felony without benefit of clergy, and the offence is triable by a jury and before juftices at the common law: yet, by our militia-laws before mentioned, a much lighter punishment is inflicted for defertion in time of peace. So, by the Roman law alfo, defertion in time of war was punished with death but more mildly in time of tranquillity 2. But our mutiny act makes no fuch diftinction: for any of the faults above mentioned are equally at all times, punishable with death itself, if a court martial fhail think proper. This dif cretionary power of the court martial is indeed to be guided by the directions of the crown; which with regard to military offences, has almost an absolute legislative power1. "His "majefty, fays the act, may form articles of war, and confti"tute courts martial, with power to try any crime by such "articles, and inflict penalties by fentence or judgment of "the fame." A vaft and most important trust! an unlimited power to create crimes, and annex to them any [416] punishments, not extending to life or limb! These are indeed forbidden to be inflicted, except for crimes declared to be fo punishable by this act; which crimes we have juft enumerated, and, among which, we may obferve that any difobedience to lawful commands is one. Perhaps in fome future revifion of this act, which is in many respects haftily penned, it may be thought worthy the wisdom of parliament to afcertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy; especially as, by our present conftitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the fame arbitrary rule, during their time of exercise.

ONE of the greatest advantages of our English law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to arbitrary discretion; the king by his judges difpenfes what the law has previously ordained; but is not 2 Ff. 49. 16. 5.

A like power over the marines is given to the lords of the admiralty, by

another annual act" for the regulation "of his majesty's marine forces while "on fhore."

himfelf

himself the legislator. How much therefore is it to be regretted that a fet of men, whofe bravery has so often preserved the liberties of their country, should be reduced to a ftate of fervitude in the midst of a nation of freemen! for fir Edward Coke will inform us, that it is one of the genuine marks of fervitude, to have the law, which is our rule of action, either concealed or precarious: "mifers eft fervitus

ubi jus eft vagum aut incognitum." Nor is this ftate of fervitude quite confiftent with the maxims of found policy ob ferved by other free nations. For, the greater the general liberty is which any ftate enjoys, the more cautious has it usually been in introducing flavery in any particular order or profeffion. These men, as baron Montefquieu obferves", seeing the liberty which others poffefs, and which they themfelves are exluded from, are apt (like eunuchs in the eastern feraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy thofe privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their flaves: while, in abfolute and defpotic governments [417] where no real liberty exists, and confequently no invidious comparisons can be formed, fuch incidents are extremely rare. Two precautions are therefore advised to be obferved in all prudent and free governments: 1. To prevent the introduction of flavery at all; or, 2. If it be already introduced, not to intrust those flaves with arms; who will then find themfelves an overmatch for the freemen. Much lefs ought the foldiery to be an exception to the people in general, and the only state of fervitude in the nation.

BUT as foldiers, by this annual act, are thus put in a worfe condition than any other fubjects, fo by the humanity of our ftanding laws, they are in fome cafes put in a much better. By ftatute 43 Eliz. c. 3. a weekly allowance is to be raised, in every country for the relief of foldiers that are sick, hurt, and maimed: not forgetting the royal hospital at Chelsea, for such as are worn out in their duty. Officers and soldiers, that have been in the king's fervice, are by feveral statutes,

VOL. I.

* 4 Inft. 332.

Sp. L. 15. 12.

enacted

PP

Book. enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom, (except the two univerfities,) notwithstanding any ftatute, custom, or charter to the contrary (7). And foldiers in actual military service may make nuncupative wills, and difpose of their goods, wages, and other perfonal chattels, without those forms, folemnities, and expenses, which the law requires in other cafes c. Our law does not indeed extend this privilege fo far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a fol dier, in the article of death, wrote any thing in bloody letters on his fhield, or in the duft of the field with the fword, it was a very good military teftament d. And thus much for the military state, as acknowledged by the laws of England (8).

Stat. 29 Car. II. c. 3. 5 W. III. in pulvere infcripferint gladio fuo, ipfo c. 21. § 6. tempore quo, in praelio, vitiae fortem derelinquunt, bujufmodi voluntatem fiabilem effe oportet. Cod. 6. 21. 15.

Si milites quid in clypeo literis fanguine fuo rutilantibus adnotaverint, aut

(7) By the 42 Geo. III. c. 69. all officers, foldiers, and mariners, who have been employed in the king's fervice fince 1784, and have not deferted, and their wives and children, may exercise any trade in any town in the kingdom, and shall not be removed till they are actually chargeable. The fame privilege is extended to all officers and foldiers, who have ferved in the militia or the fencible regiments, and have been honourably discharged.

But any two juftices of the county or place may examine any fuch perfon with regard to his legal fettlement, who fhall make oath thereof; and the juftices fhall give fuch perfon an attested copy of his affidavit, which shall afterwards be admitted as evidence of fuch fettlement.

(8) It is now fully established, that neither the full pay nor half pay of an officer, or any perfon in a military or naval character, can in any inftance be affigned before it is due; as the object of fuch pay is to enable those who receive it to be always ready to serve their country with that decency and dignity which their respective stations and characters require. 4 T. R. 258. H. Bl. 628.

This is a law founded upon found policy and general convenience, in wisdom and a regard to the great interefts of the community, upon the principle, of two evils chufe the least. ·

It may be a hardship or an evil to a poor officer, that he cannot borrow money for himfelf and his family, and give a fecurity upon

his

f

THE maritime ftate is nearly related to the former, though much more agreeable to the principles of our free conftitution. The royal navy of England hath ever been it's greatest [418] defence and ornament; it is it's antient and natural strength; the floating bulwark of the ifland; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty: and accordingly it has been affiduously cul. tivated, even from the earliest ages. To fo much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of Oleron, and are received by all nations in Europe as the ground and fubftruction of all their marine conftitutions, was confeffedly compiled by our king Richard the firft, at the ifle of Oleron on the coaft of France, then part of the poffeffions of the crown of England e. And yet, so vastly inferior were our ancestors in this point to the prefent age, that even in the maritime reign of queen Elizabeth, fir Edward Coke thinks it matter of boaft, that the royal navy of England then confifted of three and thirty fhips. The present condition of our marine is in great measure owing to the falutary provifions of the statutes, called the navigation acts; whereby the conftant increase of English fhipping and feamen was not only encouraged but rendered unavoidably neceffary. By the statute 5 Ric. II. c. 3. in order to augment the navy of England, then greatly diminished, it was ordained, that none of the king's liege people fhould fhip any merchandize out of or into the realm but only in fhips of the king's ligeance, on pain of forfeiture. In the next year, by ftatute 6 Ric. II. c. 8. this wife provifion was enervated, by only obliging the merchants to give English ships (if able and fufficient) the preference. But the most beneficial ftatute for the trade and commerce of thefe kingdoms is that navigation-act, the rudiments of which were first framed in 1650 %, with a narrow partial view : being 4 Inft. 144. Coutumes de la mer. 2. 4 Inft. 50.

8 Scobell. 132.

his future pay; yet it would be a much greater evil to the public service, if officers, when called out, were deftitute of the means of serving their country from the want of proper habiliments or

accoutrements.

intended to mortify our own fugar islands, which were difaffected to the parliament and still held out for Charles II., by ftopping the gainful trade which they then carried on with the Dutch; and at the fame time to clip the wings of those our opulent and afpiring neighbours. This prohibited all thips of foreign nations from trading with any English plan[419tations without licence from the council of state. In 1651* the prohibition was extended alfo to the mother country: and no goods were fuffered to be imported into England, or any of its dependencies, in any other than English bottoms; or in the ships of that European nation, of which the merchandize imported was the genuine growth or manufacture (9). At the restoration, the former provisions were continued, by ftatute 12 Car. II. c. 18. with this very material improvement, that the mafter and three-fourths of the mariners fhall alfo be English subjects (10).

MANY laws have been made for the fupply of the royal navy with feamen; for their regulation when on board; 1 Scobell. 176.

Mod. Un. Hist. xli. 289.

(9) By the 26 Geo. III. c. 60. no privileges are to be allowed to any ships which are not British-built, or built in fome part of his majefty's dominions: and every such ship must be registered in the port to which the belongs, according to the directions of that ftatute, the 27 Geo. III. c. 19. and the 34 Geo. III. c. 68.

By 45 Geo. III. c. 32. regulations are made for registering foreign fhips furrendered to his majesty.

(10) The 34 Geo. III. c. 68. enacts that after the expiration of fix months from the conclufion of the exifting war, no goods or merchandize fhall be imported into, or exported from, the kingdom of Great Britain, or the iflands of Guernsey, Jerfey, Alderney, Sark, or Man, on board any fhip, which is not navigated by a mafter and three-fourths, at leaft, of the mariners British fubjects.

And fhips or veflels failing from one place to another within the kingdom, or in the aforefaid islands, must be manned wholly with British fubjects.

The wilful violation of thefe regulations fubjects the owners to a forfeiture of the fhip and all the goods on board.

By the 42 Geo. III. c. 61. Ireland and Irish failors are included in thefe regulations, which they were not fubject to before.

and