CHAPTER THE THIRTEENT H.

OF THE MILITARY AND MARITIME

STATES.

THE military ftate includes the whole

of the foldiery; or, fuch perfons as are peculiarly ap pointed among the reft of the people for the fafeguard and defence of the realm.

In a land of liberty it is extremely dangerous to make a diftinct order of the profeffion of arms. In abfolute monarchies this is neceffary for the fafety of the prince, and arifes from the main principle of their conftitution, which is that of governing by fear: But in free states the profeffion of a foldier, taken fingly and merely as a profeffion, is justly an object of jealoufy. In these no man should take up arms, but with a view to defend his country and its 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 fo, that he makes himself for a while a foldier. The laws, therefore, and conftitution of these kingdoms know no fuch ftate as that of a perpetual standing foldier, bred up to no other profeffion than that of war: And it was not till the reign of Henry VII, that the kings of England had fo much as a guard about their perfons.

In the time of our Saxon ancestors, as appears from Edward the Confeffor'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 fuch as were most remarkable for being "fapientes, fideles, et animof." Their duty was to lead and regulate the English armies, with a very unlimited power; prout eis vifum fuerit, ad honorem coronae et utilitatem regni." And becaufe of this great power they were elected by the people in their full affembly, or folk mote, in the fame manner as fheriffs were elected: Following ftill that old fundamental maxim of the Saxon conftitution, that where any officer was intrufted with fuch power, as if abused might tend to the op-' preffion of the people, that power was delegated to him by the vote of the people themselves b. So too, among the ancient 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 ftate. The dukes were elective, the kings hereditary For fo only can be confiftently understood that paffage of Tacitus, "reges ex nobilitate, duces ex

virtute fumunt ;" in conftituting their kings, the family or blood royal was regarded; in choofing their dukes or leaders, warlike merit: Juft as Caefar 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 . This large fhare of power, thus conferred by the people, though intended to preserve the liberty of the fubject, was perhaps unreafonably detrimental to the prerogative of the crown: And accordingly we find a very ill ufe made of it by Edric Duke

a C. de beretochiis.

b"Ifi vero viri eliguntur per commune confilium, pro communi util "itate regni, per provincias et patrias univerjas, et per fingulos comitain pleno folkmote, ficut et vicecomites provinciarum et comitatuum eligi debent." LL. Edw. Confeff. ibid. See alfo Bede, eccl.

tus,

bift. 1. 5. c. 10.

c De morib. German. 7.

d " Quum bellum civitas aut illatum defendit aut infert, magiftra* tus qui ei bello praefint deliguntur." De bell. Gall. 1. 6. c. 22.

Duke of Mercia, in the reign of King Edmund Ironfide; 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.

It feems univerfally agreed by all hiftorians, that King Alfred firft fettled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion foldiers: But we are unfortunately left in the dark as to the particulars of this his fo celebrated regulation; though, from what was last observed, the dukes feem to have been left in poffeffion of too large and independent a power: Which enabled Duke Harold on the death of Edward the Confeffor, 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.

Upon the Norman conqueft the feodal law was introduced here in all its rigour, the whole of which is built on a military plan. I fhall not now enter into the particulars of that conftitution, which belongs more properly to the next part of our Commentaries; but shall only obferve, that, in confequence thereof, all the lands in the kingdom were divided into what were called knights's fees, in number above fixty thousand; and for every knight's fee a knight or foldier, 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 fçience, the campaign was generally finished, and a kingdom either conquered or victoriouse. By this means the king had, without any expense, an army of fixty 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 perfonal attendance of all knights and others;

e The Poles are, even at this day, fo tenacious of their ancient conftitution, that their pospolite, or militia, cannot be compelled to ferve above fix weeks, or forty days, in a year, Mod. Un. Hif. xxxiv. 12.

f C. 58. See Co. Litt. 75, 76.

others; "quod habeant et teneant fe femper in armis et equis, ut decet et oportet: Et quod femper fint prompti et parati ad fervitium fuum integrum nobis explendum et peragen"dum, cum opus adfuerit, fecundum quod debent de feodis et " tenementis fuis de jure nobis facere." This perfonal fervice, in process of time, degenerated into pecuniary commutations or aids, and at laft the military part of the feodal fyftem was abolished at the restoration, by ftatute 12 Car. II. c. 24.

In the mean time, we are not to imagine that the kingdom was left wholly without defence in case of domeftick infurrections, or the profpect of foreign invafions. Befides those who, by their military tenures, were bound to perform forty days fervice in the field, firft the affize of arms, enacted 27 Hen. II §. and afterwards the statute of Winchester 1, under Edward I, obliged every man, according to his eftate and degree, to provide a determinate quantity of fuch arms as were then in use in order to keep the peace: And constables were appointed in all hundreds, by the latter ftatute, to fee that fuch arms were provided. Thefe weapons were changed, by the ftatute 4 & 5 Ph. & M. c. 2. into others of more modern service: But both this and the former provifions were repealed in the reign of James I i. While these continued in force, it was usual from time to time for our princes to iffue commiffions of array, and send into every county officers in whom they could confide, to mufter and array (or fet in military order) the inhabitants of every diftri&t; and the form of the commiffion of array was fettled in parliament in the 5 Henry IV. fo as to prevent the insertion therein of any new penal clauses *. But it was alfo provided', that no man should be compelled to go out of the kingdom at any rate, nor out of his fhire but in cafes of urgent neceffity; nor fhould provide foldiers unlefs by confent: of parliament. About the reign of King Henry VIII,

g Hoved. A. D. 1181.

h 13 Edw. I. c. 6.

i Stat. 1 Jac. I. c. 25. 21 Jac. I. c. 28.

k Rushworth. part. 3. pag. 662. 667. See 8 Rym. 374, &c. 1 Stat. 1 Edw. III, ft. 2. c. 5. & 7. 25 Edw. III. ft. 5. c. &;

or

or his children, lieutenants began to be introducedTM, as ftanding 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 ufe; for Camden fpeaks of them in the time of Queen Elizabeth, as extraordinary magiftrates conftituted only in times of difficulty and danger. But the introduction of thefe commiffions of lieutenancy, which contained in fubftance the fame powers as the old commissions of array, caused the latter to fall into difufe.

In this ftate things continued, till the repeal of the ftatutes of armour in the reign of King James I: After which, when king Charles I had, during his northern expeditions, iffued commiffions of lieutenancy, and exerted fome military powers, which, having been long exercifed, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently refide in the king; being now unfupported by any ftatute, and founded only upon immemorial ufage. This question, long agitated, with great heat and refentment on both fides, became at length the immediate caufe 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 perhaps might be fomewhat doubtful; but alfo feizing 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 II, when the military tenures were abolifhed, it was thought proper to ascertain the power of the militia, to recognize the fole right of the crown to govern and command them, and to put the whole into a more regular method of military fubordination °: And the order, in which the militia now ftands by law, is principally built upon the

m 15 Rym. 75.

n Prit. 103. Edit. 1594.

• 13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 4.