STATES.
such persons as are peculiarly appointed among the rest of
the people, for the safeguard and defence of the realm.
order of the profession of arms. In absolute monarchies
this is necessary for the safety of the prince, and arises from the
main principle of their constitution, which is that of governing
by fear: but in free states the profession of a soldier, taken
singly and merely as a profession, is justly an object of jealousy.
In these no man should take up arms, but with a view to defend
his country and it's laws: he puts not off the citizen when he
enters the camp; but it is because he is a citizen, and would
wish to continue so, that he makes himself for a while a soldier.
The laws therefore and constitution of these kingdoms know
no such state as that of a perpetual standing soldier, bred up to
no other profession than that of war: and it was not till the reign
of Henry VII, that the kings of England had so much as a
guard about their persons.
the confessor's laws[a], the military force of this kingdom was in
the hands of the dukes or heretochs, who were constituted
through every province and county in the kingdom; being taken
out of the principal nobility, and such as were most remarkable
for being "sapientes, fideles, et animosi." Their duty was to lead
and regulate the English armies, with a very unlimited power;
"prout eis visum fuerit, ad honorem coronae et utilitatem regni."
And because of this great power they were elected by the people
in their full assembly, or folkmote, in the same manner as sheriffs
were elected: following still that old fundamental maxim of the
Saxon constitution, that where any officer was entrusted with such
power, as if abused might tend to the oppression of the people,
that power was delegated to him by the vote of the people themselves[b].
So too, among the antient Germans, the ancestors of our
Saxon forefathers, they had their dukes, as well as kings, with
an independent power over the military, as the kings had over
the civil state. The dukes were elective, the kings hereditary:
for so only can be consistently understood that passage of Tacitus[c],
"reges ex nobilitate, duces ex virtute sumunt;" in constituting their
kings, the family, or blood royal, was regarded, in chusing[**typo for chosing/choosing?] their
dukes or leaders, warlike merit: just as Caesar relates of their
ancestors in his time, that whenever they went to war, by way
either of attack or defence, they elected leaders to command
them[d]. This large share of power, thus conferred by the people,
though intended to preserve the liberty of the subject, was perhaps
unreasonably detrimental to the prerogative of the crown:
and accordingly we find a very ill use made of it by Edric duke
of Mercia, in the reign of king Edmond Ironside; who, by his
office of duke or heretoch, was entitled to a large command in
the king's army, and by his repeated treacheries at last transferred
the crown to Canute the Dane.
first settled a national militia in this kingdom, and by his prudent
discipline made all the subjects of his dominion soldiers: but
we are unfortunately left in the dark as to the particulars of this
his so celebrated regulation; though, from what was last observed,
the dukes seem to have been left in possession of too large
and independent a power: which enabled duke Harold on the
death of Edward the confessor, though a stranger to the royal
blood, to mount for a short space the throne of this kingdom, in
prejudice of Edgar Atheling, the rightful heir.
here in all it's rigor, the whole of which is built on a military
plan. I shall not now enter into the particulars of that constitution,
which belongs more properly to the next part of our commentaries:
but shall only observe, that, in consequence thereof,
all the lands in the kingdom were divided into what were called
knight's fees, in number above sixty thousand; and for every
knight's fee a knight or soldier, miles, was bound to attend the
king in his wars, for forty days in a year; in which space of time,
before war was reduced to a science, the campaign was generally
finished, and a kingdom either conquered or victorious[e]. By this
means the king had, without any expense, an army of sixty thousand
men always ready at his command. And accordingly we find
one, among the laws of William the conqueror[f], which in the
king's name commands and firmly enjoins the personal attendance
of all knights and others; "quod habeant et teneant se semper in
armis et equis, ut decet et oportet; et quod semper sint prompti et
parati ad servitium suum integrum nobis explendum et peragendum,
cum opus adfuerit, secundum quod debent de feodis et tenementis suis
de jure nobis facere." This personal service in process of time
degenerated into pecuniary commutations or aids, and at last the
military part of the feodal system was abolished at the restoration,
by statute 12 Car. II. c. 24.
left wholly without defence, in case of domestic insurrections, or
the prospect of foreign invasions. Besides those, who by their
military tenures were bound to perform forty days service in the
field, the statute of Winchester[g] obliged every man, according
to his estate and degree, to provide a determinate quantity of such
arms as were then in use, in order to keep the peace: and constables
were appointed in all hundreds to see that such arms were
provided. These weapons were changed, by the statute 4 & 5 Ph.
& M. c. 2. into others of more modern service; but both this
and the former provision were repealed in the reign of James I[h].
While these continued in force, it was usual from time to time
for our princes to to[**P2: one "to" too many, I think] issue commissions of array, and send into
every county officers in whom they could confide, to muster and
array (or set in military order) the inhabitants of every district:
and the form of the commission of array was settled in parliament
in the 5 Hen. IV[i]. But at the same time it was provided[k],
that no man should be compelled to go out of the kingdom at
any rate, nor out of his shire but in cases of urgent necessity;
nor should provide soldiers unless by consent of parliament. About
the reign of king Henry the eighth, and his children, lord lieutenants
began to be introduced, as standing representatives of the
crown, to keep the counties in military order; for we find them
mentioned as known officers in the statute 4 & 5 Ph. & M. c. 3.
though they had not been then long in use, for Camden speaks
of them[l], in the time of queen Elizabeth, as extraordinary magistrates
constituted only in times of difficulty and danger.
armour in the reign of king James the first: after which, when
king Charles the first had, during his northern expeditions, issued
commissions of lieutenancy and exerted some military powers
which, having been long exercised, were thought to belong to
the crown, it became a question in the long parliament, how far
the power of the militia did inherently reside in the king; being
now unsupported by any statute, and founded only upon immemorial
usage. This question, long agitated with great heat
and resentment on both sides, became at length the immediate
cause of the fatal rupture between the king and his parliament:
the two houses not only denying this prerogative of the crown,
the legality of which right perhaps might be somewhat doubtful;
but also seizing into their own hands the intire[**typo for entire?] power of the
militia, the illegality of which step could never be any doubt
at all.
the military tenures were abolished, it was thought proper to ascertain
the power of the militia, to recognize the sole right of the
crown to govern and command them, and to put the whole into
a more regular method of military subordination[m]: and the order,
in which the militia now stands by law, is principally built
upon the statutes which were then enacted. It is true the two last
of them are apparently repealed; but many of their provisions are
re-enacted, with the addition of some new regulations, by the
present militia laws: the general scheme of which is to discipline
a certain number of the inhabitants of every county, chosen by lot
for three years, and officered by the lord lieutenant, the deputy
lieutenants, and other principal landholders, under a commission
from the crown. They are not compellable to march out of their
counties, unless in case of invasion or actual rebellion, nor in any
case compellable to march out of the kingdom. They are to be
exercised at stated times: and their discipline in general is liberal
easy; but, when drawn out into actual service, they are subject
to the rigours of martial law, as necessary to keep them in order.
This is the constitutional security, which our laws have provided
for the public peace, and for protecting the realm against foreign
or domestic violence; and which the statutes[n] declare is essentially
necessary to the safety and prosperity of the kingdom.
troops and more regular discipline may perhaps be necessary, than
can be expected from a mere militia. And therefore at such times
particular provisions have been usually made for the raising of armies
and the due regulation and discipline of the soldiery: which
are to be looked upon only as temporary excrescences bred out of
the distemper of the state, and not as any part of the permanent
and perpetual laws of the kingdom. For martial law, which is
built upon no settled principles, but is entirely arbitrary in it's
decisions, is, as sir Matthew Hale observes[o], in truth and reality
no law, but something indulged, rather than allowed as a law:
the necessity of order and discipline in an army is the only thing
which can give it countenance; and therefore it ought not to be
permitted in time of peace, when the king's courts are open for
all persons to receive justice according to the laws of the land.
Wherefore Edmond earl of Kent being taken at Pontefract,
15 Edw. II. and condemned by martial law, his attainder was reversed
1 Edw. III. because it was done in time of peace. And it
is laid down[p], that if a lieutenant, or other, that hath commission
of martial authority, doth in time of peace hang or otherwise
execute any man by colour of martial law, this is murder; for it is
against magna carta[q]. And the petition of right[r] enacts, that no
soldier shall be quartered on the subject without his own consent[s];
and that no commission shall issue to proceed within this land according
to martial law. And whereas, after the restoration, king
Charles the second kept up about five thousand regular troops, by
his own authority, for guards and garrisons; which king James
the second by degrees increased to no less than thirty thousand,
all paid from his own civil list; it was made one of the articles
of the bill of rights[t], that the raising or keeping a standing army
within the kingdom in time of peace, unless it be with consent of
parliament, is against law.
prevailed over all Europe of late years (though some of it's potentates,
being unable themselves to maintain them, are obliged to
have recourse to richer powers, and receive subsidiary pensions for
that purpose) it has also for many years past been annually judged
necessary by our legislature, for the safety of the kingdom, the
defence 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 disbanded at the expiration
of every year, unless continued by parliament.
says baron Montesquieu[u], it is requisite that the armies with
which it is entrusted should consist of the people, and have the
same spirit with the people; as was the case at Rome, till Marius
new-modelled the legions by enlisting the rabble of Italy, and
laid the foundation of all the military tyranny that ensued. Nothing
then, according to these principles, ought to be more guarded
against in a free state, than making the military power, when
such a one is necessary to be kept on foot, a body too distinct from
the people. Like ours therefore, it should wholly be composed
of natural subjects; it ought only to be enlisted for a short and
limited time; the soldiers also should live intermixed with the
people; no separate camp, no barracks, no inland fortresses should
be allowed. And perhaps it might be still better, if, by dismissing
a stated number and enlisting others at every renewal of their
term, a circulation could be kept up between the army and the
people, and the citizen and the soldier be more intimately connected
together.
likewise passes, "to punish mutiny and desertion, and for
the better payment of the army and their quarters." This regulates
the manner in which they are to be dispersed among the
several inn-keepers and victuallers throughout the kingdom; and
establishes a law martial for their government. By this, among
other things, it is enacted, that if any officer and soldier shall
excite, or join any mutiny, or, knowing of it, shall not give
notice to the commanding officer; or shall defect, or list in any
other regiment, or sleep upon his post, or leave it before he is
relieved, or hold correspondence with a rebel or enemy, or strike
or use violence to his superior officer, or shall disobey his lawful
commands; such offender shall suffer such punishment as a court
martial shall inflict, though it extend to death itself.
time of actual war, yet, in times of profound peace, a little relaxation
of military rigour would not, one should hope, be productive
of much inconvenience. And, upon this principle, though
by our standing laws[w] (still remaining in force, though not attended
to) desertion in time of war is made felony, without benefit
of clergy, and the offence is triable by a jury and before the
judges of the common law; yet, by our militia laws beforementioned,
a much lighter punishment is inflicted for desertion in
time of peace. So, by the Roman law also, desertion in time of
war was punished with death, but more mildly in time of tranquillity[x].
But our mutiny act makes no such distinction: for
any of the faults therein mentioned are, equally at all times,
punishable with death itself, if a court martial shall think proper.
This discretionary power of the court martial is indeed to be
guided by the directions of the crown; which, with regard to
military offences, has almost an absolute legislative power. "His
majesty,[** "] says the act, [** "]may form articles of war, and constitute
courts martial, with power to try any crime by such articles,
and inflict such penalties as the articles direct." A vast and most
important trust! an unlimited power to create crimes, and annex
to them any punishments, not extending to life or limb! These
are indeed forbidden to be inflicted, except for crimes declared to
be so punishable by this act; which crimes we have just enumerated,
and, among which, we may observe that any disobedience to
lawful commands is one. Perhaps in some future revision of this
act, which is in many respects hastily penned, it may be thought
worthy the wisdom of parliament to ascertain the limits of military
subjection, and to enact express articles of war for the government
of the army, as is done for the government of the navy:
especially as, by our present constitution, the nobility and gentry of
the kingdom, who serve their country as militia officers, are annually
subjected to the same arbitrary rule, during their time of exercise.
not only the crimes themselves which it punishes, but also the
penalties which it inflicts, are ascertained and notorious: nothing
is left to arbitrary discretion: the king by his judges dispenses
what the law has previously ordained; but is not himself
the legislator. How much therefore is it to be regretted that a
set of men, whose bravery has so often preserved the liberties of
their country, should be reduced to a state of servitude in the
midst of a nation of freemen! for sir Edward Coke will inform
us[y], that it is one of the genuine marks of servitude, to have the
law, which is our rule of action, either concealed or precarious:
"misera est servitus, ubi jus est vagum aut incognitum." Nor is
this state of servitude quite consistent with the maxims of sound
policy observed by other free nations. For, the greater the general
liberty is which any state enjoys, the more cautious has it usually
been of introducing slavery in any particular order or profession.
These men, as baron Montesquieu observes[z] seeing the liberty
which others possess, and which they themselves are excluded from,
are apt (like eunuchs in the eastern seraglios) to live in a state of
perpetual envy and hatred towards the rest of the community; and
indulge a malignant pleasure in contributing to destroy those privileges,
to which they can never be admitted. Hence have many
free states, by departing from this rule, been endangered by the
revolt of their slaves: while, in absolute and despotic governments
where there no real liberty exists, and consequently no invidious
comparisons can be formed, such incidents are extremely rare.
Two precautions are therefore advised to be observed in all prudent
and free governments; 1. To prevent the introduction of slavery at
all: or, 2. If it be already introduced, not to intrust those slaves
with arms; who will then find themselves an overmatch for the
freemen. Much less ought the soldiery to be an exception to the
people in general, and the only state of servitude in the nation.
condition than any other subjects, so, by the humanity of our
standing laws, they are in some cases put in a much better. By
statute 43 Eliz. c. 3. a weekly allowance is to be raised in every
county for the relief of soldiers that are sick, hurt, and maimed:
not forgetting the royal hospital at Chelsea for such as are worn
out in their duty. Officers and soldiers, that have been in the
king's service, are by several statutes, enacted at the close of several
wars, at liberty to use any trade or occupation they are fit
for, in any town in the kingdom (except the two universities)
notwithstanding any statute, custom, or charter to the contrary.
And soldiers in actual military service may make their wills, and
dispose of their goods, wages, and other personal chattels, without
those forms, solemnities, and expenses, which the law requires
in other cases[a]. Our law does not indeed extend this privilege
so far as the civil law; which carried it to an extreme that
borders upon the ridiculous. For if a soldier, in the article of
death, wrote any thing in bloody letters on his shield, or in the
dust of the field with his sword, it was a very good military testa-
ment[b]. And thus much for the military state, as acknowleged
by the laws of England.
much more agreeable to the principles of our free constitution.
The royal navy of England hath ever been it's greatest defence
and ornament: it is it's antient[**sp?] and natural strength; the floating
bulwark of the island; an army, from which, however strong
and powerful, no danger can ever be apprehended to liberty:
and accordingly it has been assiduously cultivated, even from the
earliest ages. To so much perfection was our naval reputation
arrived in the twelfth century, that the code of maritime laws,
which are called the laws of Oleron, and are received by all nations
in Europe as the ground and substruction of all their marine
constitutions, was confessedly compiled by our king Richard the
first, at the isle of Oleron on the coast of France, then part of
the possessions of the crown of England[c]. And yet, so vastly inferior
were our ancestors in this point to the present age, that
even in the maritime reign of queen Elizabeth, sir Edward Coke[d]
thinks it matter of boast, that the royal navy of England then
consisted of three and thirty ships. The present condition of our
marine is in great measure owing to the salutary provisions of the
statutes, called the navigation-acts; whereby the constant increase
of English shipping and seamen was not only encouraged, but rendered
unavoidably necessary. By the statute 5 Ric. II. c. 3. in
order to augment the navy of England, then greatly diminished,
it was ordained, that none of the king's liege people should ship
any merchandize out of or into the realm but only in ships of the
king's ligeance, on pain of forfeiture. In the next year, by statute
6 Ric. II. c. 8. this wise provision was enervated, by only obliging
the merchants to give English ships, (if able and sufficient) the
preference. But the most beneficial statute for the trade and com-
merce of these kingdoms is that navigation-act, the rudiments of
which were first framed in 1650[e], with a narrow partial view:
being intended to mortify the sugar islands, which were disaffected
to the parliament and still held out for Charles II, by stopping
the gainful trade which they then carried on with the Dutch[f];
and at the same time to clip the wings of those our opulent and
aspiring neighbours. This prohibited all ships of foreign nations
from trading with any English plantations[**plantation?][**P3-looks fine] without licence from
the council of state. In 1651[g] the prohibition was extended also
to the mother country; and no goods were suffered to be imported
into England, or any of it's dependencies, in any other than
English bottoms; or in the ships of that European nation of
which the merchandize imported was the genuine growth or manufacture.
At the restoration, the former provisions were continued,
by statute 12 Car. II. c. 18. with this very material improvement,
that the master and three fourths of the mariners
shall also be English subjects.
with seamen; for their regulation when on board; and to confer
privileges and rewards on them during and after their service.
1.
for the sea service by the king's commission, has been a matter
of some dispute, and submitted to with great reluctance; though
it hath very clearly and learnedly been shewn, by sir Michael
Foster[h], that the practise of impressing, and granting powers to
the admiralty for that purpose, is of very antient date, and hath
been uniformly continued by a regular series of precedents to the
present time: whence he concludes it to be part of the common
law[i]. The difficulty arises from hence, that no statute has expressly
declared this power to be in the crown, though many of
them very strongly imply it. The statute 2 Ric. II. c. 4. speaks
of mariners being arrested and retained for the king's service, as
of a thing well known, and practised without dispute; and provides
a remedy against their running away. By a later statute[k], if
any waterman, who uses the river Thames, shall hide himself
during the execution of any commission of pressing for the king's
service, he is liable to heavy penalties. By another[l], no fisherman
shall be taken by the queen's commission to serve as a mariner;
but the commission shall be first brought to two justices of
the peace, inhabiting near the sea coast where the mariners are
to be taken, to the intent that the justices may chuse out and return
such a number of ablebodied men, as in the commission are
contained, to serve her majesty. And, by others[m], especial protections
are allowed to seamen in particular circumstances, to prevent
them from being impressed. All which do most evidently
imply a power of impressing to reside somewhere; and, if any
where, it must from the spirit of our constitution, as well as from
the frequent mention of the king's commission, reside in the
crown alone.
from public necessity, to which all private considerations
must give way) there are other ways that tend to the increase of
seamen, and manning the royal navy. Parishes may bind out poor
boys apprentices to masters of merchantmen, who shall be protected
from impressing for the first three years; and if they are
impressed afterwards, the masters shall be allowed their wages[n]:
great advantages in point of wages are given to volunteer seamen
in order to induce them to enter into his majesty's service[o]: and
every foreign seaman, who during a war shall serve two years in
any man of war, merchantman, or privateer, is naturalized ipso
facto[p]. About the middle of king William's reign, a scheme was
set on foot[q] for a register of seamen to the number of thirty
thousand, for a constant and regular supply of the king's fleet;
with great privileges to the registered men, and, on the other
hand, heavy penalties in case of their non-appearance when called
for: but this registry, being judged to be rather a badge of slavery,
was abolished by statute 9 Ann. c. 21.
2.
keeping up a regular discipline there, is directed by certain express
rules, articles and orders, first enacted by the authority of parliament
soon after the restoration[r]; but since new-modelled and altered,
after the peace of Aix la Chapelles[s], to remedy some defects
which were of fatal consequence in conducting the preceding
war. In these articles of the navy almost every possible offence
is set down, and the punishment thereof annexed: in which
respect the seamen have much the advantage over their brethren
in the land service; whose articles of war are not enacted by
parliament, but framed from time to time at the pleasure of the
crown. Yet from whence this distinction arose, and why the
executive power, which is limited so properly with regard to the
navy, should be so extensive with regard to the army, it is hard
to assign a reason: unless it proceeded from the perpetual establishment
of the navy, which rendered a permanent law for their
regulation expedient; and the temporary duration of the army,
which subsisted only from year to year; and might therefore with
less danger be subjected to discretionary government. But, whatever
was apprehended at the first formation of the mutiny act,
the regular renewal of our standing force at the entrance of every
year has made this distinction idle. For, if from experience past
we may judge of future events, the army is now lastingly ingrafted
into the British constitution; with this singularly fortunate
circumstance, that any branch of the legislature may annually
put an end to it's legal existence, by refusing to concur in it's
continuance.
3.
are pretty much the same with those conferred on soldiers; with
regard to relief, when maimed, or wounded, or superannuate,
either by county rates, or the royal hospital at Greenwich; with
regard also to the exercise of trades, and the power of making
informal testaments: and, farther[t] no seaman aboard his majesty's
ships can be arrested for any debt, unless the same be sworn
to amount to at least twenty pounds; though, by the annual
mutiny acts, a soldier may be arrested for a debt which extends
to half that value, but not to a less amount.
End of section 42
