1

411 county officers in whom they could confide, to mufter and array (or fet in military order) the inhabitants of every diftrict; 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 claufes *. But it was also 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 con fent of parliament. About the reign of king Henry the VIII., or his children, lieutenants began to be introducedTM, 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 ufe, for Camden speaks of them in the time of queen Elizabeth, as extraordinary magistrates conftituted only in times of difficulty and danger. But the introduction of these commiflions of lieutenancy, which contained in fubftance the fame powers as the old commissions of array, caused the latter to fall into disuse.

In this ftate 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, iffued commiffions 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 inhe rently refide in the king; being now unfupported by any fta- [412] tute, and founded only upon immemorial ufage. This ques tion, 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 also feifing 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 & Rym. 374, &c.

Stat. I Edw. III. ft. 2. c. 5 & 7.

25 Edw. III. ft. 5. c. 8.

m 15.Rym. 75.

Brit. 103. Edit. 1594.

Soon after the restoration of king Charles the fecond, when the military tenures were abolished, it was thought proper to afcertain 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 ftatutes which were then enacted. It is true the two laft of them are apparently repealed; but many of their provifions are re-enacted, with the addition of fome new regulations, by the present militia laws; the general scheme of which is to difcipline a certain number of the inhabitants of every county, chofen by lot for three years (4); and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commiffion from the crown. They are not compellable to march out of their counties, unless in cafe of invafion or actual rebellion within the realm, (or any of it's dominions or territories P,) nor in any cafe compellable to march out of the kingdom (5). They are to be exercised at stated times: and their difcipline in general is liberal and eafy; but when drawn out into actual fervice, they are fubject to the rigours of martial law, as neceffary to keep them in order. This is the conftitutional fecurity, which our laws have provided

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

Stat. 16 Geo. III. c. 3.

92 Geo. III. c. 20. 9 Geo. IIL c. 42. 16 Geo. III. c. 3. 18 Geo. III. c. 14 & 59. 19 Geo. III. c. 72.

(4) And now for five years by the 26 Geo. III. c. 107. f. 24. which has reduced into one act the former ftatutes relating to the militia.

(5) By 26 Geo. III. c. 107. f. 95. in all cafes of actual invafion, or upon imminent danger thereof, and in all cases of rebellion or infurrection, it shall be lawful for his majefty, the occafion being first communicated to parliament, if fitting, if not fitting, declared in council, and notified by proclamation, to order the militia to be embodied, and to direct them to be led by their re. fpective officers into any parts of this kingdom; but neither the whole, or any part, shall be ordered to go out of Great Britain. See the regulations refpecting the militia, ftated at large in Burn, tit. Militia.

for

for the public peace, and for protecting the realm against foreign or domestic violence.

When the nation was engaged in war, more veteran troops and more regular difcipline were esteemed to be neceffary, than could be expected from a mere militia. And therefore at such times more rigorous methods were put in use for the raising of armies and the due regulation and discipline of the [413]1 foldiery which are to be looked upon only as temporary excrefcences bred out of the distemper of the ftate, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no fettled principles, but is entirely arbitrary in it's decifions, is, as fir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law. The neceflity of order and discipline in an amy is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. Wherefore Thomas earl of Lancaster being condemned at Pontefract, 15 Edw. II., by martial law, his attainder was reverfed Edw. III., becaufe it was done in time of peace'. And it is laid down', that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwife execute any man by colour of martial law, this is murder; for it is against magna carta'. The petition of right moreover enacts, that no foldier fhall be quartered on the fubject without his own confent: and that no commiffion fhall iffue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the fecond kept up about five thoufand regular troops, by his own authority, for guards and garrifons; which king James the second by degrees increased to no lefs than thirty thoufand, all paid from his own civil lift; it was made one of the

Book I. articles of the bill of rights, that the railing or keeping a ftanding army within the kingdom in time of peace, unless it be with confent of parliament, is against law.

BUT, as the fashion of keeping ftanding armies (which was first introduced by Charles VII. in France, A. D. [414] 1445) has of late years univerfally prevailed over Europe, (though fome of it's potentates, being unable themselves to maintain them, are obliged to have recourfe to richer powers, and receive fubfidiary pensions for that purpose,) it has also for many years paft been annually judged neceffary by our legislature, for the safety of the kingdom, the defence of the poffeffions of the crown of Great Britain, and the preservation of the balance of power in Europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however ipfo facto disbanded at the expiration of every year, unlefs continued by parliament. And it was enacted by statute 10 W. III. c. 1. that not more than twelve thoufand regular forces fhould be kept on foot in Ireland, though paid at the charge of that kingdom; which permiffion is extended by ftatute 8 Geo. III. c. 13. to 16,235 men in time of peace.

To prevent the executive power from being able to opprefs, fays baron Montefquieu, it is requifite that the armies with which it is entrusted fhould confift of the people, and have the fame fpirit with the people; as was the cafe at Rome, till Marius new-modelled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that enfued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when fuch a one is necessary to be kept on foot, a body too distinct from the people. Like ours it should wholly be compofed of natural subjects; it ought only to be enlisted for a short and limited time; the foldiers alfo fhould live intermixed with the people; no fepa

Stat. I W. &. M. ft. 2. c. 2. w Robertson, Cha. V. i. 94.

X Sp. L. 11. 6.

rate

rate camp, no barracks, no inland fortreffes fhould be allowed (6). And perhaps it might be ftill better, if, by dismiffling a stated number and enlifting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the foldier be more intimately connected together.

To keep this body of troops in order, an annual act of parliament likewise pass," to punish mutiny and desertion, "and for the better payment of the army and their quarters." [ 415 ] This regulates the manner in which they are to be difperfed among the feveral inn-keepers 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 foldier fhall excite, or join any mutiny, or, knowing of it, fhall not give notice to the commanding officer; or fhall defert or lift in any other regiment, or fleep upon his poft, or leave it before he is relieved, or hold correfpondence with a rebel or enemy, or ftrike or ufe violence to his fuperior officer, or fhall difobey his lawful commands: fuch offender fhall fuffer fuch punishment as a court martial shall inflict, though it extend to death itfelf.

HOWEVER expedient the moft frict regulations may be in time of actual war, yet in times of profound peace, a little relaxation of military rigour would not, one fhould hope, be productive of much inconvenince. And, upon this principle, though by our ftanding laws (fill remaining in force, though not attended to) desertion in time of war is made Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2.

(6) Since this was written, with a genuine love of liberty, by the author, experience has proved, that the molt formidable enemy which the people of England have to dread, is their own lawlefs mobs. Care ought therefore to be taken, that foldiers may never become familiar with the people in great towns, left they should be more inclined to join, than to quell a riot. Nam neque quies gentium fine armis, neque arma fine flipendiis, neque ftipendia fine tributis, haberi queunt. Tac. Hift. iv. c. 74.

felony,