St. George Tucker's House
Williamsburg,Virginia
St. George Tucker's House
Williamsburg,Virginia
Biography
of St. George Tucker by the Colonial Williamsburg Foundation
St. George Tucker wrote the Iconic work on Blackstone's Commentaries and within it are several of his decisions he presided over as a Supreme Court justice of Virginia including the landmark setting case of Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 24 (1793). Tucker's work Blackstone's Commentaries was once required reading of all law students in Virginia. The following passage is about the U.S. Const. amend. II. before it was ratified.
"8. A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4.This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty." - 1 St. George Tucker, Blackstone's Commentaries, 300 (1803).
Tucker's Blackstone's Commentaries On-line Edition by the Lonang Library
St. George Tucker's Progeny
St. George Tucker's son, Henry St. George Tucker, became a lawyer and a Virginia judge like his father. He also started the Winchester Law School and published his Commentaries on the Laws of Virginia Comprising the Substance of A Course of Lectures Delivered to The Winchester Law School. He wrote the following that parallels his father's work above:
2. The Right of Bearing Arms-- which with us is not limited and restrained by an arbitrary system of game laws as in England; but is practically enjoyed by every citizen, and is among the most valuable privileges, since it furnishes the means of resisting as a freeman ought, the inroads of usurpation." Chapter 5., Private Property at 43. (1881).
Sir Edward Coke's treatise on the English Common law was
read by the major Patriots of Virginia
Important Legal Terms
Malum in se: "A wrong in itself; ... An act is said to be Malum in se when it is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences, without any regard to the fact of its being noticed or punished by the law of the state. Such are most or all of the offenses cognizable at common law." Black's Law Dictionary, Fifth Edition, Page 865. 1979.
Malum prohibitum: "A wrong prohibited...an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law." Black's Law Dictionary, Fifth Edition, Page 865. 1979.
See: Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997) Ignorance of the Law is no excuse is derived from the common law malum in se, but does not always apply to malum prohibitum.
On-line Dictionaries
A
LAW DICTIONARY, by John Bouvier, Revised Sixth Edition, 1856
Noah Webster's American Dictionary of the English Language 1828 & 1913 Editions Searchable.
MARCH, 1661-2 −−− 14th CHARLES II.
WHEREAS the late unhappy distractions caused frequent changes in the government of this country, & those produced soe many alterations in the lawes, that the people knew not well what to obey nor the judge what to punish, by which meanes injustice was hardly to to bee avoyded, and the just freedome of the people by the incertainty and licentiousness of the laws hardly to be preserved, This assembly takeing the same into their serious [a] consideration, and gravely weighing [b] the obligations they are under [c] to discharge to God, the king and the country, have by settling the laws, diligently endeavored to prevent the like inconveniencies, by causing the whole body of the laws to be reviewed [d] all unnecessary acts & cheifly such as might keep in memory, our inforced [e] deviation from his majesties obedience, to be repealed, and expunged, and those that are in force to be brought into one volume, and least any prejudice might arise by the ignorance of the times from whence those acts were in force, they have added the dates of every act to the end that courts might rightly administer justice and give sentence according to law for any thing hapning at any time since any law was in force, and have also endeavoured in all things (as neere ast the capacity and constitution of this country would admitt) to addhere to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence, [f] And that the laws made by us are intended by us, but as breife memorialls of that which the capacity of our courts is utterly unabled [g] to collect out of such [h] vast volumes, though sometimes perhaps for the difference of our and their condition varying in small things, but far from the presumption of contradicting any thing therein conteyned, And because it is impossible to honour the king as we should unlesse wee serve and feare God, as wee ought, and that they might shew their equall care of church and state [i] they have sett downe certaine rules to be observed in the government of the church until God shall please to turne his majesties pious thought towards us, and provide [j] a better supply of ministers among us.
BEE it therefore enacted by the Governor Councell and Burgesses of this Grand Assembly That all the following laws continued or made by this assembly shall hereafter be reputed the laws of this country, by which all courts of judicature are to proceed in giveing of sentence, and to which all persons are strictly required to yeild all due obedience, and that all other acts not in this collection mentioned be to all intents and purposes utterly abrogated and repealed unles suite for any thing done be comenced when a lawe now repealed was in force, in which case the produceing that law shall excuse any person for doeing any thing according to the tenor thereof.
The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
(Code 1919, § 2, § 1-10; 2005, c. 839.)
The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill of Rights and Constitution of this Commonwealth and the Acts of Assembly.
(Code 1919, § 3, § 1-11; 2005, c. 839.)
Common Law Defenses
Defense of Necessity
"3. There is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection, which act upon and constrain a man's will, and oblige him to do an action, which without such obligation would be criminal. And that is, when a man has his choice of two evils set before him, and, being under a necessity of chusing one, he chuses the least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive, than active; or, if active, it is rather in rejecting the greater evil than in chusing the less. Of this sort is that necessity, where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority: it is here justifiable and even necessary to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the riot to continue. For the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost consequence to the public: and therefore excuse the felony, which the killing would otherwise amount to n.
n 1 Hal. P. C. 53." - St. George Tucker's Blackstone ,Vol V.
Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001).
Defense of Necessity Against felon in Possession of Firearm
"Appellant contends the common law defense of necessity remained available as a defense to a charge of possessing a firearm after having been convicted of a felony pursuant to Code § 18.2-308.2, despite that code section's inclusion of specific exceptions for members of the armed services, law enforcement officers and those pardoned by the Governor. We agree and hold that the legislature's inclusion of exceptions for certain professions and for convicted felons who have been pardoned does not indicate an intention to abrogate the common law defense of necessity." See Also: United States v. John David Mooney, US 4th Cir. (2007).
Herndon v. St. Mary's Hospital, Inc., 266 Va. 472, 587 S.E. 567 (2003).
Statutory Change in
Common Law Only Recognized if it is Expressly Stated by the Legislature
"We also apply the established principle that a statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested. Linhart v. Lawson, 261 Va. 30, 35, 540 S.E.2d 875, 877 (2001); Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827, 831 (1997); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988). Therefore, a statutory change in the common law will be recognized only in that which is expressly stated in the words of the statute or is necessarily implied by its language. Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000); Boyd, 236 Va. at 349, 374 S.E.2d at 302....The contrary interpretation advanced by the Herndons would require us to conclude that the 1998 amendment to Code § 8.01-8 was intended to change the common law rule. We cannot accept this conclusion because nothing in the amendatory language of Code § 8.01-8 manifests an intent to confer on parents the status of a real party in interest in their minor child's action."
See Also: Isbel v. Commercial Invetsments Associates, Inc., ___ Va. ___ S.E.2d __(2007). " [The General Assembly] is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law."
Commonwealth v. Hill, 264 Va. 541, 570 S.E.2d 805 (2002).
Common Law Right
to Resist Unlawful Arrest
"We first observe that the trial court held that Officer Fromme acted illegally when he detained Hill based on an anonymous tip. The Commonwealth did not challenge this ruling either in the trial court or in the Court of Appeals. Therefore, we do not consider that issue and restrict our analysis to the question whether the common law right to use reasonable force to resist an illegal arrest is applicable to the use of such force to resist an illegal detention...We conclude that the law of this Commonwealth, including the common law of England incorporated into our Code by § 1-10, does not provide a basis for recognizing a common law right to use force to resist an illegal detention. In the absence of authority requiring such a right, we perceive no reason for enlarging, by judicial decision, the scope of the common law on this subject. Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest...Because a detention is, by its nature, a brief intrusion on an individual's liberty, the provocation resulting from an illegal detention is far less significant than the provocation that attends an illegal arrest. Thus, recognition of a right to resist an unlawful detention would not advance the rationale supporting the common law right to use reasonable force to resist an unlawful arrest, but would only serve to increase the danger of violence inherent in such detentions...Accordingly, we hold that a person in this Commonwealth does not have the right to use force to resist an unlawful detention or "pat down" search. Thus, in the present case, Hill did not have the right to use force to resist the challenged detention and "pat down" search by Officer Fromme, and the Court of Appeals erred in reaching a contrary conclusion." See Also: Kiana Brown v. Commonwealth, Va. App. (2005 Unpublished). (Right to Resist Excessive Force) , Victoria Brown v. Commonwealth. Va. App. (1998).
"An arrest is not unlawful within the common law right to resist, if the arrest is authorized by statute or by legal process facially good, even though the statute may later be declared unconstitutional, or the legal process found defective. Wright v. Bailey 544 F.2d 737 (1976).
Hudson v. Commonwealth, 266 Va. 371, 585 S.E.2d 583 (2003).
Common Law Right to Make Citizens
Arrest for Felony or Breach of the Peace committed in His Presence
"Hudson's argument fails because a citizen's arrest can be made for a breach of the peace, as occurred in this case, as well as a felony. At common law, a private citizen may arrest another for a breach of the peace committed in his presence. See Gustke, 516 S.E.2d at 291-92; see also Carroll v. United States, 267 U.S. 132, 156-57 (1925) (" 'In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence . . . .' " (quoting 9 Halsbury's Laws of England 612)); accord W. Page Keeton, ed., Prosser and Keeton on the Law of Torts 26 (5th ed. 1984) ("Broadly speaking, either an officer or a private citizen may arrest without a warrant to prevent a felony or a breach of the peace which is being committed . . . in his presence.") (footnotes omitted). Despite argument on brief that he could only be the subject of a citizen's arrest for a felony, Hudson conceded at trial that "any normal citizen can pull somebody over for breach of the peace."
See Also : Wilson v. Commonwealth, 46 Va. App. 408, 617 S.E.2d 431 (2005)., " For these reasons, we hold the evidence, viewed in the light most favorable to the Commonwealth, established the off-duty officer did no more than a citizen would have been entitled to do under similar circumstances and, thus, that the "color of office" doctrine was not implicated."
: Marttila v. City of Lynchburg, 33 Va. App. 592, 535 S.E.2d 693 (2000). (Breach of Peace)
: Tucker v. Commonwealth, Va. App. (2001 Unpublished). (Breach Of Peace/Disorderly Conduct)
: Bristol v. Commonwealth, 47 Va. App. 584, 603, 625 S.E.2d 676, 685 (2006 En Banc). Overruled in Bristol v. Commonwealth, _ Va. __ S.E.2d _, __ (2006)., but cited soley for the Common Law citation on Arrest.
"With a few statutory exceptions, . . . the common law relating to arrest is the law on that subject in Virginia." Galliher v. Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 (1933). An arrest requires "'an assertion of authority and purpose to arrest followed by submission of the arrestee.'" California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis added) (quoting Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940)). Applying these principles, we have previously held that "[t]he immediate physical ability to arrest, without more, was not sufficient to effectuate an arrest." Cavell v. Commonwealth, 28 Va. App. 484, 486, 506 S.E.2d 552, 553 (1998) (en banc). See also Howard v. Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970) ("Ordinarily, an arrest is made by the actual restraint of the person of the defendant or by his submission to the custody of an officer."). "At common law, four requisites are involved in arrest: (1) A purpose to take the person into custody, (2) under real or pretended authority, (3) resulting in actual or constructive seizure or detention of his person, (4) so understood by the arrestee." Perkins, supra at 208. The person to be arrested is entitled to know of "(1) the intention to take him into the custody of the law, (2) the authority for the arrest, and (3) the reason therefor." Id. at 249. Thus, at common law, mere words do not constitute an arrest. Cavell, 28 Va. App. at 487, 506 S.E.2d at 553. Although Officer Doyle testified that he orally told Bristol he was under arrest, that did not suffice to constitute an arrest. Id. The record proves that neither Officer Doyle nor Officer Eberts took actions to actually arrest Bristol or to objectively manifest an arrest. Moreover, their actions do not suggest that their purpose was to arrest Bristol or that Bristol was ever in fact taken into custody. Indeed, when Officer Doyle left the hospital, he did not even inform Officer Eberts, his supervising officer, that he had "arrested" Bristol. The report he later prepared at the police station does not mention an arrest. "
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