Yeomanry. In addition to the militia, large bodies of troops were organized during the French war in the reign of George III., consisting principally of voluntary infantry, called volunteers, and partly of voluntary cavalry, called yeomanry(s). These troops consisted entirely of persons serving voluntarily, and as they were not called on to leave their homes, or to serve except for short periods for the purpose of being drilled near their places of residence, *the service was not found burdensome, and the country had [ *497] the advantage of having ready in case of invasion, a considerable number of men trained to arms. Soon after the conclusion of peace, most if not all of these volunteers were disbanded, but various troops of yeomanry are still kept up. They are under the provisions of stat. 44 Geo. 3, c. 54, as amended by subsequent acts. For many years there were, besides the yeomanry, scarcely any voluntary troops in England, but towards the end of the year 1859 large numbers of men enrolled themselves in volunteer rifle corps, and some in volunteer Volunteers. corps of artillery, engineers, and cavalry. These troops, having increased up to the present time, now number about two hundred thousand men. The volunteers are regulated by the stat. 26 & 27 Vict. c. 65. They are not obliged to leave the kingdom; they may quit their corps, when not on active military service, on giving fourteen days' notice, and are only liable to be called out in case of actual or apprehended invasion. When on active military (8) McCulloch's Brit. Emp. 3rd ed. ii. 456. the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed." Act of Congress, July 29, 1861; 12 Stat. at Large, 281, §§ 1, 7. Under these statutes the president of the United States is the exclusive and the final judge as to the necessity of calling out the militia. Martin v. Mott, 12 Wheat. (U. S.) 19,29. The government of a state, by its legislature, has the power to protect itself from destruction by armed rebellion, by declaring martial law; and the legislature is the sole judge of the existence of the necessary exigency. Luther v. Borden, 7 How. (U. S.) 1, 45. The power to suspend the writ of habeas corpus during the rebellion was conferred by act of congress of March 3, 1861. 12 Stat. at Large, 755. Although the writ of habeas corpus may be suspended, and martial law proclaimed, it does not follow that all persons may be tried by a military commission, in all places and under all circumstances. Military commissions organized during the late civil war, in a state not invaded and not engaged in rebellion, in which the federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offense, a citizen who was neither a resident of a rebellious state, nor a prisoner of war, nor a person in the military or naval service; and congress could not invest them with any such power. Ex parte Milligan, 4 Wall. (U. S.) 2, 121-127. The guaranty of a trial by jury, contained in the constitution, was intended for a state of war as well as a state of peace; and is equally binding upon rulers and people, at all times and under all circumstances. Ex parte Milligan, 4 Wall. (U. S.) 2, 121–127. And in a state in which the federal authority had been unopposed during the rebellion, and the federal courts were open for the trial of offenses and the redress of grievances, it was held, that the usages of war could not, under the constitution, afford any sanction for the trial there of a citizen in civil life, who was not connected with the military or the naval service, by a military tribunal, for any offense whatever. Ex parte Mulligan, 4 Wall. (U. S.) 2, 121–127. And a citizen who had been thus tried, convicted, and sentenced to death, was held to be entitled to his discharge from any such sentence. Ex parte Milligan, 4 Wall. (U. S.) 2, 121– 127. See also Ex parte Yerger, 8 Wall. (U. S.) 85. Cases arising in the land or the naval forces, or in the militia, in time of war or public danger, are excepted from the necessity of presentment and indictment by a grand jury; and the right to a trial by jury, in such cases, is, during such service, surrendered. Ex parte Yerger, 8 Wall. (U. S.) 85. service (and then only) they fall under the provisions of the mutiny act, and are liable to military discipline. To return to our former system, when the nation was engaged in war, more veteran troops and more regular discipline were esteemed to be necessary, than The regular could be expected from a mere militia. And therefore at such troops. times more rigorous methods were put in use for the raising of armies, and the due regulation and discipline of the soldiery: but such methods were 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. We find it indeed laid down(t), that if a lieutenant, or other having commission of martial authority, should in time of peace hang or otherwise execute any man by colour of martial law, this is murder, for it is against magna carta (u). The petition of right(x) *moreover enacts, that no soldier [ *498] 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 II. kept up about five thouBand regular troops, by his own authority, for guards and garrisons; which king James II. 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 with the consent of parliament, is against law. Origin of our Mutiny Act. But as the fashion of keeping standing armies (which was introduced by Charles VII. in France, A. D. 1445(z)) has long prevailed in Europe, it has also, for many years past been annually judged necessary by our legisstanding army. lature, 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, to maintain even in time of peace a standing body of troops, under the command of the crown. An act of parliament is therefore annually passed, for the purpose of allowing the maintenance of a body of troops, whose number is specified therein, and who are ipso facto disbanded at the expiration of every year, unless continued by parliament. This annual statute, called the Mutiny Act(a), has been now passed for many years, with very slight alterations, except as regards the number of the troops to be maintained. The preamble of this statute, after reciting that the raising or keeping a standing army in time of peace without the consent of parliament is illegal(b), and that it is adjudged necessary that a body of forces should be continued for the safety of the kingdom, and that no man can be forejudged of life or limb, or subjected, in time of peace, to any kind of *punishment within this realm by martial law(c), or in any other manner than by judgment of [ *499] his peers, according to the laws of the realm, and that it is requisite for the sake of discipline, that the army should be under a stricter régime, proceeds to enact that the sovereign may make articles of war for the government of the army, though such articles cannot subject any person to punishment extending to life or limb, or penal servitude, except so far as the act itself allows. It then enumerates the persons subject to the act, viz., all the commissioned and non (t) 3 Inst. 52. (u) John, c. 43; Hen. 3, c. 29. (x) 3 Car. 1, c. 1; see also stat. 31 Car. 2, c. 1. (y) Stat. 1 Will. & M. st. 2, c. 2. (2) Robertson, Charles V. i. 94. (a) The last Mutiny Act is stat. 32 & 33 Vict. c. 4. (b) Bill of Rights, 1 Will. & M. st. 2, c. 2. (c) Petition of Right, 3 Car. 1, c. 1. commissioned officers and privates in the army, together with various civilians, while serving in military establishments. The principal offences punishable under this act with death or penal servitude are mutiny, communication with the enemy in war time, delivering up any fort, garrison, &c., desertion, sleeping on duty, striking a superior officer, and embezzlement of stores. The act provides that all persons subjected to it are liable to be tried by the civil tribunals for ordinary crimes, and makes provision for the billeting of troops. Although soldiers are placed under stricter discipline and severer restrictions than most other subjects of the realm, yet they enjoy some peculiar advantages, among which may be mentioned pensions allowed for the relief of soldiers who are sick, hurt, and maimed: not forgetting the royal hospital at Chelsea, for such as are worn out in their duty.(125) No private soldier or non-commissioned officer is liable to be taken out of the service by arrest for any debt under 301., or for not supporting any relative or child, whom a person under other circumstances would be bound by law to support, or for not paying any sum he may be ordered to pay under an affiliation order(d). Soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms and solemnities, which *the [*500] law requires in other cases(e). Our law does not indeed extend this privilege so far as did the Roman law; which carried it to an extreme bordering on the ridiculous. For if a soldier, at the point of death, wrote anything in bloody letters on his shield, or in the dust of the field with the sword, it was a very good military testament(f). And thus much for the military state, as acknowledged by the laws of England (g). Maritime state. The maritime is nearly related to the military state. The royal navy of England has ever been its greatest defence and ornament; it is its ancient and natural strength; the floating bulwark of the island; an arm, moreover, 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 had our naval reputation attained in the twelfth century, that the code of maritime laws, which are called the laws of Oleron, and are received by European nations as the ground and substruction of their marine constitutions, was confessedly compiled by our king Richard I., at the isle of Oleron, on the coast of France, then part of the possessions of the crown of England (h). And yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign (d) 32 & 33 Vict. c. 4, s. 40. (e) Stat. 29 Car. 2, c. 3, ss. 19, 22; 5 Will. & M. c. 21, s. 4; 7 Will. 4 & 1 Vict. c. 26, s. 11. (f) Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo ipso tempore quo, in prælio, vitæ sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod. 6, 21, 15. (g) To increase the number of troops in time of emergency, two bodies of reserved troops (125) The United States government has made liberal provision for the payment of pensions to those who have been disabled in the course of military service in the land or naval forces; and for the widows and infant children of such as have been killed, or have died during such service. of queen Elizabeth, sir Edward *Coke(i) thinks it matter of boast, that the royal navy of England then consisted of three-and-thirty [ *501] ships. 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. Modes of sup And first, for their supply. The power of impressing sea-faring men for the sea service by commission from the crown has been a matter of some dispute, and submitted to with great reluctance; but it has clearly and plying the navy. learnedly been shown by sir Michael Foster(k), that the practice of impressing and granting powers to the admiralty for that purpose is of very ancient date, and has been uniformly continued by a regular series of precedents to the present time; whence he concludes it to be part of the common law (7). The difficulty once felt upon this subject arose doubtless partly from the fact that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it(m). And, by other statutes too numerous to be mentioned, especial protections have been allowed to seamen in particular circumstances to prevent their being liable to impressment. Irrespective of this method of impressing (which is only defensible on the ground of public necessity, to which all private considerations must give way), the navy is supplied by voluntary enlistment, and, by 22 & 23 Vict. c. 40, a useful force has been constituted called the royal naval reserve. This force is composed of volunteers from *the merchant service, who are subject to twenty-eight days' training in the year, and are liable in times of [ *502] necessity to serve for three years on being called on to do so by royal proclamation, which period may be extended to two years more. The proclamation calling them forth must be communicated to parliament if sitting, and declared in council if parliament be not sitting. Further, by 26 & 27 Vict. c. 69, masters and mates in the merchant service may be accepted as officers in the naval reserve. Articles of the navy. The method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules and articles, first enacted by the authority of parliament soon after the Restoration(n): but since new modelled and altered by various statutes, the last of which at present governing our navy is the 29 & 30 Vict. c. 109. The provisions of this statute are in many respects similar to those of the Mutiny Act, though a distinction must here be noticed that whereas the acts for the government of the army have been annual, those regulating the navy have not been so limited in duration. Whence this distinction arose, it might be hard to assign a reason: unless it proceeded from the establishment of the navy being perpetual, which rendered a permanent law for its regulation expedient; and the temporary duration of the army, which subsisted only from year to remedy against their running away. By 2 & year. But whatever was apprehended at the first enacting of a 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 engrafted into the British constitution; subject, however, to this condition, that any branch of the legislature may annually put an end to its legal existence, by refusing to concur in its continuance. sailors. The privileges conferred on sailors are nearly the same *as those [ *503] conferred on soldiers; with regard to relief when maimed, wounded, Privileges of or superannuated, either by pensions, or by admission into the royal hospital at Greenwich (o); and with regard to the power of making nuncupative testaments(p). Moreover no seaman under the rank of a commissioned officer can be arrested for a debt unless it was contracted before he entered the naval service(q). Royal Marines. Besides soldiers and sailors, there is in the pay of the crown a body of forces named the royal marines, who are principally intended for service on board ship, though they do duty likewise on land. These troops when on board vessels of the royal navy are, like sailors, under the provisions of the Naval Discipline Act; but when doing duty on land, in merchant vessels, or in any situation in which they do not come within the provisions of that act, they are regulated by a statute similar to the mutiny act, which is passed annually, and entitled "An act for the regulation of her Majesty's royal marine forces while on shore "(r). This act gives to marines the same protection from arrest that soldiers enjoy(s). We have seen that, by various enactments, persons belonging to the army, navy, and royal marines are placed under a stricter discipline and more stringent regulations than other subjects of the crown, and the military law which governs them is often, though incorrectly, spoken of as martial law. This term, however, is sometimes used in another sense, as indicating an abnegation of all law save the will of the commanding officer in war *time(t). [ *504] It is in reference to martial law taken in this latter sense, and supposed to be built upon no settled principles, but entirely arbitrary in its decisions, that sir Matthew Hale(u) observed, "in truth and reality it is not a law, but something indulged rather than allowed as a law "(x). He goes on, also, to say, that its only excuse is the necessity of discipline in the army(y), and that therefore it was only to extend to members of our own or of the enemy's army, and was never to be exercised in time of peace when the courts were open(z). It would (0) The in-pensioners at Greenwich Hospital are now much reduced in number, owing to a power given to substitute out-pensions as a preferable mode of relief. 28 & 29 Vict. c. 89. (p) To prevent frauds on sailors it is enacted that no will made by any seaman or marine, under the rank of a commissioned officer, shall be effectual to pass any wages, prize money, bounty, or other money payable by the admiralty, or any effects in their charge, unless certain formalities are complied with. 28 & 29 Vict. c. 73. (q) 29 & 30 Vict. c. 109, s. 97. (r) The last such act is the 32 & 33 Vict. c. 5. (8) Sect. 56. (t) The late Duke of Wellington is reported to have said in the House of Lords that martial law was neither more nor less than the will of the general in command, that in fact martial law meant no law at all. 115 Parl. Deb. 880. (u) Hist. Com. Law, c. 2. (x) See M'Arthur on Courts-Martial, 4th ed. vol. i. c. 3, p. 33. (y) Sir M. Hale, it will be remembered, wrote this when standing armies in peacetime were illegal, and when annual mutiny acts were unknown. (2) Smith, De Rep. Ang. 1. 2, c. 4; Brodie, Brit. Emp. vol. 1, pp. 204, et seq. |