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Observations Regarding the Interpretation and Legacy of the Statute of Northampton in Anglo-American Legal History

By on September 17, 2021 Categories: , , , ,

The Statute of Northampton of 1328 remains central to the current debate surrounding the limits and protections the Second Amendment provides to carry arms in public.[1] The Statute provided that “no man great nor small, of what condition soever he be, except the king’s servants in his presence…come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers” (2 Edw. 3, c.3). Certain Second Amendment scholars hold that the Statute was “not interpreted literally” and was only enforced when weapons were carried with the intent to terrify or threaten or when dangerous and unusual weapons were carried.[2] While the Statute has been much studied, some key sources remain neglected, namely the reliance of Sir. Edward Coke on 13th Century English legal scholar Henry de Bracton in Coke’s interpretation of the Statute. Coke’s quotations from de Bracton, which have usually been ignored because they are written almost entirely in Latin, offer additional evidence that the Statute of Northampton was understood to be a broad-based prohibition on the carrying of arms.

As one of the most respected and celebrated jurists of the Elizabethan and Jacobean eras, Edward Coke’s interpretation of laws has remained influential in the understanding of both British and American constitutional law. In his Institutes of the Lawes of England, written between 1628 to 1644 as a series of legal treatises, Coke offers his understanding of a wide variety of legal issues that bear relevance to contemporary law, including the definition of monopolies and regulation of abortion. Coke also provides an analysis of the Statute of Northampton. In his explanation of the prohibition on coming before royal officials with “force and armes,” he refers to the interpretation of different types of forces by the 13th-century jurist Henry de Bracton, citing vis armata, or armed force as “pertinent to our people,” and therefore relevant to the interpretation of the statute. Coke goes on to cite verbatim Volume 3, p.20 of de Bracton’s On the Laws and Customs of England, which describes the various types of forces (in Latin, vis) and what constitutes these forces. De Bracton particularly focuses on what constitutes “vis armata [armed force].” A text and translation of Coke’s interpretation of the Statute of Northampton and his interpolation of de Bracton are provided below:

“[To come before the Kings Justices, or other the Kings ministers doing their office with force and armes.] Bracton doth notably write of the diversity of forces; viz; that is to say expulsive force, pertaining to pertnbativa [force], pertaining to disquieting [force], ablative force, compulsive force and others, which you may read in him. And then (which is pertinent to our people) he saith: There is also armed force ([one] is deprived of arms, I say, if there was armed force of any kind) not only if one comes with weapons, but truly also we designate those armed, who have something with which they are able to harm. All things by which individual people are able to harm are accepted by the name of weapons: but if someone should come without arms and in a brawl itself pick up wood, sticks and stones, such things it is said armed force; If someone comes with arms, but puts them down without using them, armed force is said to have happened; Even the threat of arms suffices as it seems to be force with arms. Agreeing with that of the poet, ‘And now fire and rocks fly, fury provides weapons’”

De Bracton, as cited by Coke, explains what constitutes armed force both in regard to the intent and types of weapons, two central issues in interpreting the Statute of Northampton. De Bracton understood the term weapon very broadly, explaining that  armed force existed “not only if one comes with weapons, but truly also we designate those armed, who have something with which they are able to harm.” De Bracton’s interpretation is that the mere presence of any weapon was considered armed force, regardless of the type of weapon at hand. Indeed, de Bracton takes this a step further opining that “if someone should come without arms and in a brawl itself picks up wood, sticks, and stones, such things it is said armed force.” De Bracton thus suggests that nearly anything could be considered a weapon and be used for armed force, and Coke by extension in quoting de Bracton suggests that the Statute of Northampton’s jurisdiction is not limited to certain strange or unusual weapons.

De Bracton also addresses the issue of whether armed force is dependent on the intentions of the user. He explains that “If someone comes with arms, but puts them down without using them, armed force is said to have happened; Even the threat of arms suffices as it seems to be force with arms.” To de Bracton and Coke, the usage of armed force is clearly not limited by an intent requirement. The presence of weapons is sufficient to constitute the conduct of armed force. Coke, therefore, uses this broad understanding of the meaning of armed force to explain the scope of the Statute of Northampton’s prohibition.

This understanding of the Statute of Northampton is consistent with examples of the enforcement of the Statute which I newly uncovered in archival research that have been preserved and recorded online in the British National Archives, as well as the Old Bailey and other smaller libraries and archives. For example, in a 1478 case, a writ was authorized under the authority of the Statute of Northampton to gather nearby men to “proclaim at Dalton near Rotherham against assemblies of armed men….in consequence of recent attacks on dwellings.”[3] In a later case, a plaintiff [Agnes Newman] used a writ “based upon the Statute of Northampton de armis non portandis [about not carrying arms]” to sue for an unlawful ejection from her land that she was tending.[4] Even later in 1602, a writ was issued by Elizabeth I to arrest “John Fitzwilliam, of London, esq. and certain other evil-doers, armed and arrayed for war, [who] have forcibly entered the park of William Fitzwilliam esq. and seized etc his goods, rents…contrary to the Statute of King Edw.III. against carrying arms against the peace.”[5]  Although the first case of the 1478 writ was probably drawn up in response to a malicious threat, there is otherwise little evidence to suggest that the issue of malicious intent or dangerous weapons was central to the enforcement and practice of the Statute of Northampton. Instead, these cases suggest that the Statute likely adhered closely to the broad prohibitory interpretation of Coke and de Bracton.

We can see based on these enforcement and jurisprudential documents that the historical and socio-legal context of the Statute of Northampton suggests that the Statute’s enforceability was wide-ranging across an array of different types of armed force and intentions. Barring the exception of the King’s servants and officials specifically stated in the Statute, the Statute and its enforcement made no exception for any types of armed force to be permissible, nor did it make any distinction between the motives of the user of armed force. These additional documents and cases solidify the idea that the Statute of Northampton was a broad prohibition on the carrying of arms in public. As the Supreme Court considers the issue of the public carrying of arms in the New York State Rifle & Pistol Association Inc. v. Bruen, the court should look no further than the Statute of Northampton, its interpretation by Coke and de Bracton, and the Statute’s enforcement.[6] In so doing, the court should find that the 1689 English Bill of Rights did not guarantee the absolute right to bear arms, and governmental authorities and bodies were within their right by means of the Statute of Northampton and later legislation to restrict and prosecute the carrying of arms in public by private citizens.

 

[1] Jennifer Tucker, Barton C. Hacker, and Margaret Vining, eds., A Right to Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment (Washington, D.C: Smithsonian Institution Scholarly Press, 2019).

[2] David Kopel, “Opinion | English Legal History and the Right to Carry Arms,” Washington Post, accessed August 25, 2021, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/31/wrenn-history/.

[3] Catalogue description, “Warrant of Rob. Ryther, kt., upon Crown writ, authorizing John Leek, Thos. Boswell and…” (October 31, 1478), DD/FJ/5/8/6, Nottinghamshire Archives. https://discovery.nationalarchives.gov.uk/details/r/7be1ef9f-a047-4082-b2c8-e17179c4462a

[4] Catalogue Description “Short Title: Newman v Newdygate. Plaintiffs: Agnes Newman, Widow, Guardian in Socage Of…” (1529-1518), C 1/548/29, The National Archives, Kew. https://discovery.nationalarchives.gov.uk/details/r/7be1ef9f-a047-4082-b2c8-e17179c4462a

[5] Catalogue Description, “Writ of Eliz I to the Guardians of the King’s Peace and the Sheriff of Essex That -…” (July 14, 1602), F(M) Charter/1745, Northamptonshire Archives. http://discovery.nationalarchives.gov.uk/details/r/c79f7b72-f282-4f1c-8bce-e8d7bcea01ae

[6] New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al. No. 20-843. https://www.supremecourt.gov/docket/docketfiles/html/public/20-843.html