the insertion therein of any new penal clauses. (1) 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 It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws, (4) the general scheme of which is to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)

(n) 15 Rym. 75.

(q) Stat. 16 Geo.

(1) Rushworth, part 3, pages 662, 667. See 8 Rym. 374, &c. (m) Stat. 1 Edw. III, st. 2, c. 5 and 7. 25 Edw. III. st. 5, c. 8. (0) Brit. 103. Edit. 1594. (p) 13 Car. II, c. 6. 14 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. 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 discipline 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 joining 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

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) The 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. (2) Robertson, Cha. V, i. 94.

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."]

To prevent the executive power from being able to oppress, says Baron Montesquieu, (a) 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-modelled 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 wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed 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 more 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 [ *415] 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 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 as a court martial shall inflict, though 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 rigour would not, one should hope, be productive of much inconvenience. And upon this principle, though by our standing laws (b) (still remaining in force, though not attended to,) desertion in time of war is made felony, without benefit of clergy, and the offence 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 tranquility. (c) 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 offences, has almost an absolute legislative power. (d) "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 [*416] 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 present constitution, the nobility and 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

(b) Stat. 18 Hen. VI, c. 19. 2 and 3 Edw. VI, c. 2.

(c) Ff. 49, 16, 5.

(a) Sp. L. 11. 6. (d) A like power over the marines is given to the lords of the admiralty, by another annual act "for the regulation of his majesty's marine forces while on shore." 265

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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 freemen! for Sir Edward Coke will inform us, (e) 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 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, (f) 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 towards 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 [ *417] depotic 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 intrust 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, and the only state of servitude in the nation.

But as soldiers, by this annual act, are thus put in a worse condition than any other subjects; so by the humanity of our standing laws they are in some cases put in a much better. By statute 43 Eiiz., c. 3, a weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt and maimed, not forgetting the royal hospital at Chelsea for such as are worn out in their duty. (9) Officers and soldiers that have been in the king's service are, by several statutes enacted at the close of several wars, at liberty to use any trade or occupation they are fit for in any town in the kingdom (except the two universities), notwithstanding any statute, 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. (g) Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament. (h) And thus much for the military state, as acknowledged by the laws of England. The maritime state is nearly related to the former, though much more agree[*418] able to the principles of our free constitution. The royal navy of England hath ever been its greatest defence and ornament; it is its ancient and natural strength; the floating bulwark of the island; an army from which, however strong and powerful, no danger can ever be apprehended to liberty; and accordingly it has been assiduously cultivated even from the earliest ages. To so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of

(f) Sp. L. 15, 12.

(e) 4 Inst. 352. (g) Stat. 29 Car. II, c. 3; 5 W. III, c. 21, § 6. (h) Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in prælio, vitæ sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod. 6, 21, 15.

(9) [Liberal pensions have been paid in the United States under various acts of congress, to the soldiers who have served honorably in their wars, and to the families of those who were killed or died in service. Military and naval hospitals have also been provided at the public expense.