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.
In the time of our Saxon ancestors, as appears from Edward the
Confessor's laws, 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
coronæ et utilitatem regni_." And because of this great power they
were elected by the people in their full assembly, or folkmote, in the
manner as sheriffs were elected; following still that old fundamental
maxim of the Saxon constitution, that where any officer was entrusted
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. 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, "_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
defense, they elected leaders to command them. This large share of
power, thus conferred by the people, tho 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; tho, from what was last observed, the dukes
seem to have been left in possession of too large and independent a
power; which enabled Duke Harold on the death of Edward the Confessor,
tho 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 feudal law was introduced here in all its
rigor, 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 (1); 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. 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,
which in the king's name commands and firmly enjoins the personal
attendance of all knights and others: "_quod habeant et teneant se
semper 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 part of the feudal system was abolished at the
Restoration....
As the fashion of keeping standing armies, which was first introduced
by Charles VII in France, 1445 A.D., has of late years universally
prevailed over Europe (tho 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 defense 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, tho 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.
To prevent the executive power from being able to oppress, says Baron
Montesquieu,[49] it is requisite that the armies with which it is
entrusted should consist of the people, and have the same spirit with
the people; as was the case at Rome, till Marius new modeled 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 be wholly composed of natural subjects; it ought only to be
enlisted for a short and limited time; the soldiers also should live
intermixt 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 mere intimately connected
together.
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
victualers 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 a court martial shall inflict, tho 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
rigor would not, one should hope, be productive of much inconvenience.
And upon this principle, tho by our standing laws (still remaining in
force, tho not attended to), desertion in time of war is made felony,
without benefit of clergy, and the offense 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. 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
offenses, 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
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, 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
constitution, the nobility and the gentry of the kingdom, who 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 free men! for Sir
Edward Coke[50] will inform us 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 the state of servitude 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, 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 toward 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
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 entrust 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.