[statute, to see that such arms were provided. These weapons were changed by the statute 4 & 5 Phil. & M. c. 2, into others of more modern service; but both this and the former provisions were repealed in the reign of James the first (). While these continued in force it was usual from time to time for our princes to issue commissions of array, and send into every county officers in whom they could confide, to muster and array, (or set in military order,) the inhabitants of every district; and the form of the commission of array was settled in parliament in the fifth year of Henry the fourth, so as to prevent the insertion therein. of any new penal clauses (m). But it was also provided (n), 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 (o), 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 & 5 Ph. & M. c. 3; though they had not been then long in use, for Camden speaks of them (p) in the time of Queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger (q). 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 expedition, 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 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 (r),] but also [seizing into their own hands the entire power of the militia.]

[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 (s): 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 (t) :] the general scheme of which is to discipline, at stated periods, for the internal defence of the country, a certain number of the inhabitants of every

(r) Blackstone, (vol. i. p. 412,) observes on this head, that "the "legality of this prerogative might "perhaps be somewhat doubtful." The statute, however, of 13 Car. 2, c. 6, cited by himself in a former part of his work, shows that the supreme command of all the militia of the realm is and ever was the undoubted right of the sovereign. Vide sup. p. 510.

(s) 13 Car. 2, stat. 1, c. 6; 13 & 14 Car. 2, c. 3; 15 Car. 2, c. 4.

(t) These may be said to be founded upon the General Militia

Act (42 Geo. 3, c. 90), which consolidated the whole of the former statutes upon this subject. The reader is also referred to the following statutes passed to amend the general Militia Act in certain particulars, 51 Geo. 3, c. 118; 15 & 16 Vict. c. 50; 17 & 18 Vict. c. 13, c. 105; 18 & 19 Vict. c. 1, c. 57, c. 100, c. 106, c. 123; 19 & 20 Vict. c. 52, c. 90. See also 20 & 21 Vict. c. 65, to defray the charges of the disembodied militia, &c.; 20 & 21 Vict. c. 82, to authorize the embodying of the militia.

county, enlisted for five years; and officered by the lord lieutenant, the deputy lieutenants, and other persons with a certain qualification in point of property, under a commission from the Crown (u).

The militia of which we here speak is raised, in default of voluntary enlistment, by compulsory levy in the way of ballot, (to which power it has not latterly been found necessary to have recourse) (r): but besides this we are to take into account the corps of yeomanry and volunteers; . a description of force which originated in the menace of French invasion in the reign of King George the third, and which are distinct from the militia. For though now for the most part laid aside, some remnants of it still exist; and the Acts of Parliament passed from time to time for its regulation, remain for the most part unrepealed (x).

The occasions of war, however, require soldiers more completely and permanently disciplined than those of our modern militia or volunteers; and our military establishment consequently comprises, besides these, a large body of regular forces. Our constitution indeed looks with jea-. lousy upon levies of this description: [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

(u) See 15 & 16 Vict. c. 50. By this Act (s. 8) her Majesty is empowered, by advice of her privy council, to raise and keep up 80,000 privates of militia; which, in case of invasion (or of imminent danger thereof) may be raised to 120,000. See Order in Council, dated 30th June, 1852.

(v) See 10 Geo. 4, c. 10; 18 & 19 Vict. c. 106; 19 & 20 Vict. c. 52;

20 & 21 Vict. c. 21, to suspend the making of the lists and the ballots for the militia.

(x) See 43 Geo. 3, cc. 96, 120, 121; 44 Geo. 3, cc. 54, 94; 46 Geo. 3, c. 125; 53 Geo. 3, c. 81; 56 Geo. 3, c. 39; 57 Geo. 3, c. 44; 7 Geo. 4, c. 58.

(y) Stat. 1 W. & M. st. 2, c. 2. Vide sup. p. 479.

Q Q. 2.

[consent of parliament, is against law. But, as the fashion of keeping standing armies, (which was first introduced by Charles the seventh in France, A.D. 1445 (z),) has of late years universally prevailed over Europe; it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possession of the realm, 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.] An annual Act of Parliament, therefore, constantly passes, (whether in peace or war,) authorizing the maintenance of the regular forces deemed necessary for the service of the state (a); [who are, however, ipso facto disbanded at the expiration of every year, unless continued by parliament (b).]

By this annual statute (c) (called the Mutiny Act) provision is also made for the manner in which the troops are to be enlisted and billeted or [dispersed among the several innkeepers and victuallers throughout the kingdom]; and regulations are besides laid down for the government of the army. By these the sovereign is empowered to make Articles of War, which shall be judicially taken notice of by all judges, and in all courts whatsoever; and to erect or grant authority to convene courts martial, with a jurisdiction to try and punish offences according to such articles of war, and the provisions of the Act (d). In order, how

(z) Robertson, Cha. V. i. 94.

(a) By 18 & 19 Vict. c. 2, her majesty was enabled, during the continuance of the then existing war against Russia, to enlist foreigners, as officers and soldiers in her army.

(b) As to the limitation of the time of service in the army, see 10 & 11 Vict. c. 37; 12 & 13 Vict. c. 73; and 18 & 19 Vict. c. 4.

(c) The first Act of this description was in the reign of William and Mary, April, 1689. (MacArthur on Courts Martial, vol. i. p. 40.) The

present Act is 20 Vict. c. 13. See also 3 & 4 Vict. c. 37, as to the Indian navy; and 20 & 21 Vict. c. 66, as to the Indian army.

(d) On some occasions the Crown directs a Court of Inquiry to be held, the object of which is to ascertain the propriety of resorting to ulterior proceedings against the party charged. See the remarks on this subject in Coleridge's Blackstone, vol. i. p. 418, note; Home v. Lord Bentinck, 2 Brod. & Bing. 130.

ever, to limit, as far as possible, the possible, the power conceded to the crown in this matter, it is enacted that nothing therein contained shall be construed to exempt any officer or soldier from being proceeded against by the ordinary course of law; and that where he is accused of any offence against a subject of the realm, punishable by the known laws of the land, he shall be delivered over to the civil magistrate and moreover that no person shall, by such Articles of War, be subjected to any punishment of transportation, or any punishment extending to life or limb, for any crime which is not expressed to be so punishable by the act itself; nor shall be punished in any manner, or under any regulations, which shall not accord with its provisions. And the act itself accordingly fixes the general nature of the punishments to be inflicted, and makes provision as to certain specific offences, as follows, viz., that if any officer or soldier shall excite or join in any mutiny, or knowing of it shall not use his utmost endeavours to suppress it, and give information of it to his commanding officer; or shall hold correspondence with any rebel or enemy of her Majesty, or treat or enter into terms with such rebel or enemy without proper licence; or shall misbehave himself before the enemy; or shamefully abandon or deliver up his post, or induce or compel its commanding officer to do so; or be found sleeping on his post, or shall leave it before he is relieved; or hold correspondence with a rebel or enemy; or strike or use violence to his superior officer, being in the execution of his office; or shall disobey his lawful commands; or desert her Majesty's service (e); or being in confinement in a military prison shall offer any violence against a visitor or officer in the execution of his office;such offender shall suffer death, or such other punishment as a court-martial shall award.

The system of military law thus devised for the army

(e) Blackstone remarks, that by some old statutes, 18 Hen. 6, c. 19, and 2 & 3 Edw. 6, c. 2, desertion in

time of war was also made a capital felony.