purely defensive force, and not available for foreign service.1 There was, however, nothing to prevent the king from hiring soldiers if he could afford to do so. Both Charles II. and James II. made use of this power, and kept on foot a certain number of troops. This at once raised the legal question of the king's power to discipline these troops.

The experience of the civil wars had shown that the rules of the common law were wholly inadequate for this purpose. The Petition of Right had made it quite clear that the rules of martial law were inapplicable to such an army in time of peace within the kingdom;3 and it was deemed to be a time of peace whenever the courts at Westminster were open, or, “if war be in any part of the kingdom," whenever the sheriffs could execute the king's writ. The impossibility of maintaining any sort of discipline in an army in the face of these rules was strikingly illustrated in the Scotch war of 1640.5 Shortly after the outbreak of the Great Rebellion, Parliament found that it was necessary to draw up a code of rules for the government of its troops. It drew up and issued such a code in 1642,6 which did not differ very materially from the Laws and Ordinances of War issued by Charles I. in 1639; and Charles II. in 1666 issued a similar code, which was modelled on that of 1642.8 similar codes were drawn up in 1672 and 1686.9 A similar course was pursued in the case of the navy. The series of ordinances, issued during the Great Rebellion by the generals at sea, were codified in Charles II.'s reign in the Duke of York's fighting instructions. 10 But while the code of Naval Discipline got statutory authority," this authority was, in the case of the army codes, deliberately withheld.12 The result was that the

1 Above 205.

3 Above 54; vol. i 576.

7

2 Above 217 n. 2.

Other

Rushworth, vol. ii Pt. ii App. 79, 81, citing Coke and Rolle; Hale, 1 P.C. 344 ; History of the Common Law 42-43.

"Lord Conway, in a letter to Archbishop Laud, says, "My lord of Northumberland did write to me, that having had occasion to look into the power he hath to give commissions, the lawyers and judges are all of opinion that martial law cannot be executed here in England, but when an enemy is really near to an army of the king's and that it is necessary that both my lord of Northumberland and myself do take a pardon for the man that was executed here for mutiny; if this be so, it is all one as to break the troops, for, so soon as it shall be known, there will be no obedience," Rushworth, vol. ii Pt. ii 1199.

6 Clode, Military Forces of the Crown i 24; Military and Martial Law (2nd ed.) 7 Ibid. 8 Ibid 15-19; cp. S.P. Dom. 1673-1675 74. 9 Ibid.

10-12.

10 Clode, Military and Martial Law (2nd ed.) 42; cp. Forsyth, Cases and Opinions on Constitutional Law 193-194.

11 13 Charles II. st. 1 c. 9; 16 Charles II. c. 5.

12 Marvel wrote in 1660, "The Act for the Militia hath not been called for of late, men not being forward to confirm such perpetuall and exorbitant power by a law, as it would be in danger if that Bill should be carryed on. 'Tis better to trust his

position of the soldier in relation to these military codes gave rise to conflicts and disputes with the civil authorities, and to legal problems to which it was difficult to find an answer. But it was not difficult for a king who had secured a subservient bench of judges to solve most of these problems in his own favour.

It is clear from a tale told by Bramston in his autobiography 1 that, in the army, an opinion was gaining ground that soldiers were exempt from all civil jurisdiction. He tells us that on one occasion the justices sent for a trooper, who was accused of rape, upon which, "the officers came and expostulated the matter with the justices, insisting upon their being exempt from the jurisdiction of the justices, and punishable only by martial law.' At another meeting of officers the same views were expressed, and were justified by saying that otherwise it would be hard upon the soldiers "to be subject both ways, to a Counsel of war, and the other power, too." James II. seems sometimes to have been prepared to act on this theory; and it is clear that, against officers who acted on it, it might be very difficult for a civilian to get the redress to which he was legally entitled.

That this view held by the officers was erroneous, and that soldiers were amenable to the jurisdiction of the civil courts, was forcibly stated by Hale, C.J., in a case in which a captain was brought before him for having commanded the rescue of one of his men from the officers of the Compter by a troop of soldiers. "You are the king's servants," he said to the captain, "and intended for his defence against his enemies, and to preserve the peace of the kingdom; not to exempt yourself from the authority of the laws. And indeed it were a vain thing to talk of Courts and laws, if military men shall thus give the law, and control legal proceedings. . . . Whatever you military men think, you shall find that you are under civil jurisdiction, and you but gnaw a file, you will break your teeth, ere you shall prevail against it." The correctness of this view was, as Bramston

Majesty's moderation, and that the commissioners if they act extravagantly, as in some countyes, should be liable to actions at Law," Works ii 30.

1 Autobiography (C.S.) 126-127.

2 Reresby tells us, Memoirs 254, that, when made governor of York, he informed the mayor that he was willing to deliver up to justice soldiers charged with capital crimes, if notice was first given to him; but that " for less crimes, as batteries, quarrels, or smaller misdemeanours, I expected complaint to be made to me, and to have the punishment of them myself"; cp. Clode, Military Forces of the Crown i 77; Military and Martial Law (2nd ed.) 17, 18, citing a Proclamation of 1672 that subjects were to appeal to an officer for protection against injuries committed by soldiers; for some difficulties at Hull in 1668 see Marvel's Letters, Works ii 257-265.

3 See Rex v. Browne, Corbet and others (1687) 2 Shower 484. The Case of Captain C. (1673) 1 Ventris at p. 251. Note that both Coke, Third Instit. 52, and Hale, P.C. i 500, agreed that to put a soldier to death under martial law in time of peace was murder.

records,1 stated by Clarendon, and admitted even by the crown. In 1672 it was announced that the provisions of the military code, drawn up in that year, were only intended to be applied to soldiers abroad. And though no doubt soldiers were tried for minor military offences by court martial, it seems to have been assumed that more serious crimes must be dealt with by the courts of common law. Thus in 1685, after the suppression of Monmouth's rebellion, Kirke was directed to send soldiers guilty of such crimes to the ordinary courts for trial, as the military code was in force only during the actual rebellion.* Under these circumstances it was important that the common law should be so interpreted that it was possible by its means to keep the army together. It was possible to contend that the provisions of certain statutes made desertion a felony. Obviously, if this contention were upheld, the soldiers could be kept together, and the task of the officers in subjecting them to the discipline of the military codes would be much facilitated.

5

The question whether or not desertion was felony is by no means clear. A statute of Henry VII.'s reign had enacted that if a soldier "immediately retained with the king, which shall be in wages or retained or take any present to serve the king upon the sea or upon the land beyond the sea," deserted, he should be guilty of felony. Obviously this statute did not apply to a soldier in England who deserted. But a subsequent statute of Henry VIII.'s reign enacted that the desertion of a soldier retained to serve the king upon the sea or upon the land or beyond the sea" should be felony. Obviously this statute might be interpreted to apply to a soldier in England who deserted. But it might be argued that these statutes of Henry VII. and Henry VIII.'s reigns had been repealed by statutes of Edward VI. and Mary's reigns, which abolished all new felonies created since I Henry VIII. It was, however, held in 1601, in the Case of Soldiers, that Henry VIII.'s statute was not repealed because it only created a felony which was a felony by Henry VII.'s statute. Hale, however, had grave doubts as to whether this construction was correct, because the statute of Henry VIII. was by no means a mere

1 Autobiography (C.S.) 127; and cp. Ekins v. Newman (1680) Th. Jones 147. 2 Clode, Military and Martial Law (2nd ed.) 15.

3 Above 227 n. 2.

4 Clode, Military Forces of the Crown, i 478.

57 Henry VII. c. 1.

63 Henry VIII. c. 5 § 2; this difference of wording is not observed by Coke, Third Instit. 86; it is noted by Hale, 1 P.C. 673, who says that this Act "is larger than 7 H. 7 for it extends to land service."

71 Edward VI. c. 12 § 3; 1 Mary st. I c. 1; cp. Hale, 1 P.C. 673-674. 8 (1601) 6 Co. Rep. 27a.

3

repetition of the statute of Henry VII.1 And it seems to me that, if the treatment of the desertion of a soldier in England as a felony was the result of a change made by the statute of Henry VIII., then clearly the statute of Henry VIII. created a new felony, which was abolished by the legislation of Edward VI. and Mary. But it would seem that what James II.'s judges did was to look at the words of the statutes of Henry VII. and VIII., to rule in accordance with the Case of Soldiers that both these statutes were in force, and to decide that therefore the desertion of a soldier in England was a felony. Holt resigned the recordership of London rather than concur in such a decision." We do not know the grounds of his dissent; but probably they were those which Hale has set out in his Pleas of the Crown. Having got this decision, James took it upon himself to interfere with the execution of the sentences pronounced by the courts of common law in a manner which was wholly unwarrantable, and aroused some feeling even among his subservient judges."

The whole position was thoroughly unsatisfactory. It was obviously expedient, if the crown retained troops, to prevent them from deserting; and it was still more expedient to discipline them by a military code. But the legality both of the ruling of the courts of common law that desertion was a felony, and of the codes of military discipline, was more than doubtful. It was a clear case for the intervention of the legislature. But there was not the least chance that the legislature would intervene in the only way in which the king would have permitted its intervention. All through Charles II.'s reign Parliament had shown the greatest jealousy of an army controlled by the crown.7 It is just possible that, after Monmouth's rebellion, James II. might have induced Parliament to concur in some kind of settlement, if he had abandoned his Romanizing policy. But all chance of this disappeared when, by the help of his dispensing power, he proceeded to introduce Roman Catholic officers into his army.

1 Alluding to other variations, he says, "If this variance by the statute of 3 H. 8 be a repeal of the statute of 7 H. 7 then they are both repealed, that of 7 H. 7 by 3 H. 8, and that of 3 H. 8 by 1 E. 6 and 1 Mar.," Hale, 1 P.C. 674.

Hale, as we have seen (last note), had noted other variations which in his opinion prevented the statute of 3 H. 8 from being a mere repetition of 7 H. 7; he does not, however, lay much stress on this particular variation; but obviously if, owing to this difference of wording in the later Act, the desertion of a soldier in England had been made a felony, it, in effect, created a new felony.

3(1601) 6 Co. Rep. 27a.

*See Rex v. Beal (1687) 3 Mod. 124; S.C. 2 Shower 511.

* Bramston, Autobiography (C.S.) 245, 276; Bramston also mentions, ibid 276, a case in which a grand jury refused to find a true bill in such a case.

Ibid 273; cp. Rex v. Beal (1687) 3 Mod. 124.

7 See references cited by Hallam, C.H. iii 106 n. f.

Therefore both Charles II. and James II. found it necessary to attempt these unwarrantable extensions of their military prerogatives, if they were to preserve discipline among their troops. That they were unwarrantable is fairly obvious. Even if the legality of the decision that desertion could be treated as a felony could be defended, it is clear that no defence is possible of the extension of a prerogative, limited to the government of troops by martial law abroad or in time of war, to the government of troops in England and in time of peace.

If we remember that, from 1660 to 1688, the crown had been making use of these four different expedients to make itself and its prerogative the predominant partner in the state, we shall appreciate the true meaning and historical explanation of the provisions of the Bill of Rights and the Act of Settlement. They were designed to make it impossible for any future king to rely upon any such expedients. Let us analyse their provisions from these four points of view.

(i) The fact that James II. was in substance deposed gave a fatal blow to the theory of divine right, and the legitimist notions based upon it. No doubt, the formula adopted by the House of Commons endeavoured decently to veil the fact of his deposition, and the fact that Parliament had created a new king. But, as against the House of Lords, the House of Commons insisted successfully on its resolution that the throne was vacant; and this was decisive. The throne had been vacated, and Parliament had filled it. As the judges and lawyers, when consulted by the House of Lords, admitted, none of the rules of the common law were applicable to such a case. 3 It was a Revolution; and the people, through their representatives in Parliament, had assumed the right to make and unmake kings. The Whig position was still further emphasized when a Tory Parliament passed the Act of Settlement, and entailed the crown upon a family that had no kind of claim to it except by virtue of this Act of Parliament.* The two breaks thus created in the order of succession by these

"That king James II., having endeavoured to subvert the constitution of this kingdom, by breaking the original contract between king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws, and having withdrawn himself out of the kingdom, has abdicated the government, and that the throne is thereby vacant."

2 Hallam, C. H. iii 95-97; Halifax was mainly instrumental in bringing the House of Lords into line with the House of Commons, Foxcroft, op. cit. ii 54-55; Clarendon, Diary ii 260 (cited Foxcroft, loc. cit.), says, "the great argument used by my lord Halifax (who was at the head of the prevailing party, and drove furiously) was necessity; and that the crown was only made elective pro hac vice, and then reverted to its hereditary channel again.

3 Hist. MSS. Com. 12th Rep. App. Pt. vi 15-17. 412, 13 William III. c. 2.