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executor, or administrator, or receiving a legacy or gift, or bearing any office in England or Wales; and also to the payment of a fine of £500, the whole of which went to the informer.
It is obvious that this act was intended to operate against the Roman catholics, and had no reference to the protestant nonconformists; neither did it exclude them from seats in parliament. The statute, 30 Charles II., which was passed five years afterwards, in some degree furnishes a clue to the feeling which dictated the test act. It recites that the previous act 6 had not the desired effect, by reason of the free access which popish recusants have had to his majesty,” and extends the exclusion to members of parliament, but in such a way as not to include the protestant dissenters in its operation. It entirely omitted the sacramental test, and prescribed a declaration against popery, to be signed as the qualification for filling a seat in parliament, and also for acting as a sworn servant of his majesty, which last provision was afterwards repealed, so that the act operated only to the exclusion of the Romanists from parliament.
It may be farther added, that a bill for the express exemption of the protestant dissenters from the operation of the test laws, whom the act of uniformity, 14 of Charles II., had thrown into a separate body, passed the commons and was entertained by the peers in the same session in which the test act was passed; and a motion for incapacitating them to sit as members of parliament, was lost by a considerable majority. The house of commons have repeatedly in strong terms disavowed the application of these laws to them, as “ grievous to the subject,” and “ dangerous to the peace of the kingdom.” Occasional conformity for the sake of place and power, continued to be very usual, and a comprehension of all sects and parties under the wings of the church, was even contemplated by the nonconformists at one time. The question of the lawfulness or duty of such a conformity was much canvassed, and many arguments were advanced to avoid the sin of schism in all matters not deemed to be essential. At a meeting of the nonconformist ministers in 1666, after the act of uniformity was passed, it was agreed that communion with the established church of England, was in itself lawful and good; and the practice of occasional conformity was so frequent, that in 1711, the spirit of the laws of Charles II. was enforced by an act requiring not merely the taking of the sacrament, but perfect and entire conformity to the establishment. This act was however repealed in 1718, and the practice was in effect regulated by a provision against any officers of corporations taking their insignia of office to nonconformist places of worship.
The corporation act, the test act, and the act of uniformity, were all passed for the protection and legal fences of the church of England, and were rendered necessary by the apprehensions on the score of popery,
which was at that time meeting with great encouragement at couri; and also from the specimen of the moderation of the assembly of divines wbo met at Westminster, and who at first pretended only to moderate the episcopacy a little, to reform the liturgy, and give ease to tender consciences, but who ended their work by tearing the church of England up by the roots, banishing her prelates, and prohibiting the use of the liturgy entirely, under very heavy penalties: therefore these acts were passed soon after the Restoration as her legal fences. During the administration of the duke of Wellington, these legal fences were removed by an act* which passed both houses of parliament, and received the royal assent on the 9th May, 1828. This act repealed the test and corporation acts. After which it was not necessary for dissenters to receive the sacrament according to the rites of the church of England. They became eligible also to enter the corporations. This act will be found at page 308. It was a preparatory measure to enable the administration to repeal all the acts which affected the Roman catholics, and which took place the following year, on the 13th April, 1829.7
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. Almost every page of history is polluted with blood.
" Whence come wars and fightings? Come they not hence, even of your lusts, that war in your members ?” Pride, lust, and envy, have in all ages conspired against the
of society, and disturbed the repose of mankind. These vicious passions have at all times been the cause of that " distress of nations,” which is the necessary consequence of all wars and tumults. Self-preservation, however, being the first law of nature, those peaceable nations which are exposed to the rapacity of neighbouring powers of a more warlike or turbulent character, have found it necessary for their own safety to assume a warlike position.
It is extremely dangerous, in a land of liberty, to make the profession of arms a distinct order, because in free states, the profession of a soldier, taken singly and merely as such, is justly an object of jealousy. The laws and constitution of these kingdoms know no such state as that of a perpetual standing soldiery, bred up to no other profession than that of war.
* 9 Geo. IV, c. 17.
+ 10 Geo. IV., c. 7.—Statutes at Large-Blackstone's Commentaries, with Professor Christian's Notes-Custance on the Constitution
It was not till the reign of Henry VII. that the kings of England had even so much as a guard about their persons; and it was not till after the Revolution in 1688, that a perpetual standing army was kept up, rendered necessary by the wars into which that event plunged England.
At his coronation, Henry VII. instituted, partly from pomp, but chiefly from personal vanity, a band of fifty archers, who were termed yeomen of the guard. Henry was quite conscious that his title was questionable. A ware that an appearance so novel, and to which Englishmen were so unaccustomed, might naturally impress his subjects with the idea that he entertained a jealousy of their loyalty, and lest they might imagine that this force was raised to intimidate them, he declared the institution to be perpetual; and accordingly they form a part of the pomp and circumstance" of the court of St James to this day, and are still habited in the original uniform of the days of Henry VII. Our Scottish monarchs were not long in copying this piece of royal state and parade, and accordingly a body of yeomen were soon after embodied at Holyroodhouse by James V.
It seems universally agreed by all historians, that king Alfred first settled a national militia in England, and made all the subjects of his dominions soldiers, by a prudent discipline: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation. Under the Saxon monarchs of England, as appears from the laws of Edward the Confessor, the military array of England was under the command of dukes, that is leaders, or heretochs, who were constituted through every province and county in the kingdom; being elected from the principal nobility, and such as were remarkable for their wisdom, fidelity, and courage. Their power was almost unlimited, and their duties were, to lead and regulate the armies of England. On account of this great power and important trust, these leaders were generally elected by the Wittenagemot, or great council of the nation, agreeable to the ancient Saxon constitution, which was extremely jealous of intrusting power to those who might abuse it for the oppression of the people. This custom was common too among the Germans, from whom our Saxon ancestors sprang, who had their military leaders, as well as kings; the former pos. sessing an independent power over the military, as the kings exercised an absolute authority over the civil state. The leaders, or dukes, were elective, the kings hereditary. In the succession of their kings the right of primogeniture was adhered to, but in choosing the commanders of armies, courage, experience, and warlike merits, were the criterions. This unlimited power conferred on the military leaders, though intended for the benefit of the people, was highly detrimental to the prerogatives of the crown, which we have already shown, is more beneficial to the subjects when strong, than when in any way diminished by the encroach
ment of the people or any inferior power. In the reign of Edmund Ironside, Edric, duke or heretoch of Mercia, by the unlimited nature of his command in the king's army, and by his own repeated treacheries, at last enabled Canute the Dane to usurp the crown of England.
Upon the Norman Conquest, the feudal law was introduced here in all its rigour, the whole of which is built on a military plan. All the lands in the kingdom were divided into what were called knights' fees, consisting of sixty thousand. A knight or soldier, miles, was bound to attend the king in his wars for forty days in a year, in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious; by which sagacious plan, William the Conqueror had an army of sixty thousand men, without any expense, constantly ready at his command, and he commanded, under very severe penalties for neglect, the personal service of all knights and others. This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feudal system was abolished at the Restoration by the statute 12 Char. II. But although in the feudal times there was not a standing army for the suppression of internal insurrection, or the defence of the kingdom against external invaders, yet we are not to imagine that the kingdom was left wholly without defence. Besides those who by their military tenures were bound to perform forty days' service in the field, there were first the assize of arms, enacted by Henry II., and afterwards the statute of Winchester under Edward I., which 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 every hundred, by the Winchester statute, to see that such arms were provided. These weapons were changed in conformity with the change introduced by the use of gunpowder, by the statute of Philip and Mary, and other arins of more modern invention substituted; but both these were again repealed by James I. During the continuance of the two former statutes, it was usual for the sovereigns to issue commissions of array, and to send into every county, officers in whom they could repose confidence, to muster and set the inhabitants of every district into military array. The forin of this commission of array was settled in parliament in the reign of Henry IV., when at the same time it was provided, that no man should be compelled to go out of the kingdoin at any rate, nor even out of his county, but in cases of urgent necessity; nor should provide substitutes, but by consent of parliament. Every man was obliged, 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. About the reign of Henry VIII. and his children, lord lieutenants began to be introduced as standing
representatives of the crown to keep the counties in military order. In the reign of bloody Mary, they are spoken of as known and regular officers, though they could not have been many years in use; and Camden mentions them in the reign of Elizabeth as extraordinary magistrates, that were constituted only in times of difficulty and danger.
Military affairs continued in this state till the repeal of the statutes of armour by James I. Afterwards, when king Charles I. was under the necessity of raising armies for the suppression of the rebellion in Scotland, he issued commissions of lieutenancy, and exercised those military powers which, from immemorial usage, as well as natural right, had been the prerogative of the crown. But the long parliament, stepping beyond the line of their duty and allegiance, disputed this undoubted prerogative, alleging that it merely rested on immemorial usage. Great heats and animosities were displayed in debating this unconstitutional question. The decision of this against the king, became at last the inmediate cause of the fatal rupture between that patriotic prince and his rebel parliament; for the two houses not only denied the prerogative of the crown, but illegally seized into their own hands the whole power and command of the militia. But after the happy Restoration, when the nation was delivered from the cruel military bondage of Oliver Cromwell, the parliament recognized the sole right of the king to govern and command the military state, by the following statute: “ Forasmuch as within all his majesty's realms and dominions, the sole supreme government, command, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was, the undoubted right of his majesty and his royal predecessors, kings and queens of England, and that both or either of the houses of parliament cannot nor ought to pretend to the same ; nor can, nor lawfully may raise or levy any war, offensive or defensive, against his majesty, his heirs or lawful successors ; and yet the contrary thereof hath of late years been practised, almost to the ruin and destruction of this kingdom; and, during the late usurped government, many evil and rebellious principles have been instilled into the minds of the people of this kingdom, which, unless prevented, may break forth to the disturbance of the peace and quiet thereof."*
Soon after the restoration of Charles II., when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination; and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted; the general
* 13 Ch. 1. c. 6.