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CHAPTER THE THIRTEENTH.

OF THE MILITARY AND MARITIME STATES.

The military state includes the whole of the soldiery; or, 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 arins. 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 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 awhile a soldier. The laws therefore and ronstitution 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, who were constituted through every province and county in the kingdom; being taken out of the prinvical nobility, and such as were most remarkable for Deing "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

a c. de heretochiis.

power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriff's were elected: [409] 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.b 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, "reges ex nobilitate, duces ex virtute sumunt," in constituting their kings, the family or blood royal was regarded; in choosing 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. 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.

It seems universally agreed by all historians, that king Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the sub

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 vice-comites provinciarum et comitatuum eligi debent." LL. Edw. Confess. ibid. See also Bede, eccl. hist. l. 5. c. 10.

c De morib. German. 7.

d

66

Quum bellum civitas aut illatum defendit aut infert, magistratus qui ei bello præsint deliguntur." De bell. Gall. l. 6. c. 22.

jects 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, 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.

[410] Upon the Norman conquest the feodal law was introduced here in all it's rigor, 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; 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; 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; 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 had, without any expence, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the conqueror,' 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 parați 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 de

e The Poles are, even at this day, so tenacious of their antient 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,

fc. 58. See Co. Litt. 75, 76.

generated into pecuniary commutations or aids, and at last the military part 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 assise of arins, enacted 27 Hen. II.,s and afterwards the statute of Winchester, 5 under Edward I.,3 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 [411] 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 clauses.8k But it was also provided1 that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of king Henry the eighth, his children or lieutenants began to be introg Hoved. A. D. 1181.

h 13 Edw. I. c. 6.

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

8

k Rushworth, part 3, pag. 662, 667. 8 See 8 Rym. 374, etc.8

1

Stat. 1 Edw. III. st. 2. c. 5. & 7. 25 Edw. III. st. 5. c. 8.

8 Previously, "at the same time it was."

8 Previously, "and his children, lord."

here, "or his children."

Ninth edition reads

duced, as standing 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 use, for Camden speaks of them" in the time of queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger. But the introduction of these commissions of lieutenancy, which contained in substance the same powers as the old commissions of array, caused the latter to fall into disuse.8

In this state things continued, till the repeal of the statutes of armour in the reign of king James the first: after which, when king Charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some 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 reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, long agitated, with great heat and resentiment on both [412] sides, became at length the immediate cause 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 claim 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: and the

m 815 Rym. 75,8

n Brit. 103. Edit. 1594.

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

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