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, A.D. 1445,(z) has of late years universally pre[*414 vailed 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 parlia ment. 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. (2 Brad. Append. 59. () 3 Inst. 52. (*) Cap. 29. (0) 3 Car. I. See also stat. 31 Car. II. c. 1. (*) Thus in Poland no soldier can be quartered upon the gentry-the only freemen in that republic. Mod. Univ. Hist. (V) Stat. 1 W. and M. st. 2, c. 2. 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. 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 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. passes, To keep this body of troops in order, an annual act of parliament likewise *415] "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 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! *416] 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 (a) Sp. L. 11, 6. (8) Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2. () Ff. 49, 16, 5. (4) 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." 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. 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 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 servi tude quite consistent with the maxims of sound policy observed by other free nations. 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,(ƒ) 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 *their slaves; while in absolute and despotic governments, where no real liberty exists, and consequently no invidious [*417 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 "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. 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. VOL. I.--21 321 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. 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 agree*418] able to the principles of our free constitution. *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)" And yet, so vastly inferior were our ancestors in this tempore quo, in prælio, vitæ sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod. 6, 21, 15. (4 Inst. 144. Coutumes de la Mer, 2. Stat. 29 Car. II. c. 3. 5 W. III. c. 21, 2 6. Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso 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. 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. "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 evi 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 *without license [*419 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 (*) 4 Inst. 50. (2) Scobell, 132. (TM) Mod. Un. Hist. xli. 289. () Rep. 154. (P) See also Comb. 245. Barr. 344. dence 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. 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. |