204 
A R M Y. 
and difcipline of the foldiery: which are to be looked up¬ 
on only as temporary excrefcences bred out of the diflent- 
per of tlie Hate, and not as any part of the permanent and 
perpetual laws of the kingdom. For martial law, which 
is built upon no fettled principles, butds entirely arbitrary 
In its decifions, is, as Sir Matthew FI ale obferves, in truth 
and reality no law, but fomething indulged rather than 
allowed as a law. The neceflity of order and difcipline in 
an army is th.e 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 perfons to receive 
jnllice according to the laws of the land. Wherefore, 
Thomas earl of I.ancafler being convicted at Pontefraft, 
x5Edw.1l. by martial law, his attainder was reverfed 
1 Edw. III. becaufe it was done in time of peace. And 
it is laid down, that if a lord-lieutenant, or other, that 
hath commillion of martial authority, doth in time of peace 
hang or otherwife execute any man by colour of martial 
law, this is murder; for it is again!! magna charta. And 
the petition of right enafts, that no foldier (hall be quar¬ 
tered on the ftibjeft without his own confent; and that no 
convmiffion fit all ifl'ue to proceed within this land accord¬ 
ing to martial law. And whereas, after the Relloration, 
Charles II. kept up about 5000 regular troops, by his own 
authority, for guards and garrifons; which James IT. by 
degrees increafed to no lefs than 30,000, all paid from his 
own civil lift; it was made one of the articles of the bill 
of rights, that the raifing or keeping a Handing army with¬ 
in the kingdom in time of peace, unlefs it be with confent 
of parliament, is againft law. 
But, as the fafliion of keeping (landing armies, which 
was firft introduced by Charles VII. in France, in 1445, 
has univerfally prevailed over Europe, (though fome of 
its potentates, being unable themfelves to maintain them, 
are obliged to have recourfe to richer powers, and receive 
fubfidiary penfions for that purpofe,) it has alfo for many 
years pafl been annually judged neceflary by our legiflature, 
for the fafety of the kingdom, the defence of the poffeflions 
of the crown of Great Britain, and the prefervation of the 
balance of power in Europe, to maintain even in time of 
pec.ce a Handing body of troops, under the command of the 
crown ; who are however ipfo fatto difoanded at the expi¬ 
ration of every year, unlefs continued by parliament. And 
it was enabled by flatute 10 Will. III. c. 1. that not more 
than 12,000 regular forces fliould be kept on foot in Ire¬ 
land, though paid at the charge of that kingdom: which 
permifiion is extended by Hat. 8 Geo. III. c. 13. to 16,235 
nten in time of peace. 
In a land of liberty, it is extremely dangerous to make 
a diflinft order of the profeffion of arms. In abfolute mo¬ 
narchies, this is neceflary for the fafety of the prince; and 
arifes from the main principle of their conHitution, which 
is that of governing by fear: but, in free Hates, the pro¬ 
feffion of a foldier, taken fmgly and merely as a profeffion, 
is juHly an objeft of jealoufy. In thefe no man fhould 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 becaufe he is a citizen, and an advocate for free¬ 
dom, that he makes himfelf for a while a foldier. The 
laws, therefore, and conHitution of thefe kingdoms, know 
no fitch Hate as that of a perpetual Handing foldier, bred 
up to no other profeffion than that of war; and it was not 
till the reign of Henry VII. that the kings of England had 
fo much as a guard about their perfons. Nothing then, 
according to thefe principles, ought to be more guarded 
.againft in a free Hate, than making the military power, 
when fnch a one is neceflary to be kept on foot, a body too 
diflinft from the people. It fliould wholly be compofed 
of natural fubjefts; it ought only to be enlifled fora fliort 
and limited time; the foldiers alfo fliould live intermixed 
with the people; no feparate camp, no barracks, no in¬ 
land fortrelfcs, fhould be allowed. And perhaps it might 
be H 11 better, if, by difiniffinga Hated number, and entitl¬ 
ing others at every renewal of their term, a circulation could 
be kept up between the army and the people, and the citi¬ 
zen and the foldier be more intimately connected together. 
To keep this body of troops in order, an annual aft of par¬ 
liament likewife pafles, “ to puniffi mutiny and defertion, 
and for the better payment of the army and their quar¬ 
ters.” This regulates the manner in which they are to be 
difperfed among the feveral inn-keepers and victuallers 
throughout the kingdom, and efiabliflies a law-martial for 
their government. By. this, among other things, it is enact¬ 
ed, that if any officer or foldier fliall excite or join any 
mutiny, or, knowing of it, fliall not give notice to the 
commanding officer, or fliall defert, or enlifl in any other 
regiment, or deep upon his pofl, or leave it before he is 
relieved, or hold correfpondence with a rebel or enemy, or 
flrike or ufe violence to his fuperior officer, or (hall difo- 
bey liis lawful commands; fuch offender fliall fuffer fucli 
punifliment as the court-martial (hall inflict, though it ex¬ 
tend to death itfelf. 
However expedient the mofl drift regulations may be 
in time of aftual war, yet, in times of profound peace, a 
little relaxation of military rigour would not, we fliould 
hope, be produftive of much inconvenience. And, upon 
this principle; though by our (landing laws (Hill remaining 
in force, though not attended to) defertion in time of war 
is made felony without benefit of clergy, and the offence 
is triable by a jury, and before the judges of the common 
law ; yet, by our military laws, a much (lighter puni(h- 
ment is inflicted for defertion' in time of peace. So, by 
the Roman law alfo, defertion time of war was punifhed 
with death, but more mildly in time of tranquillity. But 
our mutiny-aft makes no fuch diflinftion : for any of the 
faults above-mentioned are, equally at all times, punifha- 
ble with death itfelf, if a court-martial fliall think proper. 
This diferetionary power of the court-martial is indeed to 
be guided by the direftions of the crown ; which, with re¬ 
gard to military offences, lias almoff an abfolute legiflafive 
power. “ His majefty (fays the aft) may form articles of 
war, and conffitute courts-martial, with power to try any 
crime by fucli articles, and inflift fuch penalties as the ar¬ 
ticles direft.” A vaft and mod important truft! an unli¬ 
mited power to create crimes, and annex to them any pu- 
nifhments not extending to life or limb ! Perhaps, in fome 
future revifion of this aft, which is in many refpefts haflily 
penned, it may be thought worthy the wifdom of parlia¬ 
ment to afeertain the limits of military fubjeftion, and to 
enaft exprefs articles of war for the government of the 
army, as is done for the government of the navy; efpe- 
cially as, by our prefent conHitution, the nobility and 
gentry of the kingdom, who ferve their country as militia 
officers, are fubjefted to the fame arbitrary rule during 
aftual fervice. 
One of the greatefl advantages of our law is, that not 
only the crimes themfelves which it puniflies, but alfo the 
penalties which it inflifts, are afeertained and notorious : 
nothing is left to arbitrary diferetion; the king by his 
judges difpenfes what the law has previoufly ordained, 
but is not himfelf the legiflator. How much, therefore, 
is it to be regretted, that a fet of men, whofe bravery has 
fo often preferved the liberties of their .country, fliould be 
reduced to a Hate of fervitude in the midfl ot a nation of 
free men ; for Sir Edward Coke and judge Blackflone in¬ 
form us, that it is one of the genuine marks of fervitude, 
to have the law, which is our rule of aftion, either con¬ 
cealed or precarious; Mifera ejl fervitus, ubijus ejl vagum aut 
incognitum. Nor is this Hate of fervitude quite confiflent 
with the maxims of found policy obferved by other free 
nations. But as foldiers, by this annual aft, are thus put 
in a worfe condition than any other fubjefts; fo, by the 
humanity of our Handing laws, they are in fome cafes put 
in a much better. By flatute 43 Eliz. c. 3. a weekly al¬ 
lowance is to be railed in every county for the relief of 
foldiers that are fick, hurt, and maimed ; not forgetting 
the royal hofpital at Chelfea for fucli as are worn out in 
their duty. Officers and foldiers, that have been in the 
king’s fervice, are, by feveral flatutes, at liberty to ufe 
any trade or occupation in any town in the kingdom (ex¬ 
cept 
