Front Page Titles (by Subject) CHAPTER XIII.: OF THE MILITARY AND MARITIME STATES. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XIII.: OF THE MILITARY AND MARITIME STATES. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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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.1
In the time of our Saxon ancestors, as appears from Edward the Confessor’s laws,(a) 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 animosi.” Their duty was to lead and regulate the English armies, with a very unlimited power; “prout eis visum fuerit, ad honorem **409]coronæ 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,(c) “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 them.(d) This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find ill use made of it by Edric duke of Mercia, in the reign 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; which **410]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 rigour, 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; 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.(e) By this means the king had, without any expense, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the Conqueror,(f) which in the king’s name commands and firmly enjoins the personal attendance of all knights and others; “quod habeant et teneant sesemper in armis et equis, ut decet et oportet: et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent feodis et tenementis suis de jure nobis facere.” This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part3 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 days’ service in the field, first the assize of arms, enacted 27 Hen. *[*411II.,(h) and afterwards the statute of Winchester,(i) 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 & 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.(k) 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 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.(l) But it was provided(m) 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 Eighth, or his children, lieutenants began to be introduced,(n) 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. and M. c. 3, though they had not been then long in use, for Camden speaks of them(o) 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 armour in the reign of king James the First: after which, when king Charles the First had, during his northern expedition, 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 by any statute, and founded only upon immemorial usage. This question, long agitated with great heat and resentment on both **412]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 seizing into their own hands the entire power of the militia, the illegality of which step could never be any doubt at all.4
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 subordination:(p) 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, 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,)(q) nor in any case compellable to march out of the kingdom. 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 rigours of martial law, as necessary to keep them in order. This is the constitutional security which our laws(r) have provided 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 **413]raising of armies, and the due regulation and 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,(s) in truth and reality no law, but something indulged rather than allowed as a law.5 The 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 peace.(t) And it is laid down,(u) that if a lieutenant, or other, that hath commission 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 carta.(v) The petition of right(w) moreover enacts, that no soldier shall be quartered on the subject without his own consent,(x) 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 articles of the bill of rights,(y) 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, ad 1445,(z) has of late years universally prevailed over Europe, (though *[*414some 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 16,235 men, in time of peace.6
To prevent the executive power from being able to oppress, says baron Montesquieu,(a) 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 enlisting 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 enlisted 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 allowed. And perhaps it might be still better if, by dismissing a stated number, and enlisting 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 desertion, **415]and for the better payment of the army and their quarters.” This regulates the manner in which they are to be dispersed among the several innkeepers 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 rigour would not, one should hope, be productive of much inconvenience. And upon this principle, though by our standing laws(b) (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 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.(c) But our mutiny act makes no such distinction: for any of the faults above mentioned 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.(d) “His majesty,” 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 extending to life or limb! These are indeed forbidden to be inflicted, **416]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.7
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 himself the legislator. How much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen! for Sir Edward Coke will inform us,(e) that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious: “misera est servitus ubi jus est vagum aut incognitum.” Nor is this state of servitude quite consistent with the maxims of sound policy observed by other free nations.8 For the greater the general liberty is which any state enjoys, the more cautious has it usually been in introducing slavery in any particular order or profession. These men, as baron Montesquieu observes,(f) seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) 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 those privileges to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of *[*417their slaves; while in absolute and despotic governments, where no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments: 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.
But as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so by the humanity of our standing laws they are in some cases put in a much better. By statute 43 Eliz. c. 3, a weekly allowance is to be raised in every county for the relief of soldiers 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 service are, by several statutes 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 universities,) notwithstanding any statute, custom, or charter to the contrary.9 And soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses which the law requires in other cases.(g) Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament.(h) And thus much for the military state, as acknowledged by the laws of England.10
The maritime state is nearly related to the former, though much more agreeable to the principles of our free constitution. **418]The royal navy of England hath ever been its greatest defence and ornament; it is its ancient and natural strength; the floating bulwark of the island; an army from which, however strong and powerful, no danger can ever be apprehended to liberty; and accordingly it has been assiduously cultivated even from the earliest ages. To so 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 substruction of all their maritime constitutions, was confessedly compiled by our king Richard the First, at the Isle of Oleron on the coast of France, then part of the possessions of the crown of England.(i)11 And yet, so vastly inferior were our ancestors in this point to the present age, that, even in the maritime reign of queen Elizabeth, Sir Edward Coke(k) thinks it a matter of boast that the royal navy of England then consisted of three and thirty ships. The present condition of our marine is in great measure owing to the salutary provisions of the statutes called the navigation acts; whereby the constant increase of English shipping and seamen was not only encouraged, but rendered unavoidably necessary. 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 should ship any merchandise out of or into the realm but only in ships of the king’s ligeance, on pain of forfeiture. In the next year, by statute 6 Ric. II. c. 8, this wise provision was enervated, by only obliging the merchants to give English ships, if able and sufficient, the preference. But the most beneficial statute for the trade and commerce of these kingdoms is that navigation act, the rudiments of which were first framed in 1650,(l) with a narrow partial view: being intended to mortify our own sugar islands, which were disaffected to the parliament, and still held out for Charles II., by stopping the gainful trade which they then carried on with the Dutch;(m) and at the same time to clip the wings of those our opulent and aspiring neighbours. This prohibited all ships of foreign nations from trading with any English plantations *[*419without license from the council of state. In 1651(n) the prohibition was extended also to the mother country; and no goods were suffered 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 merchandise imported was the genuine growth or manufacture. At the restoration, the former provisions were continued, by statute 12 Car. II. c. 18, with this very material improvement, that the master and three-fourths of the mariners shall also be English subjects.12
Many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service.
1. First, for their supply. The power of impressing seafaring men for the sea service by the king’s commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shown, by Sir Michael Foster,(o) that the practice of impressing, and granting powers to the admiralty for that purpose, is of very ancient date, and hath been uniformly continued by a regular series of precedents to the present time; whence he concludes it to be part of the common law.(p) The difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. The statute 2 Ric. II. c. 4 speaks of mariners being arrested and detained for the king’s service as of a thing well known, and practised without dispute; and provides a remedy against their running away. By a later statute,(q) if any waterman who uses the river Thames shall hide himself during the execution of any commission of pressing for the king’s service, he is liable to heavy penalties. By another,(r) no fisherman shall be taken by the queen’s commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea-coast where the mariners are to be taken, to the intent that the justices may **420]choose out and return such a number of able-bodied men, as in the commission are contained, to serve her majesty. And by others(s) special protections are allowed to seamen in particular circumstances, to prevent them from being impressed. And ferrymen are also said to be privileged from being impressed at common law.(t) All which do most evidently imply a power of impressing to reside somewhere; and, if anywhere, it must, from the spirit of our constitution, as well as from the frequent mention of the king’s commission, reside in the crown alone.13
But, besides this method of impressing, which is only defensible from public necessity, to which all private considerations must give way, there are other ways that tend to the increase of seamen, and manning the royal navy. Parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and, if they are impressed afterwards, the masters shall be allowed their wages;(u) great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty’s service;(v) and every foreign seaman, who during a war shall serve two years in any man-of-war, merchantman, or privateer, is naturalized ipso facto.(w) About the middle of king William’s reign, a scheme was set on foot(x) for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king’s fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be ineffectual as well as oppressive, was abolished by statute 9 Anne, c. 21.
2. The method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles, and orders, first enacted by the authority of parliament soon after the restoration;(y) but since *[*421new-modelled and altered, after the peace of Aix-la-Chapelle,(z) to remedy some defects which were of fatal consequence in conducting the preceding war. In these articles of the navy almost every possible offence is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service, whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. Yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year, and might therefore with less danger be subjected to discretionary government. But, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. For, if from experience past we may judge of future events, the army is now lastingly ingrafted into the British constitution, with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to its legal existence by refusing to concur in its continuance.
3. With regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief when maimed, or wounded, or superannuated, either by county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the power of making nuncupative testaments; and, further,(a) no seaman aboard his majesty’s ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount.
[1 ] “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Const. U. S. Amendments, art. 2. “No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” Ib. art. 3. “Congress shall have power to raise and support armies; but no appropriation of money to that use shall be for a longer time than two years: to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” Ib. art. 1, s. 8. “No State shall, without the consent of Congress, keep troops or ships of war in the time of peace, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” Ib. s. 10. “The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.” Ib. art. 2, s. 2.—Sharswood.
[(a) ]C. de Heretochiis.
[(b) ] “Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vicecomites, provinciarun et comitatuum eligi debent.” LL. Edw. Confess. ibid. See also Bede Eccl. Hist. l. 5, c. 10.
[(c) ]De Morib. Germ. 7.
[(d) ] “Quum bellum civitas aut illatum, defendit aut infert, magistratus qui ei bello præsint deliguntur.” De Bell. Gall. l. 6, c. 22.
[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.—Christian.
[(e) ] The Poles are, even at this day, so tenacious of their ancient constitution, that their poepolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. Mod. Un. Hist. xxxiv. 12.
[(f) ] C. 58. See Co. Litt. 75, 76.
[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 book, p. 77.—Christian.
[(h) ] Hoved. ad 1131.
[(i) ] 13 Edw. I. c. 6.
[(k) ] Stat. 1 Jac. I. c. 25. 21 Jac. I. c. 28.
[(l) ] Rushworth, part 3, pages 662, 667. See 8 Rym. 374, &c.
[(m) ] Stat. 1 Edw. III. st. 2, c. 5 and 7. 25 Edw. III. st. 5, c. 8.
[(n) ] 15 Rym. 75.
[(o) ] Brit. 103, edit. 1594.
[4 ] The constitution of the United States declares that Congress shall have power “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” and also “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.” Art. I, s. 8. The act of Congress of 28th Feb. 1795 has provided “that whenever the United States shall be invaded, or be in imminent danger from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion: and to issue his order for that purpose to such officer or officers of the militia as he shall think proper.” And like provision is made for the other cases stated in the constitution. The Supreme Court have held that the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object, and that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. This construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. Martin vs. Mott, 12 Wheat. 29.—Sharswood.
[(p) ] 13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 5.
[(q) ] Stat. 16 Geo. III. c. 3.
[(r) ] 2 Geo. III. c. 20. 9 Geo. III. c. 42. 16 Geo. III. c. 3. 18 Geo. III. c. 14 and 59. 19 Geo. III. c. 72.
[(s) ] Hist. C. L. c. 2.
[5 ] This censure upon our military jurisprudence is by no means merited at the present day, whatever may have been the fact when Sir Matthew Hale wrote. The long-continued wars in which the nation was engaged until the peace of 1815 improved every part of our military system, and, among the rest, the laws for the government of soldiers, their support, and punishment when guilty of offences, have been frequently the subject of amelioration. Still, the praise bestowed upon them by Mr. Tytler has more of the spirit of a partisan than of an impartial critic. He says, “The principles of military law are as certain, determinate, and immutable as are the principles of the common and statute law, which regulate the civil classes of society.” The mutiny act, and the articles of war which contain the rules of discipline, are framed by the legislature, and enforced by penalties appropriated to every offence; or the penalties are left, in certain cases where the offence is either mitigated or aggravated beyond its ordinary standard by attendant circumstances, to the decision of a court-martial.—Chitty.
There is a great distinction, though often lost sight of, between military and martial law, the former affecting the troops or forces only, to which its terms expressly apply equally in peace and war, by previously defined regulations; the latter extending to all the inhabitants of the district where it is in force, being wholly arbitrary, and emanating entirely from a state of intestine commotion or actual war.—Warren.
By the fifth amendment of the constitution of the United States, it is declared that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.”—Sharswood.
[(t) ] 2 Brad. Append. 59.
[(u) ] 3 Inst. 52.
[(v) ] Cap. 29.
[(w) ] 3 Car. I. See also stat. 31 Car. II. c. 1.
[(x) ] Thus in Poland no soldier can be quartered upon the gentry,—the only freemen in that republic. Mod. Univ. Hist. xxxiv. 23.
[(y) ] Stat. 1 W. and M. st. 2, c. 2.
[(z) ] Robertson, Cha. V. i. 94.
[6 ] It is perfectly lawful to employ soldiers to preserve the public peace at home; but this should be done with great caution, and not without an absolute necessity. “Magistrates,” said lord chancellor Hardwicke, “have a power to call any subject to their assistance to preserve the peace and execute the process of the law; and why not soldiers as well as other men? Our soldiers are our fellow-citizens. They do not cease to be so by putting on a red coat and carrying a musket.” The military act, on such occasions, not qua military, but simply in aid of, and in obedience to, the civil power, which “calls them in,”—to quote again lord chancellor Hardwicke,—“as armed citizens, often saving the effusion of innocent blood and preserving the dominion of the law.”—Warren.
[(a) ] Sp. L. 11, 6.
[(b) ] Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2.
[(c) ]Ff. 49, 16, 5.
[(d) ] 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 shore.”
[7 ] The virtual protection always afforded to superior officers against accusations, howsoever true and just they may be, brought against them by inferior officers, is highly objectionable. By such virtual protection I mean the dismission from the service of a subaltern who shall have succeeded in establishing charges of moment against his superior officer, which dismission in general takes place. Thus, a colonel Beaufoy was, after a trial by a general court martial, or after a court of inquiry held upon him, upon charges preferred against him by a subaltern officer, dismissed. The subaltern was in no wise an accessory to the offences comprised in the charges preferred against colonel Beaufoy, and was otherwise a meritorious officer; yet at the moment of the promulgation of the sentence of dismissal against his colonel, it was intimated to the subaltern that his majesty had no further occasion for his services. This, it was said at the time, was as it should be, looking at the good of the service.—Chitty.
[(e) ] 4 Inst. 352.
[8 ] This regret of the learned commentator is somewhat gratuitous in its object and mistaken in its source. The servitude to which the soldier is reduced in this country has most, if not all, of the alleviations which are compatible with good discipline and due subordination; and although the binding obligations of the military law are renewed every year, yet the regulations are neither so complex or numerous as to render an observance of them difficult, while the annual revision of the legislature is a guarantee against their being capricious or unjust. In one respect it would seem that the soldier has the advantage of the citizen with regard to the laws which he is required to obey; for a municipal law may remain entirely unknown to the subject till he is called upon to answer for the infraction of it; but every individual of the military profession is regularly informed of the laws and regulations by which he is to be governed, for the articles of war, which are the substance of the military code, must be read at the head of every regiment once every two months.—Chitty.
[(f) ] Sp. L. 15, 12.
[9 ] By the 42 Geo. III. c. 60, all officers, soldiers, and mariners who have been employed in the king’s service since 1784, and have not deserted, and their wives and children, may exercise any trade in any town in the kingdom, without exception, and shall not be removed till they are actually chargeable.—Christian.
[(g) ] Stat. 29 Car. II. c. 3. 5 W. III. c. 21. 6.
[(h) ]Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in prælio, vitæ sortem derelinquunt, hujusmods voluntatem stabilem esse oportet. Cod. 6, 21, 15.
[10 ] It is now fully established that both the full pay and half-pay of an officer, or any person in a military or naval character, cannot, in any instance, be assigned before it is due; as the object of such pay is to enable those who receive it always to be ready to serve their country with that decency and dignity which their respective characters and stations require. 4 T. R. 258. H. Bl. 628.—Christian.
[(i) ] 4 Inst. 144. Coutumes de la Mer, 2.
[11 ] The French writers attribute these laws to Eleanor, duchess of Guienne, the king’s mother. She had previously been the wife of Louis VII., king of France; but, divorced from that monarch, she married prince Henry, afterwards Henry II., Richard’s father. She was a woman of considerable talent, and Oleron was a part of Guienne. The probability is, that these laws were compiled under the joint auspices of her husband and her son: at all events, the promulgating them was the act of Richard. For the learning upon this curious question, see Seld. Mare Cl. 2 and 24; and how oppugned by the French writers, see Mr. Justice Park’s System of Marine Insurance, Introduction, p. xxvii.—Chitty.
It is not a matter of such clear admission that Richard was the first compiler of these celebrated laws. Most of the French writers on marine law claim the first draft of them as a French code, framed under the direction of Eleanor his mother for the use of his continental subjects. In the introduction to Mr. Justice Park’s System of Marine Insurance, p. xxvii., an abstract of their argument is given with a reference to Selden, who maintains the position in the text. Mare Cl. 2, c. 24.—Coleridge.
A translation of the laws of Oleron is to be found in the appendix to 1 Peters’s Adm. Decision. The learned author of that work ascribes the origin of these laws to Eleanor, but argues that the code was improved by Richard, who introduced it into England. It forms the basis of the celebrated ordinances of Louis XIV. of France, and it is admitted as authority in the courts of common law as well as the admiralty courts of England. The learned and sagacious Macpherson, the author of the Annals of Commerce, who, as a Scotsman, was probably impartial, rejects both the English and French hypotheses, as not only destitute of historical proof, but as inconsistent with facts that history records. He affirms that the oldest manuscript of these laws bears the date of 1266,—more than half a century after the death of queen Eleanor and her son,—and that there is no evidence of their publication at an earlier period. “On these litigated questions,” says Judge Duer, “I shall hazard no opinion, but shall only say that, at whatever time, and by whatever authority, the laws of Oleron were first published, their internal evidence compels me to believe that they were intended to apply exclusively to French vessels and French navigation.” Duer on Marine Insurance, vol. i. p. 39.—Sharswood.
[(k) ] 4 Inst. 50.
[(l) ] Scobell, 132.
[(m) ] Mod. Un. Hist. xii. 289.
[(n) ] Scobell, 176.
[12 ] The navigation acts, constituting a protective privilege for British shipping and commerce as against those of foreign countries, have been very recently repealed; and both foreign and British shipping are now placed on the same footing, down even to the coasting-trade of the united kingdom. It is, however, sought to secure a reciprocity, by arming the queen with retaliatory powers, by order in council, against those countries who will not follow our example. See 16 & 17 Vict. c. 107, ss. 324, 325, 326, and 17 & 18 Vict. c. 5.—Warren.
[(o) ] Rep. 154.
[(p) ] See also Comb. 245. Barr. 344.
[(q) ] Stat. 2 & 3 Ph. and M. c. 16.
[(r) ] Stat. 5 Eliz. c. 5.
[(s) ] See stat. 7 & 8 W. III. c. 12. 2 Anne, c. 6. 4 & 5 Anne, c. 19. 13 Geo. II. c. 17. 2 Geo. III. c. 15. 11 Geo. III. c. 38. 19 Geo. III. c. 75, &c.
[(t) ] Sav. 14.
[13 ] The legality of pressing is so fully established that it will not now admit of a doubt in any court of justice. In the case of the King vs. Jubbs, lord Mansfield says, “The power of pressing is founded upon immemorial usage, allowed for ages. If it be so founded and allowed for ages, it can have no ground to stand upon, nor can it be vindicated or justified by any reason, but the safety of the state. And the practice is deduced from that trite maxim of the constitutional law of England, ‘that private mischief had better be submitted to than public detriment and inconvenience should ensue.’ And, though it be a legal power, it may, like many others, be abused in the exercise of it.” Cowp. 517. In that case the defendant was brought up by habeas corpus, upon the ground that he was entitled to an exemption; but the court held that the exemption was not made out, and he was remanded to the ship from which he had been brought.
Lord Kenyon has also declared, in a similar case, that the right of pressing is founded on the common law, and extends to all persons exercising employments in the seafaring line. Any exceptions, therefore, which such persons may claim, must depend upon the positive provisions of statutes. 5 T. R. 276.—Christian.
In addition to these authorities, many more are collected by Barrington, (in his Observations on Ancient Statutes, p. 334, 5 ed.,) who shows that the crown anciently exercised a similar power of impressing men for the land service, not only for the army, but for the king’s pleasure; and instances are given in the case of Goldsmith’s (Aurifrabros) impress pro apparatibus personæ regis. 14 Edw. IV.
The freemen and livery of London are not exempted from being impressed for the service, if in other respects fit subjects for the service, (9 East, 466;) nor are seamen serving in the merchant service, though a freeholder, (3 East, 477;) nor is the master of any vessel, merely as such, exempt, especially if his appointment appear to be collusive. 14 East, 346. If a sailor on board a merchant-ship be pressed by a king’s ship, he is not entitled to any proportion of wages from the former unless she complete her voyage. 2 Camp. 320.—Chitty.
There is nothing (says judge Tucker) in the constitution of the United States which warrants a supposition that such a power as that of impressment can ever be authorized or exercised under the government of the United States. On the contrary, the principles of the constitution and the nature of our government strongly militate against the assumption or countenancing of such a power.—Sharswood.
[(u) ] Stat. 2 Anne, c. 6.
[(v) ] Stat. 31 Geo. II. c. 10.
[(w) ] Stat. 13 Geo. II. c. 3.
[(x) ] Stat. 7 & 8 W. III. c. 21.
[(y) ] Stat. 13 Car. II. st. 1, c. 9.
[(z) ] Stat. 22 Geo. II. c. 23, amended by 19 Geo. III. c. 17.
[(a) ] Stat. 31 Geo. II. c. 10.