when warring against the King of Heaven, address his legions thus: If not equal all, yet free, Equally free; for orders and degrees Jar not with liberty, but well consist. B. 5, 1. 790. And this is also beautifully described by Shakespeare, who every where makes his best characters utter the most just and correct sentiments respecting justice, liberty, and good government. Take but degree away, untune that string, And hark what discord follows, each thing meets In mere oppugnancy. Strength would be lord of imbecility, And the rude son would strike the father dead. Force would be right, or rather right and wrong, Between whose endless jar justice resides, Would lose their names, and so would justice too. Troil. and Cress. 5th Scene. True liberty results from making every high degree accessible to those who are in a lower, if virtue and talents are there found to deserve advancement. No one in this happy country is for ever condemned to continue in the lowest rank or cast; but whilst he does his duty in that station in which it has pleased God originally to place him, he may prove that he is deserving of advancement to a higher step in the gentle gradation of a free constitution. Such is the excellence of the English government, that the son of the lowest peasant may rise by his merit and abilities to the highest stations in the church, law, army, navy, and in every department of the state; nor is there any limit to the accumulation of his wealth by honest industry. The doctrine, that all men are, or ought to be, equal, is little less contrary to nature, and destructive of their happiness, than the invention of Procrustes, who attempted to make men equal by stretching the limbs of some, and lopping off those of others. -CH. CHAPTER XIII. OF THE MILITARY AND MARITIME STATES. state. THE military state includes the whole of the soldiery; or The military such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm. In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. 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 so, that he makes himself for a while a soldier. The laws, therefore, and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII. that the kings of England had so much as a guard about their persons: In the time of our Saxon ancestors, as appears from Edward the Confessor's laws (a), the military force of this kingdom was in the hands of the dukes or heretochs (1), who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being "sapientes, fideles, et animosi." Their duty was to lead and regulate the English armies, with a very unlimited power; "prout eis visum fuerit, ad honorem * *coronæ et utilitatem regni." And because of this great power [ *409 ] (a) C. de Heretochiis. (1) See ante, p. 397. they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such power, as, if abused, might tend to the oppression 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 so only can be consistently understood that passage of Tacitus (c), "reges ex nobilitate, duces ex virtute sumunt:" in constituting their kings, the family or blood royal was regarded (2), in chusing their dukes or leaders, warlike merit: just as Cæsar 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 (d). This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by Edric duke of Mercia, in the reign of King Edmund Ironside; 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. (b) "Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vicecomites provinciarum et comitatuum eligi debent." (LL. Edw. Confess. ibid. See also (2) It is probable, that, among the ancient Germans, the regular succession of their kings was subject to much the same interruptions as those which occurred in the early periods of our own history: respecting which, Blackstone observes, in p. 197, ante, "it is true, the succession, through fraud or force, or sometimes through necessity, when in hostile times the crown descended Bede, Eccl. Hist. 1. 5, c. 10). (c) De Morib. Germ. 7. (d) "Quum bellum civitas aut illatum defendit aut infert, magistratus qui ei bello præsint deleguntur." (De Bell. Gall. l. 6, c. 22). on a minor or the like, has been very frequently suspended; but has generally at last returned back into the old hereditary channel, though sometimes a very considerable period has intervened. And even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it." (See ante, the notes to pp. 190 and 209). It seems universally agreed by all historians, that King of the militia. Alfred (3) first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which *enabled Duke Harold, on the death of Edward the Confessor, [410] 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 conquest the feodal law was introduced here in all its rigour, the whole of which is built on a military plan. I shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our Commentaries (4); but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight's fees, in number above sixty thousand (5); and for every knight's fee a knight or soldier, miles, was bound to attend the king in his wars, for forty days in a year (6); in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious (e). By this means the king (e) The Poles are, even at this day, so tenacious of their ancient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. (Mod. Un. Hist. xxxiv. 12). [In Blackstone's day the Poles had a constitution. The tameness with which England and France permitted the first partition of Poland is only less disgraceful to those countries, than the vile rapacity with which the robbery was committed was to Russia, Austria, and Prussia. England and France have their just reward: they now look with anxiety at the overgrown power of the Russian autocrat; but, had the integrity of the Polish territory been (3) See ante, p. 114, n. 36. (6) We frequently read of half a knight, or other aliquot part, as for so supported, Russia could never have much land three knights and a half, had, without any expense, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the Conqueror (ƒ), which in the king's name commands and firmly enjoins the personal attendance of all knights and others; "quod habeant et teneant se semper in armis et equis, ut decet et oportet: et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere." This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part (7) 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 case of domestic insurrections, or the prospect of foreign invasions. Besides those who by their military tenures were bound to perform forty days' service in the field, first the assize of arms, enacted 27 Hen. [ *411] *II. (9), and afterwards the statute of Winchester (h), under Edward I., 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 all hundreds by the latter statute, to see that such arms were provided. These weapons were changed, by the statute 4 & 5 Ph. & M. c. 2, into others of more modern service: but both this and the former provisions 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 issue commissions of array, and send into every county officers in whom they could confide, to muster and array, or set in military order, the inhabitants of every district; and the form of the commission of array was settled in parliament in the 5 Hen. IV. so as to prevent the insertion therein of any new penal (f) C. 58. See Co. Lit. 75, 76. (i) Stat. 1 Jac. I. c. 25; 21 Jac. I. c. 28. (7) The military or warlike part of the feudal system was abolished, when personal service was dispensed with for a pecuniary commutation, as early as the reign of Henry II. But the military tenures still remained till 12 Car. II. c. 24. (See Vol. 2, p. 77).—Cn. |