ment of the people or any inferior power. In the reign of Edmund Ironside, Edric, duke or heretoch of Mercia, by the unlimited nature of his command in the king's army, and by his own repeated treacheries, at last enabled Canute the Dane to usurp the crown of England.

Upon the Norman Conquest, the feudal law was introduced here in all its rigour, the whole of which is built on a military plan. All the lands in the kingdom were divided into what were called knights' fees, consisting of sixty thousand. 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; by which sagacious plan, William the Conqueror had an army of sixty thousand men, without any expense, constantly ready at his command, and he commanded, under very severe penalties for neglect, the personal service of all knights and others. This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feudal system was abolished at the Restoration by the statute 12 Char. II. But although in the feudal times there was not a standing army for the suppression of internal insurrection, or the defence of the kingdom against external invaders, yet we are not to imagine that the kingdom was left wholly without defence. Besides those who by their military tenures were bound to perform forty days' service in the field, there were first the assize of arms, enacted by Henry II., and afterwards the statute of Winchester under Edward I., which 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 every hundred, by the Winchester statute, to see that such arms were provided. These weapons were changed in conformity with the change introduced by the use of gunpowder, by the statute of Philip and Mary, and other arms of more modern invention substituted; but both these were again repealed by James I. During the continuance of the two former statutes, it was usual for the sovereigns to issue commissions of array, and to send into every county, officers in whom they could repose confidence, to muster and set the inhabitants of every district into military array. The form of this commission of array was settled in parliament in the reign of Henry IV., when at the same time it was provided, that no man should be compelled to go out of the kingdom at any rate, nor even out of his county, but in cases of urgent necessity; nor should provide substitutes, but by consent of parliament. Every man was obliged, 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. About the reign of Henry VIII. and his children, lord lieutenants began to be introduced as standing

representatives of the crown to keep the counties in military order. In the reign of bloody Mary, they are spoken of as known and regular officers, though they could not have been many years in use; and Camden mentions them in the reign of Elizabeth as extraordinary magistrates, that were constituted only in times of difficulty and danger.

Military affairs continued in this state till the repeal of the statutes of armour by James I. Afterwards, when king Charles I. was under the necessity of raising armies for the suppression of the rebellion in Scotland, he issued commissions of lieutenancy, and exercised those military powers which, from immemorial usage, as well as natural right, had been the prerogative of the crown. But the long parliament, stepping beyond the line of their duty and allegiance, disputed this undoubted prerogative, alleging that it merely rested on immemorial usage. Great heats and animosities were displayed in debating this unconstitutional question. The decision of this against the king, became at last the immediate cause of the fatal rupture between that patriotic prince and his rebel parliament; for the two houses not only denied the prerogative of the crown, but illegally seized into their own hands the whole power and command of the militia. But after the happy Restoration, when the nation was delivered from the cruel military bondage of Oliver Cromwell, the parliament recognized the sole right of the king to govern and command the military state, by the following statute: "Forasmuch as within all his majesty's realms and dominions, the sole supreme government, command, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was, the undoubted right of his majesty and his royal predecessors, kings and queens of England, and that both or either of the houses of parliament cannot nor ought to pretend to the same; nor can, nor lawfully may raise or levy any war, offensive or defensive, against his majesty, his heirs or lawful successors; and yet the contrary thereof hath of late years been practised, almost to the ruin and destruction of this kingdom; and, during the late usurped government, many evil and rebellious principles have been instilled into the minds of the people of this kingdom, which, unless prevented, may break forth to the disturbance of the peace and quiet thereof."

Soon after the restoration of Charles II., 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; and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted; the general

* 13 Ch. II. c. 6.

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-lieutenant, and other principal landholders, under a commission from the crown. They cannot be compelled to march out of their counties, unless in cases of invasion or actual rebellion, nor in any case 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, like regular troops, to the rigours of martial law, which is absolutely necessary for the preservation of discipline. This is the constitutional security which the British laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes declare are essentially necessary for the safety and prosperity of the kingdom.

But when the nation was engaged in war, more veteran and better disciplined troops were esteemed necessary, than could be expected from a mere militia; and therefore at such times more vigorous methods were adopted for the raising of armies and the due regulation and discipline of the soldiery, which are merely to be viewed as temporary excrescences arising out of the violence of men's passions, rather than as a permanent and perpetual law of the kingdom; because martial law is built upon no settled principles, but is entirely arbitrary in its decisions, and is, as Sir Matthew Hale observes, in truth and reality no law, but something permitted rather than enacted as law. Order and discipline in the army is of absolute necessity. Martial law, therefore, ought not to be permitted in time of peace, when the king's courts are open for every one to receive justice according to the known laws of the land. And it is upon record, that Thomas, earl of Lancaster, being convicted by martial law at Pontefract, in the fifteenth year of the reign of Edward II., his attainder was reversed by Edward III., and his corruption of blood restored, on account of the illegality of martial law in the time of peace. And the law establishes that if a lieutenant or other officer that hath a commission of martial authority, doth in time of peace hang, or otherwise execute any man, by colour of martial law, it is murder, for it is against magna charta. And the petition of right enacts, that no soldiers shall be quartered on the subject without his own consent; and that no commission shall issue to proceed within this land according to martial law. And although after the Restoration king Charles II. maintained five thousand regular troops for guards and garrisons, which the disturbed state of Scotland required; and king James II. by degrees increased this army to thirty thousand, and all paid out of his own civil list; yet it was made one of the articles of the bill of rights, that the raising or keeping a standing army within

the kingdom in time of peace, unless with consent of parliament, is against law.

It has also for many years past been annually judged necessary for the safety of the kingdom, the defence of the possessions of the crown, and the preservation of the balance of power in Europe, to maintain a standing body of troops even in time of peace, under the command and at the entire disposal of the crown; but who are ipso facto disbanded at the expiration of every year, unless continued by parliament. This plan of keeping a standing army in time of peace was first introduced by Charles VII. of France about the year 1445, and has since become absolutely necessary, from the military attitude of other powers. "To prevent," says Montesquieu, "the executive power from being able to oppress, it is requisite that 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 newmodelled the legions, by enlisting the Italian rabble, and laid the foundation of all the military tyranny that ensued." According to these principles, then, nothing ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept afoot, a body too distinct from the people. It should therefore, like our own, be a body entirely composed of natural born subjects; and to be enlisted for a limited time.

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 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 into 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. Although the strictest discipline and most exact regulations be not only expedient, but absolutely necessary, during the time of actual war, yet in times of profound peace the severity of military discipline may, in some measure, be relaxed without much public inconvenience. Upon this principle desertion in time of war is made felony without benefit of clergy, and the offence is tryable by a jury, and before the judges of the common law; yet by the militia laws a much lighter punishment is inflicted for desertion during peace. If in a court martial the charge of desertion is proved, the court must pass the sentence of death; they

have no alternative. But to avoid this, and to give the deserter the lighter punishment, the offence is called "being absent without leave," which is a milder way of expressing this most shameful crime, and which, if proved, subjects the deserter to an arbitrary punishment at the discretion of the court. By the ancient Roman law, desertion in time of war was punished with death, but more mildly in tranquil times. 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 a court martial is 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."

One of the greatest advantages of our law is, that 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. By his judges the king dispenses what he himself, with the advice of parliament, has previously ordained. How much, therefore, is it to be regretted, that a body of men, whose courage and bravery have so frequently preserved the liberties of their country, should be reduced by their military discipline to a state of servitude in the midst of a nation of freemen; for Sir Edward Coke says, that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious. Neither is this state of servitude altogether consistent with the maxims of the sound policy observed by other free nations. For the greater the general liberty is, that any state enjoys, the more cautious has it usually been in introducing slavery in any particular order or profession. These men, as Montesquieu observes, seeing the liberty which others possess, and from which they themselves are excluded, are apt to live in a state of perpetual envy and hatred towards the rest of the community, and to indulge a malignant pleasure in contributing to destroy those privileges which they cannot themselves enjoy.

This annual act places soldiers in a worse condition than that of any other subjects; but the humanity of our legislature has, in some cases, put them in a much better. By 43 Elizabeth, a weekly allowance is to be raised in every county for the relief of sick, hurt, and maimed soldiers, and the royal hospital at Chelsea is established for such as are worn out in the service. By several statutes, which have been enacted, officers and soldiers are at liberty to use any trade or occupation they are fit for, in any town in the kingdom, (except the two universities,) notwithstanding any statutes, custom, or charter to the contrary. And soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other