[Ed.: I'm back. There's a lot to post about. But first, a guest post from Richard Gardiner, responding to this guest post by Saul Cornell.]
Professor Saul Cornell stated in The Originalism Blog on 12/19/2022:
[Stephen Halbrook] does not seem familiar with the exposition of the Statute of Northampton in Michael Dalton’s Country Justice, the most widely reprinted and influential popular guide to the law from the eighteenth century. Dalton’s account of the traditional prohibition on armed travel explains why Halbrook’s reading of the Massachusetts statute he cites is profoundly anachronistic. Traveling armed, Dalton reminded his readers, who included among others John Adams and Thomas Jefferson, was a threat to the peace and a per se violation of the law because “it striketh a fear and Terror” in those who did not violate the law which prohibited traveling habitually armed. (Emphasis added)
Professor Cornell, however, seems not to understand Dalton.
The edition of Dalton’s Countrey Justice from which Professor Cornell quotes is the 1666 edition in which Dalton stated in full:
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- All such as shall go or ride armed (offensively) in Fairs, Markets or elsewhere; or shall wear, or carry any Guns, Dags or Pistols charged; it seemeth any Constable, seeing this, may arrest them, and carry them before the Justice of Peace, and the Justice may bind them to the Peace; yea, though those persons were so armed or weaponed for their defense upon any private quarrel, &c. for they might have had the peace against the other persons: and besides, it striketh a fear and terrour into the Kings Subjects.
Michael Dalton, The Countrey Justice, Containing the Practice of the Justices of the Peace As well in as out of their Sessions, at Chapter LXXIX, 194 (London, 1666) (emphasis added).
Dalton thus drew a distinction between to “go or ride armed” and to “wear, or carry” “charged” (loaded) firearms, the former referring to wearing body armor, a distinction evidenced by the reference to persons being so “armed or weaponed . . . .” Moreover, Dalton emphasized that the wearing of armor must be done “offensively,” i.e., not simply for self-defense, but in an aggressive manner so as to inculcate “fear and terrour” in the populace.
Dalton’s discussion of the Statute of Northampton also incorporated the Elizabethan royal proclamations — issued more than two centuries after the Statute of Northampton — which regulated carrying weapons.
Notably, Dalton explains that the only consequence for persons going or riding wearing armor, or carrying firearms, is that the justice of the peace “bind them to the Peace,” i.e., the persons may have to post a peace bond — an agreement to pay a sum certain to the King if the peace is breached.
Indeed, in a later version of The Country Justice, Dalton recounts that, if it is proclaimed by a justice of the peace that no one in a certain house “shall go armed . . . in offense of” the Statute of Northampton, and any such persons “do depart in peaceable Manner, then hath the Justice no Authority . . . to commit them to Prison, nor to take away their Armour.” Michael Dalton, The Country Justice, Containing the Practice, Duty, and Power of the Justices of the Peace As well in as out of their Sessions, at Chapter 44, 129 (London, 1727) (emphasis added).
Emphasizing that mere carrying of weapons was not an offense, in the chapter entitled Guns (Chap. XXIX), Dalton writes:
3. No person may carry in his journey any Gun (Dag, or pistol) charged, or Bow bent, (but only in time and service of War, or in going to or from Musters) except he hath per annum 100 li. [shillings] in Lands, &c.
Thus, a person who had per annum 100 shillings in Lands was entitled to carry in his journey a loaded Dag or pistol. The British shilling was worth 1/20 of a pound, so, to be able to carry firearms lawfully, a person had to have per annum 5 pounds in Lands (this would likely have been a relatively small farm as a yeoman farmer was someone who had per annum 40 shillings in Lands).
Posted at 6:08 AM