American Journal of Legal History (Temple) 35 (1991): 393

Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History
by WILLIAM S. FIELDS* and DAVID T. HARDY**
To us, after four-fifths of a century have passed away since occasion has existed for complaint of the action of government in this particular, the repetition of this declaration seems to savor of idle form and ceremony; but "a frequent recurrence to the fundamental principles of the Constitution" can never be unimportant, and, indeed, may well be regarded as "absolutely necessary to preserve the advantages of liberty, and to maintain a free government." It is difficult to imagine a more terrible engine of oppression than the power in an executive to fill the house of an obnoxious person I with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will; who is sent as an instrument of punishment, and with whom insult and outrage may appear quite in the line of duty. However contrary to the spirit of the age such a proceeding may be, it can never be impossible that it will be resorted to in times of great excitement and violent party action . . . . Thomas M. Cooley Constitutional Limitations (1868)

1. Introduction
The third amendment of the United States Constitution provides that "[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."[1] Among the legal protections set forth in the American Bill of Rights,[2] few have been relegated to more obscurity.[Page 394] For almost two hundred years, now, it has gone virtually unnoticed. No Supreme Court case has ever directly interpreted the amendment, although several opinions, most notably the case of Griswold v. Connecticut, mention it in passing as one aspect of the right to privacy.[3] Complaints arising under the amendment have been urged in a handful of lower court cases, but most of them have been summarily dismissed as farfetched assertions.[4] In only one instance, the 1982 case of Engblom v. Carey, has a lower court ever been asked to directly apply the amendment in a meaningful context requiring an interpretation of its quartering provisions.[5] Although the third amendment is today widely taken for granted, to many in the revolutionary generation, its protections were a matter of great importance. The grievance, which the amendment sought to [Page 395] address, the abuses of persons and property resulting from the involuntary quartering of soldiers was one of the major problems associated with the presence of British soldiers in the colonies prior to and during the Revolutionary War. The presence of those soldiers as a group was itself the basis of the larger political grievance and root cause of the Revolutionthe maintenance of "standing armies" in peacetime without the consent of the colonial legislatures. Unlike the other problems attributed to the presence of British soldiers, however, the quartering problem was by its history and nature so intimately connected with the larger political issue of the "standing army," that in the end, the successful resolution of that larger issue for practical purposes rendered superfluous the protections which came to be embodied within the third amendment. The grievances relating to the involuntary quartering of soldiers and the maintenance of standing armies were the products of a common experience. Their origins and development paralleled; and at crucial junctures in

1 of 29

both English and American history they became so closely linked so as to be almost indistinguishable. Yet, throughout their history each of the grievances maintained a separate legal identity; each was addressed in different ways within the United States Constitution; and the solution to the problems of each to a great extent reflected different ideological, historical, and practical considerations.

II. THE ENGLISH BACKGROUND

A. Common Law Origins of the Grievances Against Involuntary Quartering and the, Maintenance of Standing Armies The problems attributed to the presence of soldiers amongst the civilian population are as old as antiquity. It was not, however, until after the Norman Conquest in 1066 that the specific grievances against involuntary quartering and the maintenance of standing armies began to take on recognizable legal identities; for both were the product of conditions which favored the emergence of and reliance upon increasingly larger numbers of professional soldiers for the purposes of national defense. In Saxon times, defenses were based upon the fyrd, a militia of all able-bodied men that was only called up from the districts threatened with attack.[6] Service in the fyrd was usually of short duration and the participants were obligated to provide their own arms and provisions. The only professional soldiers during that era were the contingents of housecarls directly attached to the households of the king and the earls.[Page 396] These contingents were small in number because they were expensive to maintain; and of only limited necessity to an island kingdom with a simple agrarian economy, having no need to externally project military power.[7] The great English legal scholar, Sir William Blackstone credited Alfred the Great with the development of the fyrd system, asserting: "It seems universally agreed by historians, that King Alfred fast settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers . . . ."[8] More recent historical research has suggested that this is an understatement, and that the origins of the early militia can be traced back to at least the seventh century.[9] Indeed, in the words of one historian it is likely that "the obligation of Englishmen to serve in the fyrd or peoples' army is older than our oldest records."[10] In any event, it is clear that the English militia tradition had existed centuries before the Norman Conquest.[11] 1. The English Aversion to the Professional Army After the Conquest, the fyrd system was modified by William of Normandy, who distributed the land to his followers to be held on a system of military tenurefeudalism.[12] Each estate was obligated to provide a particular number of appropriately armed knights for military service.[13] Because the military duty ran with the land, determining who owed service and how many men he was obligated to provide soon became as complicated and easily disputed as a title question in the period before recording statutes. Additionally, it was possible that the same individual might owe military service to two individuals in conflict [Page 397] with each other, or that a major landowner would be able to call upon his subordinate tenants to fight with him against the king.[14] This was further complicated by the fact that many of the barons had land holdings and feudal obligations on both sides of the English Channel. Beginning in the twelfth century, the system of montage was introduced, which allowed the vassals to pay a fixed sum instead of actually producing knights for service.[15] The king could then use the money to hire professional soldiers more amenable to his control. Under the feudal system, disputes between the king and his barons were frequent and often resulted in armed conflict, as both groups sought to protect and expand their political and economic positions. These early struggles for supremacy were the antecedents of later conflicts between the crown and parliament over matters of taxation and control of the military establishment. To secure their position, the Normans militarized the country, seized the estates of the Saxon hierarchy, built large numbers of castles manned by Norman men-at-arms, and taxed and abused the native population.[16] In the north of England, William laid waste to thousands of square miles of the countryside in a devastation so complete that much of the area remained uninhabitable for a generation after he was gone. The involuntary quartering of soldiers was only one of many grievances suffered at the hands of the Norman soldiers who sacked and burned villages, towns and manors; and murdered, raped and robbed their [Page 398] inhabitants.[17] The experience instilled in the common people a hatred and distrust of those same soldiers whom they viewed as their oppressors and not their protectors. It also instilled in them a corresponding

2 of 29

fondness for their native Saxon institution the militia. Over time the distinction between Norman and Saxon faded, but the problems associated with the presence of professional soldiers amongst the civilian population continued. The middle Ages were a time of almost continuous warfare as English kings sought to secure their throne's domestically and maintain their possessions abroad. Internally, the English experienced a number of private and civil wars, including the disorders of Stephen's reign, the conflicts between Henry III and Simon de Montfort, and the War of the Roses. Additionally, there were constant military conflicts in the marches of Wales until the thirteenth century' and on the Scottish border in. the fourteenth and fifteenth centuries; on occasion these involved major expeditions of conquest. Of more significance in the emergence of the grievances concerning involuntary quartering and the maintenance of standing armies, however, were England's external conflicts of the period. From the time of the Norman Conquest to the conclusion of the Hundred Years War in the middle of the fifteenth century, English kings were involved in an almost continuous series of military campaigns to defend and recover their continental possessions.[18] The need for soldiers to fight in the continental wars could not be met from feudal sources alone. The feudal tenant was bound to provide military services for only a limited period, usually no more than forty days a year.[19] This brief period was all but useless in an age when conquest required lengthy sieges. Additionally, most of the king's vassals denied that they owed service beyond the channel in the continental holdings of the Angevin house; and the extraction of services was made more difficult where fiefs had been subdivided among coheirs. The traditional militia, which was local and defensive in nature, was, for similar reasons, not an adequate source of manpower for the foreign conflicts. To meet their changing needs, English kings increasingly came to rely upon armies of professional soldiers, under the command of indentured captains, payed for with money raised through scutage [Page 399] and later burdensome taxes.[20] These mercenary armies were made up largely of tramps, beggars, criminals and other persons "pressed" into military service by local officials.[21] In one year alone, for example, Edward I pardoned 450 murderers and numerous lesser offenders in exchange for their service in the army. These soldiers were notorious for their mistreatment of the civilian population, regardless of whether it was friend or foe, and often demanded free food and shelter, and physically abused civilians, while in transit to and from the continental wars., Parliament repeatedly received complaints of those abuses, like the one described by the man in Piers Plowman, who claimed he had lost his wife, barn, and the maidenhood of his daughter to soldiers.[22] As might be surmised, the problems were most severe in the areas along the coast. 2. Early Attempts to Regulate Quartering The earliest efforts to curb the abuses relating to the involuntary quartering of soldiers appeared in the charters of towns and boroughs. Examples of those early enactments included Henry I's London Charter of 1130, which contained the passage "[l]et no one be billeted within the walls of the city, either of my household, or by force of anyone else,"[23] and Henry II's London Charter of 1155, which provided "that within the walls no one shall be forcibly billeted, or by the assignment of the marshall."[24] Some of those documents appeared before the Magna Carta, which contained no specific reference to quartering, but did reaffirm the "ancient liberties and free customs" of London and the other cities, boroughs, towns, and ports; seemingly incorporating their provisions by reference.[25] Those charters were the major legal antecedents of the third amendment. [Page 400] Under the provisions in the early charters, the authority to admit soldiers into the city, and to determine where and in what number they would be lodged, was typically vested in town marshals or constables who were prohibited by their terms from quartering soldiers in a dwelling without the consent of the owner. Soldiers lodged by consent in civilian homes were supposed to pay for anything they took; payment usually being in the form of chits, tallies, or billets that could be redeemed from the government or used in the payment of taxes. The receipts given by the soldiers, however, often proved worthless and the legal prohibitions against involuntary quartering were continually violated.[26] Further, the legal restraints found in the charters were only applicable within their respective locales; ran only to the owners of property; and did not extend protection to the countryside.[27] In an era of limited expectations in privacy, they were more in the nature of a personal right in property, designed to protect and compensate the growing and increasingly influential commercial class of the cities, towns and ports.

3 of 29

During the middle Ages, the manner of organizing, feeding, lodging, and disciplining soldiers suffered from a lack of centralized control; barracks for example were almost nonexistent. Until those problems were solved in a way satisfactory to the general population, legal restraints on involuntary quartering alone, would not prove adequate to remedy the problem. 3. The Militia Tradition and the Development of Individual Rights The experience of the early middle Ages had instilled in the English people a deep aversion to the professional army, which they came to associate with oppressive taxes, and physical abuses of their persons and property (and corresponding fondness for their traditional institution the militia). This development was to have a profound effect on the development of civil rights in both England and the American colonies. The uniqueness of the English militia concept lay in its plebeian character. By 1181, every English freeman was required to annually prove ownership of weapons according to the worth of his chattels, and to serve the king at his own expense when summoned by the sheriff of his county.[28] In 1253, an Assize of Arms expanded the duties still farther to encompass villains or serfs, the lowest socio-economic group in English society.[29] The universal nature of the obligation was again [Page 401] confirmed in 1285 by the Statute of Winchester, under Edward I.[30] This concept differed radically from the continental feudal system which limited the right of armament, and the duty of fighting in defense, to a relatively small and wealthy class.[31] The end result for the English was an institution which exercised a moderating influence on monarchical rule and aided in the development of the concept of individual liberties. The British military historian Sir Charles Oman provided a case in point, noting of Henry VIII: More than once he had to restrain himself, when he discovered that the general feeling of his subjects was against him. As the Pilgrimage of Grace showed, great bodies of malcontents might flare up in arms, and he had no sufficient military force to oppose them. His "gentlemen pensioners" and his yeomen of the guard were but a handful, and bows and bills were in every farm and cottage.[32] By the fifteenth century, Englishmen already regarded the citizen Militia as a critical element in their development of "government under law,"[33] [Page 402] a view that was thereafter reinforced by the rise of royal absolutism on the continent.[34] In the American colonies the militia would come to play a similar role as a check on the excesses of royal authority. In the seventeenth century, Bacon's Rebellion against Virginia's Governor, Sir William Berkeley,[35] and the northeastern colonies revolt, at the time of the Glorious Revolution, against the Royal Governor Sir Edmund Andros, would both be accomplished with militia support.[36] The militia's role in this regard would increase over time so that by the second half of the eighteenth century, one historian would note that ". . . scarcely a decade passed that did not see the people in arms to redress official grievances."[37] B. The Upheavals of the Seventeenth Century and Their Aftermath During the seventeenth century, problems associated with the involuntary quartering of soldiers and the maintenance of standing armies became crucial issues propelling the English nation toward civil war. After the loss of British holdings in France during the mid-fifteenth century, England had stood mainly on the defensive, and the number of professional soldiers had dwindled to a handful of body guards and coastal garrisons. This decline paralleled an expansion and perfection of the militia system under the late Tudors; and an increase in the power of the monarchy.[38] The militia system, however, all but collapsed during the reign of the pacifistic James I, who acquiesced in the repeal of the militia statutes. The resurgence of the professional army and the ensuing civil war that came during the reign of his son Charles I, renewed the demands for legal protection from the ancient grievances. 1. The Linkage of the Quartering Grievance with the Political Issue of the Maintenance of Standing Armies

4 of 29

Under the influence of the Duke of Buckingham, Charles I had become involved in wasteful wars on the continent against France and Spain. As in the past, professional soldiers were utilized in these conflicts and, as was all too common in the English experience, there were [Page 403] allegations of mistreatment of citizens by the soldiers as they traveled to their passages across the channel.[39] Parliament, which was deeply distrustful of Buckingham and his policies, balked at subsidizing Charles' military ventures. With the king and parliament deadlocked over the issues of taxation and appropriations, large numbers of soldiers found themselves without barracks or money to pay for billeting in inns; and many were left with no choice but to seek quarters in private homes.[40] The popular dissatisfaction which resulted under those circumstances found expression in the Petition of Right presented to the king by the Lords and Commons of Parliament in 1628. Prominent in the Petition was the grievance, whereas of late, great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants, against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people. .... . . . and that your majesty would be pleased to remove said soldiers and manners; and that your people may not be so burdened in time to come.[41] Although the problem of quartering was essentially an undesirable byproduct of the more fundamental political issue of the king's maintenance of a standing army without parliament's consent, the Petition defined the grievance with a legal identity of its own, and in doing so, its guarantees became an enduring part of the English constitution. Charles' disputes with parliament continued as he attempted to raise revenues without parliamentary authority, through such means as the exacting of customs duties known as tonnage and poundage, the reviving of feudal rights, the granting of "patents," and the extension to inland counties of the infamous tax known as "ship money."[42] Eventually the situation evolved into civil war in 1642, with the issue of control of the militia serving as the catalyst.[43] In the ensuing conflict both sides relied upon the use of standing armies; both of which on occasion demanded free quarters and abused the civilian population. Sir Thomas Fairfax, a parliamentary leader, noted of his opponents that: [they] are extremely outragious in plundering . . . puting no deferanc at all betweene friends and supposed enemis . . . taken al that hath been usefull [Page 404] for them and ript up featherbeds and throwne the feathers in the wind to be blowen away for sport and scaned all the barrels of beere and wine and spilt it in their sillers. They have kid of one mans 1,000 cheese and throwne away much of it they could not ate, many other outrages they commit to large express this way . . .[44] The end result of the war was a military dictatorship which furthered the popular aversion to the army.[45] The dictatorship ended in turn with the 1660 restoration of Charles II who restored only a limited royalist militia backed by a standing army.[46] However, trouble between soldiers and the civilian population again erupted during the Third Anglo-Dutch War, and the issue of quartering continued to be a problem even though the era saw such improvements as the abolition of the system of military purveyance;[47] the extensive use of tents as a means of sheltering troops; the construction of a few hospitals and barracks; and increased sophistication in military training and organization. In 1679 Parliament enacted the Anti-quartering Act, which provided that, "[n]oe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any soldier or souldiers."[48] Since the Act applied to public structures as well as [Page 405] private homes, in both war and peace, and contained no exceptions, it was a significant extension of the right; and the protection, which it afforded, was, in theory, substantial. In practice, however, James II ignored the Act, and the resulting abuses became a contributing cause of the Glorious Revolution of 1689 and the succession of William and Mary to the throne.[49] In an effort to insure that the rights, which they felt James had infringed, would be guaranteed against future

5 of 29

infringements by the new monarchs and their descendents, a "convention" parliament formulated a Declaration of Rights and proclaimed that James had abdicated by (in Whig theory) violating those rights and (in Tory theory) leaving England. William and Mary accepted the Declaration of Rights as definitive of the rights of their subjects, agreed to govern in accord with the Declaration, and thereupon assumed the role of sovereigns. They then formally called a parliament, which enacted the Declaration of Rights as the Bill of Rights.[50] The Declaration was not intended as a radical statement of the rights of individuals. Because constitutional government was being held in limbo pending its drafting and acceptance by the intended sovereigns, speed was essential, and its principles had to be ones acceptable to virtually all members of the legislature, from the most conservative Tory to the most radical Whig. It was accordingly drafted, not to introduce new principles of law, but merely as a "recital of the existing rights of Parliament and the subject, which James had outraged, and which William must promise to observe."[51] This essentially conservative consensus was to become the basis of the English and American theory of rights that predominated, during the American Revolution eighty-six years later. For constitutionalists of that period such as Burke and Blackstone, "1689 seemed the last year of creation, when God looked down upon England and saw that it was good."[52] Significant among the rights recognized in the Declaration was the right of protection from the involuntary quartering of soldiers. In the form finally adopted by both Houses, the Declaration complained that James "did endeavor to subvert, and extirpate . . . the laws and liberties of the kingdom" by, inter alia, "keeping a standing army within the kingdom in time of peace without consent of Parliament and quartering soldiers contrary to law."[53] As had been the case during the reign of Charles I, the quartering problem was viewed as directly related to the issue of the maintenance of standing armies. When [Page 406] parliament enacted the Bill of Rights subsequent to William and Mary's assumption of the throne, it adopted the Declaration's limitation on the maintenance of a standing army without the consent of the legislature, but contained no comparable provision with respect to quartering. However, a short time later, parliament enacted a Mutiny Act which included a provision prohibiting the quartering of soldiers in private homes without the consent of the owner.[54] The Act continued to allow civilian authorities to quarter soldiers in public structures such as inns, alehouses, and stables, and still made no provision for government financed barracks. In that era, it was assumed that the army presented less of a threat to civilian government if its soldiers were quartered amongst the people.[55] Notably, the provisions of the Act did not extend to the American colonies, an omission which would have implications in the future. 2. The Influence of Whig Thought The turmoils of the seventeenth century predictably inspired political theoreticians to suggest various changes designed to modify or improve the political system. The ideas of one of those groups of thinkers, the Classical Republicans, who came to be associated with the Whig Party, would have a significant affect upon the leaders of the American revolution.[56] The Classical Republicans drew their inspiration largely from the Greek and Roman republics, and came to view the militia concept as more than just simple tradition. The belief that such a militia was "necessary to a free State" soon became central to their political thought. They drew upon the ideas of Niccolo Machiavelli, who had both explained and attempted to implement a national militia centuries before. Writing to an Italy which had seen its city-states and their mercenary armies crushed in detail by the French and Spanish, Machiavelli advocated an Italian nation, led by a popular prince and based on a national miiitia.[57] To Machiavelli, mercenaries were to be categorically condemned; they were . . .disunited, ambitious, without discipline, [Page 407] faithless, bold amongst friends, cowardly amongst enemies, they have no fear of God, and keep no faith with men."[58] Additionally, their lack of patriotism left no motivation beyond wages, which were not enough to motivate men to die; and, more fundamentally, any mercenary army powerful enough to defend a state must be more than powerful enough to subjugate it.[59] The great Florentine expanded upon those themes in his Art of War , concluding that a prince who relies upon mercenaries must either remain embroiled in wars, or risk overthrow when the mercenaries became unemployed with the advent of peace.[60] Condemned by the Catholic Church, knowledge of Machiavelli ideas spread rapidly in protestant England. By 1588 an English translation of his Art of War had gone through no fewer than threeprintings.[61] Machiavelli

6 of 29

greatest impact upon English thought came, however, through the writings of James Harrington. Harrington applied Machiavelli ideas to seventeenth century England, substituting are public of freeholders for rule by a popular prince. The outcome was a stable republic populated, ruled and defended by a militia of itsfreeholders.[62] Ownership of land gave independence; unlike feudal landholders, the modem freeholder owned in fee simple, was not obligated as a condition of tenure to fight for a superior, and thus defended his own rights and interests.[63] Harrington's rejection of monarchy was intertwined with the belief that property, political power, and arms should be in the same hands.[64] Such a republic faced few internal or external threats, since those with arms had the greatest economic and political interest in maintaining the state.[65] Harrington wrote during the Protectorate, when efforts to maintain a standing army were indeed destabilizing the nation. After 1660, the army played a different role, that of maintaining royal power. Harrington's postulate that an army could not be adequately financed and subordinated was compromised, and his followers, particularly Henry Neville, modified his critique. Whereas Harrington had assumed a standing army could not stabilize a government, good or bad, Neville [Page 408] and other post-1675 Classical Republicans saw it as all too capable of stabilizing an autocratic one.[66] Conversely, by arming the general population democracies could obtain an incomparable advantage: "democracy is much more powerful than aristocracy, because the latter cannot arm the people for fear they could seize upon the government."[67] Harrington's followers also recast his utopia in a conservative light, by arguing that traditional English practices had in fact been republican. "The arming and training of all the freeholders of England, as it is our undoubted ancient Constitution, and consequently our Right," argued Robert Molesworth, "so it is the Opinion of most Whigs, that it ought to be out in Practice."[68] Thus the Classical Republicans ultimately cast the militia not only as part of the republican utopia but also an underpinning of the existing English constitution. As Harrington's successors refined the argument for the Militia vis-a-vis the standing army, however, they were being overtaken by events. In 1688 James II had relied, to no avail, upon a professional army, staffed with hand picked officers, and financed out of personal funds rather than parliamentary appropriations. Although mustering a ore than twice the number of troops as his Opponent William of Orange, dissension (particularly among his officers) prevented him from offering battle and he fled into exile.[69] This "Glorious Revolution" and William and Mary's acceptance of the throne offered by parliament did nothing to reduce the support for the standing army. For England to accept William also meant being drawn into the ongoing struggle between Holland and France and facing the risk of James' return with a French army. The need for the projection of military force on the continent had returned and, as always, the militia was totally unsuited to this task.[70] English policy makers had to face several other realities, which now favored reliance on a standing army. An invasion, if it came, would be spearheaded by well-trained French troops, at a time when such training was of increasing importance. Technical improvements over the course of the seventeenth century had immensely complicated the role of the average infantryman, requiring that he be trained to effectively execute a multitude of orders. In the words of one military historian: "officers became not merely leaders, but trainers of men; diligent practice [Page 409] in peace-time, and in winter, became preconditions for military success. . . ."[71] Conversely, the financial revolution of the 1690's, which saw the creation of a national bank and the acceptance of national debt, made it possible to fund a large enough standing army.[72] Increasing tactical and economic sophistication were paralleled by the realization of political means to guarantee legislative control of the army. Parliament could keep a tight rein on the standing army by limiting appropriations and enacting "Mutiny Acts" of intentionally short duration. The Mutiny Acts authorized the imposition of martial law on persons enlisted in the military. Absent their sanctions, a deserting soldier could be punished by a civil suit for breach of contract, or at most, prosecution as a runaway apprentice. Also, one who struck an officer might face misdemeanor assault charges in the civilian courts. The post-1688 Mutiny Acts were generally of one year's duration, ensuring that without annual parliamentary reauthorization army discipline would be almost unattainable.[73] The increased viability of a true standing army suddenly forced the post-1688 Whigs to face the prospect of becoming members of the establishment they had formerly opposed.[74] Some, like Molesworth, hedged: A Whig is against the raising or keeping up a Standing Army in Time of Peace; but with this Distinction, that if at any time an Army (though even in Time of Peace) should be necessary to the Support of the very Maxim, a Whig is not for being too hasty to destroy that which is to be

7 of 29

the Defender of his Liberty.[75] Others continued to defend the renaissance ideal of the citizen-freeholder soldier, and argued that treating military skiffs as a specialization would lead inevitably to tyranny and corruption. Their ideas gained great [Page 410] currency in the colonies, where John Adams estimated that nine-tenths of Americans were Whigs by the outbreak of the Revolution.[76] Indeed, at the onset of the Revolution, several of the former colonies would adopt declarations of rights which included provisions incorporating their theories.[77] But in England, their views became simply the "Opposition."[78] In the years after 1688, a standing army had become more acceptable to Englishmen, if not their American counterparts. Blackstone recorded this change in his Commentaries noting: But, as the fashion of keeping standing armies . . . has of late years universally prevailed over Europe . . . it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defense of the possessions of the crown of Great Britain, and the preservation of the balance of power in Europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are, however, ipso facto disband at the expiration of every year unless continued by parliament.[79][Page 411] The acceptance of a standing army was paralleled by the atrophy of the militia system in England. This process was hastened by the rural disorders of the 1760s, which inspired fear in the gentry of the militiatrained portion of the population. Lord Barrington, for instance, expressed concern that "a few soldiers, commanded by a weak, ignorant subaltern, might be defeated by a very large mob, full of men lately used to arms in the army or militia."[80] The general militia in England was steadily supplanted by a select militia, which achieved efficiency by a sacrifice of almost every traditional attribute. The 1761 Militia Act, for example, authorized mustering of only a few hundred men from each county. Those chosen were, if wealthy, able to hire another to serve in their place; those actually serving were issued government arms, stored by officers under lock and key. The Lieutenant of the county or his deputies, were authorized "to employ such Person or persons as he or they shall think fit, to seize and remove the arms, clothes and accoutrements belonging to the militia, whenever [they] shall adjudge it necessary to the peace of the kingdom . . ."[81] It was thus no surprise that a few years later the Whig mayor of London would inform parliament that the militia "could no longer be deemed a constitutional defense, under the immediate control and direction of the people; for by that bill they were rendered a standing army to all intents and purposes whatever . . . ."[82] 3. The Growing Emphasis on Individual Rights Even as the traditional English aversion, to the standing army weakened throughout the eighteenth century, however, the concept of an individual right of protection against the involuntary quartering of soldiers retained its distinct legal identity. Although it would be caught up in the larger intellectual movement emphasizing individual rights, the origins of the concept of a right of protection against the involuntary [Page 412] quartering of soldiers lay not in the eighteenth century Enlightenment, but in the turmoils of the seventeenth century. Its roots were grounded in the common law so thoroughly that Blackstone was able to state with clarity, that " . . . the petition of right enacts, that no soldier shall be quartered on the subject without his own consent . . ."[83] In short, the common law recognized an individual right against the involuntary [Page 412] quartering of soldiers that was separate and apart from the related concept of whether a standing army was an especially appropriate way of defending a free republic. In the American colonies this concept of an individual right of protection against involuntary quartering would become firmly entrenched and ultimately grow to constitutional proportions. The primary legacy of the 1689 settlement in England had been the supremacy of parliament. Bodin's maxim that in every government there must be a single, ultimate repository of sovereignty was accepted;[84] and that repository was fixed in parliament. While parliament must heed the "Constitution," the constitution was what parliament said it was.[85] The colonist, whose initial conflict was with parliament and not the king, necessarily had to take issue.[86] 0ne counter was to amplify the concept of individual rights which existed somehow beyond the scope of any governmental interference. The most historical approach involved deriving such rights from the common law. This involved accepting

8 of 29

Coke's position that the common law was immemorial and suprahuman, the product not of any one legislator or legislative act, but the collective intelligence and experience of Englishmen over a millennium or more.[87] Few dicta have had as great an impact on Anglo-American legal history as the equivocal passage Coke slid into Dr. Bonham 's Case: And it appears in our books, that in many cases, the common law win controul [Page 413] Acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law control it, and such Act to be void . . . . [88] Coke's language played a prominent role in his removal as Chief Justice,[89] and his holding was overruled by proclamation;[90] but to the American colonists, his words became sacred writ.[91] The common law, however, was not the only source of the colonists rights theory, particularly when, after 1776, the conflict became one with the entire British system and not merely parliament.[92] Some Americans reconciled their views with tradition by claiming that their views were a purified common law which lacked later British corruptions.[93] Others went behind the common law, claiming it only declared some "natural rights."[94] The major American thinkers were even bolder. George Washington wrote that "the foundation of our empire was not laid in the gloomy age of ignorance and superstition," and James Madison explained that our Constitution declined to incorporate the common law because many of its principles were antirepublican.[95] Additional sources of the new rights theory lay in the various "compact" theories of government, like those of Hotman and Hobbs, which sought the origins of the state in implicit agreements rather than in divine commands;[96] and in the European theories of " natural law."[97] Thus, the intellectual bases for an individual right of protection against the involuntary quartering of soldiers expanded at the same time the resistance to the concept of the standing army declined. And, it was the principle of the individual right, which ultimately was immortalized, in the third amendment of the United States Constitution.

III. THE AMERICAN EXPERIENCE

A. The Problems of Quartering and the Standing Army in the Colonies While the militia as an institution declined in England during the [Page 414] eighteenth century, it retained vitality in the American colonies. Unlike the mother country, the colonies lacked both the need to project military force beyond their borders, and an economy, which could support a significant standing force. The colonists quickly adapted the Militia system to Indian conflicts, instituting rapid response units and long-range patrols.[98] they also assimilated the views of the English Whigs and Classical Republicans, which stressed the militia's role in a free republic.[99] Although the origins of the third amendment would be directly rooted in the conflicts of the 1700's, problems resulting from the quartering of soldiers amongst the civilian population occurred throughout the history of the colonies each time there had been a significant British military presence. For example, complaints were raised in Massachusetts and Connecticut over crowding and the quartering of soldiers in private homes as early as King Philip's War, and similar allegations were later made in New York during the period of the Dominion of New England. Other colonies, such as Virginia, South Carolina, Nova Scotia, and those in the West Indies also recorded problems related to quartered soldiers during the seventeenth century.[100] As always, the problems were associated with the presence of professional soldiers, since service in the militia units was usually of short duration, expiring with the passing of the emergency. Only on rare occasions was it necessary for militiamen to be lodged outside their own country.[101] In response to the popular complaints about involuntary quartering, colonial legislatures made early efforts to grant legal protection from the objectionable practice. Typically, those enactments extended protection only to private dwellings and continued to allow for the quartering of soldiers in public structures such as inns. Exceptions were also made for the exigency of actual war.[102] 1. The Linkage of the Grievance Against Involuntary Quartering with the Political Issue of the Maintenance of Standing Armies The quartering of soldiers became a significant problem for the colonies beginning in the mid-1700s with the

9 of 29

arrival of thousands of British regulars during the Seven Years War. In England and on the [Page 415] continent, quartering was no longer a problem at this point, for a simple reason. The escalation in the size of armies and their camp followers during the late seventeenth and early eighteenth centuries had made haphazard quartering of soldiers obsolete. The solution was the construction of permanent "barracks."[103] But the colonies had few such structures. Prior to the Seven Years War, there was no need for them. After, they acquired symbolic value; to build permanent barracks was to admit that standing troops had a permanent place in the colonies, something that no colonial legislature would concede. Thus, General Edward Braddock received rebuffs to his requests for supplies and lodging for his men. In 1756, New York City initially refused to provide winter quarters for three hundred British soldiers under the command of Braddock's successor, John Campbell, earl of Loudoun. After much delay, the city finally raised a fund to pay for lodging the men, but only after Loudoun's threat to bring in more troops. Colonel Henry Bouquet and his men met similar opposition in Philadelphia. The army's request for lodging languished for weeks in the Pennsylvania legislature. The few buildings, which the city provided for Bouquets men, were insufficient to house all of the soldiers. Over a hundred of the men were forced to sleep outside in the snow. Under those conditions many came down with small pox. Again, adequate shelter was provided only in response to a threat to bring more soldiers into the city. British commanders in the other colonies faced related problems from hostile legislatures.[104] Following a recommendation that the terms of the Mutiny Act be explicitly extended to the colonies, the British Parliament enacted the Quartering Act of 1765, which required the colonists to bear the cost of providing barracks and supplies (fire, candles, vinegar, salt, and small beer or cider) for the resident British soldiers.[105] Where there was inadequate room in barracks, the Act authorized the soldiers to be quartered in inns, livery stables and alehouses. In order to raise revenue from the colonists to help cover the costs of maintaining the army, the British Parliament also enacted the hated Stamp Act of 1765.[106] Implementation of the Quartering Act immediately met with opposition in the colonies. In New York, General Thomas Gage's request for quarters and provisions was resisted by the legislature. The British response was to suspend the New York Assembly until it acquiesced to the General's demands. The end of the Seven Years War had left England with a sizable empire and large frontiers to defend. Their objective now became management of the empire: Expansion into the interior was to be [Page 416] discouraged, in order to maximize the lucrative fur trade with the Indians, revenue-producing taxes were to be enforced, and a large standing army stationed about the empire. These measures, the permanent stationing of large army units in particular, stirred controversy. The colonists, who saw the danger of Indian interference as diminished rather than increased now that the French stronghold of Canada had fallen, observed that the ranger units most useful against the Indians were being dissolved even as the regulars were being increased, and were highly suspicious of British motives.[107] The growing opposition to British trade and revenue regulations led in 1768 to the redeployment of the regular soldiers from the colonial frontier to locations near the seaboard cities. These soldiers were used to assist in law enforcement and increasingly became the object of colonial hostility. In cities like Boston, confrontations between soldiers and civilians sparked fistfights, riots, and similar incidents, of which the Boston Massacre of March 5, 1770, remains the most vivid example.[108] Although tensions eased at times, the quartering issue was again revived when the British Parliament enacted the Quartering Act of 1774.[109] The 1774 Act, one of the so called "Intolerable Acts," was even more onerous than the 1765 Act in that it authorized the quartering of soldiers in the private homes of the colonists. As had been the case in England over a century earlier, the grievance against the involuntary quartering of soldiers had become linked with the larger political issue of the maintenance of standing armies in peacetime without legislative consent. Removal of the standing army would mean an end to the quartering problem and, conversely, a resolution of the quartering problem by the construction of barracks would mean acceptance of standing armies. Citizens who bore the financial burden of maintaining the British Army found common cause with individuals suffering abuses at the hands of the unwanted soldiers. Specific complaints were exploited by colonial leaders as symptomatic of the larger political problem.[110] Conspicuous examples are found in the "Journal of the Times," a manner of anonymous syndicated column written in Boston and published there and in New York City and Philadelphia. During 1768-69, the Journal's prime focus was upon the [Page 417] dangers of stationing troops among the civilian populace. On March 17, it complained of the troops' "licentious and outrageous behavior" and suggested that the civilian population arm themselves in defense.

10 of 29

"Such violence are always to be apprehended from military troops, when quartered in the body of a populous city." The following day it reported that two women had been struck, and one robbed, by soldiers; and two officers had attacked a postrider had been attacked by two officers.[111] And, again as in the earlier instance, the issue of control of the militia would ignite the conflict, when British attempts to raid militia arsenals at Concord and Williamsburg ensured the alliance of Massachusetts and Virginia, and converted local grievances into a continental War. [112] At the onset of the Revolution, resentment against both the maintenance of a standing army in peacetime and the involuntary quartering of soldiers found expression in the First Continental Congress's Declaration of Resolves of 1774,[113] and in the Declaration of Independence of 1776. In the Declaration, the complaint against the maintenance of a standing army was recognized as political in nature [Page 418] and was leveled against the king alone in the phrase: "He has kept among us, in times of peace, Standing Armies without the Consent of our legislature;"[114] while the grievance against the involuntary quartering of soldiers was viewed as a violation of the colonists rights as Englishmen and was attributed to both king and parliament in the statement: "He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our law; giving his Assent to their Acts of pretended Legislation: For quartering large bodies of armed troops among us."[115] However, the use of the term "large bodies of armed troops" instead of simply "soldiers," in its reference to the quartering problem, was indicative of the close relationship between the standing armies and quartering grievances. In the summer of 1776, the Continental Congress recommended that the former colonies "adopt such governments as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents, and Americans in general."[116] A significant number of states responded by enacting bills of rights or new constitutions. Many of those documents contained provisions separately addressing the grievances against the involuntary quartering of soldiers and maintenance of standing armies. Provisions relating to the maintenance of standing armies were included in the declarations or constitutions adopted by Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Virginia and Vermont. The drafters of each document were conversant with the work of their predecessors, so that the language used in those provisions was somewhat similar. However, there was no clear consensus among the states on the nature of the grievance. Pennsylvania, North Carolina, Virginia, and Vermont adopted provisions reflecting the traditional Harringtonian view on standing armies. Those provisions were similar to the one found in the Pennsylvania Constitution of 1776; ". . . as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up."[117] Maryland, Massachusetts, and New Hampshire, however, rejected that -approach and adopted provisions similar to the one found in the Maryland Constitution of 1776; "[t]hat standing armies are dangerous [Page 419] to liberty, and ought not to be raised or kept up, without consent of the Legislature."[118] (emphasis added) none of the provisions were prohibitory, in that they all contained the phrase "ought not," instead of a mandatory imperative such as "shall not." The parallel Whig view, which emphasized the role of a true militia in the defense of a free republic, received even less recognition in the state documents. The Virginia Bill of Rights of 1776 was the only document which contained a phrase subscribing to the view in its entirety: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State."[119] While the Maryland and New Hampshire constitutions both contained less detailed phrases such as the one found in the Maryland Constitution of 1776; "[t]hat a well-regulated militia is the proper and natural defense of a free government."[120] Distinct provisions relating to involuntary quartering were included in the declarations or constitutions of Delaware, Maryland, Massachusetts, and New Hampshire. Here, however, there was a clear consensus as to the nature of the grievance, and the language used in each of the provisions was very similar to that found in the Delaware Declaration of Rights of 1776; " . . . that no soldiers ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct."[121][Page 420] All of the documents used the normative phrase "'ought to" in characterizing the "prohibition," with the exception of the later drafted New Hampshire Constitution of 1784 which utilized the mandatory imperative "shall," with respect to its prohibition against peacetime quartering. Those provisions were the existing legal guarantees during the period of the Articles of Confederation, and would serve as the direct antecedents of

11 of 29

the third amendment. B. The Effects of the Revolution and Its Aftermath The colonists experiences in the decade prior to the Revolution had left them with a strong aversion to the maintenance of standing armies in peacetime. As a corollary, many subscribed to the views of the English Whigs and Classical Republicans, which stressed the role of the militia as the proper means of defense for a free republic. The experiences of the war, and the security concerns of the former colonies at its conclusion, however, profoundly altered those views. The conclusion of the Revolution left Americans in a position similar to that of post-1689 English Whigs; the former opponents were now in control. Many now found a limited standing army necessary and, therefore, acceptable. The militias had generally acquitted themselves poorly during the major organized battles of the war, and were the subject of constant and bitter criticism.[122] At Guilford Courthouse, for instance, Virginia and North Carolina militia broke and ran before sustaining a single casualty. Their American commander noted; "[t]hey had the most advantageous position I ever saw, and left without making scarcely the shadow of opposition."[123] George Washington complained of the militia that they "come in you cannot tell how, go you cannot tell when, and act you cannot tell where, consume your provisions, exhaust your stores, and leave you at last at a critical moment."[124] As Alexander Hamilton later observed, the exclusive dependence on [Page 421] the militia, "had liked to have cost us our independence . . . .The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind."[125] The growing belief in the necessity of maintaining of a small standing army, at least for the purposes of manning coastal forts and guarding frontier posts, was strengthened by the fact that the conclusion of the war had left the former colonies facing an uncomfortable military situation. The British remained in Canada and some of the forts in the West. The Spanish were in Florida and the French retained control of Louisiana and the Mississippi River. Additionally, hostile Indian tribes were still a concern and several states were threatened with internal insurrections. The militia was, by its nature, inadequate to cope with these problems. In the end, the pragmatic security needs of the new nation took precedence over the adherence to an increasingly outmoded political theory. As in post-1689 England, the standing army would be denounced, derided, and retained. 1. The Standing Army and the Constitution The changing view toward the maintenance of a standing army in peacetime was evident at the Constitutional Convention held in Philadelphia in the summer of 1787. The Constitution which it proposed expressly granted Congress the authority "[t]o raise and support armies."[126] The only restriction on this power was a two year limit on any appropriation for that purpose.[127] With the exception of the Article I, section 9, limitations on ex post facto laws, bills of attainder and peacetime suspensions of habeas corpus, the draft Constitution did little to recognize individual rights.[128] The contrast between the breath of powers granted by. The new Constitution and the traditional views toward the maintenance of standing armies led to conflicts both in Philadelphia and later at the state ratifying conventions. At the Constitutional Convention the debate on the standing army provisions centered more upon the issues of the size and control of the permanent military establishment than the necessity for its existence in some form. On August 18th, George Mason opposed the standing army in peacetime with the exception of a few small garrisons.[129] EIbridge Gerry was of a similar view and proposed that the Constitution contain express language limiting the size of the standing army to several thousand men.[130] Charles Cotesworth Pinckney, ostensibly at the [Page 422] instigation of Washington, responded that such a proposal was satisfactory so long as any invading force also agreed to limit its army to a similar size. In one of the more notorious moments of the convention, Gerry's proposal was defeated amidst laughter and ridicule.[131] On September 5th, Gerry renewed his concerns about the standing army, and suggested that the two year limit upon appropriations be reduced to one year.[132] That proposal was debated and reacted. On September 10th Edmond Randolph objected to the lack of a prohibition against a standing army.[133] On September 14th George Mason renewed his concerns.[134] Mason did not want an absolute prohibition on standing armies, but wanted some stronger language about their dangers. His efforts to get such language, however, failed. On September 16th

12 of 29

Gerry again objected to the lack of limits upon the general power to raise and support standing armies.[135] When the Convention adjourned on September 17th, Mason, Gerry, and Randolph refused to sign the draft document. The debate over the military provisions of the proposed Constitution continued after the Convention. One of the most effective complaints of the Anti-Federalists in their attack on the draft Constitution was that the document gave Congress carte blanche to raise and maintain a standing army, an institution that was still anathema to Americans. For many, there was considerable concern that the new national government would be as oppressive as its British predecessor. With respect to the standing armies issue, this fear was exasperated by the fact that the American government itself had engaged in the onerous practice of the involuntary quartering of soldiers upon its own citizens during the war. In a February 18, 1776 letter to Elbridge Gerry, Joseph Hawley had complained bitterly: I hope, sir, you will by no means forget to endeavour that there be the most peremptory and absolute order and injunction on all the generals and officers of the American army, that quarters for the army or any part of them, shall in no case be impressed, but by the intervention of a civil magistrate, or direction of the legislature of the colony. They have again (I suppose through the resentment and pique of Park, the assistant quarter-master) quartered a company on Major Thompson,. against his will. .... It is not easy to imagine what a handle such conduct as this gives to the tories, and how much they rejoice to be able to take such exception; besides, it is downright and intolerably wrong. [136][Page 423] Given the background of the standing armies and quartering issues, the Federalists were hard pressed to justify the provisions of the proposed Constitution on the basis of practical necessity, and assurances that the new government was one of "limited powers." At the Virginia ratifying convention, during the summer of 1788, the proposal that " no standing army, or regular troops, shall be raised, or kept up, in time of peace, without the consent of two thirds of the members present in both houses," was put forward and ultimately rejected.[137] The debate which occurred during that convention highlighted the relationship of the standing armies and quartering issues. But it also showed the distinction between the two grievances. Patrick Henry, attacking the military provisions of the proposed Constitution, subscribed to the popular notion that the two grievances were essentially one in the same. He expounded the traditional view that the standing army itself was the problem, and thus argued: One of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any mannerto tyrannize, oppress, and crush us.[138] In defense of the military provisions of the proposed Constitution, James Madison took a more pragmatic approach, which clarified the distinction between the two issues: He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this countrywithout the consent of the people of America. As to the exclusion of standing armies in the bill of rights of the states, we shall find that though, in one or two of them, there is something like a prohibition, yet, in most of them, it is only provided that no armies shall be kept without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying that we shall have an army, if necessary? Does not the notoriety of this constitute security? If inimical nations whereto fall upon us when defenseless, what would be the consequence? Would it be wise to say, that we should have no defense? Give me leave to say, that the only possible way to provide against standing armies is to make them unnecessary.[139] To Madison and the Federalists, the standing armies issue was a political issue, not a question of individual

13 of 29

rights. The problem of involuntary quartering was a specific grievance, which emanated from a politically undemocratic, and thus unsound, resolution of the standing armies issue. If the standing armies issue was solved, as proposed, by placing control of the military establishment in the hands of a government which in turn was controlled by the people; then the problem of [Page 424] involuntary quartering would itself be solved, since no popularly controlled government would engage in such an onerous practice. In short, there was no "individual right" against the maintenance of a standing army in peacetime. The Anti-Federalists were not fully convinced by this logic. Since the form of government proposed in the new Constitution had never before been tested, there was legitimate concern that it might not be as democratic in practice as it appeared on paper. Further, there was the fear that a strong majority in control of a democratic government might use its position to abuse the rights of a weaker minority. They demanded additional assurances. Accordingly, as part of the compromise process necessary to gather support for ratification, specific articles for inclusion in a national bill of rights were recommended by eight of the thirteen states. Five of those eight states included among their articles a provision relating to the quartering of soldiers.[140] 2. Quartering and the Bill of Rights Following the ratification of the Constitution, Madison found himself cast in the unlikely role of father of the national Bill of Rights.[141] A year earlier, he had written to Thomas Jefferson, "[a]t the same time, I have never thought the omission (of a bill of rights] a material defect [of the Constitution]."[142] To Madison, the existing bills of rights were mere "parchment barriers," which were cheerfully violated "by, overbearing majorities in every state."[143] His later change in attitude was apparently the result of Jefferson's enthusiasm for a bill of rights, and his own need for popular support in a closely contested congressional election. Thus) a campaign letter sent by Madison included a promise to get Congress "to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights."[144] Madison's first step toward drafting a bill of rights was to obtain a pamphlet, which listed all of the state proposals. He then embarked upon a process of editing.[145] Out of hundreds of proposals, many redundant and some questionable; a hard core of usable proposals was selected. His intent was not to "create" entirely new rights, but to formulate a document, which represented a present consensus of opinion [Page 425] about the obvious rights of human beings. This process necessarily involved discarding all controversial proposals. As he informed Jefferson, "every thing of a controvertible nature that might endanger the concurrence of two-thirds of each House and three quarters of the States was studiously avoided."[146] After excluding the controversial propositions, Madison still had to single out the most desirable proposals, and then select the specific terms of the guarantees. Finally, he had to decide how to assemble and group the rights into a number of amendments. Given both the English and American background of the grievance, Madison's decision to include a right of protection against the involuntary quartering of soldiers in his federal bill of rights was hardly surprising. The language, which he used, was almost identical to that of the quartering provisions found in the constitutions and declarations of rights drafted by a number of the colonies during the Revolution; with one important exception. As with the other amendments, Madison substituted the mandatory imperative "shall" for the "ought" that had characterized those earlier documents; thus making the provision a true "right."[147] Originally part of Madison's first amendment,[148] the quartering provision, which would become the third amendment, was included in every version of the Bill of Rights considered by the Congress. The amendment as finally adopted in December 1791 differed little from the way it was initially introduced in the first Congress in 1789. Debate on the amendment in the House of Representatives was short. Thomas Sumter spoke against the amendment as drafted and took the more radical position than an owner's consent should be obtained before the quartering of soldiers in a private home whether in time of war or peace. He moved to strike portions of the amendment so that it would read: "No soldier shall be quartered in any house without the consent of the owner."[149] Roger Sherman spoke against this effort to alter the amendment arguing that its language was already too restrictive. He expressed the view that one individual should not be allowed to obstruct the public safety, whether in war or peace, when it was necessary for marching troops to have quarters. Additionally, he noted that the right as followed in England still allowed for soldiers to be billeted with the consent of the civil authorities.[150] Sumter's motion was put and defeated by a majority of sixteen.

14 of 29

[151] Elbridge Gerry then moved to change the language of the amendment in an effort to assure direct civilian control over the [Page 426] quartering of soldiers in time of war. With his amendment, the article would have read: "No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war but by a civil magistrate in a manner prescribed by law."[152] Thomas Hartley spoke against this motion arguing that matter relating to the quartering of soldiers should be entrusted to the legislature. He was concerned that a single local official might keep large numbers of soldiers standing in inclement weather at a time when the general public safety was endangered.[153] Gerry's motion was put and defeated by a majority of twenty-two.[154] The new Congress would not tie the hands of the government in times of war, when exigent circumstances might require it to resort to an otherwise objectionable practice. Significantly, the one military concern not addressed by Madison in the Bill of Rights was the call for limitations on a standing army. As Madison had previously stated to Jefferson, "I am inclined to think that absolute restrictions . . . are doubtful . . .. Should an army in time of peace be gradually established in our neighborhood by [Britain] or Spain, declarations on paper would have . . . little effect in preventing a standing force for the public safety."[155] By 1789 Americans had crossed the line the English Whigs had passed a century before: a standing army might be a nuisance, but now it was an American nuisance. Statesmen would still condemn it, but also continue to authorize it. Moreover, unlike the right against involuntary quartering, the details of limiting the army were eminently "controvertible." Federalists in the conventions had strongly opposed any limitations [156] and no consensus had developed among the supporters of such limitations.[157] Madison wisely avoided inserting such limitations in his draft; when others proposed them in the Senate their motions were uniformly defeated.[158] The third amendment would recognize and protect an individual right, not a political theory on the most appropriate form of national defense. The parallel Whig view, which stressed the desirability of a true militia, had only a slightly longer lease on life. As part of the compromise over the issue of the right to keep and bear arms, Madison included [Page 427] an equivocal reference to the ideal at the beginning of the second amendment; "[a] well regulated militia being necessary to the security of a free state . . . "[159] As a political theory, however, its days were numbered. Pre-1789 American political thought had emphasized the need to enroll all citizens, or at least freeholders, for militia duty, and had rejected the idea of a "select militia" in which only a portion of the population was enrolled.[160] Provisions which authorized the new Congress to provide for the arming and organizing of the national militia were seen as allowing it to require that all citizens possess arms of uniform caliber and conform to a standard of drill.[161] In practice, while various administrations prepared detailed plans along those lines, Congress refused to enact them.[162] Washington's first annual address acknowledged: "[a] free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite. "[163] His second address hinted that the "establishment of a militia" was among the "subjects which I presume you will resume of course, and which are abundantly urged by their own importance."[164] One year [Page 428] later, Washington again listed militia legislation as "a matter of primary importance whether viewed in reference to the national security to the satisfaction of the community or to the preservation of order."[165] In 1792, Congress enacted the first (and until 1903, the last) national Militia Act.[166] While this Act required all white males of military age to possess a rifle or musket (or, if enrolled in cavalry or artillery units, pistols and a sword), it did nothing to guarantee uniformity of calibers, fixed no standards of national drill, and failed even to provide a penalty for noncompliance. The subsequent presidential calls for detailed organization of a national citizen army went unheeded.[167] The original ideal of the general militia thus ultimately went the way of the standing army controversy, and in the words of one historian: "The ideological assumptions of revolutionary republicanism would no longer play an important role in the debate over the republic's military requirements."[168] 3. Subsequent Developments and the Amendment's Role The framers successful resolution of the standing armies issue would for practical purposes assure adherence to the guarantees contained in the third amendment. The efficacy of Madison's approach would be born out by events. The government established under the Constitution proved to be stable, enduring, and powerful enough to control the permanent military establishment. It successfully balanced the interests of the executive and legislative branches, providing effective mechanisms for avoiding the kind of political deadlocks over the

15 of 29

control of the military, which had occurred between king and parliament in [Page 429] the seventeenth century. This, in turn, assured that the basic needs of the soldiers would be ad equitably met. More importantly, the new government proved to be responsive to the people. Dependent as it was upon electoral support, it strove of necessity to avoid such politically unpopular practices as involuntary quartering and the use of the military for domestic law enforcement. In large measure, the obscurity of the third amendment would be a reflection of the success of the Constitution as a whole. Other circumstances would also play a part in reducing the amendment's historical role. America's long periods of geographic and political isolation would result in the maintenance of small peacetime armies; stationed for the most part in remote frontier locations away from the major population centers. Friction between soldiers and civilians would be greatly reduced. The standing army would be supplemented by large-scale civilian involvement in the select militias, reserves, and expanded wartime armies. The sum of the experience would be the evolution of a relatively small military establishment characterized by professionalism, political neutrality, and obedience to civil authority. Unlike their British ancestors, Americans would develop an identity of interest with its standing army, and come to view it as their protector and not their oppressor. In his classic treatise on the Constitution, Justice Joseph Story devoted only one small paragraph to the third amendment, concluding that its prohibitions were self-evident. Borrowing a metaphor from Coke,[169] he stated emphatically that the amendments "plain objective is to secure the perfect enjoyment of that great right of common law, that a man's house shall be his own castle, privileged against all civil and military intrusion."[170] Over a century later another commentator expressed a similar view, noting that the right is "so thoroughly in accord with all our ideas" that extensive comment it was unnecessary.[171] Indeed, few of the protections embodied in the Bill of Rights have enjoyed such widespread agreement, both then and now, as to their purpose and meaning. It is in that context that the third amendments contribution was perhaps the most significant. In the age of the framers, the concept of "rights" was a living thing, part of the innermost fife of all who aspired to understand the art of good government. Rights were not conceived of as codifiabletrapped within a written document. Codification of such concepts clarified them to a certain extent, but to a larger extent killed them. [Page 430] In our own age, the concept of "rights of man" has become absorbed into that of "constitutional rights," consisting mainly of rights expressly listed in the Constitution and its amendments, or recognized in specific judicial decisions. This approach would have been anathema to the American thinkers of the late eighteenth century, many of whom Would have subscribed to the statement made by Alexander Hamilton, in reply to a tory objection that because, New York had no charter of rights, it had no true rights: The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole record of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.[172] Given this intellectual framework, it is easy to understand the anxiety, which existed at the time over the codification of the Bill of Rights and the selection of the language for its individual provisions. There was legitimate concern that more would be lost than gained through such an exercise. In that regard, however, the third amendment presented little in the way of problems. The practice of involuntary quartering was considered to be so onerous by so many people that the amendment's inclusion in the pantheon of rights was virtually beyond question. Further, the specific and limited nature of the grievance made it possible to easily obtain a consensus as to an appropriate and all-inclusive wordy for the right. The third amendment, then, served as a broadly accepted basic right upon which a structure of newer, more enigmatic and controversial rights could ultimately be built.[173] Its existence underscored the need for, and helped give legitimacy to, the movement for a codification of fundamental liberties. [Page 431]

IV. CONCLUSION
The grievances against the maintenance of a standing army and the involuntary quartering of soldiers were both the products of a common experience. However, the nature of each was fundamentally different. The grievance against the maintenance of a standing army was in essence a political dispute, the ramifications of which extended to the community as a whole. The dispute involved traditional political questions such as

16 of 29

what kind of military establishment was appropriate for the defense of the nation, how that establishment should be controlled, and who should control it. Conversely, the grievance against the involuntary quartering of soldiers was in essence an individual complaint, the ramifications of which affected specific citizens who were forced to suffer its onerous burdens. The question, which it raised, was one involving the civil rights of the individual citizen versus the power of the government. Conceptually, that question retained an identity which was separate and distinct from the larger political issue of whether or not a standing army was an especially appropriate means for defending the nation. However, both grievances were so closely connected that the resolution of one necessarily and profoundly affected the resolution of the other. The individual grievance against the involuntary quartering of soldiers was but one of a number of undesirable by-products attributed to the maintenance of a standing army. By resolving the political issue of the standing army in a way which assured control of the permanent military establishment by a government responsible to the people, the framers for all practical purposes assured that derivative grievances such as involuntary quartering would cease to be a significant problem. Yet given the history and nature of the quartering problem, the depth of feeling which the grievance evoked, and America's unique concept of individual rights, the additional step of enacting a specific legal guarantee, in the form of the third amendment, was necessary to assure that even a democratic government would not again engage in such an onerous practice. Although that amendment is today largely forgotten, its inclusion in the Bill of Rights marked the end of an "ancient and troubled" chapter in Anglo-American legal history, and secured for Americans a right exceeding that enjoyed in England.[174] *Attorney, Office of the Solicitor, U.S. Department of the Interior. B.A., University of Virginia, 1976; BUD., College of William and Mary, 1979. Member of the bar of Virginia. **Attorney, Office of the Solicitor, U.S. Department of the Interior. BA, University of Arizona, 1972; BUD., University of Arizona, 1975. Member of the bar of Arizona. The opinions expressed herein are those of the authors and do not represent the views of the United States Government or any of its agencies or officials. 1. U.S. Const. amend. III. 2. 1 B. Schwartz, The Bill of Rights: A Documentary History 3 (1971) (the Bill of Rights consists of the first ten amendments to the Constitution). Contra L. Tribe, American Constitutional Law 18-1, at 1147 n.1 (1978) (the Bill of Rights consists of only the first eight amendments). 3. 381 U.S. 479 (1965). This was a Connecticut birth control case in which the Supreme Court stated: [S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance . . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. Id. at 484. See also Poe v. Ullman, 367 U.S. 497 (1961). 4. Securities Investor Protection Corp. v. Executive Securities Corp., 433 F. Supp. 470 (S.D.N.Y. 1977) (claim that a subpoena violated the third amendment); Gosney v. Sonoa Independent School, 430 F. Supp. 53 (D. Tex. 1977) (claim that a preclusion on outside employment for school teachers and principals violated the third amendment); Jones v. United States Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972) (claim that the issuance of a parade order violated the third amendment); United States v. Valenzuela, 95 F. Supp. 363 (S.D. Cal. 1951) (claim that "[t]he 1947 House and Rent Act ... was the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III."). It is interesting to note that the Civil War produced no cases interpreting the third amendment, even though it involved the domestic presence of large numbers of soldiers. Having seceded from the Union and closed the federal courts, the southern states had removed themselves from the amendment's protection. They did,

17 of 29

however, include the right in the Confederate Constitution. C.S. Const. art. 1, 9, cl. 14. 5. 677 F.2d 957 (2d Cir. 1982). In this case the United States Court of Appeals for the Second Circuit addressed the issue of, whether the third amendment rights of two correctional officers had been violated by the State of New York when it quartered National Guardsmen in their dormitory-style residences during a strike at a correctional facility. The court. concluded that the officers' possessory interests in their residences were sufficient to entitle them to protection under the amendment, and that the lower court had erred in granting the state's motion for summary judgment. In reaching its decision, the court applied modem fourth amendment analysis to the case, using the "legitimate expectation of privacy" standard for determining the existence of third amendment rights. For a detailed analysis of the cases see Fields, "The Third Amendment: Constitutional Protection from the Involuntary Quartering of Soldiers," 124 Md. L. Rev. 195 (1989); Case Comment, "The Third Amendment's Protection Against Unwanted Military Intrusion: Engblom v. Carey," 49 Brooklyn L. Rev. 857 (1983). 6. D. Howarth, 1066 The Year of the Conquest 80 (1977). For the battle of Hastings there was only a call up of the local fyrd from an area not more than 50 miles inland from the coast. 7. Id. at 43-44, and 80. Harold could muster a force of only approximately 2,200 housecarls for the battle of Hastings; his own double force of approximately 2,000 as king and earl of Wessex, and several hundred more from his brothers Gyrth and Leofwine, whose earldoms adjoined his own and extended from Norfolk to Kent. This was at a time when the total fyrd for all of England numbered approximately 50,000. The small size of the housecarl contingents vis-a-vis the fyrd is illustrated by the relative ease with which an army of people, under the leadership of Thanes, revolted in 1065 against Tostig, earl of Northumbria, killing his armed retainers and plundering his treasury and armory at York. Howarth does not attribute the success of the Norman Conquest to any shortcoming with respect to the fyrd system, but to a lack of Saxon leadership after the death of Harold. See generally C. Hollister, Anglo-Saxon Military Institutions (1962); Brook, "The Development of Military Obligations in Eight and Ninth Century England," in England Before the Conquest 69 (P. Clemoes & K. Hughes ed. 197 1). 8. 1 W. Blackstone, Commentaries *409. 9. 1 J. Bagley & P. Rowley, A Documentary History of England 1066-1540, at 152 (1965). The reference is to a seventh century Wessex law. 10. Id. 11. See generally C. Hollister, supra note 7. 12. 1 W. Blackstone, Commentaries *410. See also 2 id. at *44-58. 13. Id. See D. Douglas, The Norman Achievement 174-75 (1969); 1. Sanders, Feudal Military Service in England (1956). 14. See Brooke, supra note 7, at 97. For example, a vassal frequently found that he owed fealty to both of two lords presently at war with each other. Medieval jurists at length determined that in such situations he must personally fight for the one whom he had first sworn fealty, while hiring a mercenary of equal skill to fight in his place for the other. Both lords were then barred from forfeiting his lands for default or treason. See B. Tuchman, A Distant Mirror 260-61 (1978). In an effort to avoid this problem, in 1086, William the Conqueror required every landholder to swear directly to him "loyalty against all men." R. Adam, A Conquest of England 214-15 (1965). Maitland considered the combination of that oath and fyrd duty as the crucial distinction between English and Continental political ideals. F. Maitland, The Constitutional History of England 162 (1908). However, Jolliffe discounted the importance of the 1086 oath, arguing that it must have been a unenforceable oath of fealty, not the enforceable oath of homage. See J.E.A. Jolliffe, The Constitutional History of Medieval England 162 n.2 (4th ed. 1961). It should also be noted that Feudal lords were notoriously unreliable. Of the ten largest Norman landowners listed in the Domesday Book, two had their lands forfeited for disloyalty before the survey was complete, and six more rebelled within fifteen years. J. Schlight, Monarchs and Mercenaries 31 (1968).

18 of 29

15. 1 W. Blackstone, Commentaries *310. Blackstone states that scutage "appeared to have been levied for the first time in the fifth year of Henry the Second, on account of his expedition to Toulouse." However, later historians are of the view that the practice dates back at least to the time of Henry 1, and that William the Conqueror may have used similar means for raising money to pay soldiers. Smail, "Art of War," in I Medieval England 138-39 (A. Poole ed. 1958). 16. Smail, supra note 15, at 136-37. Taylor, "Military Architecture," in 1 Medieval England 98-101 (A. Poole ed. 1958). See F. Steton, The First Century of English Feudalism (1932). 17. D. Howarth, supra note 6, at 192. See F. Stenton, Anglo-Saxon England 622-688 (2nd ed. 1971). 18. Smail, supra note 15, at 128-168. See M. Powicke, The Thirteenth Century 1216-1307 at 80-119, 170-227, 381-445, and 644-720 (2d ed. 1962); M. McKisack, The Fourteenth Century 1307-1399 32-152, 234-272, and 384-496 (1959); K. Vickers, England in the Later Middle Ages l8-39 and 139-155 (1913); J. Morris, The Welsh Wars of Edward I (1969). 19. 1 W. Blackstone, Commentaries *410. The pre-Conquest Saxon obligation had been 60 days; the Norman custom was 40. 60 days apparently remained the norm in England for a time, until the barons were able, in the reign of Stephen, to force a reduction to 40 days. J. Schlight, supra note 14, at 20. 20. Smail, supra note 15, at 137-39. M. McKisack, supra note 18, at 234-272. The rise of scutage was also associated with economic changes. In the early feudal period, money was scarce, so that land. itself became the index of wealth, and service in kind the rule. As money in circulation rose, it became increasingly feasible to reduce obligations to cash payments. J. Schlight, supra note 14, at 13. 21. Despite the disreputable character of many of those soldiers, they nevertheless fought well, as English victories at Crecy and Agincourt will attest. 22. Hardy, "A Free People's Intolerable GrievanceThe Quartering of Troops and the Third Amendment," 33 Va. Cavalcade 126 (1984). Problems such as this were even more severe in Normandy itself. One fifteenth century writer advised Edward IV that his military officers had "suffred to be done unponisshed to the pore comons, labororers, paissaunts of the saide duchie of Normandie" a variety of "tirannyes, ravynes, and crueltees." The officers were accused of allowing their men to beat and manhandle the peasants, and to "mischieve theire bestis withe theire wepyns." Anon., The Boke of Noblesse 73 (1792). 23. D. Douglas & G. Greenway, English Historical Documents 1042-1189,945 (1953). 24. Id. at 946. 25. C. Stephenson & F. Marcham, Sources of English Constitutional History, 115, 117(1937). 26. Hardy, supra note 22, at 127. 27. Fields, supra note 5, at 196. 28. Assize of Arms, 27 Hen. II (1181 See I W. Blackstone, Commentaries *411; I F. Grose, Military Antiquities Respecting a History of the British Army 9-11 (1812); B. Lyon, A Constitutional and Legal History of Medieval England 273 (2nd ed. 1973). 29. See J. Bagley & P. Rowley, supra note 9, at 155-56. The legal status of a serf was barely above that of a slave. Serfs were bound to the land, subject to oppressive demands for their labor and produce, and had no right of appeal to the royal courts for any injury inflicted by their overlord. See I M. Bloch, Feudal Society 272-75 (1961); and F. Heer, The Medieval World 22-34 (1962). 30. 13 Edw. 1. ch. 6 (1285). 1 W. Blackstone, Commentaries *411. This was apparently necessitated because the practices mandated by the Assize of Arms of 1181 had grown lax. Its enactment confirmed the two roles of the militia: 1) the defense of the island, and 2) the maintenance of domestic law and order. J. Mahon, History of the Militia and the National Guard 7 (1983).

19 of 29

31. See generally J. Beeler, Warfare in Feudal Europe (1971); B. Tuchman supra note 14. The English citizen army was not without its imitators. When the French attempted a similar experiment, seeking to organize 42,000 citizen soldiers, the result was a failure. A contemporary noted of them that "they were brought up in slavery, with no experience in handling weapons, and since they have passed suddenly from total servitude to freedom, sometimes they no longer want to obey their masters." I R. Laffont, The Ancient Art of Warfare 485 (1966). 32. C. Oman, A History of the Art of War in the Sixteenth Century 288 (1937). 33. Sir John Fortescue distinguished in the 1470s between France's "jus regale" and England's "jus regale et polliticum." "Jus Regale" can be rendered "royal law' or "law of the king'. "polfiticum" can be rendered as "of the State," "national," or even "of the republic." Fortescue argued that the French peasants were starved and impoverished so that they were "crokyd" and "feble," and unable to defend the realm: "nor thai have wepen, nor money to bie them wepen withall." Thus the French king, unable to use his unreliable nobility or his weak and unarmed peasants, was forced to rely on mercenaries: "Lo, this is the frute of his Jus regale. Yf the reaume of Englonde, wich is an Ile, and therfor mey not lyghtly geyte soucore of other landes, were rulit vnder such a lawe and vnder such a prince, it wolde be a pray to all oper nacions pat wolde conqwer, robbe or deuouir it." Fortunately, Englishmen were healthy, wealthy, and well armed, " wherfore thai ben myghty, and able to resiste the adversaries of this realme, and to beete oper reaumes that do, or woldee do them wronge. Lo, this if the fruty of Jus polliticum et regale, under wich we five," J. Fortescue, The Governance of England, Otherwise Called The Difference Between an Absolute and a Limited Monarchy 114-15 (C. Plummer rev. ed. 1885). Sir Walter Raleigh later took a similar view, assigning to the "barbarous and professed tyranny" the plan "to unarm his people of weapons," while the "sophistical or subtle tyrant" would seek "to unarm his people and store up their weapons, under pretense of keeping them safe." W. Raleigh, "Maxims of State," in 8 The Works of Sir Walter Raleigh, Knt., Now First Collected 22 (Oxford Univ. 1812). 34. See generally M. Beloff, The Age of Absolutism 1660-1815 (1962). 35. V. Dabney, Virginia The New Dominion 52-69 (1971). 36. The Glorious Revolution in America 47 (M. Hall, L. Leder & M. Kammer eds. 1972). 37. P. Maier, From Resistance to Revolution 5 (1972). 38. L. Boynton, The Elizabethan Militia 8-9 (1967). 39. Hardy, supra note 22, at 127. 40. Id. at 128. 41. B. Schwartz, supra note 2, at 20-21. 42. P. Haythomthwaite, The English Civil War 1642-1651 9 (1983). See generally G. Davies, The Early Stuarts 1603-1660 22-67, 81-103, and 124-58 (2d. ed. 1959). 43. Blackstone concluded that the militia question "became at length the immediate cause of the fatal rupture between the king and his parliament." 1 W. Blackstone, Commentaries *412. The seriousness of the issue is illustrated by the atypically firm response of Charles: "By God, not for an hour. You have asked that of me in this, which was never asked of a King." R. Ollard, This War Without An Enemy 53 (1976). 44. P. Haythornthwaite, supra note 42, at 103. Fairfax in 1646 recognized that the parliamentary army had "for want of pay practis'd free quarter, to the great scandall thereof, and to the extream burthen of the Country." He ordered his forces to cease such practices and pay for food, lodging, and fodder, either in cash or "ticket." In July, 1649, his orders noted that parliament had abolished free quarter, and required that no detachments of less than 25 men "quarter in private houses without the owners consent;" larger parties that did so quarter were forbidden to stay in a house more than two nights, and must march seven miles a day. C. Firth, Cromwell's Army 395-97 (1962). 45. J. Tanner, English Constitutional Conflicts of the Seventeenth Century 225 (1928); L. Schwoerer, No

20 of 29

Standing Armies. The Antiarmy Ideology in Seventeenth Century England (1974). See G. Davies, supra note 42, at 179-80 and 250-51. At the same time, it is possible that the role of the New Model Army in the standing army controversy is overstated. Pocock points out that allusions to it are rare in the late seventeenth and early eighteenth century pamphlets on the subject and regards fears of a standing army as derived more from fears that the power to appoint officers and suppliers would be used to corrupt parliament and the people. These fears were seen as inapplicable to the institution of the militia, where "the public defense is exercised directly by the independent proprietors appearing in arms at their own charge ... and the proprietor's liberty is guaranteed as much by his right to be the sole fighter in his own defense as by his ultimate right to cast a vote . . . ." Pocock, "Machiavelli, Harrington, and English Political Ideologies in the Eighteenth Century," 22 Wm. & Mary Q. 549, 566 (1965). 46. 1 W. Blackstone, Commentaries *412. See J. Childs, The Army of Charles II (1976). 47. Purveyance was the system of providing supplies or services for the Crown by preemption or impressment at a valuation fixed by appraisers appointed by the purveyors. The prices were often considerably below market value and the owner of the property had no choice as to sale. Payment was commonly in the form of treasury tallies. A royal prerogative, it was abolished by the Act Abolishing Feudal Tenures, 12 Car. 2, ch. 24 (1660). 48. 31 Car. 2, ch. 1 (1679). 49. Hardy, supra note 22, at 128. 50. B. Schwartz, supra note 2, at 40-41. 51. G. Trevelyan, The English Revolution 179-80 (1979). 52. Id. at 8. Burke described the Declaration as "the cornerstone of our Constitution." L. Brevold & R. Ross, The Philosophy of Edmund Burke 192 (1970). 53. B. Schwartz, supra note 2, at 42. 54. 1 W. & M., ch. 5 (1689). 55. See B. Williams, The Whig Supremacy 1714-1760 215 (5th ed. 1962). 56. See Pamphlets of the American Revolution (B. Bailyn ed. 1965); H. Colbourn, The Lamp of Experience Whig History and the Intellectual Origins of the American Revolution (1965); G. Wood, The Creation of the American Republic 1776-1787 (1969); B. Bailyn, The Ideological Origins of the American Revolution (1967); Banning, "Republican Ideology and the Triumph of the Constitution, 1789 to 1793," 31 Wm. & Mary Q. (3d Ser.) 167 (1974); Pocock, "Machiavelli, Harrington and English Political Ideologies in the Eighteenth Century," 22 Wm. & Mary Q. (3d Ser.) 549 (1965); and Shalhope, "Republicanism and Early American Historiography," 39 Wm. & Mary Q. (3d Ser.) 334 (1982). 57. N. Machiavelli, The Prince and the Discourses (Mod. Library ed. 1950) (1513). 58. See id. at 44-45. 59. See id. at 45. 60. N. Machiavelli, The Art of War 21 (rev. ed. 1965) (1521). 61. Id. at xxx. See generally F. Rabb, The English Face of Machiavelli. A Changing Interpretation 1500-1700 (1964). 62. Harringtonn's major works were Oceana published in 1656 and The Prerogerative of Popular Government published in 1658. The best current collection is The Political Works of James Harrington 210, 389 (J.G.A. Pocock ed. 1977). C. Hill, The Century of Revolution 1603-1714 310 (1962).

21 of 29

63. Pocock, supra note 62, at 553-54. 64. See id. at 559. 65. See id. at 44243. See also A. Fletcher, A Discourse of Government with Relation to Militias (London n.d.) (probably before 1737). Like Harrington, Fletcher shared Machiavelli's admiration for the ancient republics of Rome and Sparta. 66. Nevilles work, Plato Redivus, Or a Dialogue Concerning Government, may be found in Two English Republican Tracts (C. Robbins ed. 1969). See generally C. Hill, supra note 61, at 223. 67. C. Hill, Some Intellectual Origins of the English Revolution 27 (1980) (citing Neville, supra note 65). 68. Molesworth, Forward to F. Hotman, Franco Gallia at xxvi (R. Molesworth trans., London 1711). 69. See generally G. Trevelyan, The English Revolution 1688-1689 63 (1939). 70. See generally G. Clark, The Later Stuarts 1660-1714 (2d ed. 1961). 71. M. Roberts, "The Military Revolution 1560-1660," Inaugural Lecture delivered before the Queen's University of Belfast 9-11 (copy in possession of author). At the beginning of the century, the customary infantry weapons of musket or pike had required only a moderate amount of training. An army of that era maneuvered slowly in "tercios" or "battles" of about 3,000 men. However, during the first third of the seventeenth century, armies were constructed around a "battalion" of about 500 men, which had to be trained to execute a multitude of orders. The earlier use of the pike had led to no improvements in organization. Fifteenth century pikemen were generally launched en masse at the enemy. 72. See generally J. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition 64-65 (1970); G. Clark, supra note 70, at 249-252. 73. C. Barnett, Britain 's Army 1503-1970 124 (1970). 74. The events of 1688 cannot, of course, be represented as an unqualified Whig victory. William's policies favored neither party, and those of his successor Ann strongly favored the Tories. Only with the accession of George I in 1714 did the Whigs attain a dominant hand. See generally B. Williams, supra note 55. At the same time, for Whigs after 1688 the destruction of the government would likely have meant replacement of a generally unsympathetic Tory establishment with an oppressive and vengeful Jacobite one, and the loss of their gains during the Glorious Revolution. 75. Molesworth, supra note 68, at xxv. 76. C. Rossiter, The Political Thought of the American Revolution 55 (1963). John Adams held a special regard for Harrington. Both he and Madison studied Molesworth in detail, and Jefferson's library contained copies of works by Sydney, Molesworth, and Harrington. See C. Robbins, The Eighteenth Century Commonwealthman 100-102 (1959). Those works as well as the one's of Fletcher, were owned by Franklin, Hancock, and Mason, and when Burgh's Political Disquisitions was printed in the colonies, Franklin served as editor, and the subscription list for the first edition included Washington, Jefferson, Adams, and Hancock. L. Cress, Citizens in Arms. The Army and the Militia in American Society to the War of 1812 35 (1982). Whiggism was predominant in the American colonies for at least the half-century preceding the American Revolution. Conversely, Toryism was revived in Britain in the second half of the eighteenth century when the country was almost constantly at war. American Whig sentiment deepened in reaction to that revival. In the words of Benjamin Franklin, the colonists were "Whigs in a Reign when Whiggism [was] out of Fashion." H. Colbourn, supra note 56, at 193. 77. See infra notes 117-120 and accompanying text. 78. Even under William, who relied heavily upon Whig ministers, "[t]he honeymoon did not last.... [A] flood of publications reminded Englishmen of the ancient system they were supposedly reviving, including a

22 of 29

Saxon-style militia. Yet William believed that military common sense dictated a standing army." H. Colbourn, supra note 55, at 48. Under the Tory administrations which followed, these views became truly the "opposition theory [which] provided a model for an American version." Banning, supra note 55, at 183. The Whig historian Macaulay described the transition as follows: What had been at first tolerated as an exception began to be considered as the rule. Not a session passed without a mutiny bill, regarded merely as an occasion on which hopeful young orators fresh from Christchurch were to deliver maiden speeches, setting forth how the guards of Pisistratus seized the citadel of Athens, and how the Praetorian cohorts sold the Roman empire to Didius. At length these declamations became too ridiculous to be repeated. The most old fashioned, the most eccentric, politician could hardly, in the reign of George the Third, contend that there ought to be no regular soldiers. ... 3 T. Macaulay, The History of England from the Accession of James the Second 47 (1856). 79. 1 W. Blackstone, Commentaries *413-4. 80. T. Hayter, The Army and the Crowd in Mid-Georgian England 117 (1978). 81. "An Act to explain, amend, and reduce into one act of Parliament the Several Laws, now in being, Relating to the Raising and Training the Militia Within that part of Great Britain called England," 20 Geo. 3, ch. 20, 105 (176 1). 82. The North British Intelligencer 20 (Edinburgh 1776) (reporting speech by Lord Mayor of London, attacking the Scottish Militia Bill) (Lib. of Congress Rare Books Collection). 83. 1 W. Blackstone, Commentaries *413. 84. B. Bailyn, supra note 56, at 200-05. 85. Madison's attack on the Alien and Sedition Acts still stands as an excellent explanation of the difference between the English and American understandings: In the British Government the danger of encroachment on the rights of the people is understood to be confined to the executive magistrate. The representatives of the people in the Legislature are not only exempt themselves from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the Executive. Hence it is a principle, that the Parliament is unlimited in its power; or, in their own language, is omnipotent. Hence too, all the ramparts for protecting the rights of the peoplesuch as the Magna Carta, their Bill of Rights, [etc.]are not reared against the Parliament, but against the royal prerogative . . . . In the United States, the case is altogether different. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power. R. Buel, Securing the Revolution: Ideology in American Politics 1789-1815 249 (1972). 86. As Franklin wrote in 1770, "The sovereignty of the Crown I understand the sovereignty of Britain I do not understand . . . . We have the same King, but not the same legislature." Namier, "King George III: A Study of Personality," in Causes and Consequences of the American Revolution 193, 197 (E. Wright ed. 1966). The notion that the colonists' fight was with parliament and its ministers and not with the king was hard dying. Even after the fighting at Concord, Washington would write of "the Ministerial Troops (for we do not, nor cannot yet prevail upon ourselves to call them the King's troops)." 3 Writings of George Washington 291 (J. Fitzpatrick et. 1931). 87. J.G.A. Pocock, The Ancient Constitution and the Feudal Law 36-55 (1967). 88. Dr. Bonham 's Case, 77 Eng. Rep. 646,652 (1610). 89. C. Bowen, The Lion and the Throne 381-83 (1957).

23 of 29

90. J. Baker, An Introduction to English Legal History 92-93 (1979). 91. In the Stamp Act crisis alone, the passage was cited by James Otis, John Adams, and Patrick Henry. C. Bowen, supra note 89, at 315-16. 92. H. Colbourn, supra note 55, at 190. 93. Id. at 126, 190. 94. C. Rossiter, supra note 76, at 352. 95. Id. at 377; 1 B. Schwartz, supra note 2, at 448. 96. See generally F. Hotman, supra note 68; T. Hobbes, Leviathan (1651) (reprinted 1950). 97. See C. Rossiter, supra note 76. "In pamphlet after pamphlet, American writers cited . . . Beccaria on the reform of the criminal law, Grotius, Pufendorf, Burlamqui and Vattel on the laws of nature and of nations, and on the principles of civil government. The pervasiveness of such citations was at times astonishing." Id. at 359. 98. See generally J. Gavin, The Minute Men 1-46 (1967). 99. See generally supra notes 56-78 and accompanying text. 100. Hardy, supra note 22, at 130. 101. See American Military History 28-29 (M. Matloff ed. 1969). 102. Hardy, supra note 22, at 130. The earliest colonial enactment providing legal protection from the billeting of soldiers appeared in the New York Assembly's 1683 Charter of Libertyes and Priviledges: "Noe Freeman shall be compelled to receive any Marriners or Souldiers into his house and there suffer them to Sojourne, against their willes provided Alwayes it be not in time of Actuall Warr within this province." Id. 103. G. Parker, The Military Revolution 78 (1988). 104. Hardy, supra note 22, at 131. 105. 5 Geo. 3, ch. 33 (1765). 106. 5 Geo. 3, ch. 12 (1765). 107. See generally 3 M. Rothgard, Conceived in Liberty 27-31 (1976); J. Shy, Toward Lexington: The Rok of the British Army in the Coming of the American Revolution 142,165 (1965). 108. Hardy, supra note 22, at 130, 132. See generally J. Alden, General Gage in America (1948). 109. 14 Geo. 3, ch. 54 (1774). 110. The question of whether the British government actually did intend to create a military dominance of the colonies is still being debated by historians. See S. Webb, The Governors-General, the English Army and the Definition of the Empire (1979); Johnson, "The Imperial Webb; the Thesis of Garrison Government in Early America Considered," 43 Wm. & Mary Q. (3d Ser.) 408 (1986). 111. 0. Dickerson, Boston Under Military Rule 79 (1936). The colonial leaders effectiveness in linking the grievance against the involuntary quartering of soldiers with the political issue of the maintenance of standing armies can be seen from the fact that there was little, if any, actual quartering of soldiers in the private homes of the colonists prior to the onset of the Revolution. Commenting on the Quartering Acts, the legal historian John Phillip Reid noted: . . . the two statutes were practically unenforceable. Sensitive to American rights, the House of

24 of 29

Commons had made certain the military could not abuse its authority by making the British army subject to local whig control. Troops not only were not quartered in private colonial houses, officers also encountered legal difficulties in finding any housing. The quartering acts were a grievance only because Parliament had enacted them, not for what they provided or how they affected colonial personal rights. J. Reid, Constitutional History of the American Revolution 194 (1986). 112. In 1774, the British government banned the export of arms and ammunition to the colonies, and instructed General Gage to disarm rebellious areas. After several attempts to raid militia arsenals in the Boston area, some successful and some unsuccessful, an intended raid on the Concord arsenal brought about the outbreak of war at Lexington and Concord. At almost the same time, British authorities in Virginia secretly emptied the powder magazine at Williamsburg, but were discovered as they made off. The Virginians responded by mustering militia units, confronting British officials, and -seizing 200 muskets from the governor's mansion. The unusually bad timing of the two raids thus brought Massachusetts and Virginia, which otherwise had little in common, into an alliance in revolution, uniting the leadership of New England and the South. 113. Documents Illustrative of the Formation of the Union of the American States 4-5 (C. Tansill ed. 1927) ("Resolved, N.C.D. 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.) ("Resolved, N.C.D. that the following acts of parliament are infringements and violations of the rights of the colonists . . . . Also the act passed in the same session, for the better providing suitable quarters for officers and soldiers in his majesty's service, in North-America. Also, that the keeping a standing army in several of these colonies, in time of peace, without the consent of the legislature of that colony, in which such army is kept, is against law."). 114. 1 The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States 4 (B. Poore ed. 1877) [hereinafter Federal and State Constitutions]. 115. Id. 116. 4 Journal of the Continental Congress 342 (W. Ford ed. 1906). 117. 2 Federal and State Constitutions, supra note 114, at 1542. North Carolina Constitution of 1776 ("as standing armies, in time of peace are dangerous to liberty, they ought not to be kept up); Vermont Constitution of 1777 ("as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up"); Virginia Bill of rights of 1776 ("that standing armies, in time of peace, should be avoided, as dangerous to liberty). 2 id. at 1410, 1860, 1909. 118. 1 Id. at 816. Massachusetts Constitution of 1780 ("And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature"). Id. at 959. New Hampshire Constitution of 1784 ("Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature). The New York Constitution of 1777 incorporated all the grievances of the Declaration of Independence of 1776. 2 Id. at 1282, 1330. 119. 2 id. at 1909. The differing views on the role of the militia were evident in the later ratification debates. To the conservative Virginia convention, the predominant danger was that Congress would neglect the militia, or use it to supplant state governments. In other states, these were secondary concerns. To the more radical Pennsylvanians, for example, the primary danger was not that Congress would fail to adequately discipline the militia and thereby allow republican tradition to lapse, but that Congress might endanger individual liberties by too forcefully using its powers, i.e. militia discipline posed a danger to the individual. See J. McMaster & F. Stone, Pennsylvania and the Federal Constitution 1787-1788 462-63, 480 (1888); D. Robertson, Debates and Other Proceedings of the Convention of Virginia 270, 274-75 (2d ed. Richmond 1805). 120. 1 Federal and State Constitutions, supra note 114, at 819. New Hampshire Constitution of 1784 ("A well regulated militia is the proper, natural, and sure defense of a state"). 2 id. at 1282.

25 of 29

121. 2 W. Swindler, Sources and Documents of United States Constitutions 197, 199 (1973). Maryland Constitution of 1776 ("That no soldier ought to be quartered in any house, in time of peace, without the consent of the owner; and in time of war, in such manner only, as the Legislature shall direct). 1 Federal and State Constitution, supra note 114, at 819. Constitution of Massachusetts of 1780 ("In time of peace, no soldiers ought to be quartered in any house without the consent of the owner; and in time of war, such quarters ought not to be made but by civil magistrate, in a manner ordained by the legislature"). Id. at 959. New Hampshire Constitution of 1784 ("No soldier in time of peace. shall be quartered in any house without the consent of the owner; and in time of war, such quarters ought not to be made but by civil magistrate, in a manner ordained by the legislature"). 2 id. at 1283. 122. To be sure, the militia played no small role in determining the Revolution's outcome. Its contributions included seizing immediate control of local political machinery; harassing isolated British units and thus diverting manpower from their over stretched and undermanned armies; suppressing Tory units and Indian raiding parties that would otherwise have required responses from Washington's equally undermanner regular units; cutting off foraging parties and thus causing supply problems for the British; and presenting the British with a generally hostile environment everywhere they landed. Higginbotham, "The American Militia: A Traditional Institution with Revolutionary Responsibilities," in Reconsiderations on the Revolutionary War 95 (1978). See also J. Shy, A People Numerous and Armed 23-33 (1976); Shy, "A New Look at the Colonial Militia," 20 Wm & Mary Q. 175-885 (1963); 1. Christie, Crisis of Empire 106 (1966). 123. B. Davis, The Cowpens-Guilford Courthouse Campaign 155-56 (1962). 124. J. Palmer, Washington, Lincoln, Wilson: Three War Statesmen 26 (1930). 125. The Federalist No. 25, at 166 (A. Hamilton) (C. Rossiter ed. 1961). 126. U.S. Const. art. I, 8, cl. 12. 127. Id. 128. Id. at art. 1, 9, cls. 2 and 3. 129. 2 M. Farrand, The Records of the Federal Convention of 1787 326 (1911). 130. Id. at 329. 131. Id. 132. Id. at 509. 133. Id. at 563. 134. Id. at 616-17. 135. Id. at 633. 136. 5 The Founder's Constitution 216 (P. Kurland & R. Lerner eds. 1987). [hereinafter Kurland]. 137. 1 id. at 474. 138. 5 id. at 217. 139. Id. 140. Hardy, supra note 22, at 134. 141. Madison had argued against a bill of rights in his contributions to the Federalist Papers. See The Federalist, supra note 122, at 238. At the Virginia convention, he argued that "A bill of rights would be a poor protection for liberty." I B. Schwartz, supra note 2, at 764.

26 of 29

142. 11 Papers of James Madison 297 (R. Rutland & C. Hobson eds. 1977). 143. Id. 144. B. Schwartz, The Law in America 47 (1974). 145. 12 Papers of James Madison, supra note 142, at 58. 146. Id. at 272. 147. B. Schwartz, supra note 144, it 47. 148. 1 Annals of Cong. 451 (1789). 149. 1 Annals of Cong. 752 (1789). 150. Id. 151. Id. 152. Id. 153. Id. 154. Id. 155. 1 Kurland, supra note 136, at 477. 156. See infra notes 117-139 and accompanying text. See e.g. 1 B. Schwartz, supra note 2, at 455-56. 157. See infra note 119-139 and accompanying text. 158. A proposal to add to what became the second amendment a recognition that such armies are "dangerous to liberty," should be avoided as far as possible, and would be authorized in peace only upon a two-thirds vote of each house of Congress was lost six to nine. Four days later, an amendment stating more concisely that a two-thirds majority was necessary was lost on a voice vote. Journal of First Session of the Senate of the United States 71, 75 (Washington 1820). 159. U.S. Const. amend. II. See Hardy, "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harv. J.L & Pub. Pol'y 559 (1986); Hardy, "The Second Amendment and the Historiography of the Bill of Rights," 4 J.L. & Pol. 1(1987). 160. For example, Richard Henry Lee charged that a select militia would "answer all the purposes of an army" and that therefore the "Constitution ought to . . . guard against a select militia." Letters from the Federal Farmer to the Republican 21-22, 124 (W. Bennet ed. 1978). In the Pennsylvania federal ratifying convention, John Smilie expressed concern that "Congress may give us a select militia which will in fact, be a standing army." 2 The Documentary History of the Ratification of the Constitution 509 (M. Jensen ed. 1976). When Baron von Steuben proposed a select militia, one Connecticut newspaper was able to complain that the congressional power over the militia "looks too much like Baron Steuben's militia, by which a standing army was meant and intended." 3 id. at 378. A Pennsylvania newspaper complained that the Federalists sought: "1. The liberty of the press abolished. 2. A standing army. 3. A Prussian militia." J. McMaster & F. Stone, supra note 119, at 141. 161. At the Constitutional Convention, one delegate explained that "by organizing, the Committee meant proportioning the officers and menby arming, specifying the kind, size, and calibre of armsand by disciplining, prescribing the manual exercise, . . . ." 5 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 344 (1966) (2d ed. 1836). In the Pennsylvania. convention, James Wilson explained: "If a soldier drops his musket, and his companion, unfurnished with one takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline

27 of 29

will prevail throughout the United States." 2 id. at 521. 162. Major plans included Steuben's of 1784; Knox's of 1786; and Washington's of 1790. The last, submitted to Congress in January 1790, was drafted, redrafted, debated and, after a year and a half of work, enacted in emasculated form as the Militia Act of 1792. J. Palmer, supra note 121, at 87-89, 104-05, 107-123. See also L. Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 78-93, 116-129 (1982). 163. 1 Messages and Papers of the Presidents 57 (1897) [hereinafter Messages]. 164. Id. at 75. 165. Id. at 99. 166. Act of May 8, 1792, 1 Stat. 27 1. 167. Washington, 1793 (suggests examination of the Militia Act is "an inquiry which cannot be too solemnly pursued), 1 Messages, supra note 162, at 132; Washington, 1795, id. at 176; Jefferson, 1801 (Congress should "at every session continue to amend the defects which from time to time show themselves in the laws for regulating the militia"), id. at 317; Jefferson, 1802 (considering the importance of the militia, "you will doubtless think this institution worthy of a review, and give it those improvements of which you find it susceptible"), id. at 333; Jefferson, 1804 ("Should any improvement occur in the militia system, that will be always seasonable'), id. at 360. After all these efforts, Congress still failed to attempt any significant improvements. By 1805, even Jefferson was reduced to asking for a select militia, which had been anathema even to conservatives only a few years before: "I can not, then, but earnestly recommend to your early consideration the expediency of so modifying our militia system as, by a separation of the more active part from that which is less so, we may draw from it when necessary an efficient corps fit for real and active service, and to be called to it in regular rotation." Id. at 373. 168. L. Cress, supra note 161, at 176. The United States technically continues to have a national "general" militia consisting of all able-bodied males between 17 and 45 years of age who are not members of the National Guard or the Naval Militia. 10 U.S.C. 311 (West Supp. 1989). For practical purposes, however, this institution has ceased to play any real role in national defense. 169. Semayne's Case, 5 Co. Rep. 9 1 a, 9 1 b (1603) ("the house of every one is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose"). 170. 3 J. Story, Commentaries on the Constitution 1892 (1833). 171. J. Peeltason, Corwin & Peltason 's Understanding the Constitution 145 (7th ed. 1976). 172. C. Rossiter, supra note 76, at 107. 173. Although Anglo-Saxon society had long placed particular emphasis on the individual, especially toward property, the concept of individual political rights was of relatively recent vintage. To print a work on politics or religion required a royal permit as late as 1695; and most colonies retained the permit requirement into the 1730s. Even after these measures lapsed, it was illegal to print a work reflecting on an action of parliament or the person of a member without prior authorization. The 1661 Act Against Tumultuous Petitioning prohibited petitioning the king or parliament for changes in the established law, absent a permit from a justice of the peace. The 1673 Test Act, which generally barred non-Anglicans from civil or military office, remained on the books until 1829. Searches based on general warrants, issued by the executive, were universally accepted until the 1760s. In short, the legal recognition of a right of protection against the involuntary quartering of soldiers pre-dates by several hundred years many of the protections which became embodied in our Bill of Rights. Among the eight states requesting a bill of rights, freedom of the press and freedom against unreasonable searches, like freedom from the involuntary quartering of soldiers, also mustered five endorsements; but freedom of assembly, due process, and protection against cruel and unusual punishment claimed only four each. See 2 B. Schwartz, supra note 2, at 1167 (1971).

28 of 29

174. Hardy, supra note 22, at 126, 135.

29 of 29