266

MILITARY FORCE IN ENGLAND.

CHAP. IX. What was the extent of the king's lawful prerogative for two centuries or more after the Conquest as to compelling any of his subjects to serve him in foreign war, independently of the obligations of tenure, is a question scarcely to be answered. But Edward III., on the petition of his first parliament, who judged that compulsory service either was or ought to be rendered illegal, passed a remarkable act, with the simple brevity of those times: "That no man from henceforth should be charged to arm himself, otherwise than he was wont in the time of his progenitors, the kings of England; and that no man be compelled to go out of his shire, but where necessity requireth, and sudden coming of strange enemies into the realm; and then it shall be done as hath been used in times past for the defence of the realm."

This statute, by no means of inconsiderable importance in our constitutional history, put a stop for some ages to these arbitrary conscriptions. But Edward had recourse to another means of levying men without his own cost, by calling on the counties and principal towns to furnish a certain number of troops. Against this the parliament provided a remedy by an act in the 25th year of his reign: "That no man shall be constrained to find men at arms, hoblers, nor archers, other than those who hold by such service, if it be not by common consent and grant in parliament.”

The successful resistance thus made by parliament appears to have produced the discontinuance of compulsory levies for foreign warfare. Edward III. and his successors, in their long contention with France, resorted to the mode of recruiting by contracts with men of high rank or military estimation, whose influence was greater probably than that of the crown towards procuring voluntary enlistments. The pay of soldiers, which we find stipulated in such of those contracts as are extant, was extremely high; but it secured the service of a brave and vigorous yeomanry.

It is scarcely perhaps necessary to observe that there had never been any regular army kept up in England. Henry VII. established the yeomen of the guard in 1485, solely for the defence of his person, and rather perhaps, even at that time, to be considered as the king's domestic servants' than as soldiers. Their number was at first fifty, and seems never to have exceeded two hundred. A kind of regular troops, however, chiefly accustomed to the use of artillery, was maintained in the very few fortified places where it was thought necessary or practicable to keep up the show of defence; the Tower of London, Portsmouth, the castle of Dover, the fort of Tilbury, and, before the union of the crowns, Berwick and some other places on the Scottish border. But their whole number must have been insignificant, and probably at no time equal to resist any serious attack.

We must take care not to confound this strictly military force, serving, whether by virtue of tenure or engagement, wheresoever it should be called, with that of a more domestic and defensive character to which alone the name of militia was usually applied. By the Anglo-Saxon laws, or rather by one of the primary and indispensable conditions of political society, every freeholder, if not every freeman, was bound to defend his country against hostile invasion. It appears that the alderman or earl, while those titles continued to imply the government of a county, was the proper commander of this militia. Henry II., in order to render it more effective in cases of emergency, and perhaps with a view to extend its service, enacted, by consent of parliament, that every freeman, according to the value of his estate or moveables, should hold himself constantly furnished with suitable arms and equipments. By the statute of Winchester, in the 13th year of Edward I., these provisions were enforced and extended. Every man, between the ages of fifteen and sixty, was to be assessed, and sworn to keep armour according to the value of his lands and goods; for fifteen pounds and upwards in rent, or forty marks in goods, a hauberk, an iron breastplate, a sword, a knife, and a horse; for smaller property, less extensive arms. A view of this armour was to be taken twice in the year by constables chosen in every hundred. The sheriff, as chief conservator of public peace and minister of the law, had always possessed the right of summoning the posse comitatûs; that is, of calling on all the king's liege subjects within his jurisdiction for assistance, in case of any rebellion or tumultuous rising, or when bands of robbers infested the public ways, or when, as occurred very frequently, the execution of legal process was forcibly obstructed. The provisions, however, of the statute of Winchester, so far as they obliged every proprietor to possess suitable arms, were of course applicable to national defence. In seasons of public danger, threatening invasion from the side of Scotland or France, it became customary to issue commissions of array, empowering those to whom they were addressed to muster and train all men capable of bearing arms in the counties to which their commission extended, and hold them in readiness to defend the kingdom. The earliest of these commissions that I find in Rymer is of 1324, and the latest of 1557.

The obligation of keeping sufficient arms according to each man's estate was preserved by a statute of Philip and Mary, which made some changes in the rate and proportion as well as the kind of arms. But these ancient provisions were abrogated by James in his first parliament. The nation, become for ever secure from invasion on the quarter where the militia service had been most required, and freed from the other dangers which had menaced the throne of

268

OFFICE OF LORD LIEUTENANT.

CHAP. IX.

Elizabeth, gladly saw itself released from an expensive obligation. The government again may be presumed to have thought that weapons of offence were safer in its hands than in those of its subjects. Magazines of arms were formed in different places, and generally in each county: but, if we may reason from the absence of documents, there was little regard to military array and preparation; save that the citizens of London mustered their trained bands on holidays, an institution that is said to have sprung out of a voluntary association, called the Artillery Company, formed in the reign of Henry VIII. for the encouragement of archery, and acquiring a more respectable and martial character at the time of the Spanish Armada.

The power of calling to arms, and mustering the population of each county, given in earlier times to the sheriff or justices of the peace, or to special commissioners of array, began to be entrusted, in the reign of Mary, to a new officer, entitled the lord lieutenant. This was usually a peer, or at least a gentleman of large estate within the county, whose office gave him the command of the militia, and rendered him the chief viceregent of his sovereign, responsible for the maintenance of public order. This institution may be considered as a revival of the ancient local earldom; and it certainly took away from the sheriff a great part of the dignity and importance which he had acquired since the discontinuance of that office. Yet the lord lieutenant has so peculiarly military an authority, that it does not in any degree control the civil power of the sheriff as the executive minister of the law. In certain cases, such as a tumultuous obstruction of legal authority, each might be said to possess an equal power; the sheriff being still undoubtedly competent to call out the posse comitatûs in order to enforce obedience. Practically, however, in all serious circumstances, the lord lieutenant has always been reckoned the efficient and responsible guardian of public tranquillity.

From an attentive consideration of this sketch of our military law, it will strike the reader that the principal question to be determined was, whether, in time of peace, without pretext of danger of invasion, there were any legal authority that could direct the mustering and training to arms of the able-bodied men in each county, usually denominated the militia. If the power existed at all, it manifestly resided in the king. The notion that either or both houses of parliament, who possess no portion of executive authority, could take on themselves one of its most peculiar and important functions, was so preposterous that we can scarcely give credit to the sincerity of any reasonable person who advanced it. In the imminent peril of hostile invasion, in the case of intestine rebellion, there seems to be no room for doubt that the king, who

could call on his subjects to bear arms for their country and laws, could oblige them to that necessary discipline and previous training, without which their service would be unavailing. It might also be urged that he was the proper judge of the danger. But that, in a season of undeniable tranquillity, he could withdraw his subjects from their necessary labours against their consent, even for the important end of keeping up the use of military discipline, is what, with our present sense of the limitations of royal power, it might be difficult to affirm. There were so many points uncertain, and some wherein the prerogative was plainly deficient, such as the right of marching the militia out of their own counties, taken away, if it had before existed, by the act just passed against pressing soldiers, that the concurrence of the whole legislature seemed requisite to place so essential a matter as the public defence on a secure and permanent footing.

§ 11. The aim of the houses however in the bill for regulating the militia, presented to Charles in February, 1642, and his refusal to pass which led by rapid steps to the civil war, was not so much to remove those uncertainties by a general provision (for in effect they left them much as before), as to place the command of the sword in the hands of those they could control;-nominating in the bill the lords lieutenant of every county, who were to obey the orders of the two houses, and to be irremovable by the king for two years. No one can pretend that this was not an encroachment on his prerogative. It can only find a justification in the precarious condition, as the commons asserted it to be, of those liberties they had so recently obtained, in their just persuasion of the king's insincerity, and in the demonstrations he had already made of an intention to win back his authority at the sword's point. But it is equitable, on the other hand, to observe that the commons had by no means greater reason to distrust the faith of Charles, than he had to anticipate fresh assaults from them on the power he had inherited, on the form of religion which alone he thought lawful, on the counsellors who had served him most faithfully, and on the nearest of his domestic ties. If the right of self-defence could be urged by parliament for this demand of the militia, must we not admit that a similar plea was equally valid for the king's refusal ? However arbitrary and violent the previous government of Charles may have been, however disputable his sincerity at present, it is vain to deny that he had made the most valuable concessions, and such as had cost him very dear. He had torn away from his diadem what all monarchs would deem its choicest jewel that high attribute of uncontrollable power, by which their flatterers have in all ages told them they resemble and represent the Divinity. He had seen those whose counsels he had best

270

THE NINETEEN PROPOSITIONS.

CHAP. IX.

as

approved rewarded with exile or imprisonment, and had incurred the deep reproach of his own heart by the sacrifice of Strafford. He had just now given a reluctant assent to the extinction of one estate of parliament, by the bill excluding bishops from the house of peers. Even in this business of the militia he would have consented to nominate the persons recommended to him lieutenants, by commissions revocable at his pleasure; or would have passed the bill rendering them irremovable for one year, provided they might receive their orders from himself and the two houses jointly. It was not unreasonable for the king to pause at the critical moment which was to make all future denial nugatory, and inquire whether the prevailing majority designed to leave him what they had not taken away. But he was not long kept in uncertainty upon this score.

§ 12. The nineteen propositions tendered to him at York in the beginning of June, went to abrogate in spirit the whole existing constitution, and were in truth so far beyond what the king could be expected to grant, that terms more intolerable were scarcely proposed to him in his greatest difficulties, not at Uxbridge, nor at Newcastle, nor even at Newport. These famous propositions import that the privy council and officers of state should be approved by parliament, and take such an oath as the two houses should prescribe; that during the intervals of parliament no vacancy in the council should be supplied without the assent of the major part, subject to the future sanction of the two houses; that the education and marriages of the king's children should be under parliamentary control; the votes of popish peers be taken away; the church government and liturgy be reformed as both houses should advise ; the militia and all fortified places put in such hands as parliament should approve; finally, that the king should pass a bill for restraining all peers to be made in future from sitting in parliament, unless they be admitted with the consent of both houses. A few more laudable provisions, such as that the judges should hold their offices during good behaviour, which the king had long since promised, were mixed up with these strange demands. Even had the king complied with such unconstitutional requisitions, there was one behind which, though they had not advanced it on this occasion, was not likely to be forgotten. It had been asserted by the house of commons in their last remonstrance, that, on the right construction of the old coronation oath, the king was bound to assent to all bills which the two houses of parliament should offer.

§ 13. In weighing the merits of this great contest, in judging whether a thoroughly upright and enlightened man would rather have listed under the royal or parliamentary standard, there are two political postulates, the concession of which we may require: one, that civil