Countyes to create and appoint such and soe many harbours Creekes and other places for ye convenient ladeing and unfading of goods and merchandise out of shipps, boates and other vessells as they shall see expedient with such jurisdiccons priveledges and francheses to such ports &c belonging as they shall judge most convenient to the genl good of ye said plantacon or Countyes.
6. Item by these enacting to be confirmed as aforesd to erect rayse and build within the sd Countyes or any part thereof such and soe many Forts Fortresses Castles Cittyes Corporacons Borroughs Townes Villages and other places of strenkt and defence and them or any of them to incorporate with such Charters and priveledges as to them shall seeme good and our Charter will permit and the same or any of them to fortifie and furnish with such Proportions of ordinance powder shots Armor and all other Weapons Ammunition and Habillaments of warr both offensive and defensive as shalbe thought necessary and convenient for the safety and welfare of ye sd Countyes, but they may not at any time demolish dismantle or disfurnish the same without the consent of the Governor and the Major parte of the Councill of the County where such Forts Fortresses &c. shalbe erected and built.
7. Item by act as aforesd to constitute trayne bands and Companys with the number of souldiers for the safety strength and defence of the said Countyes and Province and of the Forts Castles Cityes &c to suppress all meutinyes and Rebellions. To make warr offensive and defensive with all Indians Strangers and Foraigners as they shall see cause and to persue any Enemy by sea as well as by land if need be out of ye Lymitts and Jurisdiccons of ye sd County with the perticculer consent of the Governor and under the Conduct of our Leut: Gen: or Commander in Cheife or whome he shall appoint.
In Item 5 is the Admiralty power for construction, contracting and oversight of maritime fixtures plus those that are in the contained waterways. This is made full in Item 7 in the 'enemies by sea' language plus in Item 6 by the 'other places of strength and defense' language, which would properly encompass sea ports.
The Military power is delegated in Item 6 and 7 for both fixed fortifications and for raising bands or companies of trained men. Fortifications and such other fixed emplacements can have permanent staff for them.
Militias are traditionally located in counties and that is Item 7 in the training of bands and companies of men, which indicates that they are separate from those forces in forts and fortifications (although can be sent to them to supplement forces in them). When called on for the colony such forces are under military control.
The Governors and Council, on the executive side, get designated powers of interest:
4. Item to place officers and soldiers for the safety strenkt and defence of the Forts Castles Cittyes &c according ye number appointed by the Genll Assembly to nominate place and commissionate all military officers under ye dignity of ye Leut: Genll whoe is commissionated by us, over the sevll trayned bands and Companys constituted by ye Genll Assembly as Collonels Capts: &c and theire comissions to revoake at pleasure, ye Leut: Gen: with the advise of his Councill unless some present danger will soe permit him to advize to muster and trayne all ye soldiers wthin the said County of Countyes to presecute warr persue an Enemy suppress rebelions and mewtinies as well by sea as Land and to exercise the whole Millitia as fully as by our Letters patients from the hinge wee can impower him or them to doe Provided yt they appoint noe Military officers but wt are freeholders in the sd Countyes unless ye Genll Assembly shall consent.
The executive is put in charge of the bands and companies. The Assembly appoints officers up to the rank of Lt. General and down to Colonels and Captains. Individuals in these companies are trained in their counties. This is officially the Militia and during times of war, invasion, or to suppress rebellion the Governor can exercise it with the agreement of the Assembly.
The Charter of Carolina, June 30, 1665 by Charles II (Source: The Avalon Project) gives the backing language and more explicit set of powers seen in the organizing of the colony piece just previously:
AND further also, we do, by these presents, for us, our heirs and successors, give and grant licence to the said Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord of Berkeley, Anthony Lord Ashley, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, and their heirs and assigns, full power, liberty and licence, to erect, raise and build, within the said province and places aforesaid, or any part or parts thereof, such and so many forts, fortresses, castles, cities, boroughs, towns, villages, and other fortifications whatsoever; and the same, or any of them, to fortify and furnish with ordnance, powder, shot, armour, and all other weapons, ammunition, and habiliments of war, both defensive and offensive, as shall be thought fit and convenient, for the safety and welfare of the said province and places, or any part thereof; and the same, or any of them, from time to time, as occasion shall require, to dismantle, disfurnish, demolish and pull down: And also to place, constitute and appoint, in or over all or any of the said castles, forts, fortifications, cities, towns, and places aforesaid, Governors, Deputy-Governors, Magistrates, Sheriffs, and other officers, civil and military, as to them shall seem meet: And to the said cities, boroughs, towns, villages, or any other place or places, within the said province or territory, to grant letters or charters of incorporation, with all liberties, franchises, and privileges, requisite or usual, or to or within this our kingdom of England granted or belonging; and in the same cities, boroughs, towns, and other places, to constitute, erect and appoint such and so many markets, marts, and fairs, as shall, in that behalf, be thought fit and necessary: And further also, to erect and make in the province or territory aforesaid, or any part thereof, so many manors, with such signories as to them shall seem meet and convenient; and in every of the same manors to have and to hold a Court-Baron, with all things whatsoever which to a Court-Baron do belong; and to have and to hold views of Frank-Pledge and Court-Leets, for the conservation of the peace and better government of those parts, with such limits, jurisdictions and precincts, as by the said Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord Berkeley, Anthony Lord Ashley, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, or their heirs, shall be appointed for that purpose, with all things whatsoever which to a Court-Leet, or view of Frank-Pledge, do belong; the same courts to be holden by stewards, to be deputed and authorized by the said Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord Berkeley, Anthony Lord Ashley, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, or their heirs, by the Lords of the manors and leets, for the time being, when the same shall be erected.
AND because that in so remote a country, and situate among so many barbarous nations, the invasions of savages and other enemies, pirates and robbers, may probably be feared; therefore, we have given, and for us, our heirs and successors, do give power by these presents, unto the said Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord Berkeley, Anthony Lord Ashley, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, their heirs or assigns, by themselves, or their Captains, or other officers, to levy, muster, and train up all sorts of men, of what condition soever, or wheresoever born, whether in the said province, or elsewhere, for the time being; and to make war, and pursue the enemies aforesaid, as well bv sea, as by land; yea, even without the limits of the said province, and, by God's assistance, to vanquish, and take them; and being taken, to put them to death, by the law of war, and to save them at their pleasure, and to do all and every other thing, which to the charge and office of a Captain-General of an army, hath had the same.
ALSO, our will and pleasure is, and by this our charter, we do give and grant unto the said Edward Earl of Clarendon, George Duke of Albemarle, William Earl of Craven, John Lord Berkeley, Anthony Lord Ashley, Sir George Carteret, Sir John Colleton, and Sir William Berkeley, their heirs and assigns full power, liberty, and authority, in case of rebellion, tumult, or sedition, (if any should happen, which God forbid) either upon the land within the province aforesaid, or upon the main sea, in making a voyage thither or returning from thence, by him and themselves, their Captains, Deputies, or officers, to be authorized under his or their seals, for that purpose; to whom also, for us, our heirs and successors, we do give and grant, by these presents, full power and authority, to exercise martial law against any mutinous and seditious persons of these parts; such as shall refuse to submit themselves to their government, or shall refuse to serve in the war, or shall fly to the enemy, or forsake their colours or ensigns, or be loiterers, or stragglers, or otherwise offending against law, custom, or military discipline; as freely and in as ample manner and form, as any Captain-General of an army, by virtue of his office, might or hath accustomed to use the same.
This language actually goes quite beyond the prior piece that looked at what powers were available for a government of Carolina. A grant of the full powers in absentia by the King is not something done lightly and puts the individuals assigned such powers in the position of exercising the royal authority in those given and prescribed areas.
Next for Carolina is The Fundamental Constitution of Carolina: March 1, 1669 (Source: The Avalon Project) which creates counties and then the estates in them under the landgraves. The resulting palatinate system has a system somewhat different than what is seen elsewhere, and that is true in the military realm:
Thirty-nine. The constable's court, consisting of one of the proprietors and his six councillors, who shall be called marshals, shall order and determine of all military affairs by land, and all landforces, arms, ammunition, artillery, garrisons, forts, &c., and whatever belongs unto war. His twelve assistants shall be called lieutenant-generals.
Forty. In time of actual war the constable, while he is in the army, shall be general of the army, and the six councillors, or such of them as the palatine's court shall for that time or service appoint, shall be the immediate great officers under him, and the lieutenant-generals next to them.
Forty-one. The admiral's court, consisting of one of the proprietors and his six councillors, called consuls, shall have the care and inspection over all ports, moles, and navigable rivers, so far as the tide flows, and also all the public shipping of Carolina, and stores thereunto belonging, and all maritime affairs. This court also shall have the power of the court of admiralty; and shall have power to constitute judges in port-towns to try cases belonging to law-merchant, as shall be most convenient for trade. The twelve assistants belonging to this court shall be called proconsuls.
Forty-two. In time of actual war, the admiral, whilst he is at sea shall command in chief, and his six councillors, or such of them as the palatine's court shall for that time or service appoint, shall be the immediate great officers under him, and the proconsuls next to them.
This system sounds more than a little strange to the modern reader as it deals with landholders as a major part of the backbone of the colony.
A Palatine is the granting of direct royal power to nobles and allows for the distinguishing of those powers and separation of them. It is also one of the few instances in which anything called a 'court' (outside of a royal court) gets powers for conducting military affairs in the colonies. As the constable's court gets one of the proprietors and six councilors, it can be seen as a rump or local legislative body and the powers it gets are those normally observed in a legislative body, as well as that of the executive. It is better thought of as a designated tribunal over affairs military and that they are a court more in the way of the monarch deciding things with advisors rather than a judicial setting. With that said its members also serve as the high ranking field officers, which is more befitting of nobility. It is, in any case, the seat of the military powers in this government.
The admiral's court is a mirror to the constable's court in personnel and gets the Admiralty oversight power for those things dealing with affairs maritime in the way of contracting, inspections, upkeep, designating channels and having the admiralty court jurisdiction over those things, as well. Actual Admiralty power lineage is clearly seen in this instance as this is not just a legal or jurisdictional realm, but a war powers realm, as well, with those running the admiralty court becoming the admiral and ranking staff during wartime of the maritime services. This is of historical note as it harks back more towards the Admiralty power of the 13th to 14th century than our modern Admiralty civil jurisdiction: at some point in time it was an actual military jurisdiction as well as a civil one. This is why being 'head of the navies' gives an executive power over not just the military affairs of a Nation but over the Admiralty jurisdiction as well. It is under the palatinate system that the older form and duties of the Admiralty power can be clearly seen and the underlying basis for it given to the modern reader.
Further on the militia is duly categorized:
One hundred and sixteen. All inhabitants and freemen of Carolina above seventeen years of age, and under sixty, shall be bound to bear arms and serve as soldiers, whenever the grand council shall find it necessary.
This is 20 years before the Bill of Rights is created in Great Britain. Still the binding of every freeman to be a man at arms, for that era, is impossible to have without such freemen having the knowledge and use of arms: training in a time of emergency just takes too long to do. How to organize that properly falls under the constable's court, but all such men are not, in and of themselves, standing as an army: the term freemen is of import and they have other roles in life outside of the military sphere. As no standing army is designated and the freemen mentioned as the ones to bear arms and be soldiers, this can only be a militia as described.
After this the next document of note is The Mecklenburgh Resolutions of 1775 (Source: The Avalon Project) which has language which will be seen in later documents:
I. Resolved: That whosoever directly or indirectly abets, or in any way, form, or manner countenances the unchartered and dangerous invasion of our rights, as claimed by Great Britain, is an enemy to this country -- to America -- and to the inherent and inalienable rights of man.
II. Resolved: That we do hereby declare ourselves a free and independent people; are, and of right ought to be a sovereign and self-governing association, under the control of no power, other than that of our God and the General Government of the Congress: To the maintainance of which Independence we solemnly pledge to each other our mutual co-operation, our Lives, our Fortunes, and our most Sacred Honor.
III. Resolved: That as we acknowledge the existence and control of no law or legal officer, civil or military, within this county, we do hereby ordain and adopt as a rule of life, all, each, and every one of our former laws, wherein, nevertheless, the Crown of Great Britain never can be considered as holding rights, privileges, or authorities therein.
IV. Resolved: That all, each, and every Military Officer in this country is hereby reinstated in his former command and authority, he acting to their regulations, and that every Member present of this Delegation, shall henceforth be a Civil Officer, viz: a Justice of the Peace, in the character of a Committee Man, to issue process, hear and determine all matters of controversy, according to said adopted laws, and to preserve Peace, Union, and Harmony in said county, to use every exertion to spread the Love of Country and Fire of Freedom throughout America, until a more general and organized government be established in this Province.
Two major pieces that show up in the Declaration of Independence also show up a year before it, and it is a safe bet that these sentiments were echoed elsewhere, as well.
In 1776 comes the Constitution of North Carolina (Source: The Avalon Project) on 18 DEC. For our concerns there is a major highlight:
XVII. That 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; and that the military should be kept under strict subordination to, and governed by, the civil power.
First off the right to bear arms relates directly to the defense of the State, and that the right to bear arms does not create a standing army. This is from the initial Declaration of Rights part of the Constitution.
Within the body, proper:
XIV. That the Senate and House of Commons shall have power to appoint the generals and field-officers of the militia, and all officers of the regular army of this State.
And for the executive:
XVIII. The Governor. for the time being, shall be captain-general and commander in chief of the militia; and, in the recess of the General Assembly, shall have power, by and with the advice of the Council of State, to embody the militia for the public safety.
And a prohibition to prevent conflict of interest:
XXVII. That no officer in the regular army or navy, in the service and pay of the United States, of this or any other State, nor any contractor or agent for supplying such army or navy with clothing or provisions, shall have a seat either in the Senate, House of Commons, or Council of State, or be eligible thereto: and any member of the Senate, House of Commons, or Council of State, being appointed to and accepting of such office, shall thereby vacate his seat.
Actually there are quite a number of exception, prohibitions and directly stating of not making money off of one's office for the State in the Constitution. Truly we could learn from such things.
And in general:
XLIV. That the Declaration of Rights is hereby declared to be part of the Constitution of this State, and ought never to be violated, on any presence whatsoever.
Which is from the former part of the document but officially incorporated into the operations of government.
New Jersey
New Jersey, starting out as East and West Jersey, would be known for a time as the Jerseys and that sort of language must be recognized when talking about New Jersey. At its very start it was also referred to as New Caesarea.
This area starts out as a carve-out of New England with The Duke of York's Release to John Ford Berkeley, and Sir George Cartaret in 1664 (Source: The Avalon Project). This is followed directly by The Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey, to and With All and Every the Adventurers and All Such as Shall Settle or Plant There of 1664 (Source: The Avalon Project). As a delegated province or colony, it draws upon the powers granted through New England to create its government, which then administers the powers that flow to it. In the agreement the government agrees to keep track of things, be beholden to the Crown and then create a legislature to get about the business of actually getting the place established. Those powers include:
VI. By their enacting to be confirm'd as aforesaid, to erect, raise and build within the said Province or any part thereof, such and so many forts, fortresses, castles, cities, corporations, boroughs, towns, villages, and other places of strength and defence; and them or any of them, to incorporate with such charters and privileges, as to them shall seem good, and the grant made unto us will permit; and the same or any of them to fortify and furnish with such provisions and proportion of ordnance, powder, shot, armour, and all other weapons, ammunition and abiliments of war, both offensive and defensive, as shall be thought necessary and convenient for the safety and welfare of the said Province. But they may not at any time demolish, dismantle or disfurnish the same, without the consent of the Governor and the major part of the council of the said Province.
VII. By act (as aforesaid) to constitute train'd bands and companies, with the number of soldiers, for the safety, strength and defence of the said Province; and of the forts, castles, cities, &c. To suppress all mutinies and rebellions; to make war offensive and defensive with all Indians, strangers and foreigners, as they shall see cause; and to pursue an enemy as well by sea as by land, if need be, out of the limits and jurisdictions of the said Province, with the particular consent of the Governor, and under his conduct, or of our commander in chief, or whom he shall appoint.
Here is the military power which comes down to the province via New England. There is a grant of military power internally and externally to defend, repel and chase those who threaten the colony by land and sea.
The Governor then gets some powers to fit with what the legislative branch gets:
IV. To place officers and soldiers for the safety, strength and defence of the forts, castles, cities &c. according to the number appointed by the General Assembly, to nominate, place and commissionate all military officers under the dignity of the said Governor, who is commissionated by us over the several train'd bands and companies, constituted by the General Assembly, as colonels, captains, &c. and their commissions to revoke at pleasure. The Governor with the advice of his Council, unless some present danger will not permit him, to advise to muster and train all forces within the said Province, to prosecute war, pursue an enemy, suppress all rebellions, and mutinies, as well by sea as land; and to exercise the whole militia, as fully as we by the grant from his Royal Highness can impower them to do: Provided, that they appoint no military forces but what are freeholders in the said Province, unless the General Assembly shall consent.
V. Where they see cause, after condemnation, to repreive until the case be presented, with a copy of the whole tryal, proceedings and proofs to the Lords, who will accordingly pardon or command execution of the sentence of the offender; who is in mean time to be kept in safe custody till the pleasure of the Lords be known.
VI. In case of death or other removal of any of the Representatives within the year, to issue summons by writ to the respective division or divisions, for which he or they were chosen, commanding the freeholders of the same to choose others in their stead.
VII. To make warrants and seal grants of lands, according to those our concessions and the prescriptions, by the advice of the General Assembly in such form as shall be at large set down in our instructions to the Governor in his commission, and which are hereafter express'd.
VIII. To act and do all other things that may conduce to the safety, peace and well-government of the said Province, as they shall see fit; so as they be not contrary to the laws of the said Province.
To enact the military power there is to be a militia. Of note is that the higher or field rank officers are included in the power of the government (Governor with legislative consent). The lower levels, non-field level officers are not discussed and that leads to the idea that at those lower levels it is done by localized militia organizations. The companies, themselves, are given definition by government, most likely for sizing and such, but actually filling the ranks is done by some other method.
There is an understood militia duty that sits under the conception of having a militia and that puts the source of that understanding in English law and custom.
After this there is a grant from Charles II in 1674 to Sir George Cartaret (Source: The Avalon Project), then The Charter or Fundamental Laws, of West Jersey, Agreed Upon in 1676 (Source: The Avalon Project), and then the Quintipartite Deed of Revision, Between E. and W. Jersey: July 1st, 1676 (Souce: The Avalon Project) which has this section contained within it:
[..] to be holden of the King's Majesty, his heirs and successors, as of his majesty's manner of East Greenwich, in his Majesty's county of Kent, in free and common soccage, and not in capite or by knight service, under the yearly rent of forty-beaver skins, to be paid unto his said Majesty his heirs and successors, when they shall be demanded, or within ninety days after, as by the said Letters Patent, relation being thereunto had, it may appear: in and by which said Letters Patent his said Majesty did likewise give and Grant unto his said dearest brother James Duke of York, his heirs, deputies, agents, commissioners and assigns, full and absolute power and authority for the correcting, punishing, pardoning, governing -and ruling such of the subjects of his said Majesty, of his heirs and successors, as shall at any time adventure themselves into the said port and places, or inhabit there, according to such laws, orders, ordinances, directions and instructions, as by his said Majesty's said dearest brother, or his assigns, shall be established; and in defect thereof, in case of necessity, according to the good discretions of his deputies, commissioners, officers or assigns respectively, as well in all causes and matters capital and criminal, as civil, both marine and others, in such manner, and under such restrictions as is therein specified; and to do, exercise and execute all and every others the powers and authorities therein mentioned, as by the same Letters Patent, and by the several powers and authorities thereby given and granted, and therein specified, it doth and may appear.
In this land division between the Jerseys it is agreed that no powers previously granted are lost as pertaining to the civil and Admiralty jurisdictions for the area of land previously delineated. Part of the delineation going on also involves William Penn, thus actually setting boundaries between what are the Jerseys and that area under Penn is important here. The boundary changes and demarcations include such places as Egg Harbor and the Delaware River. There is a second grant from the Duke of York to William Penn, et. al. regarding West Jersey in 1680 (Source: The Avalon Project) and then the organizing of West New Jersey in the document Province of West New-Jersey, in America, The 25th of the Ninth Month Called November. 1681 (Source: The Avalon Project) to formally establish its government in which the following powers are part of that organization:
II. That the Governor of the Province aforesaid, his heirs or successors for the time being, shall not suspend or defer the signing, sealing and confirming of such acts and laws as the General Assembly (from time to time to be elected by the free people of the Province aforesaid) shall make or act for the securing of the liberties and properties of the said free people of the Province aforesaid.
III. That it shall not be lawful for the Governor of the said Province, his heirs or successors for the time being, and Council, or any of them, at any time or times hereafter, to make or raise war upon any accounts or presence whatsoever, or to raise any military forces within the Province aforesaid, without the consent of the General Free Assembly for the time being.
IV. That it shall not be lawful for the Governor of the said Province, his heirs or successors for the time being, and Council, or any of them, at any time or times hereafter, to make or enact any law or laws for the said Province, without the consent, act and concurrence of the General Assembly; and if the Governor for the time being, his heirs or successors and Council, or any of them, shall attempt to make or enact any such law or laws of him or themselves without the consent, act and concurrence of the General Assembly; that from thenceforth, he, they, or so many of them as shall be guilty thereof, shall, upon legal conviction, be deemed and taken for enemies to the free people of the said Province; and such act so attempted to be made, to be of no force.
The powers to make laws, declare war, raise armies and such are in the General Assembly and not granted to the Governor or the Council and that if the Governor or any members of the Council try to create such laws without the consent of the General Assembly, that upon conviction of having tried to do so, they will be considered enemies of the free people of West New Jersey. Further the ability of the Governor to make treaties is limited:
VIII. That the Governor or the Province aforesaid, his heirs or successor for the time being, or any of them, shall not send ambassadors, or make treaties, or enter into an alliance upon the publick account of the said Province, without the consent of the said General Free Assembly.
Thus there is a consent role for the General Free Assembly for treaties and alliances for the Province. This is to put in place a division of the external affairs power so that it is not solely vested in the Governor (or Executive Branch) of government.
After this there is the Duke of York's Confirmation to the 24 Proprietors: 14th of March 1682 (Source: The Avalon Project) which further partitions and delineates East New Jersey and other domains, which then leads up to the actual Fundamental Constitution of East New Jersey in 1683 (Source: The Avalon Project) which is under the previously named 24 Proprietors. Under this a subdivision of counties is put forward:
II. That for the government of the Province, there shall be a great Council, to consist of the four and twenty proprietors, or their proxies in their absence, and one hundred forty-four to be chosen by the freemen of the Province. But forasmuch as there are not at present so many towns built as there may be hereafter, nor the Province divided into such counties as it may be hereafter divided into, and that consequently no certain division can be made how many shall be choser for each town and county; at present four and twenty shall be chosen for the eight towns that are at present in being, and eight and forty for the county, making together seventy-two, and with the four and twenty Proprietors, ninety-six persons, till such times as the great council shall see meet to call the above mentioned number of one hundred forty-four, and then shall be determined by the great council how many shall come out of each town and county; but every year shall choose one-third, and the first chosen shall remain for three years, and they that go out shall not be capable to come in again for two years after, and therefore they shall not be put in the ballot in elections for that year; and in order to this election, they shall in course meet in their several boroughs and counties the six and twentieth day of March, beginning in the year one thousand six hundred eighty-four, and choose their several representatives; whose first day of meeting shall be the twentieth of April afterwards; and they shall sit upon their own adjournments, if they see meet, till the twentieth of July following, and then to be dissolved till the next year, unless the Governor and common council think fit to continue them longer, or call them in the intervail; but if any of those days fall on the first day of the week, it shall be deferred until the next day.
The county/town/borough system is a replication of the old Anglo-Saxons system of local control that is shire/town/burgh. These units are each autonomous at their own level with the burgh, or later borough, being the equivalent of a neighborhood or set of neighborhoods in a town that is autonomous at that level. Towns are made up of several of these divisions and the shire is then that area that contains the farms and towns of the local political unit that we call a county. From the original Anglo-Saxon period it is at this level, the shire or county, that militias are raised under their own command structure. It can, at once, be both a local political system and a local militia system at the same time, although there are usually a different array of individuals in each setting (county political vs county militia), although that is not, of necessity, the case in all instances. A fundamental understanding of there being a necessary representational system from the lowest levels to have input into the higher levels is one that draws upon the old Anglo-Saxon lineage of consent of the governed.
How this is run is then laid out, in some detail, just a bit later:
VII. Forasmuch as by the Concessions and agreements of the former Proprietors, (to wit) the Lord Berkeley and Sir George Carteret, to and with all and every the adventurers and all such as shall settle and plant in the Province in Anno 1664, it is consented and agreed by the six and seven articles, that the great Assembly should have power, by act confirmed as there expressed, to erect, raise and build within the said Province, or any part thereof, such and so many forts, castles, cities and other places of defence, and the same, or any of them, to fortify and furnish with such provisions and proportions of ordnance, powder, shot, armour and all other weapons, ammunition and abilments of war, both offensive and defensive, as shall be thought necessary and convenient for the safety and welfare of the said Province; as also to constitute train bands and companies, with the number of the soldiers, for the safety, strength and defence of the aforesaid Province; to suppress all mutinies and rebellions; to make war offensive and defensive, against all and every one that shall infest the said Province, not only to keep the enemy out of their limits, but also, in case of necessity, the enemy by sea and land to pursue out of the limits and jurisdiction of the said Province. 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; in order whereunto it is Resolved, that on the one side, no man that declares he cannot for conscience sake bear arms, whether Proprietor or planter, shall be at any time put upon so doing in his own person, nor yet upon sending any to serve in his stead. And on the other side, those who do judge it their duty to bear arms for the publick defence, shall have their liberty to do in a legal way. In pursuance whereof, there shall be a fourth committee erected, consisting of six proprietors, or their proxies, and three of the freemen, that are to set in the other three committees, which shall be such as to understand it their duty to use arms for the publick defence; which committee shall provide for the publick defence without and peace within, against all enemies whatsoever; and shall therefore be stiled the committee for the preservation of the publick peace: And that all things may proceed in good order, the said committee shall propound-to the great Council what they judge convenient and necessary for the keeping the peace within the said Province, and for publick defence without, by the said great Council to be approved and corrected, as they, according to exigence of affairs, shall judge fit; the execution of which resolutions of the great Council shall be committed to the care of the said committee. But because through the scruples of such of the Proprietors, or their proxies, as have no freedom to use arms, the resolutions of the great Council may be in this point obstructed, it is resolved and agreed, and it is by these presents resolved and agreed, that in things of this nature, the votes of these Proprietors shall only be of weight at such time or times as one of these two points are under deliberation, which shall not be concluded where twelve of the Proprietors and two thirds of the whole Council, as in other cases, are not consenting, (that is to say) first, whether, to speak after the manner of men, (and abstractly from a man's persuasion in matters of religion) it be convenient and suitable to the present condition or capacity of the inhabitants, to build any forts, castles or any other places of defence? If yea; where and in what places (to speak as men) they ought to be erected. Secondly, whether there be any present or future foreseen danger, that may, (to speak as men without respect- to one's particular perswasion in matters of religion) require the putting the Province into a posture of defence, or to make use of those means which we at present have, or which, from time to time as occasion may require, according to the capacity of the inhabitants, we may have; which ability and conveniency of those means of defence, and (to speak as men without respect to any man's judgment in matters of religion) the necessity of the actual use thereof, being once resolved upon; all further deliberations about it, as the raising of men, giving of commissions both by sea and land, making Governors of forts, and providing money necessary for maintaining the same, shall belong only to those members of the great Council who judge themselves in duty bound to make use of arms for the defence of them and theirs. Provided, that they shall not conclude any thing but by the consent of at least five parts out of six of their number; and that none of the Proprietors and other inhabitants may be forced to contribute any money for the use of arms, to which for conscience sake they have not freedom, that which is necessary for the publick defence, shall be borne by such as judge themselves in duty bound to use arms. Provided, that the other, that for conscience sake do oppose the bearing of arms, shall on the other hand bear so much in other charges, as-may make up that portion in the general charge of the Province. And as the refusing to subscribe such acts concerning the use and exercise of arms abovesaid, in the Governor and Secretary, if scrupulous in conscience so to do, shall not be esteemed in them an omission or neglect of duty, so the wanting thereof shall not make such acts invalid, they being in lieu thereof, subscribed by the major part of the six Proprietors of the committees for the preservation of the publick peace.
And in this we now see what a militia is. First it is not a standing army, but something raised on behalf of the Province by those willing to take up arms for it in time of danger, invasion or other such times of mutiny. Those who cannot take up arms, either by conscience or simple lack of the ability to exercise their liberty, can be excused from the training necessary to create the militia but, in times of defense, those not serving in the defense by arms are to contribute in proportion or equally to the work of defending the Province in other ways. Taking up arms in defense of the Province is a matter of conscience that is duty bound to individuals and it is noted that the individuals provide the arms and munitions save for those times when the defense of the Province is called for.
When called up the Council decides on officer commissions both for those on land and at sea, which puts an interesting cast to this power as it is possible to have merchant ships that can be armed, or are already armed to ward off pirates, freebooters, ravagers, and so on, and that these ships can, by implication, also be pressed into service of defense. That is fully allowable under this part of the Fundamental Constitution, yet is constrained by the conscience of the owner to allow such.
Being in the militia is not something that one is compelled to do, from this, but anyone who is armed for their own sakes is duty bound to come to the defense of the Province. Thus there is a multi-part set of preconditions to being part of the militia:
1 – Living in the Province under the Grants of the Crown.
2 – Armed if your conscience and liberty allow it. By conscience if you cannot utilize arms for the defense of the Province then you must have a religious conviction that forbids this at all times. Thus, by good conscience you cannot use arms at all. For those with lack of liberty, that means that they do not have the means to procure, buy, or have inherited arms to allow for such use. Under this consideration, and that ownership is a pre-requisite to the duty, an individual who does feel duty bound but lacks means may appeal to local commanders in times of defense for other work in that defense of a militia nature.
3 – The command structure is determined by the Council as one of its derived powers. There is also the duty bound requirement by armed citizens to practice in arms as determined by such commanders and their regulations from the Council. Being a part of the militia means putting your same liberty to defend self, family, home and property at service to the Province which is, itself, the next higher local level of protection, this one for all citizens of the Province.
4 – These trained bands or companies do not constitute a standing army as they are not in full-time service to the Province, receive little to no recompense from the Province for their training, and can even arrange circumstances via commanders to have others serve in their stead. All of this speaks to localized command and control authority in a framework defined by the Province, but which can be tailored for the affairs of the citizens at the lowest of levels.
In the time of Queen Anne there was a surrender of the Proprietorships of East and West Jersey in 1702 (Source: The Avalon Project) and formally presented in 1709 (Source: The Avalon Project) to the Queen for Her acceptance. Further in 1712 the Secretary's Office in New York returned a textual copy of Charles II's Grant of New England to Her Majesty (Source: The Avalon Project).
Following those changes comes the final pre-Constitution document for New Jersey which is the Constitution of New Jersey in 1776 (Source: The Avalon Project) on 02 JUL 1776. Within the Constitution is the re-organization of government after the severing of ties to Great Britain, its King and Parliament. Being mindful of the prior Colonial and Provincial documents, there are some changes that happen with this new Constitution that are of interest.
VIII. That the Governor, or, in his absence, the Vice-President of the Council, shall have the supreme executive power, be Chancellor of the Colony, and act as captain-general and commander in chief of all the militias and other military force in this Colony; and that any three or more of the Council shall, at all times, be a privy-council, to consult them; and that the Governor be ordinary or surrogate general.
The Executive power includes the power of command over the militia and other military offices of the State (the use of Colony is amended to State the following year for all instances).
X. That captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the Council and Assembly.
Here is the strong codification of prior understandings under previous governing outlays. The militia is now put under local control at the Captain and sub-ordinate levels, but under State control for the general officers. Further the companies of militia are determined at the county level and administered from that level for local concerns.
Further there is the confirmed continuity of law, precedent and rights from the previous period:
XXI. That all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province.
XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.
This would include the English Bill of Rights and all other agreements from English history going back to King Alfred and what was recorded in the Anglo-Saxon Chronicles.
Delaware
For the Constitution of Delaware 1776 (Source: The Avalon Project) there are a few items of interest to those looking at Amendment II. Thus, prior to the US Constitution, Delaware continued on with a British oriented system, although putting local rule into the position of governing, and relied upon traditional British rights for her citizenry to cover the militia which trace back to the Charter of Delaware 1701 (Source: The Avalon Project). I will add boldface to highlight areas of interest:
ART. 8. A privy council, consisting of four members, shall be chosen by ballot, two by the legislative council and two by the house of assembly: Provided, That no regular officer of the army or navy in the service and pay of the continent, or of this, or of any other State, shall be eligible; and a member of the legislative council or of the house of assembly being chosen of the privy council, and accepting thereof, shall thereby lose his seat. Three members shall be a quorum, and their advice and proceedings shall be entered of record, and signed by the members present, (to any part of which any member may enter his dissent,) to be laid before the general assembly when called for by them. Two members shall be removed by ballot, one by the legislative council and one by the house of assembly, at the end of two years, and those who remain the next year after, who shall severally be ineligible for the three next years. The vacancies, as well as those occasioned by death or incapacity, shall be supplied by new elections in the same manner; and this rotation of a privy councillor shall be continued afterwards in due order annually forever. The president may by summons convene the privy council at any time when the public exigencies may require, and at such place as he shall think most convenient, when and where they are to attend accordingly.
First off there is a separation of the legislative branch from the executive by excluding military officers from the privy council which acts as a 4 member consultative body to the president that can give a first review of some government orders and operations without referring it immediately to the full legislative authority immediately.
ART. 9. The president, with the advice and consent of the privy council, may embody the militia, and act as captain-general and commander-in-chief of them, and the other military force of this State, under the laws of the same.
So if Delaware gets into a problem that doesn't allow for the General Assembly and House of Assembly, an invasion perhaps, the president can consult with the privy council and they can give him their assent to muster the militia under previously passed rules and regulations for the militia.
This sort of system is closer to a British system and the roots of that can be found in something very reminiscent of Henry I which isn't an Amendment II concern, but is illustrative of how the Constitution of Delaware is formulated:
ART. 13. The justices of the courts of common pleas and orphans courts shall have the power of holding inferior courts of chancery, as heretofore, unless the legislature shall otherwise direct.
In a prior piece I looked at The CHARTER of LIBERTIES of HENRY I which holds this piece:
7. And if any of my barons or men shall grow feeble, as he shall give or arrange to give his money, I grant that it be so given. But if, prevented by arms or sickness, he shall not have given or arranged to give his money, his wife, children, relatives, or lawful men shall distribute it for the good of his sould as shall seem best to them.
Just an interesting side-light that helps to place the lineage of the document into some historical perspective.
ART. 16. The general assembly, by joint ballots shall appoint the generals and field-officers, and all other officers in the army or navy of this State; and the president may appoint, during pleasure, until otherwise directed by the legislature, all necessary civil officers not hereinbefore mentioned.
While the president gets to appoint the civil officers of government, it is the legislative branch in the general assembly that gets to appoint the officers. This is the military tradition we have and it is handed down through many places, but here it is from Delaware...
ART. 21. In case of vacancy of the offices above directed to be filled by the president and general assembly, the president and privy council may appoint others in their stead until there shall be a new election.
...except when they are out of session in the general assembly. Then an interim appointment can be performed. Yet another piece of the US system we have today that comes from multiple sources.
ART. 22. Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit:
" I, A B. will bear true allegiance to the Delaware State, submit to its constitution and laws, and do no act wittingly whereby the freedom thereof may be prejudiced."
And also make and subscribe the following declaration, to wit:
" I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration."
And all officers shall also take an oath of office.
Being an officer is an appointed position under this constitution. Also notice that there is no 'separation of Church and State' going on in Delaware, either. That lack of separation is due to the British system of common law.
ART. 25. The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.
Here the declaration of rights are included in the Constitution of Delaware, and that is the lineage of documents that starts with King Henry I Charter of Liberties and goes through each and every monarch since then, the Magna Carta and any other Oaths on liberties taken by the monarchy upon ascending to the throne.
ART. 28. To prevent any violence or force being used at the said elections, no person shall come armed to any of them, and no muster of the militia shall be made on that day; nor shall any battalion or company give in their votes immediately succeeding each other, if any other voter, who offers to vote, objects thereto; nor shall any battalion or company, in the pay of the continent, or of this or any other State, be suffered to remain at the time and place of holding the said elections, nor within one mile of the said places respectively, for twenty-four hours before the opening said elections, nor within twenty-four hours after the same are closed, so as in any manner to impede the freely and conveniently carying on the said election: Provided always, That every elector may, in a peaceable and orderly manner, give in his vote on the said day of election.
No calling out the militia on election day. Or having foreign militaries around. Or on the day before or after, either, or even within a mile of where the voting is taking place.
The Delaware Constitution was instituted in 1789 and can be found at the State of Delaware site for that. While not part of this look at pre-US Constitutional documents for the Colonies, it is worth noting the strong individual right to self-protection in the Preamble, and the explicit right to bear arms in the Article I, Bill of Rights, Section 20:
§ 20. Right to keep and bear arms.
Section 20. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.
Note the order of the right that first and foremost is defense of self, which is a reiteration of the Preamble general right to defend liberty.
Georgia
The Constitution of Georgia 1777 (Source: Avalon Project) starts with an explicit reason why the document must be put in place with regards to the activities of Great Britain. From that begins the organization of the State (as different from the corporation with King's charter), and a re-organization of counties recognizing the changes in population over the prior 45 years.
The first article of interest is tangential to Amendment II concerns, but is pertinent to the language that shows up in the US Constitution in Art.I, Sec. 10 and that is in Art. VIII of the Georgia Constitution 1777:
ART. VIII. All laws and ordinances shall be three times read, and each reading shall be on different and separate days, except in cases of great necessity and danger; and all laws and ordinances shall be sent to the executive council after the second reading, for their perusal and advice.
The Art. I, Sec. 10 US Constitution language is as follows in the third clause:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The highlighted language is a parallel for circumstances, and shows a common theme that the course of events may overwhelm normal procedure ( 'great necessity and danger'; 'actually invaded, or in such imminent Danger'). For, in that era, the idea of seeing ships pulling up to shore that were hostile and putting a force into ports or of native attacks was not a distant one, but a current one. Danger can come from many venues and there can be no explicit mapping out of the unknown to try and codify responses to each and every form of danger.
Next is a recurring theme amongst many of the Colonies and early States:
ART. X. No officer whatever shall serve any process, or give any other hinderances to any person entitled to vote, either in going to the place of election' or during the time of the said election, or on their returning home from such election; nor shall any military officer, or soldier, appear at any election in a military character, to the intent that all elections may be free and open.
This makes one wonder if you can actually use the National Guard to run an election site after a disaster. It is not just an old worry, but one that has regard for what the military is in regards to free and open elections.
Next is one that is of some interest to modern readers:
ART. XVII. No person bearing any post of profit under this State, or any person bearing any military commission under this or any other State or States, except officers of the militia, shall be elected a representative. And if any representative shall be appointed to any place of profit or military commission, which he shall accept, his seat shall immediately become vacant, and he shall be incapable of reelection whilst holding such office.
By this article it is not to be understood that the office of a justice of the peace is a post of profit.
Is there a difference between the military and the militia? Georgia certainly puts that forward in that official officers of the military may not be a representative but officers of the militia can be representatives. You can be a member of the military, which is to say the organized military under the direct leadership of the Executive branch of the Confederated States or another State's military, but not a representative as that is a direct conflict of interest for the individual involved due to that formalized higher than State level obedience to a military command.
The following three paragraphs directly address the militia and service requirements for the State:
ART. XXXIII. The governor for the time being shall be captains general and commander-in-chief over all the militia, and other military and naval forces belonging to this State.
ART. XXXIV. All militia commissions shall specify that the person commissioned shall continue during good behavior.
ART. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies.
There you have the explicit and direct tie between the ability to bear arms and being part of the militia in a county. Each county that has 250 men able to bear arms forms a battalion, and if you have more then the State legislature creates new ones, while those counties with less men able to bear arms than 250 get an independent company.
This power structures of the Legislative branch setting up rules and definitions, deciding what the conditions for appointment are for militia commissions and then the Executive having control of the militia (and other forces belonging to the State) is one that is directly mirrored in the US Constitution.
Of note for this system is the organizational structure for the militia that rests at the county level. Who is to determine if an individual is liable for the bearing of arms? That is not an explicit statement and, due to the sizing requirements, must be a county-level decision. The county is to muster what it can muster and it will take local matters of age, health, family and location in the county into its own hands because at 251 men able to bear arms, you don't ask for a second battalion – that is just pure common sense. When a country is close to 500 (or, indeed, over 500 men able to bear arms) then you look for a second battalion. What you have with the excess is room to adjust the battalion for exercises, drills, and other such things that cannot adequately be put in at a Constitutional level.
What comes next is something that both States and the larger scale government (here the Confederal government) have under their jurisdiction:
ART. XLIV. Captures, both by sea and land, to be tried in the county where such shall be carried in; a special court to be called by the chief-justice, or in his absence by the then senior justice in the said county, upon application of the captors or claimants, which cause shall be determined within the space of ten days. The mode of proceeding and appeal shall be the same as in the superior courts, unless, after the second trial, an appeal is made to the Continental Congress; and the distance of time between the first and second trial shall not exceed fourteen days; and all maritime causes to be tried in like manner.
This is in the US Constitutional 'Letters Language' for Letters of Marque and Reprisal, which deal with the authorizing of private agents to take on assigned military ventures for whatever gain they can get from it. Maritime capture law moves into the Admiralty jurisdiction entirely by this point in time in Great Britain and here so mirrored in George and the Confederal government. This was not an unusual part of warfare for the era and Privateers operated for both States and the Continental Congress. Indeed, many States continue to have such language in their post-1787 constitutions which indicates that for this jurisdiction is available to States for areas it controls.
Vermont
Amongst those documents preceding the US Constitution is the Vermont Constitution of 1777 (Source: Vermont Office of the Secretary of State archives) which has some import on the subject of citizenship, arms and reciprocity of same to the government and I will look at the pertinent ones. Vermont was not properly a Colony and had to create an independent State, thus its Constitution is a bit more well defined than the charters of the Colonies proper. Do note that the preamble of the Constitution deals with many of the offenses against Vermont by the British government, and are thus a parallel to the Declaration of Independence.
Chapter I is A Declaration of the Rights of the Inhabitants of the State of Vermont.
I. That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety. Therefore, no male person, born in this country, or brought from over sea, ought to be holden by law, to serve any person, as a servant, slave, or apprentice, after he arrives to the age of twenty-one years; nor female, in like manner, after she arrives to the age of eighteen years, unless they are bound by their own consent, after they arrive to such age, or bound by law for the payment of debts, damages, fines, costs, or the like.
Here is an instance in which a natural, inherent and unalienable set of rights is established which are defending life and property. Property may be acquired, possessed and protected and that there is a right to pursuing happiness and safety for the individual.
This is an explicit statement to the right of self-defense of one's property and oneself, as one cannot acquire property if they are not safe from harm, and defending that safety is a right that is unalienable from man.
II. That private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man's property is taken for the use of the public, the owner ought to receive an equivalent in money.
If you are looking for eminent domain in Revolutionary America, here it is in Vermont. Do note that public necessity must require that use, which are those things that government is to do, not things it hands others to do. Anyone having such property taken from them, which is against their natural and unalienable right to lawfully possess, is to be compensated.
This is an important part of looking at natural rights and its relationship to that organ of society we call government.
IV. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.
A fascinating look at the control of the police of a State belonging to the people. The modern assumption would be via standard State government, but the Vermont Constitution is saying something a bit more nuanced than that. To execute the laws of the government, in this formulation, the people of a State could form up their own police organization to execute State laws that would be outside of the domain of State control. Because that is the inherent right of the people: to police themselves.
Because of the formulation of Article I making a benchmark of 'natural, inherent and unalienable rights', with inherent being part of how those rights come to individuals, the structure here is similar to that in the fuller expression in Art. I. By putting policing of law solely in the hands of the people, what is created is something a bit different than our modern, integrated system of State funding for policing which puts control of the police into State hands. Which is to say indirect bureaucratic hands, while the people have the right to directly accountable bureaucracy.
V. That all power being originally inherent in, and consequently, derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.
Art. V is an express statement of the accountability inherent in Art. IV. By precedence, Art. IV is guiding for the powers involved (policing) and Art. V is the expansion of principle of accountability to the entire government.
What needs to be noted is the first part of Art. V which is: 'That all power being originally inherent in, and consequently, derived from, the people;'
That is one of the strongest expressions of the source of government since Pufendorf and makes explicit the idea that all rights, including the right of arms, is held by the people which are all members of society the society forming government. From Art. I we find that this expression of 'inherent' rights comes from individuals who have them as free and independent beings. There can be no other 'spin' to this, no agglomerated or 'communal' right that magically appears for government: all of its power comes from individuals who are the holders of those rights by nature.
VI. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family or set of men, who are a part only of that community; and that the community hath an indubitable, unalienable and indefeasible right, to reform, alter or abolish government, in such manner as shall be, by that community, judged most conducive to the public weal.
Government is created to be a common benefit to society, which is the formulation of such government being an organ of society, and that it is that society which has a right to change or abolish such government to get one more conducive to the common weal (prosperity or well being of the State). Government comes from society and society is created by individuals who are the holders of the powers that they grant to government for the good of all individuals, which is to say society.
IX. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of the protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man, who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law, but such as they have, in like manner, assented to, for their common good.
Government is granted a power to levy upon individuals a contribution to keep government running or funds in the protection of such government. This is both a militia power and a taxation power because of its construction which allows those who keep up arms and training to forego such payments or compulsory time. During times of peace a minimal expense is imposed in time (if they are without arms) or in funds if they have arms and practice them.
As a militia power of a State this means that if you do not keep up arms and training, then you need to pay for the upkeep of the militia or get your sorry but out for training with arms provided by others who are already armed and trained and who are contributing to keeping up your arms and training. The State does give some oversight into the manner of when and where training takes place, with the consent of those who are to take part in same. And if you can't make that training session but can pay an equivalent to defray costs, then you pay the funds.
XV. That the people have a right to bear arms for the defence of the [sic] 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.
From Art. XV we find that the people do indeed have the right to bear arms for themselves and they have the right to bear arms for the State. As seen previously in Art. IX there is a duty to training and upkeep of arms for the State, but utilizing them for the State is not their only limitation as individuals also have the right to defend themselves.
This is an explicit statement to reaffirm Art. I for the language of 'enjoying and defending' and 'acquiring, possessing, and protecting' and Art. XV now backs that up with people having 'a right to bear arms for the defence of the themselves'. I don't know if 'the themselves' is a misprint or meant to be 'thee themselves' since I don't have an original image to refer to. If it is the latter then it is a direct and highly explicit rendering of the right to be bound up in individuals, with 'thee' becoming a personal reinforcement not just within government but, when read, to the individual.
The next parts deal with: Chapter II Plan or Frame of Government.
SECTION V.
The freemen of this Commonwealth, and their sons, shall be trained and armed for its defence, under such regulations, restrictions and exceptions, as the General Assembly shall, by law, direct; reserving always to the people, the right of choosing their colonels of militia, and all commissioned officers under that rank, in such manner, and as often, as by the said laws shall be directed.
The militia is generally a self-forming organization given some directives by the State. It encompasses the able-bodied freemen and their sons to abide by the strictures and regulations of the General Assembly. With that said, the government leaves it up to local organizations to choose their colonels and all lesser ranks. Militias, then, are locally organized, arranged and set-up as far as is possible within the guidelines set down by the State.
SECTION XXXVI.
Every officer, whether judicial, executive or military, in authority under this State, shall take the following oath or affirmation of allegiance, and general oath of office, before he enter on the execution of his office.
The oath or affirmation of allegiance.
"I ______ ______ do solemnly swear by the ever living God (or affirm in the presence of Almighty God) that I will be true and faithful to the State of Vermont; and that I will not, directly or indirectly, do any act or thing, prejudicial or injurious to the constitution or government thereof, as established by Convention."
The oath or affirmation of office.
"I _____ _______ do solemnly swear by the ever living God (or affirm in the presence of Almighty God), that I will faithfully execute the office of ______________ for the ___________ of ____________; and will do equal right and justice to all men, to the best of my judgment and abilities, according to law."
The military officers within the militia do take an oath of allegiance to the State on the execution of their duties. That is what you expect officers of a duly constructed and regulated militia to do, and that formally puts them under the rules of war during wartime for their conduct. They swear to be accountable to the government during such times they are called to service.
SECTION XXXIX.
That the inhabitants of this State shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands (not enclosed); and in like manner, to fish in all boatable and other waters, not private property, under proper regulations, to be hereafter made and provided by the General Assembly.
Hunting on land one does where they have liberty to do so, at the proper seasons apportioned by government. That goes for fishing, too. For anyone trying to tie the right to keep and bear arms to hunting, that is put forward here, but is only seen as an exercise of the more general right. Here the liberty can be constrained by government, but not abolished by it.
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Notes in working on this piece.
1. That free people have the right to bear arms as an inalienable right, and one that is to secure oneself from not just tyrannical government, but against the reversion of man to his savage state and from other forces of danger. The long list of things that can go wrong in the affairs of men is numerous and yet the major categorizations are those that come to be more fully elucidated post-1648 and well understood by the late 18th century. Man, to have society, to protect his liberty, to protect his freedom, to protect those he loves, to protect his property, and to protect the freely chosen and associated government has the right to keep and bear arms, both. The rationale is multi-fold and each compelling in themselves.
A. Personal protection of life, liberty and property: One's life is one's property. The artifacts one makes, gets paid for and trades for are a representation of the time spent in life to acquire them and are, from that, a direct representation of one's life. Property is not theft but creation of artifacts that are then traded, sold or kept (as the case may be) and are as worthy of protection as one's life as they are artifacts of one's liberty in life. Without the ability to protect property one can be said to be shorn of the safety of free exercise of liberty and without that safety there is no safety for one's life. This is a direct connection, not a convoluted one, but shows up as something that is fought to be retained against Monarchs that have gone tyrannical and finally that needs to be explicitly stated in 1689.
B. Protection of a free state: One's liberty and freedom allows movement and freedom of association and the most primal association is one with a government that one find's suitable to one's own stance on life. That government requires defense. Yet such defense can not be permanent as the dangers are impermanent while the threats to such government are permanent. That is to say that the threat to a free government is omnipresent, but only when it manifests in force of arms does it need countering in that realm. The martial realm is a reflection of domestic preparedness, then, and only by being prepared can an individuals help to secure the safety of the government they freely associate with. Standing armies, as such, are to be small, competent, and controlled by the civilian government. Due to this constant vigilance against such a government seeking power over its people in the martial realm is also a requirement for constant vigilance. Such vigilance can only be accomplished in the immediate case through the ownership of arms in proportion to the military standards of that era as no other will suffice to protect the free state or one from a government going tyrannical against its citizens. To keep and bear arms is not just for hunting or other games, but a deadly pursuit of self-defense of oneself from tyranny and of one's freely chosen and supported government from being overwhelmed in the military realm.
C. Protection from savage nature: Nature offers up many savage creatures, but for every lion, every bear, every shark, and every other creature save those that are disease related, the greatest threat to man is savage man. Savage man is not that man found in a savage state, say as raised by wolves, but man who was once civilized and who renounced civilized restraint to impose his will upon all mankind. These we call pirates, ravagers, armies of thieves and by many other names and they come not just from sea but on land as well. A civilized man may go crazed and forget his civilized restraint due to disease or disorder, yes, but these are not in a league with those who seek to pull down civilization by their own power and imposing it via savage force of arms. No land has been or shall ever be safe from this so long as Nature exists: it is not an artifact of civilization but an artifact of Nature that man can and does willingly revert to savagery. As these will be armed with the best weapons they can find either immediately or through other procurement, it is the duty of each person to safeguard themselves not just from those who go savage due to disorder or disease, but those that conspire with other savages to pull down the works of civilization and remold it to their desire. The former are the enemy of the moment, the latter are the enemy of all mankind to eternity and cannot be bargained with, trusted or any other thing due to their renouncing their civilization in preference for savagery. As war is the state of savage conflict and they that operate outside of civilization abjure all civilized restraint in warfare, so they get none when they manifest.
2. The organization of a militia is a local one even when training dates and such are set. Many colonies set field grade officers from the Legislative branch or both Legislative and Executive, but the actual work of getting men together, making sure that they are armed, and then training together is done at the local level for a militia. Being a free man means, then, an investment of one's precious life in learning the basics of arts martial and arts war: for war is not a science. It is in turning from this understanding that we, as moderns, put ourselves in attempted distancing from the idea of man willingly turning to savagery, and yet we are never free of this concern at any point in our lives. Threats to our lives and livelihood come from many realms and in training one must train with an understanding of what the modern era has and will utilize against individuals. This is the full spectrum of weapons from simple thrown rock (seen in so many parts of the world to this day as to still be a necessary threat against life and liberty) all the way up to nuclear devices, bioweapons and chemical weapons, as well as every single item between. As no man can know all of this, it is best to have the rudiments of military weapons that are modern at one's understanding and how to defend against those attacks that are not just from bullets and grenades, but do include them. If 'to keep and bear' in the Heller case as pointed out in the supporting document does indeed mean what a person can carry, then in our modern world many societies are woefully unprepared for what warfare is and can be when visited upon them. It is grounding individuals in that experience, however basic it may be, that keeping and bearing arms puts man in contact with the visceral requirement to protect one's government and one's society, not just oneself. In putting our obedience to freely chosen government at peace, we fight for such peace in times of warm. When such government becomes a threat to that peace and to the inalienable rights of man, then that government requires changing and only when it brings force to bear does it require in-kind force from those who once it served and now seeks to subjugate.
3. Being armed is an assumed proposition for freemen to be free: To be free requires the defense of that freedom. Each time a Monarch sought to renounce his contract with the governed from Alfred the Great to George III, came the response of the governed to show where the seat of power truly was. This was true with Ethelred, the Unready, after the abuses of William II and the ascension of Henry I, after John I, Charles I lost his head over rights and liberty as well as taxation, James II got the Bill of Rights for his abuses, and George III lost the American colonies to similar. This tradition is an Anglo-Saxon one, with Protestantism coming centuries later but putting additional force over the right of free men to be free and not disarmed to become victims of government. Each time the Monarchy abused the governed to where they didn't like it, the Monarch lost power and was brought to heel. In the conflict between the Colonies and Great Britain, the Colonists cite not just George III but the Parliament for no longer representing them as citizens. Thus the blame falls not just on George III but on Parliamentarians forgetting that they are to serve all of the citizens of the realm. For that offense, perhaps above all the abuses of the King, the Colonies rebelled as no one was representing them at any level of government and their own governments were being dissolved by force. After so long a time with so much power used well in the Colonies, the abuses and final insult of dissolution and replacement with the willing (indeed eager in some instances) assent of Parliament was it. If the Anglo-Saxon tradition shows anything, it shows that there is a serious price to pay when forgetting the contract between the governors and the governed COMES from the governed and is enforced by them.
4. There is no 'communitarian' right to self-defense in this tradition. It is absent at all levels and all times and, indeed, just the opposite is asserted not just in the Colonies but in Great Britain before the Revolution. This circle cannot be squared and assertions that there is a 'communitarian' right to arms forgets that communities, themselves, are freely formed by individuals and has no rights that individuals do not already have. There is no magic in community, it gives you nothing special save at that very, most lowest of levels of marriage and family and what it gets you is Nation, not right to arms as that right pre-exists even Nations and governments. There is a stark difference between voluntarily defending one's State freely and being conscripted into service and while governments have the latter as a negative power, it is one that is best saved for when little is left to save, except proposition that when one enjoys the benefits of society then there is a service due to its defense. You accept that proposition by living under that government and the best defense of it is your willing arms and life, first, so as to ensure the safety of all in society before government must start dragging the less fit, less able and less willing to remind them of their duty in securing free association and government. That negative power is a horror and yet has served against hordes and multitudes when mere ability in arms has not as quantity can have a quality all its own. Do note that is the last and most desperate time for a government, not its FIRST RESORT save when that and only that can confront such a vast array of foes that only a vast array of defenders are necessary.
That ends my thoughts after these readings.
Supporting Friends and Allies
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