Although the Arizona Constitution did not go into effect until statehood in 1912, even as a territory Arizona already had its own version of a Declaration of Rights. This was the “Bill of Rights” found in the 1864 territorial code, usually called the Howell Code (after its author, federal judge William T. Howell.) Congress organized the Arizona Territory in 1863, dividing it from the New Mexico Territory, and shortly thereafter Abraham Lincoln appointed Howell to serve as a federal judge there. 

Although Howell served only a brief tenure in Arizona, he stayed long enough to recognize the-then operative New Mexico territorial laws were “ill adapted to our condition.” As a result, he assembled “a code…containing a bill of rights and sixty chapters” that would serve as a new set of laws for Arizona. The territorial legislature quickly took up the recommendation, and adopted the “Howell Code” as the law of the Arizona territory. 

The Bill of Rights of the Howell Code, like the constitutions of most states, begins with a discussion of political theory—the purposes of government in protecting rights, the right of the people to reform government--- before moving to substantive guarantees. Many of these quite closely track the language limiting the federal government in the US Constitution, both Article I, Section 9, and the Bill of Rights; others covered similar themes, but with much more detail as in other state constitutions. Some sections arose from the territorial experience: confirming Congress’s prohibition on slavery in the 1863 act creating the Arizona territory, a ban on slavery (Art. 20) tracks the language from the 1787 Northwest Ordinance. (This was soon incorporated into the Thirteenth Amendment of the U.S Constitution). Article 22 recognizes the distinctiveness of water rights in an arid desert. 

With occasional revisions, the Howell Code, including its Bill of Rights, remained the basis of Arizona laws until statehood, though the Howell Code’s Bill of Rights was replaced by the Arizona Constitution’s Declaration of Rights at that time. However, the Arizona Constitution, by holding that territorial laws presumptively carried over to statehood unless repealed either by the Constitution or by statute, established that much of the rest of the code continued on (AZ Constitution, Art XXII, Sec 2). Even when drafting new laws, the early Arizona legislatures often utilized many of the Code’s other provisions as their starting point. 

The Howell Code’s central role in shaping Arizona law was, in recent years, perhaps most notable in the re-activation of its provision regulating abortion (Chapter X, Section 45), following Dobbs v. Jackson Women’s Health Organization (2022), which concluded that the United States Constitution did not guarantee a federal right to abortion and thus it was a matter for state law. In Planned Parenthood v. Mayes/Hazelrigg (2024), the Arizona Supreme Court concluded that the Howell Code’s prohibition on abortion, which Howell had largely drawn from California’s laws, had never been repealed by subsequent Arizona statutes but rather reinforced by recodification. Thus, as far as the Arizona Constitution and Arizona law were concerned, the recodified Howell Code provision remained operative, until the Arizona legislature repealed that language later in 2024.

For further information on the history of the Howell Code, see John S. Goff, “William T. Howell and the Howell Code of Arizona,” American Journal of Legal History 11 (1967): 221-233.[1] 

- Sean Beienburg, Project Director, Arizona Constitution Project, School of Civic and Economic Thought and Leadership

THE TERRITORY OF ARIZONA,

In Legislative Assembly convened, and holden at the capital of the Territory, the 4th day of October, in the year of our Lord one thousand eight hundred and sixty-four.

Whereas, the administration of civil government requires the adoption of written laws for the security of life, liberty, and property –for the punishment of wrongs, and the enforcement of rights,

Therefore, the people of the Territory of Arizona by their Legislative Assembly in Council and House of Representatives convened, do ordain and establish the following

BILL OF RIGHTS.

ARTICLE 1. Governments are instituted among men for the security of life, liberty and property, and derive their just powers from the consent of the governed; and to secure these ends, the right to alter or reform is inherent in the people.

ART. 2. The union of the States is a bond of government supreme and indissoluble; the power of the general government over any State, Territory, or people, to enforce obedience to the Constitution and laws, and to punish any violation of the same, is supreme and indisputable.

ART. 3. The military shall at all times be in strict subordination to the civil power.

ART. 4, No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war but in the manner prescribed by law.

ART. 5. The right of the people to keep and bear arms for their own defense and that of the government shall not be infringed.

ART. 6. The civil rights of the people shall not be abridged.

ART. 7. The right of the people to be secure in their persons, houses, papers, and effects, shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

ART. 8. The right of trial by jury shall be secured to all, but a jury trial may be waived by parties in civil cases, in the manner prescribed by law.

ART. 9. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

ART. 10. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel and unusual punishment be inflicted, nor shall witnesses be unreasonably detained.

ART. 11. All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great.

ART. 12. Representation in the Legislature shall be apportioned according to the population, the largest fraction over a ratio having the preference.

ART. 13. The civil and political rights of no person shall be enlarged or abridged on account of his opinions or belief concerning matters of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the people.

ART. 14. No person shall be held to answer for a capital or otherwise infamous crime (except in cases arising in the military and naval service under the laws of the United States and in cases of misdemeanor under the regulations of the Legislature,) unless on presentment or indictment of a grand jury; and in any trial in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel. No person shall be subject to be twice put in jeopardy for the same offense, nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

ART. 15. The people shall have the right freely to assemble together to counsel for the common good, to instruct their representatives, and to petition the governing power for redress of grievances.

ART. 16. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact.

ART. 17. All laws of a general nature shall have uniform operation.

ART. 18. No person shall be imprisoned for debt in any civil action on any mesne or final process, unless in cases of fraud, or for a debt or liability incurred in an official, fiduciary, or professional capacity.

ART. 19. No bill of attainder, ex post facto law, or law impairing the obligation of contract, shall ever by passed.

ART. 20. Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this Territory.

ART. 21. The precious metals are the jewels of sovereignty, and inhere in the supreme sovereign power; no person can acquire absolute title to any public domain in which such precious metals may be found without the express consent of such power. (As amended in 1865.)

ART. 22. All streams, lakes, and ponds of water capable of being used for the purposes of navigation or irrigation, are hereby declared to be public property; and no individual or corporation shall have the right to appropriate them exclusively to their own private use, except under such equitable regulations and restrictions as the Legislature shall provide for that purpose.

ART. 23. Entails in this Territory are abolished, except as herein limited: any person owning any interest in any real estate within this Territory may convey the same by deed or will to his natural child or children, or to his child or children by adoption, and to the issue of such child or children during their natural lives, whether such issue be begotten and born before the date of such conveyance, or afterward; and in such conveyance may inhibit the alienation of such estate during the natural lives of such child or children, and of such issue; such estate, when so conveyed by deed, shall not be liable for any debt contracted, or liability incurred by the grantor thereof after the date of such conveyance. The provisions herein contained as to estate conveyed or rights acquired thereunder are hereby declared to be irrepealable.

ART. 24. No elector shall be obliged to do military duty on the day of election, except in time of war or public danger, or be subject to arrest during his attendance at such election, except for treason, felony, or breach of the peace; nor to attend court as a suitor or witness.

ART. 25. The Territory may contract debts for necessary expenses, not exceeding in, the aggregate fifty thousand dollars at any one time, except that the Territory may also contract debts to repel invasion, suppress insurrection, protect its inhabitants against the attacks of hostile Indians, or defend the Territory in time of war. The money arising from the contracting of such debts shall be applied to the purposes for which it was raised, or to repay the same.

ART. 26. No money shall be paid out of the Treasury except in pursuance of appropriations made by law.

ART. 27. The Territory shall not subscribe to or be interested in the stock of any company, association or corporation.

ART. 28. The Legislature shall not pardon or commute the sentence of any criminal, or grant any bill of divorce, except at the first session of the Legislature; or audit and settle any private claim, or authorize the establishment of any lotteries or sale of lottery tickets within this Territory.

ART. 29. No corporation formed under the laws of this Territory shall be dissolved or its rights impaired, except by judicial proceedings.

ART. 30. No receiver or disburser of public moneys shall be eligible to any office of honor, trust or profit in this Territory until he shall have accounted for and paid over, agreeably to law, all moneys that shall have come into his hands by virtue of his appointment or election.

ART. 31. The style of all process shall be “In the name of the Territory of Arizona,” and all indictments under the laws thereof shall conclude, “Against the peace and dignity of the same.”

ART. 32. This bill of rights shall be the supreme law of the land, subject only to the Constitution and laws of the United States. It shall not be altered or amended except by the concurrence of a majority of all the members elected to both branches of the Legislative Assembly. The vote on all alterations or amendments shall be taken by yeas and nays, and entered on the journals of each house.