« PreviousContinue »
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-lieutenant, and other principal landholders, under a commission from the crown. They cannot be compelled to march out of their counties, unless in cases of invasion or actual rebellion, nor in any case 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, like regular troops, to the rigours of martial law, which is absolutely necessary for the preservation of discipline. This is the constitutional security which the British laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes declare are essentially necessary for the safety and prosperity of the kingdom.
But when the nation was engaged in war, more veteran and better disciplined troops were esteemed necessary, than could be expected from a mere militia; and therefore at such times more vigorous methods were adopted for the raising of armies and the due regulation and discipline of the soldiery, which are merely to be viewed as temporary excrescences arising out of the violence of men's passions, rather than as a permanent and perpetual law of the kingdom; because martial law is built upon no settled principles, but is entirely arbitrary in its decisions, and is, as Sir Matthew Hale observes, in truth and reality no law, but something permitted rather than enacted as law. Order and discipline in the army is of absolute necessity. Martial law, therefore, ought not to be permitted in time of peace, when the king's courts are open for every one to receive justice according to the known laws of the land. And it is upon record, that Thomas, earl of Lancaster, being convicted by martial law at Pontefract, in the fifteenth year of the reign of Edward II., his attainder was reversed by Edward III., and his corruption of blood restored, on account of the illegality of martial law in the time of peace. And the law establishes that if a lieutenant or other officer that bath a commission of martial authority, doth in time of peace hang, or otherwise execute any man, by colour of martial law, it is murder, for it is against magna charta. And the petition of right enacts, that no soldiers 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 although after the Restoration king Charles II. maintained five thousand regular troops for guards and garrisons, which the disturbed state of Scotland required; and king James II. by degrees increased this army to thirty thousand, and all paid out of his own civil list; yet it was made one of the articles of the bill of rights, that the raising or keeping a standing army within
the kingdom in time of peace, unless with consent of parliament, is against law.
It has also for many years past been annually judged necessary for the safety of the kingdom, the defence of the possessions of the crown, and the preservation of the balance of power in Europe, to maintain a standing body of troops even in time of peace, under the command and at the entire disposal of the crown; but who are ipso facto disbanded at the expiration of every year, unless continued by parliament. “This plan of keeping a standing army in time of peace was first introduced by Charles VII. of France about the year 1445, and has since become absolutely necessary, from the military attitude of other powers. “ To prevent," says Montesquieu, “ the executive power from being able to oppress, it is requisite that 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 newmodelled the legions, by enlisting the Italian rabble, and laid the foundation of all the military tyranny that ensued.” According to these principles, then, nothing ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept afoot, a body too distinct from the people. It should therefore, like our own, be a body entirely composed of natural born subjects; and to be enlisted for a limited time.
To keep this body of troops in order, an annual act of parliament likewise passes,“ 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 into 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. Although the strictest discipline and most exact regulations be not only expedient, but absolutely necessary, during the time of actual war, yet in times of profound peace the severity of military discipline may, in some measure, be relaxed without much public inconvenience. Upon this principle desertion in time of war is made felony without benefit of clergy, and the offence is tryable by a jury, and before the judges of the common law; yet by the militia laws a much lighter punishment is inflicted for desertion during peace. If in a court martial the charge of desertion is proved, the court must pass the sentence of death; they
have no alternative. But to avoid this, and to give the deserter the lighter punishment, the offence is called “ being absent without leave," which is a milder way of expressing this most shameful crime, and which, if proved, subjects the deserter to an arbitrary punishment at the discretion of the court. By the ancient Roman law, desertion in time of war was punished with death, but more mildly in tranquil times. 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 a court martial is guided by the directions of the crown, which, with regard to military offences, has almost an absolute legislative power. “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 such penalties as the articles direct."
One of the greatest advantages of our 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. By his judges the king dispenses what he himself, with the advice of parliament, has previously ordained. How much, therefore, is it to be regretted, that a body of men, whose courage and bravery have so frequently preserved the liberties of their country, should be reduced by their military discipline to a state of servitude in the midst of a nation of freemen; for Sir Edward Coke says, that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious. Neither is this state of servitude altogether consistent with the maxims of the sound policy observed by other free nations. For the greater the general liberty is, that any state enjoys, the more cautious has it usually been in introducing slavery in any particular order or profession. These men, as Montesquieu observes, seeing the liberty which others possess, and from which they themselves are excluded, are apt to live in a state of perpetual envy and hatred towards the rest of the community, and to indulge a malignant pleasure in contributing to destroy those privileges which they cannot themselves enjoy.
This annual act places soldiers in a worse condition than that of any other subjects; but the humanity of our legislature has, in some cases, put them in a much better. By 43 Elizabeth, a weekly allowance is to be raised in every county for the relief of sick, hurt, and maimed soldiers, and the royal hospital at Chelsea is established for such as are worn out in the service. By several statutes, which have been enacted, officers and soldiers are at liberty to use any trade or occupation they are fit for, in any town in the kingdom, (except the two universities,) notwithstanding any statutes, 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. Our law does not indeed extend this privilege so far as the civil law, which carried it to an extreme bordering upon the ridiculous; for if a soldier in the article of death, wrote anything in bloody letters on his shield, or scratched with his sword, in the dust or sand, it was held valid as a good military testament.
The maritiine state is nearly allied to the former, though much more agreeable to the principles of our free constitution. The royal navy of England has ever been its best defence and ornament; its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger to liberty can be apprehended, and accordingly it has ever been assiduously cultivated, even from the
“ According to the Welsh Triads," says Southey," the earliest name by which Britain was known was Clas Merddiu, the seadefended spot: such an appellation may seem to have been prophetic. But the sea defends no people who cannot defend themselves : and it was with this feeling, that Wordsworth, the great poet of his age, poured forth a lofty strain, when looking from a valley near Dover, towards the coast of France, and the span of waters which separated us from our then most formidable neighbour, Napoleon Buonaparte : he said,
• Even so does God protect us, if we be
Only, the nations shall be great and free.' With all the ports of the continent in his possession, and all its navies at bis command, that narrow channel, that span of waters,' was found impassable by the most ambitious, the most powerful, the most enterprising, and the most inveterate enemy with whom this nation was ever engaged in war.” Great Britain had manfully won and victoriously maintained the dominion of the sea, and to so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, called the laws of Oleron, as compiled by Richard I. at that island on his way to Palestine, have been received by all the nations of Europe as the ground of all their marine constitutions.
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;* some of which are as follow :
1. Officers are to cause public worship, according to the liturgy of the church of England, to be solemnly performed in their ships, and to take care that prayers and preaching, by the chaplains, be performed diligently, and that the Lord's day be observed. 2. Persons guilty
* 13 Car. II., c. 9. 22 Geo. II., c. 22.
19 Geo, III., c. 17.
of profane oaths, cursing, drunkenness, uncleanness, &c., to be punished as a court martial thinks fit. 3. If any person shall give or hold intelligence to or with the enemy without leave, he shall suffer death. 4. If any letter or message from an enemy be conveyed to any in the fleet, and he shall not in twelve hours acquaint his superior officer with it, or if the superior officer, being acquainted therewith, shall not reveal it to the commander-in-chief, the offender shall suffer death, or such punishment as a court martial shall impose. 5. Spies and persons endeavouring to corrupt any one in the fleet, shall suffer death, or such punishment as a court-martial shall impose. 6. No person shall relieve an enemy with money, victuals, or ammunition, on like penalty. 7. All papers taken on board a prize shall be sent to the court of admiralty, &c., on penalty of forfeiting the share of the prize, and such punishment as a court martial shall impose. 8. No person shall take out of any prize any money or goods, unless for better securing the same, or for the necessary use of any of his majesty's ships, before the prize shall be condemned, upon penalty of forfeiting his share, and such punishment as shall be imposed by a court martial. 9. No person on board a prize shall be stripped of his clothes, pillaged, beaten, or ill-treated, on pain of such punishment as a court martial shall impose. 10. Every commander, who, upon signal or order for fight, or sight of any ship which it may be his duty to engage, or who, upon likelihood of engagement, shall not make necessary preparations for fight, and esicourage the inferior officers and men to fight, shall suffer death, or such punishment as a court martial shall deem him to deserve. And if any person shall treacherously or cowardly yield or cry for quarter, he shall suffer death. 11. Every person who shall not obey the orders of his superior officer in time of action, to the best of his power, shall suffer death, or such punishment as a court martial shall deem him to deserve. 12. Every person who, in time of action, shall withdraw or keep back, or not come into the fight, or do his utmost to take or destroy any ship which it shall be his duty to engage, and to assist every ship of his majesty or his allies, which it shall be his duty to assist, shall suffer death. 13. Every person who through cowardice, &c., shall forbear to pursue the chase of an enemy, or shall not assist or relieve a known friend in view
the utmost of his power, shall suffer death. 14. If any person shall delay or discourage any action or service commanded, upon pretence of arrears of wages, or otherwise, he shall suffer death, or such punishment as a court martial shall deem him to deserve. 15. Every person who shall desert to the enemy, or run away with any ship, ordnance, &c., to the weakening of the service, or yield up the same cowardly or treacherously to the enemy, shall suffer death. 16. Every person who shall desert, or entice others to do so, shall suffer death, or such punishment as a court martial shall think fit. If any commanding officer shall receive a deserter, after discovering him to be such, and shall not with speed give notice to the captain of the ship to which he belongs; or if the ship is at a considerable distance, to the secretary of the admiralty or commander-in-chief, he shall be cashiered. 17. Officers or seamen of ships appointed for convoy of merchant ships, or of any other, shall diligently attend upon that charge according to their instructions; and whosoever shall not faithfully perform their duty, and defend the ships in their convoy, or refuse to fight in their defence, or run away cowardly, and submit the ships in their convoy to hazard, or exact any reward for convoying any ship, or misuse the master or mariners, shall make reparation of damages as the court of admiralty shall adjudge, and be punished criminally by death, or other punish. ment, as shall be adjudged by a court martial. 18. If any officer shall receive or permit to be received on board, any goods or merchandise, other than for the sole use of the ship, except gold, silver, or jewels, and except goods belonging to any ship which may be shipwrecked, or in danger thereof, in order to the preserving them for the owners, and except goods ordered to be received by the lord high admiral, &c., he shall be cashiered and rendered incapable of farther service. 19. Any person making, or endeavouring to make any mutinous assembly, shall suffer death. Any person uttering words of sedition or mutiny, shall suffer death, or such punishment as a court martial shall deem him to deserve. If any officer, mariner, or soldier, in or belonging to the fleet, shall behave himself with contempt to his superior officer, being in the execution of his office, he shall be punished according to the nature of his offence by the judgment of a court martial. 20. Any person concealing any traitorous or mutinous practice or design, shall suffer death, or such punishment as a court