CHAPTER THE THIRTEENTH. OF THE MILITARY AND MARITIME STATES. THE military state includes the whole of the foldiery, or fuch perfons as are peculiarly appointed among the rest of the people for the fafeguard and defence of the realm. In a land of liberty it is extremely dangerous to make a distinct order of the profeffion of arms. In abfolute monarchies this is neceffary for the safety 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 jealousy. In these no man should take up arms, but with a view to defend it's 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 foldier. The laws therefore and conftitution of these kingdoms know no such state 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 persons. IN the time of our Saxon ancestors, as appears from Edward the confeffor's laws, the military force of this kingdom was in the hands of the dukes or heretochs, who were conftituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being "fapientes, fideles, et ani"mofi." Their duty was to lead and regulate the English [409] armies, with a very unlimited power; "prout eis visum fu"erit, ad honorem coronae et utilitatem regni." And because of this great power they were elected by the people in their full affembly, or folkmote, in the fame manner as sheriff's were elected following ftill that old fundamental maxim of the Saxon conflitution, that where any officer was intrufted with such power, as if abused might tend to the oppreffion of the people, that power was delegated to him by the vote of the people themselves. 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 fo only can be confiftently understood that paffage of Tacitus, reges ex nobilitate, duces ex virtute fumunt ;” in constituting their kings, the family or blood royal was regarded; in chufing their dukes or leaders, warlike merit: just as Cæfar 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 unreasonably detrimental to the prerogative of the crown; and accordingly we find a very ill ufe made of it by Edric 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 historians, that king Alfred first settled 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 fpace, the throne of this kingdom, in prejudice of Edgar Atheling, the rightful heir. UPON the Norman conquest the feodal law was introduced here in all it's 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' fees, in number above fixty thousand (1); 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 (2); 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 this means the king • The Poles are, even at this day, fo tenacious of their antient conftitution, that their pofpolite, or militia, cannot be compelled to ferve above fix [410] (1) 60,215. (2) We frequently read of half a knight, or other aliquot part, as for so much land three knights and a half, &c. were to be returned; the fraction of a knight was performed by a whole knight who ferved half the time, or other due proportion of it. had, had, without any expense, an army of fixty thousand men fint prompti et parati ad fervitium fuum integrum nobis "explendum et peragendum, cum opus adfuerit, fecundum quod "debent de feodis et tenementis fuis de jure nobis facere." This personal service in procefs of time degenerated into pecuniary commutations or aids, and at laft the military part (3) of the feodal system was abolished at the restoration, by statute 12 Car. II. c. 24. In the mean time we are not to imagine that the kingdom was left wholly without defence in cafe of domeftic infurrections, or the profpect of foreign invafions. Befides thofe who by their military tenures were bound to perform forty [411] days' fervice in the field, firft the affize of arms, enacted $ 27 Hen. II. and afterwards the ftatute of Winchefter ", 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 see 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. While these continued in force, it was usual from time to time for our princes to iffue commiffions of array, and fend into every i Stat. I Jac. I. c. 25. 21 Jac. I. c. 28. f c. 58. See Co. Litt. 75, 76. Hoved. A. D. 1181. (3) The military or warlike part of the feudal fyftem was abolished, when perfonal fervice was dispensed with for a pecuniary commutation, as early as the reign of Henry II. But the military tenures ftill remained till 12 Car. II. c. 24. See 2 vol. P. 77. county, county officers in whom they could confide to muster and array (or fet in military order) the inhabitants of every dif trict; and the form of the commiffion of array was fettled in parliament in the 5 Hen. IV., fo as to prevent the infertion therein of any new penal clauses. But it was alfo provided', that no man fhould 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 soldiers unless by confent of parliament. About the reign of king Henry the VIII., or his children, lieutenants began to be introduced TM, as Atanding reprefentatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the ftatute 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 magistrates conftituted only in times of difficulty and danger; but the introduction of these commiffions of lieutenancy, which contained in substance the fame powers as the old commiffions of array, caufed the latter to fall into difufe. In this ftate things continued, till the repeal of the statutes of armour in the reign of king James the firft: after which, when king Charles the first had, during his northern expeditions, iffued commiffions of lieutenancy, and exerted fome 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 refide in the king; being now unsupported by any [ 412 ] ftatute, and founded only upon immemorial ufage. This queftion, long agitated with great heat and resentment 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 somewhat doubtful; but also seizing into their own hands the entire power of the militia, the illegality of which step could never be any doubt at all. Rushworth, part. 3. page 662. 667. See 8 Rym. 374. &c. Stat. 1 Edw. III. ft. 2. c. 5. and 7. 25 Edw. III. ft. 5. c. 8. m 15 Rym. 75. SOON |