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 It is true the two laft of them are apparently repealed; but many of their provifions are re-enacted, with the addition of fome new regulations, by the prefent militia laws: the general scheme of which is to difcipline a certain number of the inhabitants of every county, chofen by lot for (q) 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, unless in cafe of invafion or actual rebellion within the realm, (or any of it's dominions or territories °) nor in any cafe compellable to march out of the kingdom. They are to be exercised at ftated times: and their difcipline in general is liberal and eafy; 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 P have provided for the public peace, and for protecting the realm against foreign or domeftic violence.

WHEN the nation was engaged in war, more veteran troops and more regular difcipline were efteemed 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 raifing of armies and the due regulation and discipline of the foldiery which are to be looked upon only as temporary excrefcences bred out of the diftemper 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 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

Stat. 16 Geo. III. c. 3. P 2 Geo. III. c. 20. 9 Geo. III. c. 42. 16 Geo. III. c. 3. 18 Geo. III.

c. 14. & 59. 19 Geo. III. c. 72. [26 Geo. 3. c. 107.]

9 Hift. C. L. c. 2.

(9) [And now for five years by ftatute 26 Geo. III. c. 107. which has reduced into one act the laws relating to the militia.]

VOL. I.

D d

and

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 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 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 otherwise execute any man by colour of martial law, this is murder; for it is against magna cartas. The petition of right moreover enacts, that no foldier fhall be quartered on the subject 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 fecond by degrees increased to no lefs than thirty thoufand, all paid from his own civil lift; it was made one of the articles of the bill of rights, that the raifing 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. 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 penfions for that purpofe) it has also for many years paft been annually judged neceffary by our legiflature, for the fafety of the kingdom, the defence of the poffeflions 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, unless continued by parliament. And it was enacted by ftatute 10 W. III. 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 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 opprefs, fays baron Montesquieu, it is requifite that the armies with which it is entrusted fhould 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 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 ftate, 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 fhould 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 fortreffes fhould be allowed. And perhaps it might be still better, if, by difiiffing 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 likewife paffes, " to punish mutiny and desertion, "and for the better payment of the army and their quarters." This regulates the manner in which they are to be difperfed among the several inn-keepers and victuallers throughout the kingdom; and establishes a law martial for their government.

Book 1. 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 correspondence with a rebel or enemy, or strike or use violence to his fuperior officer, or fhall difobey his lawful commands: fuch offender fhall fuffer fuch punishment as a court martial fhall 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 (ftill remaining in force, though not attended to) defertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury and before justices 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 fhall 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 powera. “His "majefty, fays the act, may form articles of war, and constitute "courts martial, with power to try any crime by fuch articles, "and inflict penalties by fentence or judgment of the same.” A vaft and most important truft! an unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! Thefe are indeed forbidden to be inflicted,

y Stat. 18 Hen. VI. c. 19. 2 & 3 given to the lords of the admiralty, by Edw. VI. c. 2.

2 Ff. 49. 16. 5.

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

a A like power over the marines is on fhore."

except for crimes declared to be fo punishable by this act; which crimes we have just 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 wifdom of parliament to afcertain the limits of military fubjection, and to enact exprefs articles of war for the government of the army, as is done for the government of the navy especially as, by our prefent conftitution, the nobility and gentry of the kingdom, who ferve 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 afcertained and notorious: nothing is left to arbitrary discretion: the king by his judges difpenfes what the law has previoufly ordained; but is not himself the legislator. How much therefore is it to be regretted that a fet of men, whofe 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, which is our rule of action, either concealed or precarious: "mifera eft fervitus "ubi jus eft vagum aut incognitum." Nor is this ftate of fervitude quite confiftent with the maxims of found policy obferved 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 profeflion. These men, as baron Montefquieu obferves", feeing the liberty which others poffefs and which they themfelves are excluded 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 ftates,

a

4 Inft. 332.

b Sp. L. 15. 12.

Dd 3

by