Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
Now this Anglo-Saxon right to arms goes back to times before the very
dawn of the English Constitution, and the fyrd or local militia was
in Saxon times, as it was declared to be by our American State
constitutions of the eighteenth century, "the natural and only defence
of a free country." This principle was very soon re-established after
the Conquest. We find, as early as 1181, the Assize of Arms, which
revives the ancient fyrd or militia. Twenty-two years before scutage
had been substituted for military service; but this was merely a
matter of feudal tenure. Yet so early was a direct call for troops
forbidden to the crown. The contest of English ideals against Norman
ideas was one of the principal causes of Magna Charta itself (it is
significant that the Great Charter was never published in French);
the barons were required to support the king in war, but complained
against being led out of the kingdom; and King John's insistence
upon this led to the assembly at Runnymede. Thus the militia and the
maintenance of arms other than of feudal retainers--and this exception
led to the statutes against maintainors--passed out of the executive
power and became the province of the legislative branch; a principle
carried out in all our constitutions; they make the executive the
commander-in-chief of the army, navy, or militia, but the governor may
usually not command in the field, nor order troops out of a State; and
the president cannot employ Federal troops _in_ a State, except when
requested by its legislature; save only where necessary to maintain
the functions of the Federal government itself, or when a State
government ceases to be republican in form--but of that last who is to
be the judge?
With the doing away of direct military service, never yet to be
re-established in England, though the threat of conscription is now
made, disappeared the power of the king to control his people;
and this prevented the establishment of a royal autocracy and the
extinction of representative government which took place in every
Continental State. It is a picturesque fact that mercenary soldiers
were first employed in England in small numbers to suppress Jack Cade
in 1449, who was leading a labor insurrection; just as the first
instance where Federal troops were employed in intra-State matters in
America was when President Cleveland sent them to suppress rioters
interfering with the movement of mails in the Pullman strike in
Chicago.
Public-domain text, read in full here on John Shaqi.
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