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 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, 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 principal nobility, and such as were most remarkable for being " sapientes, fideles, et ani

"mosi." Their duty was to lead and regulate the [409] English armies, with a very unlimited power; "prout "eis visum fuerit, ad honorem coronae et utilitatem "regni." And because of this great power 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 intrusted 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 ancient 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, (6 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 themd. This large share of power, thus conferred by the people, though intended to perserve 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

a c. de heretochiis.

b❝Isti vero viri eiiguntur per commune ❝ consilium, pro communi utilitate regni, per " provincias et patrias universas, et per sin"gulos comitatus, in pleno folkmote, sicut et "viecomites, provinciarum et comitatuum

"eligi debent." LL. Edw. Confess. ibid. See also Bede, ecel. hist. l. 5, c. 10.

c De morib. Germ. 7.

d" Quum bellum civitas aut illatum, defer"dit aut infert, magistratus qui ei bello prae "sint deliguntur." De bell. Gall. I. 6. c. 22,

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 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: [410] 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.

UPON the Norman conquest the feodal law was introduced here in all its 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 knights' fees, in number above sixty thousand (1): 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 (2); 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 expense, an army of sixty thousand men always ready at

e The Poles are, even at this day, so tenacious of their ancient constitution, that their pospolite, or militia, cannot be compelled to

(1) 60,215.

serve above six weeks, or forty days, in a year. Mod. Un. Hist. xxxiv. 12.

(2) We frequently read of half a knight, or other aliquot part, as for so much land three knights and a half, &c. were to be returned; the fraction of a knight was performed by a whole knight who served half the time, or other due proportion of it.

his command. And accordingly we find one, among the laws of William the conquerorf, 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 peragen"dum, cum opus adfuerit, secundum quod debent de feodis et tene❝mentis suis de jure nobis facere." This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part (3) 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 [411] days service in the field, first the assize of arms, enacted 27 Hen. II, and afterwards the statute of Winchesterh, 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 and 5 Ph. and M. c. 2. into others of more modern service: but both this and the former provisions were repealed in the reign of James 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

f c. 58. See Co. Litt. 75, 76. g Hoved. A. D. 1181.

h 13 Edw. I. c. 6.

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

(3) 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 2 vol. p. 77.

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 k. 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 VIII, or his children, lieutenants began to be introduced m, 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.

In this state things continued, till the repeal of the statutes of armor 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 [412] by any statute, and founded only upon immemorial usage. This question, long agitated, with great heat and resentment on both 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 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.