profession of arms. (1) 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, (a) 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 [ *409] 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 same 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. (b) 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 king's hereditary; for so only can be consistently understood that passage of Tacitus, (c) "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 defence, they elected leaders to command them. (d)

a) C. de Heretochiis,

(b) Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vicecomites, provinciarum et comitatuum eligi debent." LL. Edw. Confess. ibid. See also Bede, Eccl. Hist. l. 5, c. 10.

(c) De Morib. Germ. 7.

(d) Quum bellum civitas aut illatum, defendit aut infert, magistratus qui ei bello præsint deliguntur." De Bell. Gall. l. 6, c. 22.

(1) The constitutional jealousy of standing armies, always so observable in England, and especially, in modern times, during the reign of William III, has found expression in several provisions in the constitution of the United States. "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." 2d amendment. "Congress shall have power to raise and support armies, but no appropriation to that use shall be for a longer time than two years." Art. 1, § 8. "No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law." 3d amendment. The purpose has been to hold the military at all times in complete subordination to the civil power, and the regular army which is maintained is only that which is deemed necessary to garrison forts, and preserve the peace with the Indians. The whole available military force of the United States at the time of the breaking out of the recent civil war, was only 16,006 men; a number surprisingly small when we consider the vast extent of our country, and the long frontier line bordered by tribes of savages. Immediately on the restoration of peace the immense armies in the field were for the most part disbanded, and the force reduced by September 30, 1867, to 56,815. This was still further reduced the next year to 43,741. The constitutional provision inhibiting appropriations for the army for a longer period than two years makes the executive, as commander-in-chief, at all times dependent upon the legislative department, and his power is further restricted by another provision which confers upon congress the authority to make rules for the government of the army and navy, and for the militia of the states when called into the service of the nation. Art. 1, § 8.

The division of powers between the nation and the states being such as to vest in the former authority over all those subjects falling within the province of international law, the states are forbidden, without the consent of congress, to keep troops or ships of war in the time of peace, or to engage in war unless actually invaded, or in such imminent danger as will not admit of delay. Const. of U. S., art. 1, § 10.

This large share of power, thus conferred by the people, though 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; though, 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 [ *410] Edward the Confessor, though 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 rigour, 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; 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. (e) 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 Conquerer, (f) 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 de 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 (3) of the feudal system was abolished at the restoration, by statute 12 Car. II, c. 24.

In the mean time we are not to imagine that the kingdom was left wholly without defence in case of domestic insurrections, or the prospect of foreign invasions. Besides those who by their military tenures were bound to perform forty days' service in the field, first the assize of arms, enacted 27 Hen. *II, (h) and afterwards the statute of Winchester, (i) under Edward I, obliged [ *411] 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 all hundreds by the latter statute, to see that such arms were provided. These weapons were changed, by the statute 4 and 5 Ph. and M. c. 2, into others of more modern service; but both this and the former provisions were repealed in the reign of James I. (k) While these continued in force, it was usual from time to time for our princes to issue commissions of array, and send into every county officers in whom they could confide, to muster and array, or set in military order, the inhabitants of every district; and the form of the commission of array was settled in parliament in the 5 Hen. IV, so as to prevent

(e) The Poles are, even at this day, so tenacious of their ancient constitution, that their pospolite, or militia. cannot be compelled to serve above six weeks, or forty days in a year. Mod. Un. Hist. xxxiv. 12. (f) C. 58. See Co. Litt. 75, 76. (h) Hoved. A. D 1181. (i) 13 Edw. I. c. 6.

(k) Stat. 1 Jac. I, c. 25. 21 Jac. I, c. 28.

(2) [We frequently read of half a knight, or other aliquot part, as for so much land three Knights and a half, &c., were to be returned: the fraction of a knight was performed by a whole knight who served half the time, or other due proportion of it.]

(3) [The military or warlike part of the feudal system was abolished, when personal service was dispensed with for a pecuniary commutation, as early as the reign of Henry II. But the military tenures still remained till 12 Car. II, c. 24. See book 2, p. 77.]

the insertion therein of any new penal clauses. (7) But it was also provided (m) that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of King Henry the Eighth, or his children, lieutenants began to be introduced, (n) as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 and 5 Ph. and M. c. 3, though they had not been then long in use, for Camden speaks of them (o) in the time of Queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger. But the introduction of these commissions of lieutenancy, which contained in substance the same powers as the old commissions of array, caused the latter to fall into disuse.

In this state things continued till the repeal of the statutes of armour in the reign of King James the First: after which, when King Charles the First had, during his northern expeditions, issued commissions of lieutenancy, and exerted some military powers, which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, long agitated [*412] with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament; the two houses not only denying this prerogative of the crown, the legality of which perhaps might be somewhat doubtful, but also seizing into their own hands the entire power of the militia, of the illegality of which step could never be any doubt at all.

Soon after the restoration of King Charles the Second, 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: (p) and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws, (4) the general 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 lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm (or any of its dominions or territories), (q) nor in any case compellable 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 to the rigours of martial law, as necessary to keep them in order. This is the constitutional security which our laws (r) have provided for the public peace, and for protecting the realm against foreign or domestic violence. (5)

(1) Rushworth, part 3. pages 662, 667. See 8 Rym. 374, &c.
(m) Stat. 1 Edw. II, st. 2, c. 5 and 7. 25 Edw. III. st. 5, c. 8.

(n) 15 Rym. 75.

(0) Brit. 103. Edit. 1594. (p) 13 Car. II, c. 6. 11 Car. II, c. 3. 15 Car. II, c. 4.

III. c. 3.

(r) 2 Geo. III, c. 20. 9 Geo. III, c. 42. 16 Geo. III, c. 3. 18 Geo. III, c. 14 and 50.

(q) Stat. 16 Geo. 19 Geo. III, c. 72.

(4) [The present militia system is mainly regulated by 42 Geo. III, c. 90, as altered and amended by many subsequent acts, the last of which is 32 and 33 Vic. c. 13. The general scheme of the legislature has been to discipline a certain number of the inhabitants of every county, chosen by lot for five years, and officered by the lord lieutenant, the deputy lieutenants, and other principal land owners under a commission from the crown.]

(5) In the United States the individual states discipline and officer the militia, but congress may provide therefor, and also for calling them forth to execute the laws of the Union, suppress insurrections and repel invasions. Const. art. 1, § 8. When thus called forth the president is commander-in-chief: art. 2, § 2; and congress may provide for their government. Art. 1, 8. By the act of Feb. 28, 1795, the president was empowered to call forth the militia to repel invasions, or, in imminent danger thereof, to put down insurrections or enforce the

When the nation was engaged in war, more veteran troops and more regular disc pline were esteemed to be necessary than could be expected from a mere militia. And therefore at such times more rigorous methods were put in use for the *raising of armies, and the due regulation and discipline of the soldiery which are to be looked upon only as temporary excrescences [ *413 ] bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, (s) in truth and reality no law, but something indulged rather than allowed as a law. (6) The necessity of order and discipline in an army is the 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) (7)

laws against obstructions or combinations. 1 Statute at Large, 424. Under this statute it belongs to the president exclusively to determine when the contingency has arisen which makes the calling forth of the militia necessary. Martin v. Mott, 12 Wheat. 29.

(6) [This censure is by no means merited at the present day, whatever may have been the fact when Sir Matthew Hale wrote.]

(7) Military and martial law are frequently confounded, though the distinction between them is very plain and broad. Military law is that portion of the law of the land prescribed by the government to regulate the conduct of the citizen in his character as soldier. It is administered by military tribunals, and is equally in force in peace and in war. But it does not supersede the civil laws of the land, for any breach of which the soldier is liable to the same trial and punishment as the civilian. Martial law, on the other hand, is defined as being that military rule and authority which exists in time of war, and is conferred by the laws of war, in relation to persons and things under and within the scope of active military operations in carrying on the war, and which extinguishes or suspends civil rights, and the remedies founded upon them, for the time being, so far as may appear to be necessary in order to the full accomplishment of the purpose of the war. It is the application of military government-the government of force-to persons and property within the scope of it, according to the laws and usages of war, to the exclusion of the municipal government in all respects where the latter would impair the efficiency of military law or military action. Benet, Military Law, 14. And see 1 Kent, 341, note; 2 H. Bl. 98, per Lord Loughborough.

The occasions to consider the extent and force of martial law have happily not been numerous in America, but it may be useful to refer to the most noted of them. The case of the declaration of martial law by Gen. Jackson at New Orleans, at the time of the attempt upon that city by the British forces in 1814-15, and the legal proceedings which grew out of it, will be remembered by all readers of American history, but the correctness, respectively, of the conduct of the general, and that of the judge who imposed a fine upon him for contempt of court, never received any more authoritative examination than that which it had in congress at the time the fine was refunded in 1842. See 2 Benton's Thirty Years' View, 599. It is settled in the United States that the legislature of a state may declare martial law throughout the state whenever in their opinion it may be necessary to thwart the purposes of those who are attempting, in an irregular manner, to revolutionize the state government; and that the military officers are exempt from civil responsibility for enforcing the declaration. Luther v. Borden, 7 How. 1. In this case and that of ex parte Mulligan, 4 Wal. 2, a very full and elaborate examination of the whole subject may be found. The facts in the case last mentioned were these: On the fifth day of October, 1864, Mulligan, who was a citizen of the United States, resident within the state of Indiana, was seized at his home in that state, by order of the United States military officer commanding therein, and on the 21st day of the same month, by order of such commander, put on trial before a military commission at Indianapolis, on the following charges:

1. Conspiring against the government of the United States.

2. Affording aid and comfort to rebels against the authority of the United States.

3. Inciting insurrection.

4. Disloyal practices.

5. Violation of the laws of war.

Under these charges there were various specifications, the substance of which was, the joiuing and aiding, at different times, between October 1863 and August 1864, a secret society known as the order of American Knights or Sons of Liberty, for the purpose of overthrowing the government and duly constituted authorities of the United States; holding communication with the enemy; conspiring to seize munitions of war stored in the United States arsenals, to liberate prisoners of war, &c., resisting the draft, &c., at or near Indianapolis, aforesaid, in

The

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) 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 prevailed [ *414 ] 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 parliament. And it was enacted by statute 10 Wm. 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. (8)

(u) 3 Inst. 52.

(v) Cap. 29.

(x) Thus in Poland no soldier can be Univ. Hist. xxxiv. 23.

(y) Stat. 1 W. and M. st. 2, c. 2.

(w) 3 Car. I. See also stat. 31 Car. II. c. 1.
quartered upon the gentry, the only freemen in that republic. Mod.
(z) Robertson, Cha. V, i. 91.

Indiana, a state "within the military lines of the army of the United States and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy." On all these charges Mulligan was found guilty by the commission and sentenced to be hanged, and the sentence was approved by the president.

The validity of these proceedings was questioned in the supreme court of the United States, on a writ of habeas corpus. It appeared in the case that, during the period of the alleged offenses and of the sitting of the commission, the benefit of the writ of habeas corpus was suspended under the permission of an act of congress, in the case of all persons held in custody by military officers by authority of the president, but it also appeared that the courts of the United States for the district of Indiana were open and unobstructed in the performance of their duties, and that a grand jury was summoned and sat in said court during the time when Mulligan was held in confinement awaiting trial.

Upon these facts it was decided by the supreme court of the United States that Mulligan was entitled to his liberty. That military commissions organized during the 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 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 and naval service; and that congress could not invest them with any such power. And it was further held, that the constitutional guaranty of trial by jury was iutended for a state of war, as well as a state of peace, and was equally binding upon rulers and people at all times and under all circumstances. See further, In re Kemp, 16 Wis. 359; Todd, Par. Gov. vol. 1, p. 342.

Respecting martial law the judicial decisions are numerous, and cover a great many points. The civil courts, however, exercise no supervision over the military except to see that they keep within their jurisdiction.

(8) [It is perfectly lawful to employ soldiers to preserve the 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 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."]

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