From “Commentaries on the Law of England.”

IN a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear; but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should 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 because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war; and it was not till the reign of Henry VII. that the kings of England had so much as a guard about their persons.

  In the time of our Saxon ancestors, as appears from Edward the Confessor’s laws, the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being “sapientes, fideles, et animosi.” Their duty was to lead and regulate the English armies, with a very unlimited power; “prout eis visum fuerit, ad honorem coronæ et utilitatem regni.” And because of this great power they were elected by the people in their full assembly, or folkmote, in the manner as sheriffs were elected; following still that old fundamental maxim of the Saxon constitution, that where any officer was intrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves. So, too, among the ancient Germans, the ancestors of our Saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil state. The dukes were elective, the kings hereditary; for so only can be consistently understood that passage of Tacitus, “reges ex nobilitate, duces ex virtute sumunt”; in constituting their kings, the family or blood royal was regarded; in choosing their dukes or leaders, warlike merit; just as Cæsar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defense, they elected leaders to command them. This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown; and accordingly we find ill use made of it by Edric, duke of Mercia, in the reign of King Edmund Ironside, who, by his office of duke or heretoch, was entitled to a large command in the king’s army, and by his repeated treacheries at last transferred the crown to Canute the Dane.

  It seems universally agreed by all historians, that King Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers; but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power; which enabled Duke Harold on the death of Edward the Confessor, though a stranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of Edgar Atheling the rightful heir.

  Upon the Norman Conquest the feudal law was introduced here in all its rigor, the whole of which is built on a military plan. I shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our “Commentaries”; but shall only observe that, in consequence thereof, all the lands in the kingdom were divided into what were called knights’ fees, in number above sixty thousand (1); and for every knight’s fee a knight or soldier, miles, was bound to attend the king in his wars, for forty days in a year (2); in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious. By this means the king had, without any expense, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the Conqueror, which in the king’s name commands and firmly enjoins the personal attendance of all knights and others; “quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent feodis et tenementis suis de jure nobis facere.” This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feudal system was abolished at the Restoration….

  As the fashion of keeping standing armies, which was first introduced by Charles VII. in France, 1445 A.D., has of late years universally prevailed 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 defense 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 W. 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.

  To prevent the executive power from being able to oppress, says Baron Montesquieu, 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 modeled 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 be wholly 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 of the army and their quarters.” This regulates the manner in which they are to be dispersed among the several innkeepers and victualers 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 rigor would not, one should hope, be productive of much inconvenience. And upon this principle, though by our standing laws (still remaining in force, though not attended to), desertion in time of war is made felony, without benefit of clergy, and the offense 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 tranquillity. 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 offenses, has almost an absolute legislative power. “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 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 constitution, the nobility and the 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 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 free men! for Sir Edward Coke will inform us 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 the 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, 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 despotic 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.