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 recognise the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subor. dination: and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws, the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years (4); and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm, (or any of its dominions or territories,) nor in any case compellable to march out of the kingdom (5). They are to be exercised at stated times: and their discipline in general is liberal and easy; but when drawn out into actual service, they are subject to the rigors of martial law, as necessary to keep them in order. This is the constitutional security, which our laws have provided

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

p Stat. 16 Geo. III. e. 3.

q 2 Geo. III. c. 20. 9 Geo. III. c. 42. 16 Geo. III, e. 3. 18 Geo. III. e. 14 and $2. 19 Geo. III. c. 72.

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

(5) By 26 Geo. III. c. 107. s. 95. in all cases of actual invasion, or upon imminent danger thereof, and in all cases of rebellion or insurrection, it shall be lawful for his majesty, the occasion being first communicated to parliament, if sitting, if not sitting, declared in council, and notified by proclamation, to order the militia to be embodied, and to direct them to be led by their respective 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 respecting the militia, stated at large in Burn, tit. Militia,

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 discipline were esteemed to be necessary, 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 [413] discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as sir Matthew Hale observes, in truth and reality no law, The but something indulged rather than allowed as a law. necessity of order and discipline 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 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 reversed 1 Edw. III, because it was done in time of peacer. And it is laid down3, that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any man by color of martial law, this is murder; for it is against magna cartat. The petition of right" moreover enacts, that no soldier shall be quartered on the subject without his own consent: and that no commission shall issue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the

q Hist. C. L. c. 2.

2 Brad. Append. 59.

s 3 Inst. 52.

t cap. 29.

u 3 Car. I. See also Stat. 31. Car. II. c. 1. v Thus, in Poland, no soldier can be quartered upon the gentry, the only freemen in that republic. Mod Univ. Hist. xxxiv. 23.

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 consent of parliament, is against law.

BUT, as the fashion of keeping standing armies (which was

first introduced by Charles VII. in France, A. D. [414] 1445) has of late years universally prevailed over Europe, (though some of its potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose,) it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions 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 ipso facto disbanded at the expiration of every year, unless continued by parliament. And it was enacted by statute 10 W. III. c. 1. that not more than twelve thousand regular forces should be kept on foot in Ireland, though paid at the charge of that kingdom; which permission is extended by statute 8 Geo. III. c. 13. to 16235 men in time of peace.

To prevent the executive power from being able to oppress, says baron Montesquieu*, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modelled the legions by inlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. Like ours, it should wholly be composed of natural subjects; it ought only to be inlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be w Robertson, Cha. V. i. 94. x Sp. L. 11. 6.

v Stat. 1 W. and M. st. 2. c. 2.

allowed (6). And perhaps it might be still better, if, by dismissing a stated number and inlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together.

To keep this body of troops in order, an annual act of parliament likewise passes, "to punish mutiny and deser❝tion, and for the better payment of the army and [415] "their quarters." This regulates the manner in which

they are to be dispersed among the several 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 soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall desert, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands: such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.

HOWEVER expedient the most strict regulations may be in time of actual war, yet in times of profound peace, a little relaxation of military rigor would not, one should hope, be productive of much inconvenience. And, upon this principle, though by our standing laws y (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by

y Stat. 18 Hen. VI. c. 19. 2 and 3 Edw. VI. c. 2.

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

a jury and before justices at the common law: yet, by our militia-laws before mentioned, a much lighter punishment is inflicted for desertion in time of peace. So, by the Roman law also, desertion in time of war was punished with death, but more mildly in time of tranquillity 2. But our mutiny act makes no such distinction: for any of the faults abovementioned are, equally at all times, punishable with death itself, if a court martial shall think proper. This discretionary 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 power a. "His majesty, 66 says the act, may form articles of war, and constitute courts "martial, with power to try any crime by such articles, and "inflict penalties by sentence or judgment of the same.” A vast and most important trust! an unlimited power to create

crimes, and annex to them any punishments, not ex> [416] tending to life or limb! These are indeed forbidden

to be inflicted, except for crimes declared to be so punishable by this Act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. Perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain 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 constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same 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 dispenses what the law has previously ordained; but is not

z Ff. 49. 16. 5.

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

annual act for the regulation of his majes "ty's marine forces while on shore,"