ly denying this prerogative of the crown, the legality of which perhaps might be somewhat doubtful; but also seising into their own hands the entire power of the militia, the illegality of which step could never be any doubt at all.

Soon after the restoration of king Charles the Second, when 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; (9) 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 It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws; the general scheme of which is to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 within the realm (or any of its dominions or territories), (p) 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 and 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 (p) have provided for the public peace, and for protecting the realm against foreign or domestic violence. 2

When the nation was engaged in war, more veteran troops and more regular discipline were esteemed to be necessary, than could be expected from a mere militia. And therefore at such times more rigorous methods were put in use for the raising of armies, and the due regulation and discipline of the soldiery: which are to be looked upon only as tem- [413] porary 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 its decisions, is, as sir Matthew Hale observes, (q) 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 Jaws of the land. Wherefore Thomas Earl of Lancaster being condemned at Pontefract, 15 Edw. II., by martial law, his attainder was reversed 1 p Stat. 16 Geo. III. c. S.

o 13 Car. I. c. 6. 14 Car. II. c. S. 15 Car. II. c. 4.

3

P 2 Gep. III. c. 20. 9 Geo. III. c. 42. 16 Gen III. c. S. 18 Geo. III.c. 14 and 59. 19 Geo. III. c. 12. q Hist. C. L. c. 2.

(2) The legislative provisions relating to the militia are so numerous (comprising upwards of seventeen statutes), that it would be impossible to give them here they will for the most part be found in Burn's J. 25 ed. tit. Military Law, (Militia).

(3) This censure upon our military jurisprudence is by no means merited at the present day, whatever may have been the fact when sir Matthew Hale wrote. The long continued wars in which the nation was engaged until the peace of 1815, improved every part of our military system; and among the rest, the laws for the government of soldiers, their support, and punishment, when guilty of offences, have been frequently the subject of amelioration. Still the praise be. stowed upon them by Mr. Tytler has more of the spirit of a partizan than of an impartial critic. He says," the principles of military law are as certain, determinate, and immutable, as are the principles of the common and statute law, which regulate the civil classes of society." The mutiny act and the articles of war which contain the rules of discipline are framed by the legis lature, and enforced by penalties appropriated to every offence; or the penalties are left, in cer tain cases where the offence is either mitigated or aggravated beyond its ordinary standard by attendant circumstances, to the decision of a court martial. Chitty 40

VOL. I.

And it is laid down, (s)

Edw. III., because it was done in time of peace. (r) 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 charta. (t) The petition of right (u) moreover enacts, that no soldier shall be quartered on the subject without his own consent: (u) 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 above 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, (v) that the raising or keeping a standing army within the kingdom in time of peace, unless it be with the consent of parliament, is against law.

But, as the fashion of keeping standing armies (which was first [414] introduced by Charles VII. in France, A. D 1445) (w) has of late

years universally prevailed 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 W. 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.

To prevent the executive power from being able to oppress, says baron Montesquieu, (x) it is requisite that the armies with which it is intrusted 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 [415] payment of the army and their quarters." This regulates the manner in which they are to be dispersed among the several innkeepers and victuallers throughout the kingdom; and establishes a law martial for

r 2 Brad. Append. 59.

4

s S Inst. 52.

u 3 Car. I. See also Stat. S1 Car. II. c. 1.

1 cap. 29.

Thus, in Poland, no soldier can be quartered upon the gentry, the only freeman in that republic. Mod. Univ. Hist. xxxiv. 23. v Stat. 1 W. & M. st. 2. c. 2. x Sp. L. 11. 6.

w Robertson, Cha. V. i. 94.

(4) There is a standing act relating to the billeting of soldiers, by the 31 Car. II. c. 1. s. 54.

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. 5

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 (y) (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 tranquillity. (z) 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. (a) "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 declar- [416] ed 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.

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,

y Stat. 18 Hen. VI. c. 19. 2 & 3 Ed. VI. c. 2.

z Ff. 49. 16. 5.

a 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."

by which no officer or other person shall place or billet any soldier on any subject or inhabitant of this realm without his consent, and every such inhabitant, &c. may refuse to billet a soldier ; but this seems in effect done away with by these annual acts See 7 T. R. 624. 2. T. R. 96.

(5) The provisions of this annual act are so numerous that they cannot be here given in detail; they will be found for the most part fully set forth and arranged in Burn's Jˇtit. Military

Law.

There are also standing acts affecting and regulating the soldiery, thus the 8 Geo. II. c. 30. requires soldiers to remove in time of elections two miles or more from the place of election, at least one day before the election, and not to make nearer approach thereto until one day at least after the poll is taken; but this does not extend to Westminster or other place of residence of the royal family, or fortified places, or any officer or soldier having a right to vote at such election. Chilty.

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, (b) 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 incog"nitum." 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, (c) 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.

6

Hence have many free states, by departing from this rule, been [417] endangered by the revolt of their slaves: while in absolute and

rare.

despotic governments, where no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely 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. 77

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 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 nuncupative wills, and dispose of their goods, wages, and

(6) This regret of the learned Commentator is somewhat gratuitous in its object and mistaken in its source. The servitude to which the soldier is reduced in this country has most, if not all, of the alleviations which are compatible with good discipline and due subordination; and although the binding obligations of the military law are renewed every year, yet the regulations are neither so complex or numerous, as to render an observance of them difficult, while the annual revision of the legislature is a guarantee against their being capricious or unjust. In one respect it would seem that the soldier has the advantage of the citizen with regard to the laws which he is required to obey; for a municipal law may remain entirely unknown to the subject till he is called upon to answer for the infraction of it but every individual of the military profession is regularly informed of the laws and regulations by which he is to be governed, for the articles of war, which are the substance of the military code, must be read at the head of every regiment once every two months. Chitty.

(7) It would be perhaps useful here to take some notice of the laws of courts martial, as to which in general see Adye's Treatise on Courts Martial, M' Arthur's Treatise, Delafon's Treatise, and Toml. L. Dic. tit. Court Martial; from which most of the following matter has been collected. As to courts of inquiry, see Home v. Ld. Bentick, 2 Brod, & B. 130. As to naval courts martial, see post.

other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases, (c) 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 the sword, it was a very good military testament. (d) 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 England hath ever been its greatest defence and ornament; it is [418] 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 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 the coast of France, then part of the possessions of the crown of England. (e) 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 (f) 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 merchandise 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, (g) 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; (h) 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 licence from the council of state. In 1651, (i) the prohibition was extended also to the [419] 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 merchandise imported was the genuine growth or manufacture." At the Restoration the former

:

c Stat. 29 Car. II. c. 3 5 W. III. c. 21. § 6.

₫ Si milites quid in clypeo literis sanguine sus rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi, voluntatem stabilem esse oportet. Cod. e 4 Inst. 144. Coutumes de la mer, 2. f 4 Inst. 50. g Scobell. 132. h Mod. Un. Hist. xli. 289. i Scobell. 176.

6. 21. 15.

(8) By the 55 Geo. III. c. 184. the probate, &c. of wills of soldiers and seamen, dying in service, are exempt from the stamp duties.

(9) By the 26 Geo. III. c. 60. no privileges are to be allowed to any ships which are not Britishbuilt, or built in some part of his majesty's dominions: and every such ship must be registered in