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CHAPTER VIII.

MILITARY AND NAVAL OFFICES.

THE jealous protection of national liberty provided by the British Constitution is nowhere more conspicuously displayed than in the laws regulating the maintenance of the military and naval forces of the kingdom. At first sight, it appears by no means easy to reconcile the two conflicting conditions required for the proper constitution of military forces their absolute obedience to the Executive on the one hand, constitutional control by the Legislature on the other. The one condition is necessary to the effectiveness of the army and navy, the other to the liberty of the people. The means by which these conflicting conditions are reconciled by our Constitution we have already had occasion to consider in part, and shall more fully discuss in the present chapter.

It is obvious that the liberties of the nation are much less liable to attack by a naval than by a military force. Accordingly, the former is much less jealously controlled by Parliament than the latter, for the navy is by law permanently established; while the power of maintaining the army is only temporary, and requires annual renewal by Act of Parliament.

Before considering the present government of the army and navy, it will be instructive to refer to a few particulars of their ancient constitution, and the gradual progress of the principles upon which their constitution is now settled.

The constitutional military forces of England soon after the Conquest consisted of feudal troops and the posse comitatus. The feudal troops were tenants of the Crown, or their vassals or under-tenants, who were obliged by their tenures to render military service both at home and abroad. The posse comitatus consisted of inhabitants of counties required to keep the peace within them, and to repel invasions; but not to serve abroad, nor in general to go out of their own counties.

Besides these constitutional forces there were in English armies and garrisons at all times, from the Conquest downwards, stipendiary troops, both national and foreign. They were paid partly out of the privy purse, and partly out of the feudal revenues of the Crown. The foreign troops were called in by several kings in their disputes with the great barons. From the time of Edward III., when it became customary for our kings to engage with their subjects by indentures to furnish soldiers at certain wages, most of our armies consisted of stipendiary troops. These were kept up only in time of war; and except garrisons and the small corps who formed the body-guards of the Crown, rather for the purposes of state than for military purposes, there were no permanent soldiers in England before the Civil War in the reign of Charles I. The standing army originated in England after the Restoration, and the most ancient corps of the present standing army are some regiments of Guards which were raised by Charles II., and were partly formed from corps raised during the civil wars. At the Revolution the military constitution was remodelled by Mutiny Acts, under which, with a few accidental intervals between the expiration of one Mutiny Act and the enactment of its successor, the army has continued ever since(a).

(a) Grose, Military Antiquities, ch. 4.

By 18 Edw. III. stat. 2, c. 7, men-of-arms, hoblers, and archers, chosen to go in the King's service out of England, shall be at the King's wages from the day they depart out of the counties where they were chosen till their return. By 25 Edw. III. stat. 5, c. 7, no man shall be constrained to

The system of maintaining the army under temporary Acts of Parliament was adopted at the commencement of the reign of William III. (a); and the Bill of Rights, passed in the same session, declared "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." For a long while afterwards the renewal by Parliament of the powers of the Crown to maintain a standing army was always the occasion of much opposition. In 1697, a message of the King to Parliament, telling them that in his opinion a standing land force was necessary, was received with great dislike by the House of Commons, and they resolved on disbanding a large part of the army, and reducing the forces to a number which was finally settled at 10,000. The King, who was much attached to his Guards, who came with him to England, sent a message to the House of Commons, to the effect that he was prepared to dismiss these Guards, " unless, out of consideration to him, the House be disposed to find a way for continuing them longer in his service, which his Majesty would take very kindly." The House however firmly, but respectfully, declared that they could not consent "without doing violence to that Constitution your Majesty came over to restore and preserve" (b).

The renewal of the Mutiny Act was strongly opposed in both Houses of Parliament in succeeding reigns, as an

find men-at-arms, hoblers, nor archers, other than those which hold by such services (i.e. by the military tenures referred to in the text), if it be not by common assent and grant made in Parliament.

It appears from the statute 18 Hen. VI. cc. 18, 19, A.D. 1439, that at that time the Crown raised military forces by Captains, who were bound by indentures to serve with specified numbers of men, and to pay them wages; and that gross abuses were practised by the Captains in abating the pay of their soldiers.

(a) By 1 Will. & Mary, sess. 2, c. 4, "An Act for punishing officers or soldiers who shall mutiny or desert their Majesties' service, and for punishing false musters."

(b) Burnet, Hist. of his own Times; note, p. 653 of the edition, London,

1850.

encroachment upon the liberties of England, by establishing martial law (a). In the Acts which passed, down to the commencement of the reign of Anne, the Articles were few in number, and some of them ill-defined. But in Anne's reign many new Articles were inserted, and others have since been added as the want of them became apparent, and the Mutiny Act now constitutes an extensive code of martial law.

The Act is now rarely altered in any particular from year to year, except that in the preamble the number of forces for each year is specially mentioned. It is observable that the Act contains no provision for raising such forces, which is tacitly left to be done by the Royal prerogative, but simply recites the number of troops which it is expedient to raise. The preamble repeats the declaration of the Bill of Rights of the illegality of maintaining a standing army in time of peace without the consent of Parliament. Another declaration of the preamble is similar to that of 25 Edw. III. stat. 5, recited in the Petition of Rights of 3 Car. I., viz. "that no man should be forejudged of life or limb against the form of the Great Charter and the law of the land."

The preamble of the Mutiny Act is well worth considering, on account of its constitutional importance. Its modern form is as follows:

"Whereas the raising or keeping a standing army within the United Kingdom of Great Britain and Ireland in time of peace, unless it be with the consent of Parliament, is against law And whereas it is adjudged necessary by her Majesty and this present Parliament that a body of forces should be continued for the safety of the United Kingdom, the defence of the possessions of her Majesty's Crown, and the preservation of the balance of power in Europe, and that the whole number of such forces should consist of [a number which varies from year to year]: And whereas no man can be forejudged of life or limb, or sub

(a) See 2 Smollett's Hist. of Eng. 367; reign of Geo. I.

jected in time of peace to any kind of punishment within this realm by martial law, or in any other manner than by judgment of his peers, and according to the known and established laws of this realm; yet nevertheless, it being requisite for the retaining of all the before-mentioned forces in their duty, that an exact discipline be observed, and that soldiers who shall mutiny or stir up sedition, or shall desert her Majesty's service, or be guilty of crimes and offences to the prejudice of good order and military discipline, be brought to a more exemplary and speedy punishment than the usual forms of the law will allow Be it therefore enacted," etc.

:

The Act provides that the Queen may make Articles of War for the government of the army, but that no person in this kingdom shall be subject by such articles to punishment extending to life or limb, or penal servitude, except so far as the Act allows. The Act strictly defines what persons are subject to its provisions. These are commissioned and non-commissioned officers and enlisted soldiers (except those belonging to the Indian forces), and certain

persons in the military service, including various civil officers while serving with the army, or in military establishments. The Militia forces, Yeomanry, and Volunteer corps are not in general subject to the Mutiny Act, except so far as it is extended to such corps by the Acts regulating them.

The Act proceeds to make various provisions for the constitution and conduct of courts martial, and the punishment of military offences. When such offences are to be punished by penal servitude either at home or abroad, the sentences are required to be communicated by the proper military authorities to judges of the superior courts of justice, who have jurisdiction to make orders for the penal servitude of the offenders, and the sentences are carried into execution as if they were sentences of the ordinary courts of justice. To the Secretary-at-War is given the general control of military prison and prisoners. Various provisions are also made respecting the enlistment, convey