Standing-Army Controversy

The British decision to station a standing army in the colonies following the French and Indian War raised constitutional questions just as serious as the writs of assistance case. Traditional seventeenth-century English notions of restraint on power had positively forbidden the presence of a standing army. The decision by the government of Robert Walpole in England to quarter such an army raised cries of alarm from Whigs in England and their colonial counterparts. The latter charged, as had Otis in the writs of assistance cases, that the Parliament had violated a customary right under the British constitution.

The standing-army controversy ratcheted constitutional discourse up a notch from Otis's natural law arguments. Americans began to assert that they could chart their own future. "A military force," the Massachusetts House of Representatives protested, "if posted among the People, without their express Consent, is itself, one of the greatest Grievances, and threatens the total subversion of a free Constitution." ¹⁹ A popular will theory of law appeared to support colonial assertions on behalf of customary protections of liberty embodied in the unwritten British constitution.

The British troops in their fine red uniforms initially inspired a sense of awe, even terror in the colonial public. Familiarity gradually bred contempt, especially as the bored troops engaged in whoring and petty thievery. Whig agitators took glee in

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carrying out demonstrations against supporters of the King right in front of the troops, a practice inadvertently aided by English officers, who exercised restraint because they were uncertain of their constitutional authority to perform as police, and who often kept their troops out of town. In Boston, for example, no person was tarred and feathered by patriot leaders until the soldiers were stationed within the town limits.

The standing-army controversy initiated two enduring themes in American legal history. The first was that the use of soldiers as police endangered liberty. As a colonial pamphleteer argued, "What is got by Soldiers, must be maintained by Soldiers." ²⁰ Second (and related to the first theme) any law that required enforcement by soldiers was not properly law. That is, law had to resemble something based on a notion of contractual agreement between government and the governed and in which the command of the government derived authority from a legitimate source of sovereignty. Extralegal, direct popular action growing out of opposition to writs of assistance, standing armies, and the entire British commercial policy became the most direct assertion of popular sovereignty.

Date: 2015-01-29; view: 1035