And it is laid down, (u) 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. (v) The petition of right (w) moreover enacts, that no soldier shall be quartered on the subject without his own consent, (x) 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, (y) 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.

But, as the fashion of keeping standing armies, which was first introduced by Charles VII, in France, A. D. 1445, (z) has of late years universally prevailed [ *414 ] over Europe, (though *some of its 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. And it was enacted by statute 10 Wm. III, c. 1, that not more than twelve thousand regular forces should be kept on foot in Ireland, though paid at the charge of that kingdom; which permission is extended by statute 8 Geo. III, c. 13, to 16,235 men, in time of peace. (8)

(u) 3 Inst. 52.

(v) Cap. 29.

(x) Thus in Poland no soldier can be Univ. Hist. xxxiv. 23.

(y) Stat. 1 W. and M. st. 2, c. 2.

(w) 3 Car. I. See also stat. 31 Car. II, c. 1. quartered upon the gentry, the only freemen in that republic. Mod. (*) Robertson, Cha. V, i. 94.

Indiana, a state" within the military lines of the army of the United States and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy." On all these charges Mulligan was found guilty by the commission and sentenced to be hanged, and the sentence was approved by the president.

The validity of these proceedings was questioned in the supreme court of the United States, on a writ of habeas corpus. It appeared in the case that, during the period of the alleged offenses and of the sitting of the commission, the benefit of the writ of habeas corpus was suspended under the permission of an act of congress, in the case of all persons held in custody by military officers by authority of the president, but it also appeared that the courts of the United States for the district of Indiana were open and unobstructed in the performance of their duties, and that a grand jury was summoned and sat in said court during the time when Mulligan was held in confinement awaiting trial.

Upon these facts it was decided by the supreme court of the United States that Mulligan was entitled to his liberty. That military commissions organized during the civil war, in a state not invaded and not engaged in rebellion, in which the federal courts were open, and in the proper and unobstructed exercise of their functions, had no jurisdiction to try, convict or sentence, for any criminal offense, a citizen who was neither a resident of a rebellious state, nor a prisoner of war, nor a person in the military and naval service; and that congress could not invest them with any such power. And it was further held, that the constitutional guaranty of trial by jury was iutended for a state of war, as well as a state of peace, and was equally binding upon rulers and people at all times and under all circumstances. See further, In re Kemp, 16 Wis. 359; Todd, Par. Gov. vol. 1, p. 342.

Respecting martial law the judicial decisions are numerous, and cover a great many points. The civil courts, however, exercise no supervision over the military except to see that they keep within their jurisdiction.

(8) [It is perfectly lawful to employ soldiers to preserve the peace at home; but this should be done with great caution, and not without an absolute necessity. 'Magistrates," said Lord Chancellor Hardwicke, "have a power to call any subject to their assistance to preserve the peace and execute the process of the law; and why not soldiers as well as other men? Our soldiers are our fellow-citizens. They do not cease to be so by putting on a red coat and carrying a musket.” The military act, on such occasions, not qua military, but simply in aid of and in obedience to the civil power, which "calls them in." To quote again Lord Chancellor Hardwicke, "as armed citizens, often saving the effusion of innocent blood and preserving the dominion of the law."]

To prevent the executive power from being able to oppress, says Baron Montesquieu, (a) 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, 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.

To keep this body of troops in order, an annual act of parliament likewise passes," to punish mutiny and desertion, *and for the better payment of the army and their quarters." This regulates the manner in which [*415] they are to be dispersed among the several innkeepers 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 or soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer: or shall desert, 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.

However expedient the most strict regulations may be in 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 (b) (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 justices at the common law: yet, by our militia laws before mentioned, 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 tranquility. (c) But our mutiny act makes no such distinction: for any of the faults above 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. (d) "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 penalties by sentence or judgment of the same." 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 [ *416] 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.

One of the greatest advantages of our English law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are

(b) Stat. 18 Hen. VI, c. 19. 2 and 3 Edw. VI, c. 2.

(c) Ff. 49, 16, 5.

(a) Sp. L. 11, 6. (d) A like power over the marines is given to the lords of the admiralty, by another annual act" for the regulation of his majesty's marine forces while on shore."

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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, (e) 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 in introducing slavery in any particular order or profession. These men, as Baron Montesquieu observes, (f) 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

[ *417] depotic governments, where 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.

But as soldiers, by this annual act, are thus put in a worse 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 Eiiz., 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. (9) 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 nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases. (g) 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 testament. (h) And thus much for the military state, as acknowledged by the laws of England.

The maritime state is nearly related to the former, though much more agreeable to the principles of our free constitution. *The royal navy of [*418] England hath ever been its greatest defence and ornament; it is its ancient 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 (e) 4 Inst. 352. (f) Sp. L. 15, 12. (g) Stat. 29 Car. II, c. 3; 5 W. III, c. 21, § 6. (h) Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in prælio, vitæ sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod. 6, 21, 15.

(9) [Liberal pensions have been paid in the United States under various acts of congress, to the soldiers who have served honorably in their wars, and to the families of those who were killed or died in service. Military and naval hospitals have also been provided at the public expense.

Oleron, and are received by all nations in Europe as the ground and substruction of all their maritime constitutions, was confessedly complied 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. (i) (10) 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 (k) 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, (11) 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 commerce of these kingdoms is that navigation act, the rudiments of which were first framed in 1650, (2) with a narrow, partial view: being intended to mortify our own 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; (m) 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 *without license from the council of state. In 1651 (n) the prohibition [*419] was extended also to the mother country; and no goods were suffered to be imported into England, or any of its 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.

Many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service.

1. First, for their supply. The power of impressing seafaring men 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, (o) that the practice of impressing, and granting powers to the admiralty for that purpose, is of very ancient date, and

(i) 4 Inst. 144. Coutumes de la Mer. 2. (m) Mod. Un. Hist. xli. 289.

(k) 4 Inst. 50. (n) Scobell, 176.

(7) Scobell, 132. (0) Rep. 154.

(10) [The French writers attribute these laws to Eleanor, duchess of Guienne, the king's mother. She had previously been the wife of Louis VII, king of France; but divorced from that monarch, she married Prince Henry, afterwards Henry II, Richard's father. She was a woman of considerable talent, and Oleron was a part of Guienne. The probability is, that these laws were compiled under the joint auspices of her husband and her son; at all events, the promulgating them was the act of Richard. For the learning upon this curious question, see Seld. Mare Cl. 2 and 24; and how oppugned by the French writers, see Mr. Justice Park's System of Marine Insurance, Introduction, p. 28.]

See also 1 Duer Mar. Ins., where that learned author declares, that, at whatever time or by whatever authority the laws of Oleron were first published, the internal evidence compels him to believe that they were intended to apply exclusively to French vessels and French navigation. And he further declares that while they contain some just and salutary regulations, yet, considered as a whole, his unfeigned surprise is created that learned jurists and enlightened scholars have deemed them worthy of their admiration and praise. Taken collectively they bear most evident traces of the rudeness and barbarism of the age in which they were compiled. Many provisions violate the plainest rules of natural justice; some by their positive absurdity provoke mirth, and some by their atrocity excite and merit detestation.

(11) The protective navigation acts are now repealed. See statutes 16 and 17 Vic. c. 107, and 17 and 18 Vic. c. 5.

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. (p) (12) 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, (q) 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, (r) 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 seacoast where the mariners are to be taken, to the intent that the [*420] justices may choose out and return such a number of able-bodied men,

as in the commission are contained, to serve her majesty. And by others (s) especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. And ferrymen are also said to be privileged from being impressed at common law. (t) All which do most evidently imply a power of impressing to reside somewhere; and, if anywhere, 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. (13)

But, besides this method of impressing, which is only defensible 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; (u) great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service; (v) and every foreign seamen, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized ipso facto. (w) About the middle of King William's reign, a scheme was set on foot (a) 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 ineffectual as well as oppressive, was abolished by statute 9 Ann. c. 21.

2. The method of ordering seamen in the royal fleet, and 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; (y) but since *new-modelled and altered, after the peace of Aix-la-Chapelle, (z) to [*421] 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

(p) See also Comb. 245. Barr. 344.

(g) Stat. 2 and 3 Ph. and M. c. 16.

(r) Stat. 5 Eliz. c. 5.

(8) See stat. 7 and 8 W. III, c. 21. 2 Ann. c. 6. 4 and 5 Ann. c. 19. 13 Geo. II, c. 17. 2 Geo. III, c. 15. 11 Geo. III, c. 38. 19 Geo. III, c. 75, &c. (t) Sav. 14. (u) Stat. 2 Ann. č. 6. (v) Stat. 31 Geo. II, c. 10. (x) Stat. 7 and 8 W. III, c, 21. (y) Stat. 13 Car. II, st. 1, c. 9. (z) Stat. 22 Geo. II, c. 23, amended by 19 Geo. III, c. 17.

(w) Stat. 13 Geo.II, c. 3.

(12) It is not a part of the common law of America, and would be illegal and unconstitutional in that country.

(13) As to the legality of impressment see also Cowp. 517; 5 T. R., 276; Comb. 245; Broom's Const. Law, 116-119.