The Third Amendment and Th

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American Journal of Legal History (Temple)

35 (1991): 393Posted 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 restraintswhich 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 bequartered 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 ofGriswold 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 ofEngblom 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

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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 thefyrd, a militia of all able-bodied men that was only called up

from the districts threatened with attack.[6] Service in thefyrdwas 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 ofhousecarls 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 militarypower.[7] The great English legal scholar, Sir William Blackstone credited Alfred the Great with the

development of thefyrdsystem, 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 thefyrdor 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, thefyrdsystem 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

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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 kingsincreasingly 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.

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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 personsand 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 CharlesOman 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 thedefensive, 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 StandingArmies

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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 fundamentalpolitical 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; andincreased 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

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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 viewedas 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 hisArt 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 hisArt of Warhad gone through no fewer than threeprintings.[61] Machiavelli

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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 martiallaw 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

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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 Americancounterparts. 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 militia-

trained 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 thisconcept 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

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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 agreementsrather 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 itnecessary 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 theMaintenance of Standing Armies

The quartering of soldiers became a significant problem for the colonies beginning in the mid-1700s with the

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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 quarteredin 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 theranger 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.

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"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 andsafety 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, rejectedthat -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

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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 someform. 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

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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 twogrievances 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 wasdone 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

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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, theexisting 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 oftwo-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 thirdamendment, 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.

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[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 inthe 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 alongthose 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 ideologicalassumptions 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

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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 AlexanderHamilton, 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

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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. 1B. 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 1147n.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. Seealso 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,

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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," 124Md. 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,

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