CHAPTER 3 THE COLONIES The movement toward independence dates from the very foundation of the colonies. George Louis Beer, British Colonial Policy, 1754-1765, at 161 (1907) This Chapter examines the role of arms in the development of a distinctive American identity, and how independence became inevitable as the British immi- grants became Americans. Part A discusses colonial charters, which contained the first written guarantees of arms rights in the English-speaking world. Part B covers arms laws in the colonies — who was required to own or carry arms, and who was forbidden to do so. Like the charters, many colonial statutes made a sharp break from English law. Part C studies the relationships of Indians with the European colonial powers and with the American colonists; Indians could be powerful allies or formidable adversaries. European-Americans’ copying of Indians changed the arms cultures of the colonists into something new. Part D examines the political and moral understanding of personal and collective self-defense in the colonial period, especially in the years leading up to the American Revolution. Part E sur- veys the unique arms culture that grew in America, including the prevalence of arms among the colonists; the types of arms the colonists owned and how the cir- cumstances in the New World shaped those choices; and how the American colo- nial militias differed from the English model. Long before the official rupture with Great Britain, the colonists had become a new people — American and not British. A. ARMS RIGHTS IN COLONIAL CHARTERS The first English settlers in North America founded the Virginia colony in 1607.1 When they crossed the Atlantic, they brought with them perpetual guar- antees of their arms rights. On April 10, 1606, King James I granted a charter to the Virginia Company to create two colonies. The charter set forth the reciprocal rights and responsibilities of the colonists and the king. For example, the colonies were allowed to coin money — something that local governments in England had no right to do. 7 Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 3783, 3786 (Francis Newton Thorpe ed., 1909). 1. Not counting the short-lived colony at Roanoke Island, North Carolina, in 1585. FRRP_CH03.indd 173 7/8/2021 6:28:06 PM 174 Chapter 3. The Colonies The king, binding his “Heirs and Successors,” gave “full Power and Authority” to the leaders of the Virginia Company and “so many of our subjects as shall will- ingly accompany them,” for all of them to bring: sufficient Shipping, and Furniture2 of Armour, Weapons, Ordinance, Powder, Victual, and other things necessary for the said Plantations and for their Use and Defence there: Provided always, that none of the said Persons be such, as shall hereafter be specially restrained by Us, our Heirs or Successors. Id. The English crown perpetually guaranteed to allow the Virginia Company’s leaders and “their Associates . by their Deputies, Ministers, and Factors,”3 to import goods from England, Ireland, and other royal dominions. In particular, “the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel,4 Food, Defence or otherwise.” For the first seven years, there would be no taxes on these Virginia-bound exports. Id. at 3787-88. Although the English who lived in England had no written guarantee of arms rights until the 1689 English Bill of Rights (see Ch. 2.H.4), the Virginians had their guarantees from the start: to bring arms for their use and defense, and to import arms for “defence or otherwise” — such as hunting. The colonies had the right “from time to time, and at all times forever here- after, for their several Defences,” to “encounter, expulse, repel and resist, as well by Sea as by Land, by all Ways and Means whatsoever,” any persons who should attempt to inhabit the colonies without permission, or anyone who attempted “the Hurt, Detriment, or Annoyance of the said several Colonies or Plantations.” Id. at 3787. The colonial governments’ right of self-defense against invaders or criminals would in practice need to be exercised through the collective action of the colo- nists, there being no British army anywhere near. The above rights were reiterated in Virginia’s second charter, in 1609. The 1606 Virginia Charter had planned for a Northern Colony and a South- ern Colony, with identical rights. The Southern Colony established itself at James- town, today part of the Commonwealth of Virginia. The Northern Colony finally got going in 1620; the settlers were given letters patent by the holders of the 1606 charter rights for the north, thus ensuring that New Englanders had the 1606 rights. These rights were restated in the 1620 Charter of New England: it shall be lawful for “our loving Subjects, or any other Strangers who become our loving Subjects,” to “att all and every time and times hereafter, out of our Realmes or Dominions whatsoever, to take, load, carry, and transports in . Shipping, Armour, Weap- ons, Ordinances, Munition, Powder, Shott, Victuals, and all Manner of Cloathing, Implements, Furniture, Beasts, Cattle, Horses, Mares, and all other Things neces- sary for the said Plantation, and for their Use and Defense, and for Trade with the People there.” 3 id. at 1834-35. 2. [“Furniture” can mean fighting equipment; it can also mean furnishing. — Eds.] 3. [Commercial agents. — Eds.] 4. [As used here, equipment for fighting, including defensive clothing. The sentence can be read narrowly, in the sense of arms and armor, and also more broadly, to include other necessities, such as ordinary clothing. — Eds.] FRRP_CH03.indd 174 7/8/2021 6:28:06 PM A. Arms Rights in Colonial Charters 175 The New England Charter repeated the guarantee of no customs duties, “inwards or outwards” for the aforesaid goods for seven years. Also repeated was the exception to the right: persons who now or in the future were “by special Name restrained” by the king or his successors. Id. at 1835. Likewise reiterated was the collective defense right, under the direction of the government of New England: to “for their severall Defence and Safety, encounter, expulse, repel, and resist by Force of Arms, as well as by Sea as by Land, and all Ways and Means whatsoever,” all persons who attempted to inhabit New England without the government’s permission. Id. at 1835-36. Also affirmed was the right to resist any persons who attempted the “Destruction, Invasion, Detriment, or Annoy- ance of said Collony and Plantation.” Id. at 1836. To induce settlement of Virginia and New England, the king further guar- anteed that the settlers and their descendants would forever have all the rights of Englishmen. All of the king’s subjects who dwelled in the colonies, “and every of their children” born there, “shall have and enjoy all Liberties, Franchises and Immunities within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.”5 Based on the boundaries of the territories in the Virginia and New England charters, the 1606 Virginia Charter is one of the founding legal documents of all 13 original states, plus West Virginia and Kentucky (both formerly part of Virginia) and Maine (formerly part of Massachusetts). The 1620 New England Charter is one of the founding legal documents of the New England states (except Vermont), plus New York, New Jersey, and Pennsylvania. 1 id. at iv-xiii. Guarantees of the rights of English- men were common in other American colonial charters.6 So when English rights were restated in the 1689 English Bill of Rights (Ch. 2.H.4), those rights — including the right to “arms for their defence” — applied to Americans, too. The American colonists’ political association with the king ended when the king stopped adhering to the above principles. In October 1774, King George III embargoed the shipment of firearms or gunpowder to the American colonies, and ordered the royal governors to begin confiscating arms and ammunition there. Coercive disarmament set off the American Revolution, when confiscation was met with armed resistance at Lexington and Concord, on April 19, 1775.7 Ch. 4. The rights that grew in American soil would not be identical to their English ancestors. In the early nineteenth century — two centuries after the Virginia char- ter, and four decades after American independence — English journalist William Cobbett would contrast life in England and America. Recall that the game laws of 5. 7 id. at 3788 (Virginia, 1606); 3 id. at 1839 (New England, 1620) (slight differences in phrasing and spelling). 6. See 1 id. at 533 (Connecticut); 2 id. at 773 (Georgia); 3 id. at 1681 (Maryland); 3 id. at 1857 (Massachusetts Bay); 5 id. at 2747 (Carolina, later divided into North and South Caro- lina); 6 id. at 3220 (Rhode Island). 7. At the time of the Revolution, Americans invoked the legal rights of Englishmen, including the right to arms in the 1689 English Declaration of Right (Ch. 2.H.4). They did not invoke the arms commerce rights of the 1606 and 1620 charters. During the seventeenth century, those original charters had been replaced by other charters, as described in this Chapter. FRRP_CH03.indd 175 7/8/2021 6:28:07 PM 176 Chapter 3. The Colonies England were used to keep commoners from hunting, and, sometimes, from having firearms at all. Ch. 2. But in America, wrote Cobbett, “As to game-laws, there are none, except those which appoint the times for killing.