The Militia and the Constitution: A Legal History

• Author: Williams. Fields David T. Hardy
• Pages: 01

I. Introduction

In examining the subject of the militia and the Constitution, a number of important issues immediately come to mind-the "federalism" issue of state versus national control of the militia, the "checks and balances" issue of presidential versus congressional control of the national military establishment, the issue of the political compromises reached in an effort to overcome the inherent weaknesses of the Articles of Confederation, and the paramount issue of civilian control over the military. To the Framers of the Constitution, the militia issue of perhaps the greatest significance, however. was the more fundamental question of the nature of the militia as a legal and politicai institution. Although less obvious to us today, that issue went to the very essence of the military's role in the new democratic republic and figured prominently in the debate over the ratiiication of the Constitution.

Nowhere in the Constitution is the term "militia" actually defined. Yet, when the Framers of the Constitution referred to the militia in the text of the document and the ratification debates, they had very definite ideas of what they meant Their concept of the militia as a legal and political institution was a product of English heritage, as it was modified by the uniqueness of the American experience. It differed radically

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from our own concept. Specifically, what we think of today as the militia-that is, the National Guard-would have been viewed as a "standing army" by political leaders of the Revolutionary era

At the same time, however, the Framers' concept of the militia was not static. Throughout the period of the Articles of Confederation and the early republic, changing political, economic, and strategic realities were forcing a reexamination of the militia's nature and role. This reexamination occurred along lines similar to what had occurred in England less than a century before. The language relating to the militia that the Framers ultimately chose for inclusion in the Constitution and Bill of Rights sought to reconcile the traditional Anglo-American view of the militia with the uncertainties of changing circumstances. The end result was a set of provisions that proved to be sufficiently flexible to endure the test of time and to accommodate the changing needs of the new nation.

The purpose of this article is to examine the role of the militia in the legal history of the Constitution and Bill of Rights. In doing so, It will emphasize the common-law origins of the militia as a legal and political institution, and the militia's role in the development of Anglo-American democratic institutions and the concept of individual liberties

11. The English Background

A. Common-Law Orisins of the Citizen .Wilitia.

The citizen militia is one of the most ancient of Anglo-American institutions. Sir William Blackstone credited Alfred the Great with the development of the militia system, stating: "It seems universally agreed by historians, that King Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers . . . ''I More recent historical research, however, has suggested that the origins of the early militia can be traced back at least to the seventh century and, in all likelihood, "the obligation of Englishmen to serve in the peoples' army is alder than our oldest records ' ' I Clearly, the citizen militia, as an institution with a legal identity of its own, had existed for centuries prior to the Norman Conquest.

The Saxon militia, known as the fyrd, was a "general" militia composed of all able-bodied men. In times of emergency, it was called out only In districts actually threatened with attack. Service in the fyrd was usually of short duration and the participants legally were obligated to provide their own arms and provisions in accordance with their socioeconomic standings. The system was well suited for an island kingdom with a simple agrarian economy and no need to project military power externally. The success of the Norman Conquest usually is attributed to a lack of Saxon leadership after the death of Harold, rather than any shortcoming with respect to thefyrd system

The only "professional armies" during the Saxon era were a few contingents of housecarls attached directly to the households of the King and the great Earls. These contingents were small in number because they were expensive to maintain. For the battle of Hastings, Harold could muster a force of only about 2200 housecarl., his own double force of about 2000 as King and Earl of U'essex, and several hundred more from his brothers Gyrth and Leofwine, whose earldoms aqioined his own. This was at a time when the total fyrd for all of England numbered around 50,000.' In earlier times, these contingents were even smaller. In the seventh century, for instance, the Doom of Zne defined a group of seven men or less as "thieves," a group of seven to thirtyfive men as "a band," and a group of more than thirtyfive men as "an army "b

William the Conqueror retained the .@Td system, but modified it by distributing the land to his followers to be held on a system of military tenure.b Under this system of feudalism, each estate was obligated to provide a particular number of appropriately armed knights for military service Because the military duty ran with the land, determining who owed service and how many men he was obligated to provide soon became complicated and easily disputed. For instance, the same individual might owe military service to two landowners in conflict with each other, or a major landowner might be able to

call upon his subordinate tenants to fight with him against the King8 These problems were made more acute because the feu. dal lords were notoriously unreliable. Of the ten largest Norman landowners listed in the Doomday Book, two had their lands forfeited for disloyalty before the survey was completed. and six more rebelled within fifteen years

Beginning in the twelfth century, the system of scutage was introduced, which allowed the vassals to pay a fixed sum instead of actually producing knights for servlce.e The rise of scutage was a by-product of economic changes. In the early feudal period, money was so scarce that land itself became the index of wealth, and service-in.kind became the rule. As money in circulation rose, it became increasingly feasible to reduce military obligations to cash payments. The King could then use the money to hire professional soldiers more amena-ble to his control This situation served to increase tensions between the King and his barons. Armed conflicts became corn mon as both groups sought to protect and expand their political and economic positions Abuses with respect to the practice of scutage actually were one of the maJor complaints that the barons sought to remedy with the Magna Carte.'o These early conflicts were the antecedents of later disputes between the Crown and Parliament over matters of taxation and the control of the military establishment.

The Sorman conquerors 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. Saxon villages, towns, and manors were sacked and burned; their inhabitants were raped, robbed, and murdered. In the north of England, the Kormans devastated thousands of square miles of countryside, leaving much of the area uninhabitable for a generation. The experience instilled in the common people a hatred and distrust of the Korman soldiers and a corresponding fondness for their native Saxon institutions, one of which was the fyrd.

Although the distinction between Korman and Saxon eventually faded, friction between professional soldiers and the civiiian population continued The Middle Ages was a time of ai-most continuous warfare as English kings sought to secure their thrones domestically and maintain their foreign possessions. Internally, the English experienced a number of private and civii wars of which the conflicts between Henry I11 and Simon de Montfort, as well as the War of the Roses, were the most notable. 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. It was England's external conflicts of the period, however, that played the largest role in molding the English peo-pies' attitudes toward the professional army and the militia, 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 or recover their Continental possessions.

Feudal sources alone were insufficient to meet the need for soldiers to fight in the continental wars. A feudal tenant was obligated to provide military services only for a limited period-usually no more than forty days a year." 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 Angevin's continental possessions. The extraction of services was made even more difficult where fiefs had been subdivided over time among co-heirs To circumvent these problems, English kings increasingly came to rely upon armies of professional soldiers, under the command of indentured captains, that were financed

with money raised through scutage, burdensome taxes, or plunder.

The new mercenary armies were made up...