In this ftate things continued, till the repeal of the ftatutes of armour in the reign of king James the firft: after which, when king Charles the first had, during his northern expeditions, iflued commiffions of lieutenancy and exerted fome military powers, which having been long exercised, were thought to belong to the crown, it became a queftion in the long parliament, how far the power of the militia did inherently refide in the king; being now unfupported by any ftatute, and founded only upon immemorial ufage. This queftion, long agitated with great heat and refentment on both fides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houfes not only denying this prerogative of the crown, the legality of which right perhaps might be fomewhat doubtful; but also feifing into their own hands the intire power of the militia, the illegality of which ftep could never be any doubt at all.

Soon after the restoration of king Charles the fecond, when the military tenures were abolished, it was thought proper to aícertain 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 repcaled; but many of their provifions are re-enacted, with the addition of fome new regulations, by the prefent 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, 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, unlefs in cafe of invafion or actual rebellion, nor in any cafe compellable to march out of the kingdom. They are to be exercifed at ftated times: and their difcipline in general is liberal Ddd 2

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

and

412 and easy; but, when drawn out into actual fervice, they are subject to the rigours of martial law, as neceffary to keep them in order. This is the conftitutional fecurity, which our laws have provided for the public peace, and for protecting the realm against foreign or domeftic violence; and which the ftatutes" declare is effentially neceffary to the safety and prosperity of the kingdom,

WHEN the nation was engaged in war, more veteran troops and more regular difcipline were cftecmed to be neceffary, than could be expected from a mere militia. And therefore at such times more rigorous methods were put in ufe for the raising of armies and the due regulation and difcipline of the foldiery: which are to be looked upon only as temporary excrefcences bred out of the diftemper 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 obferves°, in truth and reality no law, but fomething indulged, rather than allowed as a law: the neceffity of order and difcipline in an army 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 perfons to receive juftice according to the laws of the land. Wherefore Thomas earl of Lancaiter being condemned at Pontefract, 15 Edw. II. by martial law, his attainder was reversed 1 Edw. III. because it was done in time of peace". And it is laid down, that if a lieutenant, or other, that hath commiffion, 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'. And the petition of right 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 reftoration, king Charles

Charles the fecond kept up about five thousand regular troops, by his own authority, for guards and garrifons; which king James the second by degrees increased to no less than thirty thoufand, all paid from his own civil lift; it was made one of the articles of the bill of rights', that the raising or keeping a standing 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. 1445") has of late years universally prevailed over Europe (though fome of it's potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary penfions for that purpose) it has also for many years paft been annually judged neceffary by our legislature, for the fafety 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 difbanded at the expiration of every year, unless continued by parliament. And it was enacted by ftat. 10. W. IIL c. 1. that not more than twelve thousand 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 16235 men, in time of peace.

To prevent the executive power from being able to oppress, fays baron Montefquieu", it is requifite that the armies with which it is entrusted should confift of the people, and have the fame spirit with the people; as was the cafe at Rome, till Marius new-modelled the legions by inlifting 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

v Stat. W. & M. ft. 2. c. 4.

u Robertfon. Cha. V. i. 94.

w Sp. L. 11. 6.

fuch

fuch a one is necessary to be kept on foot, a body too distinct from the people. Like ours therefore, it should wholly be compofed of natural fubjects; it ought only to be enlifted for a fhort and limited time; the foldiers alfo fhould live intermixed with the people; no feparate camp, no barracks, no inland fortresses should be allowed. And perhaps it might be ftill better, if, by difmiffing a ftated number and cnlifting 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 likewife patles," to punish mutiny and defcrtion, and for "the better payment of the army and their quarters." 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 oflicer or feldier fhall excite, or join any mutiny, or, knowing of it, fhall not give notice to the commanding officer; or thall 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 cnemy, or firike 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 itself,

HOWEVER expedient the moft ftrict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigor would not, one fhould hope, be productive of much inconvenience. And,upon this principle, though by our standing laws, (till remaining in force, though not attended to) defertion in me of war is made felony, without benefit of clergy, and the offence is triable by a jury and before the judges of the common law; yet, by our militia laws before-mentioned, a much lighter punishment is inficted for defcrtion in

> St.t. 18. X. 1. C. 59. 2 & 3 Edw. VI. c. 2.

time of peace. So, by the Roman law alfo, desertion in time of war was punished with death, but more mildly in time of tranquility'. 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 shall think proper. This difcretionary 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 abfolute legislative power.

"His

majesty, fays the act, may form articles of war, and constitute "courts martial, with power to try any crime by fuch articles, "and inflict fuch penalties as the articles direct." A vast and most important truft! an unlimited power to create crimes, and annex to them any 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 refpects haftily penned, it may be thought worthy the wisdom of parliament to afcertain the limits of mili tary subjection, and to enact exprefs articles of war for the government of the army, as is done for the government of the navy : efpecially as, by our prefent conftitution, the nobility and gentry of the kingdom, who ferve their country as militia officers, are annually fubjected 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 afcertained and notorious: nothing is left to arbitrary difcretion: the king by his judges dif penfes what the law has previoufly ordained; but is not himself the legiflator. How much therefore is it to be regretted that a fet of men, whose bravery has fo often preferved the liberties of their country, fhould 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

Ff. 49. 16. 5.

2 4 Inst. 332.